UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


DIGEST 


OF    THE 


LAW  OF  INSURANCE: 


BEING  AN  ANALYSIS  OF 


FIRE,  MARINE,  LIFE  AND  ACCIDENT  INSURANCE  CASES, 


ADJUDICATED  IN  THE  COURTS  OP  ENGLAND,  IRELAND,  SCOTLAND,  THE  UNITED  STATES 

OF  AMERICA  AND  CANADA,  COMMENCING  WITH  THE  EARLIEST  REPORTED 

ADJUDICATIONS  AND  CONTINUED  TO  THE  PRESENT  TIME. 


BY 


OLIVER    B.    SANSUM, 

COUNSELOR   AT   LAW,    CHICAGO,    ILL. 

(Late  of  the  Island  of  Barbados,  British  West  Indies.) 


CHICAGO  : 
CALLAGHAN  AND    COMPANY, 


LAW  PUBLISHERS. 
1881. 


En*«rednccording  to  Act  of  Congress  in  the  year  one  thousand  eight  hundred  and  seventy-Bix,  by 

OLIVER    B.    SANSUM, 

In  the  office  of  the  Librarian  of  Congress  at  Washington,  D.  C. 


STATE  JOURNAL  rRIXTING  CO^IPANY, 

PrINTEHS    and    STEREOTVPEaS, 
MADISON,  WIS. 


/ 


/; 


PEEFAC.E. 


The  following  pages  contain  an  analysis  of  cases  adjudicated  in  Great  Britain, 
the  United  States  and  Canada,  upon  contracts  of  insurance. 

The  questions  adjudged  in  each  case  have  been  separated  —  the  thing  adjudged 
placed  among  things  of  the  same  class. 

I  recognize  the  fact  that,  classification  or  arrangement,  must  ever  remain  one 
of  the  most  important  requisites  of  a  digest.  This  part  of  the  work  has  received 
my  careful  attention. 

In  determining  the  place  for  the  question,  its  general  name  or  root,  the  judg- 
ment given  and  the  thing  carried  up  for  special  examination,  have  been  kept 
steadily  in  view,  in  the  order  mentioned.  To  illustrate:  If  the  question  came 
up  on  a  motion  to  arrest  the  judgment,  founded  upon  the  plaintiff's  insufiicient 
declaration,  and  the  court  arrested  it,  the  question  properly  belongs  to 
"  Pleading,"  (the  root).  "  What  is  not  sufficient,"  (the  foundation  of  the  judg- 
ment). "  Of  declaration,  complaint,  bill  or  petition,"  (the  declaration  being  the 
thing  carried  up  for  special  examination).  Or,  if  a  loss  occurred  before  delivery 
of  the  policy,  followed  by  a  refusal  to  recognize  the  claim,  on  the  ground  that 
there  was  no  contract  to  insure,  —  but  the  court  adjudged  that  there  was  a  com- 
pleted contract,  —  the  question  is  placed  under  "  Contract,'''  (the  root,)  "  Complete," 
(the  foundation  of  the  judgment,)  for  the  thing  adjudged  is,  whether  there  was  a 
completed  contract,  between  the  parties,  at  the  time  the  loss  happened. 

A  great  many  of  the  titles  are,  of  themselves,  suggestive,  alike,  to  the  profes- 
sional and  non-professional  reader.  "  Non-occupancy,"  "  Keeping  and  Storing," 
"  Repugnant  Stipulations,"  "  Theft  and  Robbery,"  "  Wife's  Policy,"  etc.  —  these 
suggest  the  questions  placed  under  them. 

In  almost  all  cases,  the  facts,  upon  which  the  question  was  raised,  have  been 
stated,  —  an  advantage  to  judges  and  lawyers  who  are  far  from  large  libraries. 
It  also  enables  the  working  lawyer  to  determine,  at  a  glance,  whether  the  case 
adjudged  will  support  that  which  is  to  be  adjudged;  and,  in  not  a  few  instances^ 
the  reasons  of  the  court  are  set  forth. 


dv  PREFACE. 

I  have  attempted  to  present  the  whole  of  each  thing  adjudged,  separated  from 
others,  putting  each  where  it  can  be,  as  I  believe,  most  readily  found. 

My  hope  is  that  the  work  will,  in  no  small  degree,  lessen  the  labors  of  my 
professional  brethren  and  cast  additional  light  along  the  way  of  that  respectable 
and  responsible  class,  to  whom  is  confided  "  the  business  of  insurance," —  the 
hand-maid  of  commerce. 

THE  AUTHOR. 


TABLE   OF  CASES. 


A. 


Abbott  0.  Broome,  1  Caines,  293,    26, 1256, 1436 

V.  Hampden  Mutual  Fire  Ins.  Co.,  30  Me., 

414,  98 

V.  Howard,  Hayes,  381,  1309 

V.  Sebor,  3  Johns.  C,  39,  25, 1099 

t.  Shawmut  Mutual  Fire  Ins.  Co.,  3  Al- 
len, 213,  130,  1089,  1383 
Abel  «.  Potts,  3  Esp.,  242,  482 
Abitbol  u.  Bristow,  6  Taunt.,.404;  2  Marsli., 
157,  114 
Acer  V.  Merchants  Ins.  Co.,  57  Barb.,  68, 

38,  865 

Acey  D.  Fernie,  7  Mee.  &  W.,  151,  944 

Adam  v.  Murray,  Faculty  Dec.  1801  to  1807, 

p.  360,  2.55,  1444 

Adams  v.  Delaware  Ins.  Co.,  3  Binn.,  387, 

10 

».  Mackenzie,  13  C.B.(]Sr.  S.),  443;  9  Jur. 

(N.  S.),  849;  32  L.  J.  C.  P.,  92;  11  W. 
R.,  343;  7  L.  T.  (N.  S.),  711,  1498 

o.  Pennsylvania  Ins.  Co.,  1  Rawle,  97, 

,  580 

V.  Pittsburg  Ins.  Co.,  76  Penn.  St.,  411, 

1086 

V.  Rockingham  Mutual  Fire  Ins.  Co.,  29 

Me.,  293,  98 

s.  Sanders,  4  C.  &  P.,  25;  3  Moo.  &  M., 

373,  88, 898 

V.  Warren  Ins.  Co.,  22  Pick.,  163, 

259,  396,  587 

Adamson  d.  Scottish  Provincial  Ins.  Co.,  6  C. 

C.  S.  (3d  ser.),  442;  40  Scot.  Jur.,  217, 

380 

Adderly  tj.  American  Mut.  Ins.  Co.,  Tan.  C.  C, 

126,  1264 

Addison  v.  Duguid,  Faculty  Dec.  1792  to  1796, 

p.  83 ;  id.,  1796  to  1801,  p.  64,        1461 

V.  Kentucky  Ins.  Co.,  7  B.  Mon.,  470, 

671 

jEtna  Fire  Ins.  Co.  v.  Tyler,  16  Wend.,  385 ;  12 

id..  507,  387.  713.  863. 1132 


^tna  Ins.  Co.  v.  Burns,  5  Ins.  L.  J.,  69, 

494,  827 

V.  Grube,  6  Minn.,  82,  133,  1481 

V.  Harvey,  11  Wis.,  .394,  1317 

V.  Maguire,  51  111.,  343,    83,  93,  1073,  132a 

■».  Miers,  5  Sneed,  139,  694 

V.  Phelps,  37  111.,  71,  745,  957 

i>.  Stevens,  48  111.,  31,  141,  1140 

J).  Stivers,  47  III.,  86,  1030' 

.iEtna  Life  Ins.  Co.  ».  France,  5  Ins.  L.  J.,  257 ; 

8  Chi.  Leg.  News,  202,  790,  1291 

.lEtna  Live   Stock   Ins.   Co.  r.  Olmstead,  21 

Mich.,  246,  473 

African  Merchants,  Company  of,  v.  British  and 

and  Foreign  M.  Ins.  Co.,  8  L.  R.  E.K., 

154;  43  L.  J.  Ex.,  60;  31  W.  R.,  484, 

418 
Aguilar  v.  Rodgers,  7  Term,  431,  1330 

Ahearne  v.  Harney,  3  Irish  Eq.,  479,  1281 

Ainsworth  v.  Backus,  5  Hun.  (N.  Y.),  414, 
Akin  V.  Mississippi  Marine  and  Fire  Ins.  Co., 

16  Martin  (La.),  661,  430,  1473 

Albany  City  Fire  Ins.  Co.  v.  Keating,  46  111., 

394,  977,  1225 

Albert  Average  Ass'n  Co.,  In  re,  Blyth's  Case, 

13  L.  R.  Eq.,  529,  BIO 

Alchorne  ■».  Saville,  4  L.  J.  Chan.,  47;  6  Moore, 

202,  n.,  5(> 

Alcock  V.  Royal  Exchange  Ass.  Co.,  13  Q.  B., 

292,  486,  1151 

Alderman  v.  West  of  Scotland  Ins.  Co.,  5  U. 

C,  37,  115 

Aldrich  ».  Equitable  Safety  Ins.  Co.,  1  W.  <& 

M.,  272,  70,  180,  1283 

Aldridge  v.  Bell,  1  Starkie,  498,  23 

Alexander  v.  Baltimore  Ins.  Co.,  4  Cranch, 

370,  1039 
V.  Campbell,  41  L.  J.  Ch.,  478;  27  L.  T. 

(N.  S.),  417,  136,  183 
■!].  Germania  Fire  Ins.  Co.,  2  Hun.  (N.  T.), 

655;  5  N.  Y.  S.  C,  208;  13  Alb.  L.  J., 

247,  460 
V.  Muirhead,  2  Dessaus.  Eq.,  162,         277 


VI 


TABLE  OF  CASES. 


Alexandre  «.  Sun  Mut.  Ins.  Co.,  .'51  N.  Y.,  2.53, 

281 
Allan  V.  Smith,  2  C.  C.  S.,  309 ;  1  id.,  34,  1505 
».  Young,  Faculty  Dec.  1801  to  1807,  p. 

248,  239 

Allegheny  Ins.  Co.  v.  Ransom,  G9  Penn.  St., 

496,  55 

Allegre  ■».  Maryland  Ins.  Co.,  6  H.  &  J.,  408; 

2G.  &J.,  136,     58,135,536,682,1115 

V.  Maryland  Ins.  Co.,  2  G.  &  J.,  136, 

1240 

V.  Maryland  Ins.  Co.,  8  id,,  190,  286 

Allen  V.  Charlestown  Mutual  Fire  Ins.  Co.,  5 

Gray,  384,  1201,  1379 

V.  Commercial  Ins.  Co,  1  Gray,  154,     1422 

V.  Franklin  Fire  Ins.  Co.,  9  How.  Pr.,  501, 

103 

V.  Hudson  River  Ins.  Co.,  19  Barb.,  442, 

36 

V.  Hynd,  8  S.  &  D.,  612,  1291 

V.  Massasoit  Ins.  Co.,  99  Mass.,  160,     656 

. V.  Mercantile  Mut.  Ins.  Co.,  44  N.  Y.,  437 ; 

46  Barb.,  642,  578 

V.  Morrison,  3  M.  &  R.,  70  1314 

. V.  Mutual  Fire  Ins.  Co.,  2  Md.,  Ill, 

664,  693 
V.  Sugrue,  8  B.  &  C,  561 ;  7  L.  J.  K.  B., 

53,  1418 
V.  Vermont  Mutual  Fire  Ins.  Co.,  12  Vt., 

366,  462 

Alliance  Marine  Ass.  Co.  v.  Louisiana  State 

Ins.  Co.,  8  La.  (O.  S.),  1,  566 

Allison  V.  Bristol  Marine  Ins.  Co.,  9  L.  R.  C.  P., 

559;  43  L.  J.  C.  P.,  311 ;  21  W.  R.,  734; 

30  L.  T.  (N.  S.),  377 ;  42  L.  J.  C.  P.,  334 ; 

601 

. v.  Corn  Exchange  Ins.  Co.,  57  N.  Y.,  87, 

299 
Alsop  «.  Coit,  13  Mass.,  40,  54 

e.  Commercial  Ins.  Co.,  1  Sumn.,  451 

815,  1461 
American  Horse  Ins.  Co.  v.  Patterson,  28Ind., 

17,  328,  963 
Alston  V.  Campbell,  4  Bro.  P.  C,  476,  714 
11.  Meclianics  Mut.  Ins.  Co.,  4  Hill,  329; 

1  id.,  510,  489 

American  Central  Ins.  Co.  v.  McLanathan,  11 

Kan.,  533,  403,  473,  1035 

American  Ins.  Co.  v.  Bryan,  26  Wend.,  563 ;  1 

Hill,  25,  195,  1369 

. s.  Dunliam,  12  Wend.,  463;   15  id.,  9;  2 

Hall,  455,  195 

V.  Fraucia,  9  Penn.  St.,  390,     12,  400,  428, 

787,  1438,  1482 

V.  Gallagher,  5  Ins.  L.  J.,  300,  100 

V.  Gilbert.  27  Mich.,  429,  568 


American  Ins.  Co  v.  Griswold,  14  Wend.,  399, 

391,  450 

V.  Insley,  7  Penn.  St.,  233,    54,  68, 

1153, 1157 

V.  Ogden,  15  Wend.,  533,  6,  1364 

V.  Ogden,  20  Wend.,  287,  842,  1265 

V.  Padfield,  8  Chi.  Leg.  News,  138,      82C 

V.  Schmidt.  19  Iowa,  503,  1053 

American  Life  Ins.  Co.  v.  Rosenagle,  77  Penn. 

St.,  507,  400,  520,  521,  539 

American  Life  &  Healtli  Ins.  Co.  v.  Robert- 

shaw,  36  Penn.  St.,  189,  685 

Ames  V.  New  York  Union  Ins.  Co.,  14  N.  Y., 

353,  457,  761,  1210 

Araesbury  ».  Bowditch  Fire  Ins.  Co.,  6  Gray, 

596,  765 

Amicable  Society  v.  Balland,  4  Bli.  N.  R.,194; 

3  Dow  &  C,  1,  393 

Anchor  Ass.  Co.  In  re,  5  L.  R.  Ch.,  633,       84X 
Anchor  Life  Ins.  Co.  i).  Pease,  44  How.  Pr., 

385,  1085 

Anderson  v.  Dowling,  11  Irish  Eq.  R.,  590, 

743 
V.  Fitzgerald,  4  H.  L.  Cas.,  484;  17  Jur., 

995;  3  Ir.  C.  L.  R.,  475;  1  id.,  351, 

1398 

V.  Forth  Mut.  Ins.  Co.,  7  C.  C.  S.,  368;  17 

Scot.  Jur.,  133, 

V.  Morice,  10  L.  R.  C.  P.,  58,  609, 

705,  1347 

V.  Pacific  Fire  &  Marine  Ins.  Co.,  7  L.  R. 

C.  P.,  65 ;  30  W.  R„  280 ;  26  L.  T.  (N. 

S.),  130,  1520 
B.  Pacific  Fire  &  Marine  Ins.  Co.,  21  L. 

T.  (N.  S.),  408, 

D.  Pitcher,  2  B.  &  P.,  164;  3  Esp.,  124, 

371,  1393 
V.  Royal  Exchange  Ass.  Co.,  7  East,  35;  3 

Smith,  48,  32 

V.  Thornton,  8  Exch.,  435,  793,  903 

-^-».  Wallis,  3  Man.  &  Sel.,  340;  3  Camp., 

440,  1429 

Andes  Ins.  Co.  v.  Shipman,  77  III.,  189, 

288,  468,  533 
Andree  v.  Fletcher,  2  Term,  161 ;  3  id.,  266, 

1181 
Andrews  e.  Ellison,  6  Moore,  199, 
V.  Essex  Fire  &  Marine  Ins.  Co.,  8  Mason, 

6,  634,  1180 

V.  Marine  Ins.  Co.,  9  Johns,  33,  351 

».  Mellish,  5  Taunt.,  496,  433 

V.  Ocean  Ins.  Co.,  10  Rob.  (La.),  333, 

1029 

V.  Union  Mutual  Fire  Ins.  Co.,  37  Me., 

356,  285 

Angell  V.  Hartford  Fire  Ins.  Co.,  59  N.  Y.,  171, 

883 


TABLE  OF  CASES. 


Vll 


Augeh-odt  v.  Delaware  Ins.  Co.,  31  Mo.,  593, 

93 

Annapolis  Eailroad  v.  Baltimore  Fire  Ins.  Co., 

33  Md.,  37,  1005 

Amien  v.  Woodman,  3  Taunt.,  299,  1233 

Anon,  1  Jolins.  313,  381 

1  Johns.,  315,  719 

1  Ld.  Raymond,  480,  719 

Skin.,  337,  70 

Skin.,  404,  1527 

Anson  v.  Winnesheik  Ins.  Co.,  33  Iowa,  84, 

471 
Anthony  v.  ^taa,  Ins.  Co.,  1  Abb.  Cir.  C,  343, 

1013 

1>.  Moliue,  5  Taunt.,  711,  1051 

Appleby  v.  Astor  Fire  Ins.  Co.,  54  N.  Y.,  253, 

655,  1455 

V.  Fireman's  Fund  Ins.  Co.,  45  Barb.,  454, 

655 
Appleton  'Mutual  Fire  Ins.  Co.  v.  Jesser,  5  Al- 
len, 446,  154 
Aranzamendi  v.  Louisiana  Ins.  Co.,  3  La.  (O. 
S.),  433,                                            1510 
Arcangelo  v.  Thompson,  2  Camp.,  620, 

118,  1527 

Archer  v.  Merchants  &   Manufacturers   Ins. 

Co.,  43  Mo.,  434,  162,  1215 

Archibald  v.  Laird,  Faculty  Dec.  1787  to  1792, 

p.  295 ;  id.  1792  to  1796,  p.  142,     1489 

• V.  MercanUle  Ins.  Co.,  3  Pick.,  70,      1027 

V.  Mutual  Life  Ins.  Co.,  38  Wis.,  542, 

61,  1533 
Arkansas  Ins.  Co.  v.  Bostick,  27  Ark.,  539 

330 

Annet  v.  Innes,  4  Moore,  150,  437 

Armniyd  v.  Union  Ins.  Co.,  3  Binn.,  394, 

269 

V.  Union  Ins.  Co.,  3  Binn.,  437,  575 

Armstrong  v.  Turquand,  9  Ir.  C.  L.  R.,  32, 

458,  961 
Arnet  v.  Mechanics  Mut.  Ins.  Co.,  23  Wis., 

516,  768, 978 

Arnold  v.  United  Ins.  Co.,  1  Johns.  C,  363, 

811 
Arthur  Average  Ass.,  In  re  Ex  parte  H.argrave, 

10  L.  R.  Ch.,  543,  1446,  1463 

Ashland  Mut.  Ins.  Co.  v.  Housinger,  10  Ohio 

St.,  10,  283 
Ashley  v.  Ashley,  3  Sim.,  149,  167,  183 
V.  Pratt,  16  Mee.  &  W.,  471 ;  1  Exch.,  357 ; 

17  L.  J.  E.\-..  135,  447 

Ashworth  v.  Builders  Mutual  Fire  Ins.  Co., 

112  Mass.,  423,  491,  825 

Aspinwall  v.  Meyer,  2  Saudf.,  180,  1055 

Associated  Firemen's  Ins.  Co.  v.  Assum,  5  Md., 

165,  1486 


Astor  V.  Union  Ins.  Co.,  7  Cow.,  202,  488, 

818,  1061,  1494,  1495 

Athenaeum    Life  Ass.   Soc,  In  re.  Ex  parte 

Prince  of  Wales  Life  Ins.  Co.,  3  De. 

G.  &  J.,  660;  5  Jur.  (N.  S.),  558;  28  L. 

J.  Ch.,  335, 
Atherton  n.  Brown,  14  Mass.,  152,  1515 

».  Phcenix  Ins.  Co.,  109  Mass.,  32,        708 

Atkins  ».  Boylston  Fire  &  Marine  Ins.  Co.,  5 

Alet.,  439,  1371 

Atkinson  i;.  Abbott,  11  East.,  135;  1  Camp., 

535,  631 

V.  Great   Western   Ins.   Co.,  4    Daly,   1, 

395 

V.  Gylby,  21  L.  J.  Ch.,  848,  167 

Atlantic  Fire  Ins.  Co.  v.  Goodall,  39  N.  H.,  182, 

8C8 
Atlantic  Ins.  Co.  v.  Lunar,  1  Sandf  Ch.,  91, 

449,  1469 
V.  Storrow,  1  Edw.  Ch.,  631 ;  5  Paige  Ch., 

285,  1338 

V.  Wrighl.  32  111.,  462,  467,  977,  1117 

Atlantic  Mut.  Ins.  Co.  v.  Bird,  2  Bos.,  195, 

575 

V.  Fitzpatrick,  2  Gray,  279,  154,  1052 

V.  Goodall,  35  N.  H.,  328,  868 

Atlantic  Mutual  Fire  Ins.  Co.  v.  Concklin,  6 

Gray,  73,  1318 

V.  Sanders,  38  N.  H.,  252,  816 

».  Young,  38  N.  H.,  451,  61,  957 

Attorney  General  v.  Cleobury,  4  Exch.,  65 ;  18 

L.  J.  Ex.,  395,  1314 

Atty  V.  Liudo,  4  B.  &  P.,  336,  592 

Atwood  V.  Union  Mutual  Fire  Ins.  Co.,  28  N. 

H.,  334,  390 

Aubert  v.  Gray,  3  B.  &  S.,  163;  9  Jur.  (N.  8.), 

714;  33  L.  J.  Q.  B.,  50;  11  W.  R.,  37; 

7  L.  T.  (N.  S.),  469,  145 

V.  Jacobs,  Wightwick,  118,  1474 

Audenreid  o.  Mercantile  Mut.  Ins.  Co.,  60  N. 

Y.,  482,  417 

Audley  o.  Duff,  2  B.  &  P.,  Ill,  1239 

Audubon  v.  Excelsior  Ins.  Co.,  37  N.  Y.,  216, 

315,  1225 
Augusta  Insurance  and  Banking  Co.  ©.Abbott, 

12  Md.,  348,  259,  439,  563,  119« 

Aurora  Fire  Ins.  Co.  «.  Eddy,  49  111.,  106, 

1519 

V.  Eddy,  55  111.,  213,     467,  506,  1387,  1521 

V.  .lohnson,  46  Ind.,  315, 

207,  224,  544,  744,  776,  797,  964.  1149 
Austin  V.  Drewe,  6  Taunt.,  436;  Holt,  N.  P., 

126;   2  Marsh.,  130;  4  Camp.,  360, 

1030 
Australian  Agricultural  Co.  v.  Saunders,  10  L. 

R.  C.  P.,  668,  871 


VIH 


TABLE  or  CASES. 


Aveson  v.  Kinnaird,  6  East,  188,  516 

Ayer  v.  New  England  Mutual  Life  Ins.  Co., 

109  Mass.,  430,  934 

Ayres  t.  Hartford  Fire  Ins.  Co.,  17  Iowa,  176, 

470,  727,  1087, 1105,  1387 

v.  Hartford  Ins.  Co.,  31  Iowa,  193, 

486,  833,  1384 

v.  Home  Ins.  Co.,  31  Iowa,  185,     471, 486 

Azeria  v.  Insurance  Co.  of  Pennsylvania,  3 

Wash.  C.  C,  177,  540 


B. 


Babbitt  e.  Sun  Mut.  Ins.  Co.,  23  La.  An.,  314, 

15, 1018 
Babcock  n.  Montgomery  County  Mut.  Ins.  Co., 

4  N.  Y.,  326 ;  6  Barb.,  637,  285 

Badger  v.  American  Popular  Life  Ins.  Co.,  103 

Mass.,  344,  372 

■».  Ocean  Ins.  Co.,  33  Pick.,  847,  1433 

Baer  t>.  Phoenix  Ins.  Co.,  4  Bush.,  343,         877 
Bailey  ti.  Mtna.  Ins.  Co.,  10  Allen,  286,         707 

B.  Hope  Ins.  Co.,  56  Me.,  474, 

755,  1133 

"B.  South  Carolina  Ins.  Co.,  2  Brev.,  354, 

1157,  1377 
Bain  v.  Case,  3  C.  &.  P.,  496;  Moo.  &  M.,  263, 

438 

s.  Globe  Ins.  Co.,  9  How.  Pr.,  448, 

1282 
V.  Kippen,  Faculty  Dec.  1781  to  1787,  p. 

196,  1489 

Bainbridge  «.  Keilson,  10  East,  329 ;  1  Camp., 

237,  1429 

Baines  v.  Ewing,  1  L.  R  Ex.,  320;  4   H.  &  C, 

511;  35  L.  J.  Ex.,  194;  14  W.  R.,  782; 

14  L.  T.  (N.  S.),  733,  1087 

V.  Holland,  10  Exch.,  803,  295 

B.  Woodfall,  6  C.  B.  (N.  S.),  657;  38  L.  J. 

C.  P.,  338;  6  Jur.  (N.  S.),  19,  1317 
Baker  v.  Cotter,  45  Me.,  236,  1070 
».  Home  Life  Ins.  Co.,  3  Hun.  (K.  T.),  403 ; 

4  N.  Y.  S.  C,  582,  490,  1294 
«.  Langhorn,  6  Taunt.,  519;  4  Camp.,  396; 

2  Marsh.,  215,  1290 

• t.  Ludlow,  3  Johns.  C,  290,  398 

v.  Manufacturers  Ins.  Co.,  12  Gray,  603, 

849 
B.  Scottish  Sea  Ins.  Co.,  17  C.  C.  S.,  417; 

27  Scot.  Jur.,  178,  969 
v.  Scottish  Sea  Ins.  Co.,  18  C.  C.  S.,  691 ; 

28  Scot.  Jur.,  293,  530 
V.  Towry,  1  Starkie,  436,                      1323 


Baker  v.  Union  Life  Ins.  Co.,  43  N.  Y.  (4  Hand) 

283;  6  Abb.  Pr.  (N.  S.),  144;  37  How. 

Pr.,  12G,  931 

V.  Young,  47  Mo.,  453,  1533 

Bakewell  •».  United  States  Ins.  Co.,  2  Johns.  C, 

246,  1491 

Baldwin  ■».  Chouteau  Ins.  Co.,  56  Mc,  151, 

327 
1.  New  York  Life  Insurance  and  Trust 

Co.,  3  Bos.,  530,  1367 

Ballard  v.  Merchants  Ins.  Co.,  9  La.  (O.  S.), 

258,  563 

Baltimore  Fire  Ins.  Co.  v.  Loney,  20  Md.,  20, 

453,  871,  1011 
Baltimore  Ins.  Co.  «.  M'Fadon,  4  H.  &  J.,  31, 

160.  4-56 

B.  Mc  Gowan,  16  Md.,  47,  708 

•».  Taylor,  3  H.  &  J.,  198,  197,  300 

Bamberger  c.  Commercial  Credit  Mut.  Ass. 

Co.,  15  C.  B.,  676;  1  Jur.  (N.  S.),  500, 

953 
Bank  of  South  Carolina  v.  Bicknell,  1  Cliff., 

85,  1335 

Bank  of  United  States  v.  Deveaux,  5  Cranchs 

61,  743 

Banting  i.  Niagara  District  Mut.  Ins.  Co.,  25 

U.  C.  Q.  B.,  431,  1144 

Barber  -o.  Fleming,  5  L.  R.  Q.  B.,  59;   39  L.  J. 

Q.  B.,  35;  18  W.  R.,  354,  601 

V.  Fletcher,  1  Doug.,  305,  833,  1199 

Barclay  v.  Cousins,  3  East,  544,  1099 

B.  Stirling,  5  Mau.  &  Sel.,  6,  603 

Barelli  v.  Hagan,  13  La.  (O.  S.),  580,  617 

Bargett  v.  Orient  Mut.  Ins.  Co.,  3  Bos.,  385, 

1309,  1503 
Baring  v.  Christie,  5  East,  398,  647 

!).  Clagett,  3  B.  &  P.,  301,  1373 

V.  Royal  Exchange  Ass.  Co.,  5  East,  99, 

814,  1273 

V.  Vaux,  3  Camp.,  541,  680 

Barker  v.  Baltimore  &  Ohio  R.  R.  Co.,.23  Ohio 

St.,  45,  609 

J).  Blakes,  9  East,  383,  33,  633,  809 

V.  Jansou,  3  L.  R.  C.  P.,  303;   37  L.  J.  C. 

P.,  105 ;   17  L.  T.  (N.  S.),  473 ;   16  W. 

R.,  399,  1476 

V.  Marine  Ins.  Co.,  3  Mason,  369,  701 

V.  North  British  Ins.  Co.,  9  S.  &  D.,  869; 

6  id.,  83;  3  Scot.  Jur.,  567,  92S 

V.  Phoenix  Ins.  Co.,  8  Johns.,  307, 

3,  388,  807,  1119 
Barlow  v.  Leckie,  4  Moore,  8,  980 

V.  Mcintosh,  12  Ihist,  311,  648 

B.  Ocean  Ins.  Co.,  4  Met.,  270,         88.  272 

Barnes  v.  Piedmont  &  Arlington  Life  Ins.  Co., 

5  Ins.  L.  J.,  141,  346 


TABLE  OF  CASES. 


IX 


Barnes  v.  Union  Mutual  Fire  Ins.  Co.,  4.5  N. 

H.,  21,  61,  157,  832 

V.  Union  Mutual  Fire  Ins.  Co.,  51  Mc,  110, 

1246,  1486 
Barnewall  v.  Church,  1  Caines,  317, 

1013,  1243 

Barney  v.  Maryland  Ins.  Co.,  5  H.  &  J.,  139, 

10.  12,  113,  223 

Barre  Boot  Co.  v.  Milford  Mutual  Fire  Ins. 

Co.,  7  Allen,  43,  663 

Barrett  v.  Jermy,  3  Exch.,  535 ;  18  L.  J.  Ex.,  215, 

967 

V.  Union  Ins.  Co.,  7  Cush.,  175, 

60,  854,  1176 

Barron  v.  Fitzgerald,  9  L.  J.  (N.  S.)  C.  P.,  153 ; 

6  Bing.  (N.  C),  301 ;  4  Jur.,  88,      485 
Barrow  v.  Bell,  4  B.  &  C,  736;  7  D.  &  R.,  344; 

1324 
Barry  v.  Equitable  Life  Ass.  Soc,  59  N.  T., 

587;  14  Abb.  Pr.  (N.  S.),  385,  n, 

1534 

«.  Louisiana  Ins.  Co.,  11  Martin  (La.),  630, 

194,  487 

V.  Mutual  Life  Ins.  Co.,  49  How.  Pr.,  504, 

1534 
Barteau  v.  Phoenix  Mutual  Life  Ins.  Co.,  1 

Hun.  (N.  T.),  430;  3  N.  Y.  S.  C,  576, 

1294 
Bartholomew  v.  Merchants  Ins.  Co.,  25  Iowa, 

507,  471, 477 

Bartlet  v.  Walter,  13  Mass.,  267,  691 

Bartlett  v.  Pentland,  10  B.  &  C,  760;   8  L.  J. 

K.  B.,  264,  897 
v.  Union  Mutual  Fire  Ins.  Co.,  46  Me., 

500,  766,  1114 

Barton  a;.  Anthony,  1  Wash.  C.  C,  317, 

1164 

i).  Home  Ins.  Co.,  42  Mo.,  156,  730 

Barzillai  ».  Lewis,  3  Doug.,  12G,  817,  1272 

Basch  V.  Humboldt  Mutual  Fire  Ins.  Co.,  35 

N.  J.,  429,  901,1115,1136 

Bashford  v.  Cauu,  33  Beav.,  109,  1351 

Batchelor  v.  Albany  City  Ins.  Co.,  6  Abb.  Pr. 

(N.  S,),  240;  1  Sweeney,  346;  37  How. 

Pr.,  399,  1163 

V.  People's  Fire  Ins.  Co.,  40  Coun.,  56, 

300 

Bates  V.  Commercial  Ins.  Co.,  1  Cin.  Sup.  Ct,, 
523,  873,  1386 

».  Commercial  Ins.  Co.,  2  Cin.  Sup.  Ct., 

195,  1390 

V.  Equitable  Ins.  Co.,  IQ  Wall.,  33,       706 

V.  Grabham,  Holt  K.  B.,  469 ;  2  Salk.,  444, 

1174 

Bates  p.  Hewitt,  4  F.  &  F.,  1033;  3  L.  R.  Q.  B., 
595;  15  W.  R.,  1173;  36  L.  J.  Q.  B., 
283,  263, 483 


Batre    v.  Louisiana  Ins.  Co.,  13  La.  (O.  S.),  577, 

334 
Battaile  «.  Merchants  Ins.  Co.,  3  Rob.  (La.), 

384,  371, 857 

Battles  V.  York  County  Mutual  Fire  Ins.  Co^ 

41  Me.,  208,  670,  801 

Baubie  v.  Mtaa,  Ins.   Co.,  2  Dil.  Cir.  Ct.,  150, 

1067 
Bauduy  v.  Union  Ins.  Co.,  2  Wash.  C.  C,  391, 

994 
Baxendaleo.  Harding,  4  H.  &  N.,  445;  28  L. 

J.  Ex.,  236,  653 

Baxter  v.  Chelsea  Mutual  Fire  Ins.  Co.,  1  Al- 
len, 294,  1085 

V.  Massasoit  Ins.  Co.,  13  Allen,  320, 

914 

V.  New  England    Ins.  Co.,  3  Mason,  96, 

1240 
Bayard  v.  Massachusetts  Fire  and  Marine  Ins. 

Co.,  4  Mason,  256,  810 

Bay  State  Mutual  Fire  Ins.  Co.  «.  Sawyer,  13 

Cush.,  64,  1055 

Bayles  v.  Hillsborough  Ins.  Co.,  27  N.  J.,  163, 

77 
Bayley  v.  Onondaga  County  Mutual  Ins.  Co., 

6  Hill,  476,  862 

Bazett  V.  Meyer,  5  Taunt,  824,  630 

Beacon   Fire    and  Life  Ins.  Co.  v.  Gibb,  1 

Moore  P.  C.  C.  (N.  S.),  73 ;  9  Jur.  (K. 

S.),  185;  7  L.  T.  (N.  S.),  574;  11  W.  R., 

194,  740 

Beadle  v.  Chenango  County  Mutual  Ins.  Co., 

3  Hill,  101,  933 

Beal  V.  Park  Fire  Ins.  Co.,  16  Wis.,  341,      460 
Beale  v.  Pettet,  1  Wash.  C.  C,  341,  1004 

Bealsti.  Home  Ins.   Co.,  36  N.   Y.,  532;    3S 

Barb.,  614,  1159 

Bean  v.  Atlantic  and  St.  Lawrence  R.  R.  Co., 

58  Me.,  82,  1344 

V.  Stupart,  1  Doug.,  11,  1243 

Beams  v.  Columbian  Ins.  Co.,  48  Barb.,  44.i, 

435,  1100 
Beaston  v.  Hawarth,  C  Term,  532,  4U 

Bealty  v.  Lycoming  County  Ins.  Co.,  53  Penu., 

St.,  456,  501 
V.  Lycoming  County  Mutual  Ins.  Co.,  06 

Penn.  St.,  9,  834, 1131 

Bobee  V.  Hartford  Mutual  Ins.  Co.,  25  Conn., 

51,  353,  1080 

Beck  V.  Germania  Ins.   Co.,  33  La.  An.,  510, 

557 
Beckett  v.  West  of  England  Marine  Ins.  Co., 

25  L.  T.  (N.  S.),  739,  185 

Beckwith  v.  Bullon,  8  El.  &  Bl.,  683;  4  Jur. 

(N.  S.),  558;  27  L.  J.  Q.  B.,  62,      1291 
V.  Sydebotham,  1  Camp.,  110,       253, 534 


TABLE  OF  CASES. 


Bedell  v.  Commercial  Mut.  Ins.  Co.,  3  Bos., 

147.  Oil 

Bedford   Commercial   Ins.   Co.  v.    Parker,  3 

Pick.,  1,  608,  OIG 

Beemer  «.  Anchor  Ins.  Co.,  16  U.  C.  Q.  B.,  485, 

79 

• V.  Ahearne,  13  Irish  Eq.,  376,  1354 

11.  Ansley,  16  East,  141,  115 

V.  Bell,  2  Camp.,  475,  253,  989 

V.  Beveridge,     4    Dall.,    373;     1    Binn, 

53  n,  3 

•».  Broomfield,  15  East,  364,  633 

».  Carstairs,  14  East,  374;  3  Camp.,  543, 

518,  814 

■».  Columbian  Ins.  Co.,  3  Johns.,  98, 

376,  618 

V.  Firemen  Ins.  Co.,  3  Rob.  (La.),  433, 

101 

• «. Fireman's  Ins.  Co.,  5  Rob.  (La),  446, 

563,  499,  1017 

V.  Gilson,  1  B.  &  P.,  345,  630 

V.  Hobson,  3  Camp.,  373;  16  East,  340, 

3:0 

• V.  Humphries,  3  Starkie,  345,  718, 

1095 

-0.  Jansen,  1  Mau.  &  Sel.,  301,  115 

v.  Marine  Ins.  Co.,  8  S.  &  R.,  98,         356, 

1203 

V.  Nixon,  Holt  N.  P.,  423,  13 

V.  Reid,  1  Mau.  &  Sel.,  736,  814 

V.  Western  Marine   and   Fire  Ins.  Co.  3 

Rob.  (La.),  438,  101 

8.  Western  Marine  and  Fire  Ins.  Co.,  5 

Rob.  (La.),  433,  499,  563,  1017 

Bellatty  v.  Thomaston  Ins.  Co.,  61  Me.,  414, 

801 

Belleville  Mut.  Ins.  Co.  11.  Van  Winkle,  13  N. 

J.  Eq.,  333,  345 

Benedict  v.  Ocean  Ins.  Co.,  31  JST.  Y.,  389;  1 

Daly,  8,  863 

Benham  n.  LTnited  Guarantee  &  L.  Ass.  Co.,  7 

E.xch.,  744;  16Jur.,  691;  21  L.  J.,  317, 

1526 

Benjameu  w.  Saratoga  Countj^  Mutual  Ins.  Co., 

17  N.  Y.,  415,  862,  1336 

Beuner  v.  Equitable  Safety  lus.  Co.,  6  Allen, 

223,  1341 

Bennetts.  City  lus.  Co.,  115  Mass.,  341, 

1169 

Benson  ».  Chapman,  3  H.  L.  Cas.,  696;  5  C. 

B.,330;  8  id.,  950;  6  M.  &  G.,  792, 

24,  581, 1313,  1443 
Bentaloe  v.  Pratt,  Wall.  C.  C,  58,  1468 

Bentley  b.  Columbia  Ins.  Co.,  17  N.  Y.,  421 ; 

19  Barb.,  595,  1084 

Berens  v.  Rucker,  1  W.  Bl.,  313,  330 


Bcrgson  v.  Builders  Ins.  Co.,  38  Cal.,  541, 

162,  166,  941 
Berkshire  Mut.  Ins.  Co.  v.  Sturgis,  13  Gray, 
177,  1394 

Bermon  v.  Woodbridge,  3  Doug.,  781, 

1233 
Bernard!  ■».  Motteux,  3   Dong.,   575, 

1279 
Bersch  v.  Sinnissippi  Ins.  Co.,  38  Ind,  64, 

1053 
Bersche  v.  Globe  Mut.  Ins.  Co.,  31  Mo.,  546, 

1161 

D.  St.  Louis  Mutual  Fire  &  Marine  Ins. 

Co.,  31  Mo.,  555,  674,  1161 

Berthoud  a.  Atlantic  Marine  &  Fire  Ins.  Co., 

13  La.  (O.  S.),  539,  347 

V.  Richmond,  Faculty  Dec,  1801  to  1807, 

p.  144,  381 

Best  t.  New  York  Life   Ins.  Co.,  3  Cin.  Sup. 

Ct.,  339,  ■  1191 

I5ulham  v.   Fernie,  4  Ir.    C.   L.   R.,   92, 

1281 
Bethune  ».  Neilson,  2  Caineg,  139,  896 

Bevan  v.  Bank   of  United  Siates,  4  Wlipjt., 

301,  615 

Bevin  v.  Connecticut  Mutual  Life  Ins.  Co.,  33 

Conn.,  244,  496 

Biays  v.  Chesapeake  Ins.  Co.,  7  Cranch,  415, 

1059,  1501 
Bibend  v.  London  &  Liverpool  Fire  &  Life 

Ins.  Co.,  30  Cal.,  78,  178 

Biccard  11.  Sheppard,  14  Moore  P.  C.  C,  471; 

10  W.  R.,  136 ;  5  L.  T.  (N.  S.),  504, 

1268 
Bicknell  c.  Lancaster  Ins.  Co.,  58  N.  Y.,  077; 

1  N.  Y.  S.  C,  215,  38 

Bidwell  V.  Astor  Mut.  Ins.  Co.,  16  N.  Y.,  363, 

1167 
V.  Northwestern  Ins.  Co.,  19  N.  Y.,  179; 

24  id.,  302,  460 
f.  St.  Louis  Floating  Dock  Ins.  Co.,  40 

Mo.,  42,  349 

Bigelow  V.  Libby,   117   Mass.,  359, 

1321 

Bigler  v.  New  York  Central  Ins.  Ci-.,  30  N.  Y., 

402;  20  Barb.,  635,  853 

Bignold  ».  Audland,  9  L.  J.  (N.  S.)  Ch.,  266, 

721 
Bilbrough  v.  Metropolis  Ins.  Co.,  5  Dner,  587. 

386,  1133 
Billings  V.  Tolland  County  Mut.  Ins.  Co.,  20 

Gouu.,  139,  1458 

Billow  V.  Western  Marine  &  Fire  Ins.  Co.,   1 

La.  An.,  57,  1500 

Bilson  V.  Manufacturers  Ins.  Co.,  7  Am.  L. 

Reg.,  661,  f6,  17J 


TABLE  OF  CASES). 


XI 


Bird  0.  Appleton,  8  Term,  562,      221,  031,  G4C 
Birdsey  t.  City  Fire  Ins.  Co.,  26  Conn.,  lOri, 

lUl 
Birmiugliam  v.  Empire  lus.  Co.,  42  Barb.,  457, 

707,  1324,  1375 

Bishop  i>.  PcuUand,  7  B.  &  C,  21'J;  1  Jl.  &  K. 

49,  11)5 

Bisset  V.  Royal  Excliange  Ass.  Co.,  1  S.  &  D., 

175,  1162 

Bi.xby  V.  Fraiilvlin  lus.   Co.   8  Pick.,  80, 

248 
Bize  V.  Dicliasou,  1  Term,  285,  Viiio 

Blauuwpot  V.  Da  Costa,  1  Eilcu,  130,  1352 

Black  V.  Eulcrprise  Ins.  Co.,  33  Ind.,  223, 

09,  903 
V.  Marine  lus.  Co.,  11  Johns.,  287,        223 

V.  Winneshiek  Ins.  Co.,  31  Wis.,  74, 

764 

Blackbuine ». Thompson,  15 East, 81 ;  3 Camp., 

61.  033 

Blackenhagen  v.  London  Ass.  Co.,  1   Camp., 

454,  413 

Blackett  v.  Koyal  E.xchange  Ass.  Co.,  2  Tyrw., 

206;  1  L.  J.  (N.  S.),  101*;  2  Cromp.  & 

J.,  244,  1453,  1496 

Blackhurst  v.  Cockell,  3  Term,  360,  778 

Blackstone  v.  Allemunia  Fire  lus.  Co.,  56  N. 

Y.,  104;  4  Daly,  299,  1185 

Blaeser  v.  Milwaukee   Mechanics   Mut.  Ins.' 

Co.,  37  Wis.,  31,  150,  1225 

Blagg  V.  Phcenix  Ins.'  Co.,  3  Wash.  C.  C,  5, 

510 
Blagge  V.  New  York  Ins.  Co.,  1  Caines,  549, 

811 
Blake  v.  E.xchange  Mut.  Ins.  Co.,   12  Gray, 

265,         91,824,1000,1113,1210,1491 
Blakeley  v.  Phceni.v  Ins.  Co.,  20  Wis.,  205, 

1142 
Blanchard  v.  Atlantic  Mutual  Fire  lus.  Co., 

33  N.  H.,  9,  77,  936 

V.  Dyer,  21  Me.,  Ill,  77 

B.  Equitable  Safety   lus.  Co.,   12  Allen, 

386,  228 

B.  Waite,  28  Me.,  51,  323,  718 

Blauque  v.  Peytavin,  4  Martin  (La.),  458, 

1271 
Block  V.  Columbian  Ins.  Co.,  42  N.  Y.  (3  Hand), 

393;  3  Rob.,  296,  991 

Blood  V.  Howard  Fire  Ins.  Co.,  12  Cush.,  472, 

288,  1458 
Blossom  V.  Lycoming  Fire  Ins.  Co.,  5  Ins.  L. 

J.,  302,  1120 

Blyth  t).  Shepherd,  9  M.  &  W.,  763;  11  L.J. 

Ex.,  293;  6  Jur.,  489,  979 

Boardman  v.  Merrimac  Mutual  Fire  Ins.  Co., 

8  Cush.,  583,  650 


Boardman  v.  New   Hampshire  Mutual  Fire 

Ins.  Co.,  20  N.  H.,  551  1196,  1206 

Boatmans  Fire  &  Jlarine  lus.  Co.  v.  Parker,  23 

Ohio  St.,  85,  545 

Boatwright  o.  ^ina  Ins.  Co.,  1  Strob.,  281, 

659 
Bobbitt  V.  Liverpool,  Lcmdou  &  Globe  Ins. 

Co.,  06  N.  C,  70,  795,  957 

Bodiue  v.  Exchange  Fire  Ins.  Co.,  51  N.  Y., 

117,  1079 

Bodle  V.  Chenaugo  County  Mut.  Ins.  Co.,  2  N. 

Y.,  53,  737,  1127 

Boehm  v.  Bell,  8  Term  154,  1234 

V.  Combe,  2  Mau.  &  Sel.,  172,  193 

c.  Williamsburg  Ins.  Co.,  35   N.  Y.,  131, 

910 
Boggs  v.  American  Ins.  Co.,  80  Mo.,  63,  265 
Bohlen  i).  Delaw.ue  i.ii.  Co.,  4  Biuu.,    430, 

17 
Bohringer  c.  Empire  Mutual  Life  Ins.  Co.,  2 

N.  v.,  s.  C,  610,  1490 

Boland  o.  Wm  m.ui,  33  Ind.,  04,  1058 

Bold  V.  Roiher.i.u,  8  Q.  B.,  797;  15  L.  J.  Q.  B., 

2U:  10  Jur.,  878,  424 

Bollaud  0   Disney,  3  Russ.,  351,  392 

Boltou  0.  Gladstone,  5  East,  155,  814 

Bond  V.  Brig  "  Cora,"  2  Wash.  C.  C,  80,      425 

V.  Gonsales,  Holt  K.  B.,  409 ;  2  Salk.,  445, 

437 

V.  Insurance  Co.,  9  Phila.,  149,  1532 

V.  Nutt,  Cowper,  001 ;  1  Doug.,' 367,  n., 

1236 
Bondrett  v.  Hentigg,  Holt  N.  P.,  149,  1020 
Bonham  v.  Iowa  Central  Ins.   Co.,  25  Iowa, 

328,  40,  558,  1313 

Bonner  v.  Home  Ins.  Co.,  13  Wis.,  677, 

125, 303,  534,  538,  543 
Boon  V.  ^tna  Ins.  Co.,  40  Conn.,  575 ;  12  Blatch., 

24,  730 

Boos  V.  World  Mutual  Life  Ins.  Co.,  4  Hun. 

(N.  Y.),  133 ;  0  N.  Y.  S.  C,  304,       376 
Boot  &  Shoe  Manufacturers  Ins.  Co.  v.  Mel- 
rose Soc,  117  Mass.,  199,  153 
Booth  V.  Gair,  15  C.  B.  (N.  S.),  291 ;  9  Jur.  (N. 

S.),  1326;  33  L.  J.  C.  P.,  99;  13  W.  K., 

105,  1504 

■!).  Hodgsou,  6  Term,  405,  866 

v.  Wonderly,  35  N.  J.,  250,  1094 

Borden  v.  Hingham  Mutual  Fire  Ins.  Co.,  18 

Pick.,  523,  1464 

Bordes  v.  Hallet,  1  Caines,  444,  615 

Borradaile  v.  Hunter,  5  M.  &  G.,  639 ;  13  L.  J. 

C.  P.,  225 ;  7  Jur.,  443,  1859 

Bosley  v.  Chesapeake  lus.  Co.,  3  6.  «&;  J.,  450, 

5 
Bostick  a.  Maxey,  '>  Sneed,  173,  1058 


xu 


•lABLE  OF  CASES. 


Boston,  The  Schooner,  1  Suran.,  328,  425 

Boston  &  Salem  Ice  Co.  v.  Royal  Ins.  Co.,  13 

Allen,  381,  713 

Bostwick  V.  Bass,  99  Mass.,  469,  188 

Bothwick  V.  Langinuir,  15  S.  &   D.,  1306, 

1309 
Bottomly  V.  Bovill,  5  B.  &  C,  210;  7  D.  &  R., 

702;4L.J.  K.  B.,  237,  412 

Bouillon  V.  Lnpton,  15  C.  B.  (N.  S.),  113;  10 

Jur.  (N.  S.),  422;  33  L.  J.  C.  P.,  37;  11 

W.  R.,  966 ;  8  L.  T.  (N.  S.),  575 ;  3  F.  & 

F.,  726,  1238,  1255 

Bousfield  V.  Barnes,  4  Camp.,  238,  14".") 

Bowden  v.  Vaughan,  10  East,  415,  1200 

Bowen  v.  Hope  Ins.  Co.,  20  Pick.,  275, 

190,  1336 
Bowditch  Mutual  Fire  Ins.  Co.  v.  Bufl'um,  2 

Gray,  550,  55 

V.  Winslow,  8  Gray,  38;  3  id.,  415,        668 

Bowery  Fire  Ins.  Co.  v.  New  York  Fire  Ins. 

Co.,  17  Wend.,  359,  236,  263,  1184 

Bowker  v.  Smith,  Faculty  Dec.  1808  to  1810,  p. 

571,  243 

Bowman  v.  Agricultural  Ins.  Co.,  3  N.  Y.  S. 

C,  261 ;  59  N.  Y.,  531,  501,  912 

V.  Franklin  Fire  Ins.  Co.,  40  Md.,  620, 

670,  1480 

V.  Pacific  Ins.  Co.,  37  Mo.,  153,  289 

Bowne  v.  Shaw,  1  Caines,  489,  635 

Bowring  «.  Elmsley,  7  Term,  316,  n.,  1325 

Boyce  i\  Moore,  2  Dall.,  196,  787 

Boyd  i).  Dubois,  3  Camp.,  133,  1021 

Boyfleld  V.  Brown,  2  Strange,  1065,  1418 

Boyle  «j.  Fr.mklin  Fire  Ins.  Co.,  7  W.  &  S.,  76, 

187 
V.  North  Carolina  Ins.  Co.,  7  Jones'  Law, 

373,  836,  1111 

Boynton  v.  Clinton  &  Essex  Mut.  Ins.  Co.,  16 

Barb.,  2.54,  73,156,1004,1113 
V.  Farmers  Mutual  Fire  Ins.  Co.,  43  Vt., 

256,  108 
e.  Middlesex  Mutual  Fire  Ins.  Co.,  4  Met., 

312,  765 

Braden  ».  Louisiana  State  Ins.  Co.,  1  La.  (O. 

S.),  230,  1289 

Bradford  v.  Boylston  Fire  &  Marine  Ins.  Co., 

11  Pick.,  162,  480 

v.  Levy,  R.  &  M.,  331 ;  2  C.  &  P.,  137,     1033 

BradUurst  v.  Columbian  Ins.  Co.,  9  Johns.,  9, 

607,  611,  848 
Bradley  v.  Mutual  Benefit  Life  Ins.  Co.,  45  N. 

Y.,  433 ;  3  Lans.,  341,  393,  533 

■».  Nashville  Ins.  Co.,  3  La.  An.  708, 

184 

D  Potomac  Fire  Ins.  Co.,  32  Md.,  108, 

935 


Bradlie  v.  Maryland  Ins.  Co.,  12  Pet.,  378, 

1435 
Bradstreet  v.  Neptune  Ins.  Co.,  3  Snmn.,  600, 

1275 
Brady  v.  Northwestern  Ins.  Co.,  11  Mich.,  425, 

1161 

V.  Western  Ass.  Co.,  17  U.  C.  C.  P.,  597, 

77(V 

Bragdon  v.  Appleton  Mutu.<il  Fire  Ins.  Co.,  43 

Me.,  2.59.  917,  831 

Bragg  c,  Anderson,  4  Taunt.,  239,  445 

«.  New  England  Fire  Ins.  Co.,  35  N.  H., 

389,  lOS 

Braik  v.  Douglas,  4  Myl.  &  Cr.,  320,  994 

Bramhall  v.  Sun  Mut.  Ins.  Co.,  104  Mass.,  510, 

1448 

Bramstein  v.  Crescent  Mut.  Ins.  Co.,  24  La. 

,     An.,  .589,  325,  400 

Brandon  v  Curling,  4  East,  410,  36(> 

Brannin  v.  Mercer  County  Ins.  Co.,  38  N.  J., 

92,  15  r 

Branfon  v.  Taddy,  1  Taunt.,  6,  1461 

Braunstein  v.  Accidental  Death  Ins.  Co.,  1  B. 

&  S.,  782;   8  Jur.  (N.  S.),  506;   31  L. 

J.  Q.  B.,  17;  5  L.  T.  (N.  S.),  550, 

138,  1121 
Brazier  v.  Clap,  5  Mass.,  1,  427 

Breasted  v.  Farmers  Loan  &  Trust  Co.,  4  Hill., 
73;  8N.  Y.,  399,  1350 

Breed  v.  Eaton,  10  Mass.,  23,  423 

Brennan  v.  Security  Life  Ins.  Co.,  4  Dalj-,  296, 

792 

Brewer  v.  Chelsea  Mutual  Fire  Ins.  Co.,  14 

Gray,  203,  340,  1493 

V.  Union  Ins.  Co.,  12  Mass.,  170,         142& 

Brichta  u.  New  York  La  Fayette  Ins.  Co.,  3 

Hall,  372,  180,  726- 

Bridge  «.  Niagara  Ins.  Co.,  1  Hall  (N.  Y.), 

247,  6& 

V.  Niagara  Ins.  Co.,  1  Hall  (N.  Y.),  423, 

891 

Bridges  v.  Hunter,  1  Mau.  &  Sel.,  15,  238 

Briggs  V.  Merchant  Traders  Ass.  Co.,    13  Q. 

B.,  167;  18  L.  J.  Q.  B.,  178,  698 

V.  North  American  Ins.  Co.,  53  N.  Y., 

440,  548 

V.  North  British  and  Mercantile  Ins.  Co., 

66  Barb.,  325,  548 

V.  Peoples  Ins.  Co.,  66  Barb.,  330,         5-1& 

Brine  v.  Featherstone,  4  Taunt.,  869,  793 

Brinley  v.  National  Ins.  Co.,  11  Met.,  195, 

1160 

Brioso  V.  Pacific  Mut.  Ins.  Co.,  4  Daly,  246, 

818, 1169, 1265 

British  American  Ins.  Co.  v.  Joseph,  9  L.  C, 

448,  1024 


TABLE  OF  CASES. 


xin 


British  Equitable  Ins.  Co.  v.  Great  Western 

Railway  Co.,  38  L.  J.  Ch.,  133, 314;  17 

W.  R.,  43;  19  L.  T.  (N.  S.),  47G;  30  id., 

433,  163,  1303 

Britton  v.  Mutual  Benefit  Life  Ins.  Co.,  3  N. 

Y.  S.  C,  330,  443,  791 

V.  Royal  Ins.  Co.,  4  F  &  F.,  905,  553 

Brockclbank  ■!).  Sugrue,  1  M.  &  Rob.,  103;   5 

C.  &  P.,  31 ;   1  B.  &  AJ.,  81 ;  8  L.  J. 

K.  B.,  371,  358,  583,  1078 

Bromley,  In  re.  Ex  parte  Wilkinson,  13  Sim., 

475,  173 

. V.  Hesseltiuc,  1  Camp.,  75,  630 

V.  Williams,  33  Beav.,  177 ;  33 L.  J.Cli.,  716 ; 

11  W.  R.,  393;  8  L.  T.  (N.  S.),  78,     74 
Brook  «.  Louisiana  State  Ins.  Co.,  IG  Martin 

(La.),  640,  681 ;  17  id.,  580,    1473,  1513 
Brookes  v.  Oriental  Ins.  Co.,  7  Pick.,  359, 

G08,  611,  843,  889,  1037,  1034,  1497 
Brooks  V.  MacDonnell,  1  You.&  Col..500,  1350 
Broomfleld  v.  Southern  Ins.  Co.,  5  L.  R.  Ex., 

193;   39  L.  J.  Ex.,  186;  23  L.  T.  (N. 

S.),  371 ;  18  W.  R.,  810,  313 

Brotherston  v.  Barber,  5  Mau.  &  Sel.,  418, 


1430 
731 

1009 
1054,  1055 
1054,  1055 

1043 


Bi-ough  V.  Higgins,  3  Grattan,  408, 

V.  Whitmore,  4  Term,  206, 

Brouwer  v.  Appleby,  1  Sandf.,  158, 

V.  Hill,  1  Sandf,  639, 

Brown  v.  Carstairs,  3  Camp.,  161, 

'!).  Cattaraugus  Mut.  Ins.  Co.,  18  N.  Y., 

385,  304,  459,  862 
V.  Commonwealth  Mut.  Ins.  Co.,  41  Penn. 

St.,  187,  669 

».  Crooke,  4  N.  Y.,  51,  1055 

V.  Donnell,  49  Me.,  431,  274,  568 

V.  Freeman.  4  DeG.  &  S.,  444,  1350 

V.  Girard,  4  Yeates,  115,  786,  1347 

V.  Gore  District  Mutual  Fire  Ins.  Co.,  10 

U.  C.  Q.  B.,  353,  1384 

V.  Hall,  Faculty  Dec.  1808  to  1810,  p.  550, 

r.99 

V.  Hartford  Ins.  Co.,  3  Day,  5S,  800 

V.  Hartford  Fire  Ins.  Co.,  117  Mass.,  479, 

234 
0.  Kings  County  Fire  Ins.  Co.,  31  How. 

Pr.,  508,  1133,  1148 

V.  Neilson,  1  Caines,  525,  1061,  10G3 

V.  Peoples  Mut.  Ins.  Co.,  11  Cush.,  280, 

667 

. V.  Phani.v  Ins.  Co.,  4  Binn.  445,     30,  1410 

V.  Quincy  Ins.  Co.,  105  Mass.,  396,      14G6 

V.  Railway  Passenger  Ass.  Co.,  45  Mo., 

331,  46,  730 
V.  Roger  Williams  Ins.  Co.,  5  R.  I.,  394; 

7  id.,  301,  141,  773 


Brown  v.  Royal  Ins.  Co.,  1  El.  &  El.,  853 ;  5  Jur. 
(N.  S.),  1355;  28  L.  J.  Q.  B.,  275, 

1163 

—  V.  Savannah  Mut.  Ins.  Co.,  24  Ga.,  97, 

775 

V.  Smith,  1  Dow.,  349,  IS 

V.  Stopyleton,  4  Bing.,  119,  C17 

V.  St.  Nicholas  Ins.  Co.,  3  J.  &  Sp.,  231, 

1156 

V.  Tayleur,  4  A.  &  E.,  241 ;  5  L, 

K.  B.,  57 ;  5  N.  &  M.,  473, 

V.  Tierney,  1  Taunt.,  517, 

V.  Union  Ins.  Co.,  4  Day,  179, 

v.  Vigne,  12  East,  283, 


■«i.  Williams,  28  Me.,  352, 


(N.  S.) 

414 

680 

1271 

1043 

1383 


Browne  v.  Insurance  Co.  of  Pennsylvania,  4 

Yeates,  119,  1271 

Browning  v.  Provincial  Ins.  Co.  of  Canada, 

5  L.  R.  P.  C,  263 ;  28  L.  T.  (N.  S.),  853 ; 

21  W.  R.,  587.  73,  765 

Bruce  v.  Garden,  5  L.  R.  Ch.,  32;    39  L.  J. 

Ch.,  384;    18   W.   R.,  384;   8  L.    R. 

Eq.,  430,  1353 
V.  Jones,  1  H.  &  C,  769 ;  33  L.  J.  Ex.,  133 ; 

9  Jur.  (N.  S.),  638;  11  W.  R.,  871 ;  7  L. 

T.  (N.  S.),  748,  1475 

Brugnot  v.  Louisiana  State  Ins.  Co.,  13  La.  (O. 

S.),  326,  97(5 

Bryant  v.  Commonwealth  Ins.  Co.,  6  Pick., 

131,  9,  80,  1437,  1451 

V.  Commonwealth  Ins.  Co.,  13  Pick.,  543, 

784,  815,  1433 
- —  r>.  Ocean  Ins.  Co.,  23  Pick.,  200,  491 
V.  Poughkeepsie  Ins.  Co.,  17  N.  Y.,  200; 

21  Barb.,  154,  1213 

Bryce  v.  Lorillard  Fire  Ins.  Co.,  55  K.  Y.,  240 ; 

3  J.  &  Sp.,  394;  46  How.  Pr.,  498, 

403 

Buchanan  v.  Hunter-Blair,  Faculty  Dec.  1778 

to  1781,  p.  166,  1488 

V.  Ocean  Ins.  Co.,  6  Cow.,  316, 

701,  1460,  1497 
Buck  V.  Chesapeake  Ins.  Co.,  1  Pet.,  151,  1204 
Buckbee  v.  United  States  Annuity  and  Trust 

Co.,  18  Barb.,  541,  913 

Bucker  ».  London  Ass.  Co.,  2  B.  &  P.,  433;   3 

Coper,  290,  1043 

Buckley  v.  Garrett,  47  Penn.  St.,  204,  403 

Budd  i>.  Union  Ins.  Co.,  4  McCord,  1, 

730,  1441 
Bufe  v.  Turner,  6  Taunt.,  388 ;  3  Marsh.,  46, 

337 
Buffalo  City  Bank  v.  Northwestern  Ins.  Co., 

30  N.  Y.,  251,  a* 

Buffalo  Steam  Engine  Works  v.  Sun  Mut.  Ins. 

Co.,  17N.  Y.,401,  160 


XIV 


TABLE  OF  CASES. 


Buffum  n.  Fayette  Mutual  Fire   Ins.  Co.,   3 
AUeu,  3G0,  340 

D.  Bowditch  Mutual   Fire   lus.  Co.,   10 

Cush.,  540,  1490 

Buell  V.  Connecticut  Mutual  Life  Ins.  Co.,  .5 

Ins.  L.  J.,  374;  8  Chi.  Leg.  News,  202, 

1300,  152.5 

Bulkley  v.  Derby  Fishing  Co.,  1  Conn.,  571, 

67,  626 

V.  Protection  Ins.  Co.,  3  Paine,  82, 

406,  1205 

■ V.  Star,  2  Day,  552,  734 

Bullard  v.  Roger  Williams  Ins.  Co.,  1  Curtis, 

148,  14,  1012,  1250, 1436 

Bumstead  v.  Dividend  Mut.  Ins.  Co.,  12  N.  Y., 

81,  1143 

Bunten  u.  Orient  Mut.  Ins.  Co.,  2  Keyes,  667; 

8  Bos.,  448 ;  1  Abb.  Dec,  257,  1168 
Burbank  v.  McClure,  54  N.  H  ,  339,  381 
■!!.  Rockingham  Mutual  Fire  Ins.  Co.,  24 

N.  H.,  550,  108,  867 

Burger  d.  Farmers  Mut.  Ins.  Co.,  71  Penn.  St., 

422,  99 

Burges  v.  Wickham,  3  B.  &  S.,  669 ;  38  L.  J. 

Q.  B.,  17,  1253 

Burgess  v.  Alliance  Ins.  Co.,  10  Allen,  231, 

286,  383 
Burgher  v.  Columbian  Ins.  Co.,  17  Barb.,  274, 

.50.  112,  995 
Burke  v.  Brig  M.  P.  Rich,  1  Cliff,  509,  701 
Burnett  v.  Eufaula  Home  Ins.  Co.,  46  Ala.,  11, 

1387 

B.  Kensington,  7  Term.,  210;   1  Esp.,  416, 

1325 
Burns  d.  Collins,  64  Me.,  215,  188 

Burr  V.  Broadway  Ins.  Co.,  16  N.  T.,  267, 

510,  681 
Burridge  v.  Row,  1  Tou.  &  Col.  C.  C,  183:  11 

L.  J.  Ch.,  369;  13  id.,  173,  700 

Burrill  v.  Chenango  Mut.  Ins.  Co.,  Edm.  S.  C. 

(N.  T.),  233,  1483 

Burritt  v.  Saratoga  County  Mutual  Fire  Ins. 

Co.,  5  Hill,  188,  83 

Burroughs  v.  State  Life  Ass.  Co.,  97  Mass.,  359, 

61 
Burrows  v.  Turner,  24  Wend.,  276,  53 

Burt  o.  Peoples'  Mutual  Fire  Ins.  Co.,  2  Gray, 

397,  854 

Burton  v.  Gore  Disti-ict  Mut.  Ins.  Co.,  14  U.  C. 

Q.  B.,  342,  64,  861 
V.  Gore  District  Mutual  Fire  Ins.  Co.,  12 

Grant  Ch.,  158,  IfiO 

Busch  V.  Insurance  Co.,  6  Phila.,  252,        1110 
Bush  V.  Westchester  Fire  Ins.  Co.,  2  N.  T.  S. 

C,  629;  5  lus.  L.  J.,  307, 

1069,  1084, 1128 


Bushnan  v.  Morgan,  5  Sim.,  63.5,  720 
Busk  V.  Bell,  16  East,  3,  648 
c.  Royal  Exchange  Ass.  Co.,  2  B.  &  A., 

73,  1155,  1268 

Busteed  v.  West  of  England  Ins.  Co.,  5  Irish 

Ch.,  5.53,  920 

Butler  c.  Allnutt,  1  Starkie,  222,  630 

V.  Fox,  7  C.  B.,  970,      •  224 

V.  Wildman,  3  B.  &  A.,  398,         297, 102O 

Butman  d.  Hobbs,  35  Me.,  227,  149 

Byrne  v.  Louisiana  State  Ins.  Co.,  19  Martiu 

(La.),  126,  430 

V.  Rising  Sun  Ins.  Co.,  20  Ind.,  103, 

113i 
Byrnes  v.  Alexander,  1  Brev.,  213,  242 

V.  National  Ins.  Co.,  1  Cow.,  265, 

842.892 


c. 


Caballero  v.  Home  Mut.  Ins.  Co.,  15  La.  An., 
317,  548 

Cabot  V.  Given,  45  Me.,  144,  li>70 

Cahill  V.  Andes  Ins.   Co.,  5  Biss.,  24, 

909,  1224 
Calbreath  v.  Gracy,  1  Wash.  C.  C,  219, 

810,  1275 
Caldwell  v.  Dawson,  5  Esch.,  1 ;   14  Jur.,  316, 

1314 

D.  St.  Louis  Perpetual  Ins.  Co.,  1  La.  An., 

85,  228,  1320 

Calhoun  v.  Insurance  Co.  of  Pennsylvania,  1 

Binn.,  293,  813 

Callaghan  v.  Atlantic  Ins.  Co.,  1  Edw.  Ch.,  64, 

318 
Callender  t.  Insurance  Co.  of  North  America, 

5  Binn.,  525,  .589 
Callow  V.  Kelson,  10  W.  R.,  193,  896 
Calvert  v.  Bovill,  7  Term,  523.  1280 
c.  Hamilton  Mut.  Ins.  Co.,  1  Allen,  308, 

85,664 

Camberliug  r.  ilcCall,  3  Teates,  281;  2  Dall., 

280;  3  id.,  477,  80 

Cambridge  v.  Anderton,  2  B.  &  C,  691 ;    1  C. 

6  P.,  213;   4  D.  &  R.,  203;  R.  &  M., 
60;  2L.  J.  K.  B.,  141,  1417 

Camden  v.  Anderson,  5  Term,  709,  7!)-' 

V.  Anderson,  6  Term,  723 ;    1  B.  &  P.,  272, 

6-46 

T.  Cowley,  1  W.  Bl.,  417,  524 

V.  Eddie.  1  H.  Bl.,  21,  1463 

Cameron  v.  Monarch  Ass.  Co.,  7  U.  C.  C.  P., 
213,  831 


TABLK  OF  CASES. 


XV 


Cnmeron  v.  Times  and  Beacon  Fire  Ins.  Co.,  7 

U.  C.  C.  P.,  234,  1144 

Camniack  i\  Lewis,  15  Wall.,  643,  47,  232 

Campbell  v.  Aberdeen  Fire'  and  Life  Ins.  Co., 

3  C.  C.  S.  (N.  S,),  1010,  969 

D.  uEtna  Ins.  Co.,  Cochran,  21,  860 

V.  Allan,  Faculty   Dec.  1796  to   1801,  p. 

353,  1395 
V.  American  Popular  Life  Ins.  Co.,  1  Mc- 

Arthur,  246,  1136 
o.  Charier  Oak  Fire  and  Marine  Ins.  Co., 

7  Allen,  45,  n.,  662 
D.  Charter  Oak  Fire  and  Marine  Ins.  Co., 

10  Allen.  213,  747,  1455 

■».  Christie,  2  Starkie,  57,  120 

®.  Hamilton  Mut.  Ins.  Co.,  51  Me.,  69, 

670 

v.  Inness,  4  B.  &  A.,  424,  645 

V.  International  Life  Ass.   Soc,  4  Bos., 

298,  913 
V.  Merchants  and  Farmers  Mutual  Fire 

Ins.  Co.,  37  N.  H.,  35,  465 
T.  Monmouth   Mutual  Fire   Ins.   Co.,  59 

Me.,  430,  883, 1158 

■ T.  New  England  Life  Ins.  Co.,  98  Mass., 

381,  37,  132,  533,  792,  1296 

- —  V.  Rickards,  5  B.  &  Ad.,  840 ;  2  L.  J.  K.  B.. 

204,  524, 530 

0.  Williamson,  2  Bay.,  237,     430,  783, 786 

Cannell,  v.  Phoenix  Ins.  Co.,  59  Me.,  582, 

528,  828 
Capen  v.  Washington  Ins.  Co.,  12  Cu.sh.,  517, 

1266 
Cardwell   v.  Republic  Ins.  Co.,  7   Chi.  Leg. 

News,  282,  930 

Carpenter  v.  American  Ins.  Co.,  1  Story,  57, 

790 
1>.  Mutual  Safety  Ins.  Co.,  4  Sand.  Ch., 

408,  737 
V.  Providence  Washington   Ins.  Co.,  16 

Pet,  495 ;  4  How.,  185,  852, 1175 

Carr  v.  Royal  E.'cchange  Ass.  Co.,  5  B.  &  S., 

433;   10  Jur.  (N.  S.),  316;  33  L.  .L  Q. 

B.,  63 ;  10  L.  T.  (N.  S.),  265 ;  12  W.  R., 

127,  1511 
1).  Montefiore,  5  B.  &  S.,  408;  10  .Jur.  (N. 

S),  312,  1069;  33  L.J.  Q.  B.,  57,  256; 

12  W.  R,,  870,  126;  11  L.  T.  (N.  S.), 

157;  10  id.,  294,  605 

Carraway  v.  Merchants  Mut.  Ins.  Co.,  26  La. 

An.,  298,  774 

Carrcre  v.  Union  Ins.  Co.,  3  H.  &  J.,  324,     813 
Carrington  v.  Commercial  Fire  and   Marine 

Ins.  Co.,  1  Bos.,  152,  75 
V.  Merchants  Ins.  Co.,  8  Pet,.  495,         6.37 


Carroll  v.  Boston  Marine  Ins.  Co.,  8  Mass.,  515, 

707 

V.  Chiu-ter  Oak  Ins.  Co.,  38  Barb.,  402;  40 

id.,  292;  1  Abb.  Dec,  310, 

180,  461,  865 
V.  New  Orleans,  J.  &  G.  N.  R.  R.  Co.,  26 

La.  An.,  447,  1347 

Carrugi  v.  Atlantic  Fire  Ins.  Co.,  40  Ga.,  135, 

876,  1077 
Carruthers  v.  Gra}',  15  East,  35;  3  Camp.,  142, 

119,439,  1155 

V.  Shedden,  6  Taunt.,  13;  1  Marsh.,  416, 

503,  095 

V.  Sydebotham,  4  Mau.  &  Sel.,  77, 

948, 1324 
Carson  v.  Marine  Ins.  Co.,  2  Wash.  C.  C,  468, 

383 
Carstairs  v.  Allnutt,  3  Camp.,  497,  309 

Carter  «.  Boehm,  3  Burr.,  1905 ;  1  W.  Bl.,  593, 

253 
V.  Humboldt  Fire  Ins.  Co.,  12  low.a,  287, 

181,  694,  974 
V.  Humboldt  Fire  Ins.  Co.,  17  Iowa,  4.56. 

1.521 

T.  Rockett,  8  Paige  Ch.,  437,  802 

■ V.  United  Ins.  Co.,  1  Johns.  Ch.,  463,    740 

Carver  Company  v.  Manufacturers  Ins.  Co.,  6 

Gray,  214,  321,  1186 

Cary  v.  Nagel,  2  Biss.,  244,  1054 

Case  v.  Davidson,  5  Mau.  &  Sel.,  79;  2  B.  &  B., 

379,  003 

V.  Hartford  Fire  Ins.  Co.,  13  111.,  676, 

481,  1193 
Casey  v.  Goldsmid,  4  L.  C,  107,  87 

Cashan  v.  Northwestern  National  Ins.  Co.,  5 

Biss.,  476,  834,  1185 

Casler  v.  Connecticut  Mutual  Life  Ins.  Co.,  23 

N.  y.,  427,  1366 

Cassacia  v.  Phoenix  Ins.  Co.,  28  Cal.,  628,    975 
Cassedy  v.  Louisiana  State  Ins.  Co.,  18  Martin 

(La.),  421,  2 

Castelli  v.  Buddington,  1  El.  &  Bl ,  66;  id.,  879, 

71,  82, 1291 
Caston  V.  Monmouth  Mut.  Fire  Ins.  Co.,  54 

Mo.,  170,  465,  832,  973 

Catlett  «.  Pacilic  Ins.  Co.,  1  Paine,  594, 

744,  1436,  1515 

V.  Pacific  Ins.  Co.,  1  Wend.,  561 ;  4  id.,  75, 

64,  497,  782,  808,  1113 
Catlin  D.  Springfield  Fire  and  Marine  Ins.  Co., 

1  Sumn.,  434,  949,  1157, 1520 

Catoir  v.  American  Life  Insurance  and  Trust 

Co.,  33  N.  J.,  487,  935 

Cator  ».  Great  Western  Ins.  Co.,  8  L.  R.  C.  P., 

552;  42  L.  J.  C.  P.,  266;  29  L.  T.  (N. 

S.),  136,  1496 


XVI 


TABLE  OF  CASES. 


Catron  v.  Tennessee  Ins.  Co.,  6  Humph.,  176, 

330,  552 

Catterall  ».  Taylor,  9  L.  J.  C.  P.,  205,  415 

Cazalett  v.  St.  Barbe,  1  Term,  187,  379 

Caze  V.  Baltimore  Ins.  Co.,  7  Cranch,  358,    574 

Cazenovc  v.  British  Equitable  Ass.  Co.,  G  C. 

B.  (N.  S.),  437;  5  Jur.  (N.  S.),  1309; 

28  L.  J.  C.  P.,  259;  29  id.  160;  6  Jur. 

(N.  S ),  826 ;  8  W.  R,  243,  1298 

Center  v.  American  Ins.  Co.,  7  Cow.,  564;  4 

Wend.,  46,       6,  30,  586,  603,  780,  1438 

Cerf  V.  Home  Ins.  Co.,  44  Cal.,  320, 

454,  749 

Chaffee  v.  Cattaraugus  Mut.  Ins.  Co.,  18  N.  T., 

376,  84 

Chalmers  v.  Bell,  3  B.  &  P.,  604,  646 

Chamberlain  v.  New  Hampshire  Fire  Ins.  Co., 

55  N.  H.,  249,  61,  829 

Chamberlin  v.  McCall,  2  Yeates,  281;  2  Dall., 

280;  3  id.,  477,  80 

Champlin  v.  Railway  Passenger  Ass.  Co.,  6 

Lans.,  71,  42,  1148 

Chandler  v.  Worcester  Mutual  Fire  Ins.  Co.,  3 

Cush,,  328,  568 

Chapin  v.  Fellowes,  36  Conn.,  132,  1520 

Chapman  v.  Frazer,  Park  on  Ins.,  218;  Marsh. 

on  Ins.,  652,  1231 

Chapman  v.  Pole,  23  L.  T.  (N.  S.),  306,        553 

V.  Republic  Life  Ins.  Co.,  7   Chi.  Leg. 

News,  186,  1362 

Charleston  Ins.  Co.  v.  Potter,  3  Dessaus.  Eq.,  6, 

741 

Charleston  Insurance  and  Trust  Co.  v.  Corner, 

3  Gill,  410,  378,  590,  599 

V.  Neve,  2  McMuIIen,  237,    112,  158,  1146 

Charter  Oak  Life  Ins.  Co.  v.  Brant,  47  Mo.,  419, 

1533 
Chase  d.  Eagle  Ins.  Co.,  5  Pick.,  51,     376,  427 

V.  Hamilton  Ins.  Co.,  30  N.  Y.,  53;  22 

Barb.,  527,  336 

V.  Wasliington  Mut.  Ins.  Co.,  13  Barb., 

595,  690,  738,  1198 

Chattock  i\  Shawe,  1  M.  &  Rob.,  498,         1305 
Chauraud  v.  Augerstein,  Peakes.  N.  P.  C,  61, 

534 
Cheriot  v.  Barker,  3  Johns.,  347.  576 

Chesapeake  Ins.  Co.  ■».  Allegre,  3  6.  &  J.,  164, 

260 

v.  Stark,  6  Cranch,  268,  1,  34,  1311 

Chickering  v.  Globe  Slutual  Life  Ins.  Co.,  116 

Mass.,  331,  915 

Child  0.  Sun  Mut.  Ins.  Co.,  2  Sandf.,  76,     1421 

V.  Sun  Mut.,  Ins.  Co.,  3  Sandf,  26, 

441,523,  1120,1418,  1449 

Chisholm  v.  National  Capitol  Life  Ins.  Co., 

52  Mo.,  213,  686 


Chitty  V.  Selwin,  3  Atk.,  359,  735 

Chope  V.  Reynolds,  5  C.  B.  (N.  S.),  642;  5  Jur. 

(N.  S.;,  823;  28  L.  J.  C.  P.,  194;  7  W. 

R.,  308.  1098 

Chowne  v.  Baylis,  31  Beav.,  351,  173 

Christie  v.  North  British  Ins.  Co.,  3  C.  C.  S., 

360,  353 

Christian  r..  Coombe,  2  Esp.,  489,  88 

Christie  v.  Secretan,  8  Term,  192,        810,  1273 

Church  V.  Teasdale,  1  Brev.,  255,  541 

V.  Hubbart,  3  Cranch,  165,     483,  625,  753 

V.  Marine  Ins.  Co.,  1  Mason,  341,        1420 

Cincinnati,  Hamilton  and  Dayton  R.  R.  Co.  v. 

Spratt,  2  Duvall,  4,  1346 

Cincinnati  Ins.  Co.  v.  Bakewell,  4  B.  Mon.,  541, 

7,29 

V.  Duffleld,  6  Ohio  St.  300,  31 

V.  May,  20  Ohio,  311,  528,  1059,  1253 

V.  Riemau,  1  Disney,  396,  1394 

Cincinnati  Mut.  Ass.  Co.  d.  Rosenthal,  55  111., 
85,  1317 

Cinquellars  v.  Equitable  Ins.  Co.,  15  U.  C.  Q. 
B.,  143,  246,  1144 

City  Bank  v.  Adams,  45  Me.,  455,  187 

City  Fire  Ins.  Co.  v.  Carrugi,  41  Ga.,  660, 

481,  965,  1061,  1333 
City  Fire  Ins.  Co  c.  Corlies,  21  Wend.,  -367, 

545,  728,  750,  1014 

V.  Mark,  45  111.,  482,  39 

Citizens  Ins.  Co.  v.  Glasgow,  9  Mo.,  406, 

4,  280,  546 

V.  Marsh,  41  Penn.  St.,  386,  303,  1147 

V.  McLaughlin,  53  Penn.  St.,  485, 

1211,  1450 

V.  Doll,  35  Md.,  89,  162,  709,  1119 

Citizens  Mutual  Fire  Ins.  Co.  v.  Sortwell,  8 

Allen,  317,  1070 

Clamagcran  v.  Banks,  18  Martin  (La.),  551,    35 

Clapham  ».  Cologan,  3  Camp.,  382,     122,  1519 

V.  Langton,  5  B.  &  S.,  729 ;  3  F.  &  F.,  626; 

34  L.  J.  Q.  B.,  46;  12  W.  R,  1011;  10 
L.  T.  (N.  S.),  875,  1155 

Clapp  V.  Union  Mut.  Ins.  Co.,  27  N.  U.,  143, 

349 

Clark  V.  Blything,  2  B.  &  C,  354;  3  D.  &  R, 

489 ;  3  L.  J.  K.  B.,  7,  1330 

V.  Durand,  13  Wis.,  223,  1347 

«.  Hamilton  Mut.  Ins.  Co.,  9  Gray,  148, 

148,  846 

ti.  Manufacturers  Ins.  Co.,  8  How.,  235 ;  2 

W.  &  M.,  472,  1067,  '1337 

V.  Massachusetts  Fire  and  Marine   Ins. 

Co.,  3  Pick..  104,  579 

V.  Middleton,  19  Mo.,  53,  1057,  1319 

!).  New-England  Mutual  Fire  Ins.  Co.,  6 

Cush.,  342,  837,  866,  1483 


TABLE  OF  CASES. 


XVH 


Clark  V.  Ocean  Iqs.  Co.,  16  Pick.,  289, 

587,  1470 

V.  Phocni.x  lus.  Co.,  30  Cal.,  1G8, 

117,125,558 

V.  Protection  Ins.  Co.,  1  Story,  109,      711 

V.  Union  Mutual  Fire  Ins.  Co.,  40  N.  H., 

333,  80, 405 

V.  Washington  Ins.  Co.,  100  Mass.,  509, 

193 

0.  Western  Ass.  Co.,  25  U.  C.  Q.  B.,  209, 

710,  977 

V.  Wilson,  103  Mass.,  219,  1342 

Clarke  ii.  Firemen's  Ins.  Co.,  18  La.  (0.  S.),  431, 

717,  1001 
Clarkson  v.  PlicBui.K  Ins.  Co.,  9  Jolius.,  1,     1437 

V.  Young,  23  L.  T.  (N.  S.),  41,  200 

Clary  v.  Protection  Ins.  Co.,  1  Wright,  228, 

1011 
Clason  V.  Smith,  3  Wash.  C.  C,  156,  1198 

Clay  V.  Harrison,  10  B.  &  C,  99;  5  M.  &  R, 

17;  8  L.J.  K.  B.,  90,  710 

Clay  Fire  and  Marine  Ins.  Co.  v.  Beck,  5  Ins. 

L.  J.,  389,  073 
V.  Huron  Salt  and  Lumber  Co.,  31  Midi., 

340,  70,  117,  1319,  1375 

V.  Wusterhausen,  7  Chi.  Leg.  News,  358, 

905 
Clayton  v.  Owen,  31  Beav.,  285;  8  Jiir.  (N.  S.), 

1117;  31L.  J.  Ch.,825;  lOW.  U.,770; 

OL.  T.  (N.S.),803,  1401 

Clement  v.  Phcenix  Ins.  Co.,  0  Blatch.,  481, 

204,  777 
Cleudenning  v.  Church,  3  Caines,  141,  1460 
Cleveland  ».  Clap,  5  Mass.,  201,  1339 

V.  Fettyplaoe,  3  Mass.,  391,  981 

V.  Union  Ins.  Co.,  8  Mass.,  308,  1150 

Clifford®.  Hunter,  Moo.  &  M.,  103;  3  C.  &  P., 

10,  1203 

V.  Thomaston  Mut.  Ins.  Co.,  50  Me.,  197, 

1003 
Clift  V.  Schwabe,  3  C.  B.,  437;  3  C.  &  K.,  134; 

17  L.  J.  C.  P.,  3,  1300 

Clinton  B.  Hope  Ins.  Co.,  45   N.  Y.,  454;  51 

Barb.,  047,  103,  307,  1337 

Clippinger  «.  Missouri  Valley  Life  Ins.  Co.,  8 

Chi.  Leg.  News,  155,  1190 

Cluff  i).  Mutual  Benefit  Life  Ins.  Co.,  13  Allen, 

308,  393 
V.  Mutual  Benefit  Life  Ins.  Co.,  99  Mass., 

317,  393 

Cobbi).  Insurance  Co.  of  North  America,  11 

Kan.,  93,  83,  875 
V.  Lime  Rock  Fire  and  Marine  Ins.  Co., 

58  Me.,  330,  1101,  1453 
T.  New  England  Mutual  Marine  Ins.  Co., 

6  Gray,  193,  07,  135,  983.  1251 

B 


Cochrane  v.  Gilkison,  16  C.  C.  S.,  548,        1261 
Cockerill  v.  Cincinnati  Mut.  Ins.  Co.,  16  Ohio, 

148,  888 

Cockey  v.  xVtkinson,  3  B.  &  A.,  400,  185 

Cocking  V.  Fraser,  4  Djug.,  295,  1503 

Coey  V.  Smith,  33  C.  C.  S.,  955;  33  Scot.  Jur., 

403,  1036 

Coffey  V.  Home  Life  Ins.  Co.,  3  J.  &  Sp.,  314; 

44  How.  Pr.,  481,  1300 

Coggeshall  v.  American  Ins.  Co.,  3  Wend.,  383, 

293 
Cohen  v.  Charleston  Ins.  Co.,  Dud.  Ap.  (S.  C), 

147,  '    85 

V.  Hannam,  5  Taunt.,  101,  114 

V.  Hinkley,  3  Camp.,  51;  1  Taunt,  349, 

1064 
V.  New  York  Mutual  Life  Ins.  Co.,  50  N. 

Y.,  610,  58,  905 

Coit  V.  Commercial  Ins.  Co.,  7  Johns.,  385, 

1494 

V.  Smith,  3  Johns.  C,  16,  1013 

Colby  V.  Hunter,  1  Moo.  &  M.,  81 ;  3  C.  &  P., 

7,  680 

Cole  V.  Commercial  Ins.  Co.,  13  Gray,  519, 

192 

V.  Louisiana  Ins.  Co.,  14  Martin  (La.),  165, 

8al,  1473 

V.  Union  Mut.  Ins.  Co.,  12  Gray,  501,    193 

V.  Union  Mut.  Ins.  Co.,  note  to,  13  Gray, 

519,  193 

Coles  V.  Iowa  State  Mut.  Ins.  Co.,  18  Iowa, 

425,  1317 

Coles  V.  Marine  Ins.  Co.,  3  Wash.  C.  C,  159, 

1024 
CoUedge  v.  Harty,  6  Esohr.,  205 ;  20  L.  J.  Ex., 

146.  310 

Collett  V.  Morrison,  31  L.  J.  Ch.,  878;  9  Hare, 

103,  1331 

Collins  V.  Charlestown  Mutual  Fire  Ins.  Co., 

10  Gray,  155,  300,  1302 

V.  Insurance  Co.,  7  Phila.,  201,  344 

V.  New  York  Central  R.  R.  Co.,  5  Hun., 

(N.  Y.),  503,  1338 

V  Steamer  Fort  Wayne,  1  Bond,  476,    759 

Cologan  V.  London  Ass.  Co.,  5  Man.  &  Sel., 

447,  1402 

Colquhoun  v.  New.Y'ork  Firemen  Ins.  Co.,  15 

Johns.,  353,  643 

Colt  i>.  Phoenix  Fire  Ins.  Co.,  54  N.  Y.,  595, 

101 

Columbia  Ins.  Co.  v.  Cooper,  50  Penn.  St.,  331, 

249,  404,  797,  1079 

V.  Masonheimer,  70  Penn.  St.,  138,      1217 

V.  Stone,  3  Allen,  385,  1221 

Columbian  Book  Co.  v.  De  Golyer,  115  Mass., 

07,  188 


XVIU 


TABLE  OF  CASES. 


Columbian  Ins.  Co.  v.  Ashby,  4  Pet.,  139,     26 

».  Bean,  113  Mass.,  541,  1385 

V.  Catlett,  12  Wheat.,  383, 

116,  290,  439,  576,  1405 

«.  Lawrence,  2  Pet.,  25,         375,  688,  1110 

V.  Lawrence,  10  Pet.,  507, 

235,  375,  1132, 1147, 1334 
Columbus  Ins.  Co.  v.  Walsh,  18  Mo.,  229, 

1319,  1393 
Comber  v.  Anderson,  1  Camp.,  523,  1094 

Combs  V.  Hannibal  Ins.  Co.,  43  Mo.,  148,    466 
Comegys  t.  Vasse,  1  Pet.,  193,  177 

Commercial  Ins.  Co.  v.  Halloclj,  27  N.  J.,  645, 

321 

V.  Huchberger,  53  111.,  464,  831,  1140 

dyes,  56111.,  402,  506,1080 

V.  Mehlman,  48  111.,  313,    224, 652, 748,  951 

V.  Robinson,  64  111.,  265,  545,  1145 

V.  Spankneble,  52  111.,  53, 

39,  110,  829,  1387 

V.  Treasury  Bank,  81  111.,  253,  961 

Commercial  Mut.  Ins.  Co.  v.  McLoon,  14  Al- 
len, 351,  950 

Commercial  Mutual  Marine  Ins.  Co.  v.  Union 
Mut.  Ins.  Co.,  19  Howr,  318;  2  Curtis, 
524,  314,  881, 1066, 1333 

Commercial  Union  Ins.  Co.  ■v.  Lister,  9  L.  R. 
Ch.,  483 ;  43  L.  J.  Ch.,  601,  73 

Commonwealth  n.  Hide  and  Leather  Ins.  Co., 

113  Mass.,  136, 

53,  387,  650,  993,  1213,  1491 

V.  Massachusetts  Mut.  Ins.  Co.,  113  Mass., 

116,  153, 805 

v.  Mechanics  Mut.  Ins.  Co.,  112  Mass.,  193, 

153,  154 

v.  Monitor  Mut.  Fire  Ins.  Co.,  112  Mass., 

150,  804 

V.  National  Ins.  Co.,  113  Mass.,  514, 

1281 

V.  Shoe  and  Leather  Dealers  Ins.  Co.,  113 

Mass.,  131,  1284 

V.  Unity  Mutual  Life  Ass.  Co.,  117  Mass., 

337,  55 

Commonwealth  Ins.  Co.  v.  Berger,  43  Peun. 
St.,  285,  754 

V.  Chase,  20  Pick.,  142,  34 

V.  Cropper,  21  Md.,  311,  279,  444 

V.  Globe  Ins.  Co.,  35  Penn.  St.,  475     1183 

V.  Monninger,   18  Ind.,  353, 

311,521,797 

V.  Sennett,  37  Penn.  St.,  205,  384 

V.  Sennett,  41  Penn.  St.,  161,        838,  1141 

Concord  Union  Mutual  Fire  Ins.  Co.  »  Wood- 
bury, 45  >Ie.,  447,  803,  1343 

Cone  V.  Niagara  Ins.  Co.,  3  N.  Y.  9.  C,  33 ;  60 
N.  T.,  619.  59,  716.  837,  1337 


Connecticut  Mutual  Life  Ins.  Co.  t.  Burroughs, 

34  Conn.,  305,  168 
B.  New  York  and  New  Haven  R.  R.  Co., 

25  Conn.,  365,  1343 

V.  Siegel,  9  Bush.,  450,  •  964,  1140 

Connell  v.  Massie,  2  L.  J.  (N.  S.)  K.  B.,  160, 

1431 
Conover  v.  Mutual   Ins.  Co.,  1  N.  Y.,  290;  3 

Denio,  254;  How.  App.  Cas.,  604, 

65,  103,  1067 
Consolidated  Fire  Ins.  Co.  v.  Cashow,  41  Md., 

59,  62,  901,  1185,  1210 

Constable  v.  Noble,  2  Taunt.,  405,  98T 

Constant  v.  Insurance  Co.,  3  Wall.  Jr.,  313, 

1083 

Continental  Ins.  Co.  v.  Lippold,  3  Neb.,  391, 

1125 

V.  Mansfield,  45  Miss.,  311,  959,  1383 

V.  Kasey,  25  Grattan,  268,  477,  801 

V.  Horton,  28  Mich.,  173,  481,  875 

Continental  Life  Ins.  Co.  v.  Palmer,  5  Ins.  L. 

J.,  305,  1532 

V.  Willets,  34  Mich.,  268,  1090 

Converse  v.  Citizens  Mut.  Ins.  Co.,  10  Cush., 

37,       •  691 

Conway  b.  Gray,  10  East,  536,  1031 

Conway  Fire  Ins.  Co.  v.  Sewall,  54  Me.,  352, 

950 

Conway  Tool  Co.  v.  Hudson  River  Ins.  Co.,  12 

Cush.,  144,  491,854 

Cook  V.  Black,  1  Hare,  390;  11  L.  J.  Ch.,  268, 

173 

«.  Commercial  Ins.  Co.,  11  Johns.,  40    195 

V.  Greenock  Mut.  Ins.  Co.,  5  C.  C.  S.  346 ; 

15  Scot.  Jur.,  611,  1263 
V.  Scottish  Equitable  Life  Ass.  Soc,  26 

L.  T.  (N.  S.),  571,  723 
Coolidge  V.  Blake,  15  Mass.,  429,  270 
V.  Gloucester  JIutual  Ins.  Co.,  15  Mass., 

341,      .  587 

B.  Gray,  S  Mass.,  527,  442 

r.  New  York  Firemen  Ins.  Co.,  14  Johns., 

308,  318, 811,  814 

Coon  V.  Swan.,  30  Vt.,  6,  519, 1328 

Cooper  V.  Farmers  Ins.  Co.,  50  Penn.  St.,  299, 

669, 1177 
V.  Massachusetts  Life  Ins.  Co.,  102  JIass., 

227,  1359 

V.  Pacific  Mut.  Ins.  Co.,  7  Nev.,  116, 

330,  122ft 
Copeland  v.  Mercantile  Ins.  Co.,  6  Pick.,  198, 

104,  561 
v.  New  England  Marine  Ins.  Co.,  2  Met., 

432,  126S 

Copelin  v.  Insurance  Co.,  9  Wall.,  401 ;  1  Wool. 

C.C,  278;  46  Mo.,  211.  32 


TABLE  OF  CASES. 


XIX 


Corcoran  «.  Ourney,  1  El.  &  Bl.,  4r,G,  132.1 

v.  Gurncy,  23  L.  J.  Q.  B.,  113;  1  El.  &  Bl , 

45G ;  17  Jur.,  1153,  1335 

Cormack  v.  Gladstone,  11  East,  347,  440 

Cornell  v.  Le  Ruy,  9  Wend.,  103, 

832,  949,  1123 

D.  Hope  Ins.  Co.,  15  Martin  (La.),  223, 

272 

V.  Milwaukee  Mutual   Fire  Ins.  Co.,  18 

Wis.,  387,  837 

Corp  V.  United  Ins.  Co.,  8  Johns.,  278,        1025 

Cort  V.  Delaware  Ins.  Co.,  2  Wash.  C.  C,  375, 

488,  1420 

Cory  V.  Boylstou  Ins.  Co.,  107  Mass.,  140, 

386,  849,  1059,  1490 

V-  Patton,  7  L.  R.  Q.  B,  304 ;  20  W.  R.,  364 ; 

26  L.  T.  (N.  S.),  161 ;  41  L.  J.  Q.  B., 

195  n ;  9  L.  R.  Q.  B.,  577 ;  23  W.  R.,  46 ; 

30  L.  T.  (N.  S.),  758;  43  L.  J.  Q.  B. 

181,  254 

Cotton  Slates  Life  Ins.  Co.  v.  Scurry,  50  Ga., 

48,  347 

Costa-  V.  Phoeni.x  Ins.  Co.,  3  Wash.  C.  C,  51, 

1208 
Coston  V.  Alleghaey  County  3Iut.  Ins.  Co.,  1 

Peun.  St.,  323 

Couch  V.  City  Fire  Ins.  Co.,  38  Conn.,  181,  856 
Coulon  e.  Bowne,  1  Caines,  288,  299 

County  Life  Ass.  Co.,  In  re,  5  L.  R.  Ch.,  288; 

39  L.  J.  Ch.,  471 ;  23  L.  T.  (N.  S.),537 ; 

18  W.  R.,  390,  390 

Coursin  v.  Pennsylvania  Ins.  Co.,  40  Penn.  St., 

323,  709, 1380 

Court  ».  Martineau,  3  Doug.,  161,  254 

Courteen  v.  Tousc,  1  Camp.,  43,  543 

Courtenay  D.  Wright,  2  Giff.,  337;  6  Jur   (N. 

S.),  1283;  9  W.  R.,  153,  1332 

Courtnay  ».  Mississippi  Marine  and  Fire  Ins. 

Co.,  13  La.  (O.  S.),  233,  1041 

Courtney  «.  New  York  City  Ins.  Co.,  28  Barb., 

110,  180 

Cousins  v.  Nantes,  3  T.aunt.,  513,  23(5,960 

Covingtoli  «.  Roberts,  5  B.  &  P.,  378,  013 

Cowie  V.  Barber,  4  Camp.,  100,  .  645 

V.  Barber,  4  Man.  &  Sel.,  10,  1234 

Cox  V.  uEtna  Ins.  Co.,  39  Ind.,  586, 

309,1400,1526 

V.  Charleston  Ins.  Co.,  3  Rich.,  331, 

947,1467 

V.  Parry,  1  Term,  464,  899, 1463 

Crafts  V.  Union  Mutual  Fire  Ins.  Co.,  36  N. 

II.,  44,  819 
— —  V.  JIurgatroyd,  4  Yeates,  101,  1478 
V.  Spence,  Faculty  Dec.  1792  to  1796,  p. 

207,  1337 
V.  United  Ins.  Co.,  6  Johns.,  226,     4, 1035 


Craig  t.  United  States  Ins.  Co.,  Pet.  C.  C,  410, 

640 
Crane  v.  Evansville  Ins.  Co.,  13  Ind.,  440,  957 
Cranston  v.  Philadelphia  Ins.  Co.,  5  Binn.,538, 

1289 

Craufurd  v.  Hunter,  8  Term,  13,  953 

Crawford  e.  St.  Lawrence  County  Ins.  Co.,  8 

U.  C.  Q.  B.,  135,  15, 715 

Cray  «.  Hartford  Fire  Ins.  Co.,  1  Blatch.,  280, 

771 

Crichton  v.  Martin,  11  Scot.  Jur.,  603,  20O 

Crocker  v.  People's  Mutual   Fire  Ins.  Co.,  8 

Cush.,  79,  535 

Crofts  V.  Marshall,  7  C.  «fc  P.,  597,  529 

Croghan  v.  Underwriters  Agency,  53  Ga.,  109, 

137,  351,  889,  1195 

Crockatt  v.  Ford,  35  L.  J.  Ch.,  552,  779 

Crombie  v.  Portsmouth  Fire  Ins.  Co.,  30  N. 

H.,  389,  1007 

Cromie  v.  Kentucky  and  Louisville  Mut.  Ins. 

Co.,  15  B.  Mon.„  433,  676 

Cromwell  v.  Brooklyn  Fire  Ins.  Co.,  44  N.  Y., 

43;  39  Barb.,  337,  164 

V.  Charleston  Trust  Ins.,  Co.,  2  Rich.,  513» 

744 
Crosby  v.  Franklin  Ins.  Co.,  5  Gray,  504, 

1007 

Crossn.  Shutliffe,  3Bay,  220,  444 

Croudson  e.  Leonard,  4  Cranch,  434,  1371 

Crousillat  o.  Ball,  3  Yeates,  375;  4  Dall.,  294, 

3,111,300,409,786 

Crowly  V.  Cohen,  3  B.  &  Ad.,  478;  1  L.  J.  (N. 

S.)  K.  B.,  158.  92,696 

Crowningshield   d.   New    York    Ins.    Co.,    3 

Johns.  C,  142,  440 

Cruder  v.  Philadelphia  Ins.  Co.,  2  Wash.  C. 

C,  203,  339,  406 

Cruiksliank  v.  Brouwer,  11  Barb.,  228,       1288 

13.  Janson,  2  Taunt.,  301,  293 

Cucullu  II.  Louisiana  State  Ins.  Co.,  17  Mar- 
tin (La.),  464.  642,  649,  1278 

J).  Orleans  Ins.  Co.,  18  Martin  (La.),  11, 

1484 

Cudworth  V.  South  Carolina  Ins.  Co.,  4  Rich., 

416,  541,787,1268 

Cullen  B.  Butler,  1  Starkie,  110;  5  Mau.  &  Sel., 

461 ;  4  Camp.,  289,  113, 115,1033 

Cumberland  Bone  Co.  ».  Andes  Ins.  Co.,  64 

Me.,  460,  693 

Cumberland   Valley   Mutual   Protection   Ins. 

Co.,  i\  Douglas,  58  Penn.  St.,  419, 

829 

V.  Mitchell,  48  Penn.  St.,  374, 

132,249,303,673,676 

V.  Schell,  29  Penn.  St.,  31, 

463,1047,1134,1473,1531 


XX 


TABLE  OF  CASES. 


Cummings  v.  Cheshire  County  Mut.  Ins.  Co., 

55  N.  H.,  457,  362 

V.  Hilclreth,  117  Mass.,  309,  805 

• V.  Sawyer,  117  Mass.,  30,  805 

Cummins  v.  Agricultural  Ins.  Co.,  5  Hun.  (N. 

Y.),  554,  824 

Cunard  v.  Hyde,  El.  Bl.  &  EI.,  670;  27  L.  J. 

Q.  B.,  408;  5  Jur.  (N.  S.),  40;  2  El.  & 

El.    1;  29  L.  J.  Q.  B.,  6;  6  Jur.  (N. 

S.),  14,  640 

Cunningham  v.  Craigie,  Bell's  Scs.  Cas.,  243, 

268 
Curcier  v.  Philadelphia  Ins.  Co.,  5  S.  &  R., 

113,  27, 377 

Curtin  v.  Jellicoe,  13  Irish  Ch.,  180,  896 

Curell  «.  Mississippi  Marine  and  Fire   Ins. 

Co.,  3  La.  (O.  S.),  353;  9  id.,  164, 

1240 
Currie  v.  Bombay  Native  Ins.  Co.,  3  L.  R.  P. 

C.,73;  6  Moore  P.  C.  C.  (N.  S.),  30'i; 

39  L.  J.  P.  C,  1;  23  L.  T.  (N.  S.),317; 

18  W.  R.,  296,  600 

Curriers.  Continental  Life  Ins.  Co., 53  N.  H., 

538,  917 

Curry  v.  Commonwealth  Ins.  Co.,   10  Pick., 

535,  375,376,385,  1379 

Curtis  V.  Home  Ins.  Co.,  1  Biss.,  485, 

689, 769, 800 
Cashing  v.  Thompson,  34  Me.,  496,  1343 

Cushman  «.  Northwestern   Ins.   Co.,  34  Me., 

487.  1465,1471 
V.  United  States  Life  Ins.  Co.,  4  Hun.  (N. 

Y.),  783,  131 ,  479, 517, 793, 830 

D. 

Dabbert  v.  Travelers  Ins.  Co.,  2  Cin.  Sup.  Ct., 

98,  515 

Dabney  v.  New  England  Mutual  Marine  Ins. 

Co.,  14  Allen,  300,  611 

Da  Costa  v.  Firth,  4  Burr.,  1966,  1333 

«.  No wnham,  2  Term,  407,     609, 844,  1035 

V.  Scandrct.  2  P.  Wms.,  170,  1231 

Dadmun  Manfiicturing  Co.  ».  Worcester  Mut. 

Ins.  Co.,  11  Met.,  429,  9G 

Dafoe  V.  Johnstown  District  Mut.  Ins.  Co.,  7 

U.  C.  C.  P.,  55,  860 

D'Aguilar  v.  Tobin,  Holt  N.  P.,  185,    37)-,  430 

V.  Tobin,  2  Marsh.,  265,  817 

Dalby  v.  India  and  London  Life  Ass.  Co.,  15 

C.  B.,  365 ;  4  Deg.  &  S.,  463;  24  L.  J. 

C.  P.,  2,  687 
Dalgleish  v.  Brooke,  15  East,  295,  1049,  1230 
V.  Buchanan,  16  C.  C.  S.,  333;  26  Scot. 

Jur.,  160,  728 


Dalgleish  v.  Hodgson,  7  Bing.,  496;  5  M.  &P., 
407 ;  9  L.  J.  C.  P.,  138,  1281 

Dallam  v.  Insurance   Co.,  6   Phila.,   15, 

410,  1243,  1258 
Dalrymple  v.  Johnston,  Faculty  Dec.  1775  to 


1777,  p.  477,  ' 
Dalzcll  V.  Mair,  1  Camp.,  533, 
Daniel  v.  Robinson,  Batty,  650, 


617 
903 
969 


Daniels  v.  Atlantic  Mut.  Ins.  Co.,  24  N.  Y., 
447;  8  Bos.,  266,  570 

V.  Harris,  10  L.  R.  C.  P.,  1,  1263 

V.  Hudson  River  Fire  Ins.  Co.,  12  Cush., 

416,  131,  377,  523,  498, 1199 

V.  Meinhard,  53  Ga.,  359,  188 

Darby  8.  Newton,  6  Taunt.,  544;  2  Marsh., 252. 

794 

Darrah  v.  Bayard,  3  Ycates,  153,  1285 

Date  V.  Gore  District  Mutual  Fire   Ins.  Co., 

14  U.  C.  C.  P.,  502,  1484 
V.  Gore  District  Mutual  Fire  Ins.  Co.,  14 

U.  C.  C.  P.,  549.  1485 
V.  Gore  District  Mutual  Fire  Ins.  Co.,  15 

U.  C.  C.  P.,  175,  654 

Davega  v.  Crescent  Mut.  Ins.  Co.,  7  La.  An., 

238,  1177 

Davenport  v.  New  England  Mutual  Fire  Ins. 

Co.,  6  Cush.,  H40,  66fi 

Davenport,  City  of,  o.  Peoria  Marine  and  Fire 

Ins.  Co.,  17  Iowa,  276,  328 

Daveru  v.  Merchants  Ins.  Co.,  7  La.  An.,  344, 

1456 

David  D.  Hartford  Fire  Ins.  Co.,  13  Iowa,  69, 

860 

Davidson  v.  Burnand,  4  L.  R.  C.  P.,  117:  38  L. 
J.  C.  P.,  73;  19  L.  T.  (N.  S.),  782;  17 
W.  R.,  121,  1023,  1256 

V.  Case,  2  B.  &  B.,  379 ;  5  Mau.  &  Sel.,  79, 

C03 

V.  Willasey,  1  Mau.  &  Sel.,  313,  593 

Davies  v.  Wilkinson,  6  L.  J.  C.  P.,  121,      1286 

Davis  V.  Boardmaii.  12  Mass.,  80,  53,  800 

V.  Davis,  49  Me.,  282,  80 

B.  Home  Ins.  Co.,  24  U.  C.  Q.  B_  364, 

710 

V.  Quincy  Mutual  Fire  Ins.  Co.,  10  Allen, 

113,  105 

«!.  Western  Massachusetts  Ins.  Co.,  8  R.  I., 

277,  378 

Davy  V.  Hallett,  3  Caines,  16,        30,  586,  1468 

V.  Milford,  15  East,  559,  13 

Dawes  v.  North  Riv.er  Ins.  Co.,  7  Cow.,  462, 

1126 
Dawson  v.  Atty,  7  East,  367,  632 

V.  Orr,  24  C.  C.  S.,  566;  34  Scot,  Jur.,  289, 

898 

•!!.  Wrench,    3  Exch.,  359;  18  L.  J.  Ex., 

220,  960, 979 


TABLE  OF  CASES. 


XXI 


Day  V.  Charter  Oak  Fire  and  Jrarine  Ins.  Co., 
51  Me.,  91,  1486 

V.  Ciinwa.v  Iii.s.  Co.,  53  Me.,  60  85 

V.  Mulual  Benetit  Life  Ins.  Co.,  1  Mac- 

Arlliur,  41,  794 

V.  Mutual  Benefit  Life  Ins.  Co.,  1  Mac- 

Aitliur,  598,  981,1139 

V.  Orient  Mutual  Ins.  Co.,  1  Daly,  13, 

1100 
Dayton  Ins.  Co.  v.  Kelly,  24  Ohio  St.,  345, 

872,  885,  918,  950,  978,  1072,  1187, 1492 

Deanj).  i^itna  Life  Ins.  Co.,  2  Ilun.   (N.  Y.) 

358 ;  4  N.  Y.  S.  C,  497,     511,  516,  913, 

1107 

V.  American   Mutual    Life    Ins.   Co.,   4 

Allen,  96,  1359 

• V.  Dicker,  2  Strange,  1250,  1414 

V.  Hornby,  3  El.  &  Bl.,  180;  23  L.  J.  Q. 

B.,  120;  18  Jur.,625,  17,321 

Deblois  v.  Ocean  Ins.  Co.,  16  Pick.,  303,  433, 

1251 
DcBollB  V.  Pennsylvania  Ins.  Co.,  4  Whart.,  68, 

68,  849 

DcCosta  V.  Edmunds,  2  Chitty,  237;  4  Camp., 

143,  2G0,  396 

■!!.  Scandret,  2  P.  Wms.,  170,  246 

Dccrow  V.  Waldo  Mutual   Ins.   Co.,  43  Me., 

460,  1272 

DeCuadra  v.  Swann,   16   C.  B.  (N.  S.),  772, 

595 

Dederer  v.  Delaware  Ins.  Co.,  2  Wash.  C.  C, 

61,  201 

Defflis  «.  Parry,  3  B.  &  P.,  3,  630 

DeForest  v.  Fulton  Fire  Ins.  Co.,  1  Hall,  84, 

387, 1449 
De  Gaminde  v.  Pigou,  4  Taunt.,  246,  903 

D'Eguino  V.  Bewicke,  2  H.  Bl.,  551,  369 

De  Groot  «.  Fulton  Fire  Ins.  Co.,  4  Rob.  (N. 
Y.),  504,  1069 

De  Ilahn  v.  Hartley,  1  Term,  343;  3  id.,  186, 

1392  1527,  1573 
Deidericks  v.  Commercial  Ins.  Co.,  10  Johns., 

234,  1511 
Deitz  V.  Mound  City  Mutual  Fire  &  Life  Ins. 
Co.,  38  Mo.,  85,  859 

Delaliy  v.  Memphis  Ins.  Co.,  8  Humph.,  684, 

249 
Delaney  v.  Stoddart,  1  Term,  22,  431 

Delano  v.  American  Ins.  Co.,  43  Barb.,  142, 

1338 

V.  Bedford  Marine  lus.  Co.,  10  Mass.,  348, 

1426 
Delavigne  it.  United  States  Ins.  Co.,  1  Johns. 
C,  310,  1227 

Delaware  Ins.  Co.  v.  Archer,  3  Rawle,  216, 

1008 


Delaware  Ins.  Co.  v.  Delaunie,  3  Binn.,  295, 

53 

V.  Hogan,  2  Wash.  C.  C,  4,  1166 

V.  Winter,  33  Penu.  St.,  176, 

282,  783,  1508 
Delongueniare  v.  Tradesmcns  Ins.  Co.,  2  Hall, 

589,  131,  719,  1201 

DoLonguemere  ».  New  York  Fire  Ins.  Co., 

10  Jolins.,  202,  138,  586 
V.  New   York  Fire  Ins.  Co.,  10  Johns., 

120,  120,  £56 

Delver  v.  Barnes,  1  Taunt.,  48,  140,  1181 

DeMattos  v.  North,  3  L.  B.  Ex.,  185;  37  L  J. 

Ex.,  116;  18  L.  T.  (N.  S.),  797,      1463 
V.  Saunders,  7  L.  R.  C.  P.,  570;  20  W.  R., 

801 ;  27,  L.  T.  (N.  S.),  120,     1291,  1325 
Demill  v.  Hartford  Fire  Ins.  Co.,  4  Allen  (N. 

B.),  341,  301,  954 

Denison  v.  Modigliani,  5  Term,  580,  420 

Dennis  v.  Ludlow,  2  Caines,  111,       1060,  1236 
Dennison  v.  Thomaston,  Mut.  Ins.  Co.,  20  Me., 

125,  1203 

Dennistouu  v.  Lillie,  3  Bli.,  202,  1197 

Denny  v.  Conway  Stock  &  Mutual  Fire  Ins. 

Co.,  13  Gray,  493,  308 

Denoon  v.  Home  &  Colonial  Ass.  Co.,  7  L.  R. 

C.  P.,  341;  41  L.  J.  C.  P.,  162;  26  L. 

T.  (N.  S),  628,  1480 

Dent  V.  Smith.  4  L.  R.  Q.  B.,  414,  610 

Depaba  v.  Ludlow,  1  Com.,  360,  718 

De  Pau  1!.  Ocean  Ins.  Co.,  5  Cow.,  63,         8.  88 

V.  Jones,  1  Brev,  437,  945,  1494 

De  Peau  v.  Russel,  1  Brev.,  441, 

271,  720,  1030 
De  Peyster  v.  Sun  Mut.  Ins.  Co.,  19  N.  Y.,  272; 

17  Barb.,  306,  441,  1506 

Deraisraes  ii.  Merchants  Mut.  Ins.  Co.,  1  N.  Y., 

371,  1054 

Dermani  v.  Home  Mut.  Ins.  C,  26  La.  An.,  69, 

1380 
De  Ronge  v.  Elliott,  23  N.  J.  Eq.,  486, 

1533 
Derrick  «.  Lamar  Ins.  Co.,  7  Chi.  Leg.  News., 

198,  233 

Desborough  v.  Curlewis,  3  You.  &  Coll.,  175, 

955 

V.  Harris,  5  De  G.,  M.  &  G.,  439, 

731  723 

V.  Rawlins  3  Myl.  &  Cr.,  515,  519 

Deshon  v.  Merchants  Ins.  Co.,  11  Met.,  199, 

1231 
Dcsilver  v.  State  Mut.  Ins.  Co.,  38  Penn.  St., 

130,  1130 

De  Symons  v.  Johnston,  5  B.   &  P.,  77, 

953 
De  Tastet  e.  Taylor,  4  Taunt.,  233,  628 


zxu 


TABLE  OF  CASES. 


De  Vaiix  t.  Astell,  4  Jur.,  1135,  966,  979 

«.  Astell,  10  L.  J.  C.  P.,  46,  966 

ji.  Janson,  8  L.  J.  (N.  S),   C.  P.,  284;  5 

Bing.,  (N.  C),  519;  3  Jur.,  6':8, 

594,  983 

V.  Steel,  6  Bing.,  N.  C,  358 ;  8  Scott,  637, 

703 

Deveaux  v.  Salvador,  4  A.  &  E.,  420 ;   5  L.  J. 

(N.  S.)  K.  B.,  134;  6  N.  &  M.,  713, 

230 

Devendorf  v.  Beardsley,  23  Barb.,  656,       1096 

Devine  v.  Home  Ins.  Co.,  32  Wis.,  471,         830 

Dewees  ».  Manhattan  Ins.  Co.,  34  N.  J.,  244, 

954,  962,  963,  1456,  1528 

v.  Manhattan  Ins.  Co.,  35  N.  J.,  366, 

1456 

De  Wolf  V.  Archangel  Maritime  Bank  &  Ins. 

Co..  9  L.  R.  Q.  B.,  451 ;  43  L.  J.  Q.  B., 

147;  23  W.  R.,  801,  418 

— ^  V.  New  York  Firemens  Ins.  Co.,  20  Johns., 

214;  2  Cow.,  56,  259,808 
V.  State  Mutual  Fire  &  Marine  Ins.  Co., 

6  Duer,  191,  586 

Dey  V.  Poughkeepsie  Mut.  Ins.  Co.,  23  Barb., 

628,  178 

Dhcgetoft  V.   London  Ass.  Co.,  Mos.,  83;   4 

Bro.  P.  C,  436,  741 

Dick  V.  Barrel!,  2  Strange,  1248,  985 

Dickeson  v.  Jardine,  3  L.  R.  C.  P.,  639;  37  L. 

J.  C.  P.,  321;  18  L.  T.  (N.  S.),  717; 

16  W.  R.,  1169,  58 

Dickey  v.  American  Ins.  Co.,  3  Wend.,  658, 

8,  1437 

V.  Baltimore  Ins.  Co.,  7  Cranch,  327,     183 

V.  New  York  Ins.  C,  4  Cow.,  222, 

19,  758 

• 0.  United  Ins.  Co.,  11  Johns.,  358,       1014 

Dickinson  ®.  Phillips,  1  Barb.,  454,  174 

Dickson  v.  Equitable  Ins.  Co.,  18  U.  C.  Q.  B., 

246,  554 

V.  Lodge,  1  Starkie,  226.,        180,  207,  503 

Diehl  v.  Adams  County  Mut.  Ins.  Co.,  58  Penn. 

St.,  443,  112,  271,  474 

Dillard  d.  Manhattan  Life   Ins.  Co.,  44  Ga., 

119,  908 

Dinning  v.  Phoenix  Ins.  Co.,  68  111.,  414,     888 
Disbrow  v.  Jones,  Harring.  (Mich.)  Ch.,48, 

1345 
Dittmcr  s.   Germania  Ins.  Co.,  23   La.  An., 

458,  659 

Dix  V.  Mercantile  Ins.  Co.,  22  111.,  272,       1390 

v.  Union  Ins.  Co.,  23  Mo.,  57,  1034 

Dixon  V.  Reed,  5  B.  &  A.,  597;  1  D.  &  R.,  207, 

1442 
O.Sadler,  5   Mee.  &  W.,  405;  8   id.,  895; 

9  L.  J.  (N.  S.)  Ex.,  48;  11  id.,  435, 

1156 


Dixon  V.  Stansficld,  10  C.  B.,  398,  758 

Dobson  ».  Land,  8  Hare,  216;  4  DeG.  &  S., 

575,  804 

V.  Sotheby,  1  Moo.  &  M.,  90,  1523 

Dodge  J).  Bartol,  5  Me.,  286,  397 

V.  Esse.x  Ins.  Co.,  13  Gray,  65,     1040, 1177 

V.  Union  Marine  Ins.  Co.,  17  3Iass.,  471, 

618,  1037 
Dodge  County  Mut.  Ins.  Co.  v.  Rogers,  12  Wis., 

837,  658,  1493 

Dohn  V.  Farmers  Joint  Stock  Ins.  Co.,  5  Lans., 

275,  131,  690,  1123 

Dole  V.  Merchants  Mut.  Ins.  Co.,  51  Me.,  465, 

220 
V.  New  England  Mutual  Marine  Ins.  Co., 

2  ClilT.,  394,  218 
V.  New  England  Mutual  Marine  Ins.  Co., 

6  Allen,  373,  220 

Dometl  V.  Young,  1  C.  &  M.,  465,  1401 

Domingo  «.  Merchants   Mutual  Ins.   Co.,  19 

La.  An.,  479,  947 

Donald  v.  Life  Ins.  Co.,  4  So.  Car.,  321,        940 
Donaldson  v.  Manchester  Ins.  Co.,  14  C.  C.  S., 

601,  234, 877 

v.  Thompson,  1  Camp.,  429,  1280 

Donath  ».  Insurance  Company  of  North  Amer- 
ica, 4  Dall.,  463,  1405 
Donnell  v.  Columbian  Ins.  Co.,  2  Sumn.,  366, 

899,  1062,  1271,  1499 
Dormay  v.  Borradaile,  10  Beav.,  335 ;  16  L.  J. 

Ch,,  337;  5  C.  B.,  380;  11  Jur.  231, 

380 
Dorn  V.  Germania  Ins.  Co.,  8  Chi.  Leg.  News, 

156,  124 

Dorr  B.  New  England  Marine  Ins.  Co.,  4  Mass., 

231,  1408,  1409 

D.  New  England  Ins.  Co.,  11  Mass.,  1,     1408 

V.  Pacific  Ins.  Co.,  7  Wheat.,  581,         366 

V.  Union  Ins.  Co.,  8  Mass.,  494;  id.,  502, 

10,  16 
Douglas  V.  Scougall,  4  Dow.,  269,  1261 

Douglass  V.  Murphy,  16  U.  C.  Q.  B.,  113, 

380,  390 
DouviUe  V.  Sun  Mut.   Ins.  Co.,  12  La.  An., 

259,  348 

Dow  V.  Hope  Ins.  Co.,  1  Hall  (N.  Y.),  166, 

1009 

».  Smith,  1  Caines,  32,  87 

V.  Whetten,  8  Wend.,  160,  506,  1009 

Dowdall  V.  Allen,  19  L.  J.  Q.  B.,  41,  968 
V.   Hallett,   14  Jur.,  309;  19  L.J.  Q.  B., 

37,  368 

Dowell  V.  Moon,  4  Camp.,  166,  367 

Dowker  v.  Canada  Life  Ins.  Co.,  24  U.  C.  Q. 

B.,  591,  1231,  1463 

Downs  V.  Hammond,  47  lud.,  131,  953 


TABLE  OF  CASES. 


XXllL 


Dows  V.  Howard   Ins.  Co.,  5   Rob.  (N.  Y.), 

473,  1512 

Dowson  V.  Orr,  24  C.  C.  S.,  5G6;  34  Scot.  Jur., 

289,  898 

Doyle  V.  Anderson,  1  A.  &  E.,  C35 ;  4  N.  &  M., 

873,  278 

v.  Dallas,  1  M.  &  Rob.,  48,  1401 

V.  Phtt"ni.K  Ins.  Co.,  44  Cal.,  264,  959 

V.  Powell,  4  B.&  Ad.,  267;  1  N.  &  M., 

678,  1043 

Drake  ■».  Farmers   Mut.   Ins.  Co.,  3  Grant's 

Ch.,  325,  838 
t'.  Marryat,   1   B.  &  C,  474;  2  D.  &  R., 

696,  485 

Draper  v.  Charter  Oak  Fire  lus.  Co.,  2  Allen, 

5C9,  607 
V.  Commercial  Ins.  Co.,  21  N.  Y.,  378;  4 

Duer,  234,  1250 

Dreher  v,  ./Etna  Ins.  Co.,   18  Mo.,   128, 

1389 
Driggs  V.  Albany  Ins.  Co.,  10  Barb.,  440, 

299 
Drinkwater    v.  London   Ass.   Corporation,  2 

Wils.,  363,  731 

Driscoll  V.  Bovill,  1  B.  &  P.,  313,  433 

V.  Passmore,  1  B.  &  P.,  200,  433 

Drysdale  v.  Piggott,  8  DeG.  M.  &  G.,  540 ;  2 

Jur.  (N.  S.),  1078;  25  L.  J.  Ch.,  878, 

1332 
Ducat  V.  Chicago  (city  of),  10  Wall.,  410, 

1363 
Duckett  c.  Williams,  4  Tyrw.,  240;  2  Cromp. 

&  M.,  348;  3  L.  J.  (N.  S.)  Ex.,  141, 

1298 
Duclos  V.  Citizens  Mut.  lus.  Co.,  23  La.  An., 

332,  859 

Dudgeon  v.  Pembroke,  1  Q.  B.  D.  Ex.  Ch.,  96; 

9  L.  R.  Q.  B.,  581 ;  43  L.  J.  Q.  B.,  220; 

22  W.  R.,  914;  31  L.  T.  (N.  S.),  31, 

785,  1244 
Ducrhagcn  v.  United  States   Ins.  Co.,  2  S.  & 

R.,  309,  409 

Dufaur  v.  Professional  Life  Ins.  Co.,  25  Beav., 

599;  4  Jur.  (N.  S.),  841 ;  27  L.  J.  Ch., 

817,  158 

Duff  V.  Mackenzie,  3  C.  B.  (N.  S.),  16;  8  Jur. 

(N.  S.),  1025;  26  L.J.  C.  P.,  313,     1510 
Duguetr.  Rhinelander,  1  Caines  Cas.,  26, 

225,  806 
I  Rhinelander,  2  Johns.  C,  476;  1  id.,  360  ; 

1  Caines  Cas.,  26,  261 

Dumas  r.  Jones,  4  Mass.,  647,  995 

V.  United  States  Ins.  Co.,  12  S.  &  R.,  437, 

1472 
Duncan  v.  Chamberl.Hj-ne,  11  Sim.,  128        175 


Duncan  v.  Great  Western  Ins.  Co.,  42*  N.  Y.(3 

Keyes),  394;  1  Abb.  Dec,  502;  5  Bos., 

378,  u.;  19  IIow.  Pr.,  312,  103 

V.  Koch,  Wall.  C.  C,  33,  16 

V.  Sun  Fire  Ins.  Co.,  6  Weud.,  488, 

304,  1215 

V.  Sun  Mut.  Ins.  Co.,  12  La.  An.,  486, 

997 
Dunham  v.  Commercial  Ins.  Co.,  11  Johns., 

315,  Gil,  843 

Duulop  V.  ^tna  Ins.  Co.,  2  U.  C.  C.  P.,  252, 

C61 
V.  Allan,  Faculty,  Dec.  1781   to   1787,  p. 

371,  1003 

Dunmore  v.  Allan,  Faculty,  Dec.  1781  to  1787, 

p.  432,  371 

Dunning  v.  Merchants  Mutual   Marine   Ins. 

Co.,  57  Me.,  108,  588,  786,  1398 

Dupeyre  v.  Western  Marine  &  Fire  Ins.  Co., 

2  Rob.  (La.),  457,  1259 

Dupin  V.  Mutual  Ins.  Co.,  5  La.  An.,  482,     731 
Dupuy  V.  United  States  Ins.  Co.,  3  Johns.  C, 

182.  1437 

Durand  v.  Thouron,  1  Porter  (Ala.),  238,     695 
Durar  v.  Hudson  County  Mut.  Ins.  Co.,  24  N". 

J-,  171,  166,  169 

Durrell  v.  Bederly,  Holt  N.  P.,  288,  265 

Dutilh  V.  Gatliff,  4  Dall.,  446,  1404 

Duttou  V.  New  England  Mutual  Fire  Ins.  Co., 

29  N.  H.,  153,  675 
V.  Vermont  Mutual  Fire  Ins.  Co.,  17  Vt., 

369,  772. 1820 

Duval  V.  Commercial  Ins.  Co.,  10  Johns.,  278, 

218 
Dyer  v.  Piscataqua  Fire  »fc   Marine  Ins.  Co., 

53  Me.,  118,  973,  1028 

Dyson  v.  Rowcroft,  8  B.  &  P.,  474,  1570 


E. 

Eadie  v.  Slimmon,  26  N.  Y.,  9,  1534 

Eagan  v.  Mutual  Ins.  Co.,  5  Denio,  326,  666 
Eager  v.  Atlas  Ins.  Co.,  14  Pick.,  141,  90 

Eagle  Ins.  Co.  v.  La  Payette  Ins.  Co.,  9  Ind., 

443,  770.  1183 

Earl  V.  Shaw,  1  Johns.  C,  314,  16,  180 

Earle  v.  Harris,  1  Doug.,  357,  1236 

V.  Rowcroft,  8  East,  136,  199 

V.  Westchester  Fire  Ins.  Co.,  29  Mich., 

414,  532 

Eastabrook  v.  Union  Mutual  Life  Ins.  Co.,  54 

Me.,  224,  1357 

Eastern  Railroad  d.  Relief  Fire  Ins.  Co.,  98 

Mass.,  420,  1130,  1208 


XXIV 


TABLE  OF  CASES. 


Eastern  Railroad  v.  Relief  Fire  Ins.  Co.,  105 

Mass.,  570,  1123 

Eastman  c.  Carroll  County  Mutual   Fire  Ins. 

Co.,  45  Me.,  307,  101 

Ebsworth  e.  Alliance  Mut.  Ins.  Co.,  8  L.  R.  C. 

P.,  596;  43  L.  J.  C.  P.,  305;  29  L.  T. 

(N.  S.),  479,  564 

Eclectic  Life  Ins,  Co.  v.  Fahrenkrug,  08  111., 

403,  1073,  1081,  1310 

Eclipse  lus.  Co.  v.  Schoemer,  3  Cin.  Sup.  Ct., 

474,  653 

Eddy  V.  Tennessee  Marine   Fire  lus.  Co.,  31 

Mo.,  487.  405 

Eddy  St.  Foundry  v.  Camden  Stock  &  Mut. 

Ins.  Co.,  1  Cliti'.,  300,  1003 
«.  Farmers  Mutual  Fire  Ins.  Co.,  5  R.  I., 

426,  308,  1001 

Eden  v.  Parkison,  2  Dou?.,  732,  809 

EdesB.  Hamilton  Mut.  Ins.  Co.,  3  Allen,  302, 

668 
Edgar  v.  Bumstead,  1  Camp.,  411,  1394 

V.  Fowler,  3  East,  323,  365 

Edge  0.  Duke,  18  L.  J.  Ch.,  183,  945 

Edington  v.  Mutual  Life  Ins.  Co.,  5  Hun.  (N. 

Y.),  1,  130,  513,  519,  788 

Edmands  v.  Mutual  Safety  Fire  Ins.   Co.,   1 

Allen,  311,  668 

Edmonstone  v.  Jackson,  Faculty  Dec.  1778  to 

1781,  p.  195,  1432 

Edwards  v.  Baltimore  Fire  Ins.  Co.,  3  Gill., 

176,  839,840,1111,1145 

T.  Footner,  1  Camp.,  530,  1197 

V.  Lycoming  County  Mut,  Ins.  Co.,  75 

Penn.  St.,  378,  836 
V.  Martin,  1  L.  R.  Eq.,  121 ;  13  L.  T.  (N. 

8.),  336,  173 
V.  St.  Louis  Perpetual   Ins.  Co.,  7  Mo., 

883,  348 

Egan  V.  Mutual  Ins.  Co.,  5  Denio,  320, 

282,  305 

Ela  V.  French,  11  N.  H.,  356,  390 

Elbers  v.  United  Ins.  Co.,  16  Johns.,  129, 

812,  1238 
Elkin  V.  Janson,  13  Mee.  &  W.,  655 ;  14  L.  J. 
(N.  S )  Ex..  201 ;  9  Jur.,  353,  246 

Ellery  «.  Merchants  Ins.  Co.,  3  Pick.,  46, 

1320 

V.  New  England  Ins.  Co.,  8  Pick.,  14, 

443 

Ellicott  V.  United   States   Ins  Co.,  8  G.  &  J., 

166,  63 

V.  Alliance  Ins.  Co.,  14  Gray,  318,       1441 

Elliott  V.  Anderson,  Faculty  Dec,  1781  to  1787, 
p.  343,  945 

V.  Hamilton  Mut.  Ins.  Co.,  13  Gray,  139, 

1207,  1213 


Elliott  ».  Lycoming  County  Ins.  Co.,  00  Penn. 

St.,  32,  857,  899,  149^ 
V.  Royal  E.\change  Ass.  Co.,  3  L.  R.  E.\., 

237;  10  L.  T.  (N.  S.),  399;  15  W.  R, 

907;  36  L.J.  Ex.,  139,  138 

- —  V.  Wilson,  4  Bro.  P.  C,  470 ;  Faculty  Dec. 

1775  to  1777,  p.  308,  411 

Ellis  V.  Albany  City  Fire   Ins.  Co.,  50  N.  T., 

402;  4Lans.,  433,  315 

V.  Kreulzinger,  27  Mo.,  311,  759 

V.  Lafoue,  8  E.xch.,  540;  17  Jur.,  218;  23 

L.  J.  Ex.,  124,  403,  098 

Ellmaker  s.  Franklin  Fire  Ins.  Co.,  5  Penn. 

St.,   183;    6   W.  &   S.,  439, 

383,  1010 
Elstner  v.  Equitable  Ins.  Co.,  1  Disney, 412, 

289  493 
Elting  V.  Scott,  2  Johns.,  157, 

295,  516,  1250,  1393 
Elljon  V.  Brogden,  2  Strange,  1264,  43» 
V.  Larkins,  8  Bing.,  198;   1   M.  &   Scott, 

323 ;  5  C.  &  P.,  86,  385,  263,  541 

Ely  V.  Ely,  8  Chi.  Leg.  News,  161,  1346 

».  Hallctt,  2  Caines,  57,  791 

Embree  v.  Shideler,  36  Ind.,  423,  155 

Emerick  v.  Coakley,  35  Md.,  188,  15.3iJ 

Emery  v.  Piscataqua  Fire  and  Marine  Ins.  Co., 

52  Me.,  333,  464 

Eminence  Mut.  Ins.  Co.  v.  Jesse,  1  Met.  (Ky.), 

523,  1383 

Emmet  v.  Reed,  8  N.  T.,  312;  4Sandf,  229, 

304 
Emmott  V.  Slater  Mutual  Fire  Ins.  Co.,  7  R 

I.,  563,  1317 

England  v.  Tredegar,  35  Beav.,  356,  779 

English  Ass.  Co.  In  re  Holdichs  Case,  42,  L. 

J.  Ch.,  612:  14  L.  R.  Eq.,  72;   30  TV. 

R.,  567;  20L.  T.  (N.  S.),  415,  384 

English  and  Irish  Church  and  Univei-sity  Ass. 

Soc,  In  re,  11  W.  R.,  681 ;  1  H.  &  M., 

25;  8L.T.  (N.  S.),  724,  894 

Ennis  v.  Harmony  Fire  Ins.  Co.,  3  Bos.,  516, 

60 
V.  London  Ass.  Co.,  19  C.  B.  (N.  S.),  120; 

11  Jur.  (N.  S.),  546 ;  34  L.  J.  C.  P.,  399 ; 

13  W.  R.,  862,  894 

Entwisle  i\  Ellis,  2  H.  &  N.,  549 ;  37  L.  J.  Ex., 

105,  1511 

Equitable   Ins.  Co.  «.  Cooper,  60  111.,  509, 

,     lOO 

c.  Hearne,  30  Wall.,  494,  1165- 

Equitable  Fire  Ins.  Co.  v.  Quin,  11  L.  C,  170, 

390 
Ervin  v.  New  York  Centi-al  Ins.  Co.,  3  N.  Y. 

S.  C,  313,  531 

Estos  !).  World  Mutual  Life  Ins.  Co.,  6  Hun. 

(N.  Y.),  349,  307 


TABLE  OF  CASES. 


XX7 


Etches  V.  Aldau,  1  M.  &  R.,  157 ;  6  L.  J.  K.  B., 

65,  5!)1 

Eureka  Ins.  Co.  v.  Parks,  1  Ciii.  Sup.  Ct.,  574, 

756 

. V.  Robinson,  56  Penn.  St.,  256, 

387,  456, 517,  527,  857 
Evans  v.  Bignold,  4  L.  R.  Q.  B.,  623;  20  L.  T. 

(N.  S),  659,  1462 

V.  Columbian  lus.  Co.,  44  N.  Y.,  146,    547 

V.  Commercial  Mut.  Ins.  Co.,  6  R.  I.,  47, 

378,  893 

V.  Ilooper,  1  Q.  B.  D.,  45,  79 

J).  Trimounlaiu  Mutual  Fire  Ins.  Co.,  9 

Allen,  329,  664 
V.  United  States  Life  Ins.  Co.,  3  Hun.  (N. 

Y),  587 ;  6  N.  Y.  8.  C, 331,  933 

Everanl  v.  Ilollingsworth,  3  B.  &  P.,  Ill, 

1229 
Everett  v.  Desborough,  5  Bing.,  503 ;  3  M.  &  P., 

190 ;  7  L.  J.  C.  P.,  223,  788,  1308 
V.  London  Ass.  Co.,  19  C.  B.  (N.  S.),  126; 

8.  c,  11  Jur.(N.  S.),546;  34  L.  J.C.  P., 

299;  13  W.  R.,  863,  549 

Evers  r.  Life  Association,  59  Mo.,  429,         518 
Everth  v.  Blackbourne,  2  Starkie,  58 ;  6  Man.  & 

Sel.,  152,  211 

V.  nannam,  6  Taunt.,  375;  2  Marsh.,  72, 

203 

V.  Smith,  3  Man.  &  Sel .,  278,  583 

V.  Tunno,  1  Stark.,  508;  1  B.  &  A.,  143, 

1064 

Ewer  1).  "Washington  Ins.  Co.,  16  Pick.,  502, 

490 

Excelsior  Fire   Ins.  Co.  ti.  Royal   Ins.  Co.,  55 

N.  Y.,  343;  7  Lans.,  188,  317,830 

Eyer  c.  Glover,  16  East,  218;  3  Camp.,  276, 

1100 

V.  Marine  Ins.  Co.,  6  Whart.,  247,         191 

V.  Palsgrave,  2  Camp.,  005,  485 


F. 

Fabbri  v.  Mercantile  Mut.  Ins.  Co.,  6  Lans., 

446;  64  Barb.,  85,  305 

jt.  Phanix  Ins.  Co.,  55  N.  T.,  129,         305 

Fabyan  v.  Union  Mutual  Fire  Ins.  Co.,  33  N. 

H.,  203,  656,  850 

Fair  v.  Manhattan  Ins.  Co.,  113  Mas?.,  320, 

1000,  1164 
Fairchild  v.  Liverpool  and  London  Ins.  Co., 

51  N.  Y.,  65 ;  48  Barb.,  420,  559 

Fairlie  v.  Christie,  7  Taunt.,  416;    H.ilt  N.  P., 

331;  1  Moore,  114,  120 

Palis  V.  Conway  Mutu.al  Fire  Ins.  Co.,  7  Allen, 

46,  668 


Falkner  v.  Ritchie,  2  Mau.  &  Sel.,  294, 

290,  1430' 

Family  Endowment  Soc.  In  re,  5  L.  R.  Ch., 

118;  21  L.  T.  (N.  S.),  775,  841 

Faris  v.  Ncwburyport  Marine  Ins.  Co.,  3  Mass., 

476,  1409 

Farmers  and  Mechanics  Ins.  Co.  v.  Simmons, 

30  Penn.  St.  299,  125,  749 

Farmers  and  Merchants  Ins.  Co.  v.  Chesnut, 

50  111.,  Ill,  232,  107.5 

V.  Harr.ih,  47  Ind.,  236,  1317 

V.  Smith,  63  111.,  187.  274 

Farmers  Insurance  and  Loan  Co.  v.  Snyder, 
16  Wend.,  481;  13  id,,  92,  799 

Farmers  Loan  and  Trust  Co.  v.  Harmony  Fire 
and  Marine  Ins.  Co.,  51  Barb.,  33;  41 
N.  Y.  (2  Hand),  519,  990 

Farmers  Mut.  Ins.  Co.  i\  Graybill,  74  Penn. 
St.,  17,  106,  283,  1104 

D.  Marshall,  29  Vt.,  23,  1091 

V  Taylor,  73  Penn.  St.,  342,         870,  1071 

Farn  worth  v.  Hyde,  2  L.  R.  C.  P.,  204;  12  Jur. 

(N".  S.),  997 ;  35  L.  J.  C.  P.,  250 ;  36  id., 

33;  15  L.  T.  (N.  S.),  395;  15  W.  H., 

340;  18  C.  B.  (N.  S.),  835;  11  Jur.  (N. 

S.),  349;  34  L.  J.  C.  P.,  207;  13  W.  R., 

613;  12  L.  T.  (N.  S.),  231,  1434 

Farrow  v.  Commonwealth  Ins.  Co.,  18  Pick., 

53,  6T 

Faudel  v.  Phoenix  Ins.  Co.,  4  S.  &  R.,  29,    1377 

Faugier  v.  Hallet,  2  Johns.  C,  233,  88 

Faulkner  v.  Augusta  Ins.  Co.,  2  McMullen,  158, 

58 

■».  Central  Fire  Ins.  Co.  of  N.  B.,  1  Kerr, 

279,  750 

Fawcuss.  Sarsfield,  6  El.  &  Bl.,  192;  3  Jur. 
(N.  S.),  665 ;  25  L.  J.  Q.  B.,  249,     1248 
Fay  V.  Alliance  Ins.  Co.,  16  Gray,  455, 

91,  374,  1049 
Payette  Mutual  Fire  Ins.  Co.  v.  Fuller,  8  Al- 
len, 27,  153 
Fayle  v.  Bourdillion,  8  Taunt.,  54G,  637 
Fayles  v.  National  Ins.  Co.,  49  Mo.,  380,  1074 
Feeny  v.  People's  Fire  Ins.  Co.,  2  Rob.  (N.  Y.), 


599, 


Feise  v.  Aguilar,  3  Taunt.,  506, 

V.  Bell,  4  Taunt.,  4, 

V.  Newnham,  16  East.  197, 

V.  P.arkinson,  4  Taunt,  640, 

V.  Waters,  2  Taunt.,  249, 

Fell  V.  Lutwidge,  Barn.  Ch.,  319, 

Fcllowes  V.  Madison  Ins.  Co.,  3  Disney,  128, 

1177 
Felton  V.  Brooks,  4  Cush.,  203,  1340 
Fenn  v.  Craig,  3  You.  &  Coll.,  216,  74 
V.  Edmonds,  5  Hare,  :H14,               721,  Tii 


398,  973 
1474 
628 
633 
1230 
643 
897 


XXVI 


TABLE  OF  CASES. 


Fenn  «.  Kew  Orleans  Ins.  Co.,  53  Ga.,  578,    695 
Fenwick  v.  Robinson,  3  C.  &  P.,  323,  844 

Ferebee  v.  North  Carolina  Home  Ins.  Co.,  08 

N.  C,  11,  937 

Ferguson  v.  Pliojnix  Ins.  Co  ,  5  Binn.,  544, 

1028 
Fernandez  v.  Great  Western  Ins.  Co.,  48  N.  Y., 

571 ;  3  Rob.,  457,  408 
V.  Mercliuuts  Mut.  Ins.  Co.,  17  La.  An., 

131,  1370 

Fernie  v.  Maguire,  6  Irish  Eq.,  137,  737 

Ferree  «.  Oxford  Ins.  Co.,  67  Penn.  St.,  373;  8 

Phila.,  512,  179 

Ferrer  v.  Uome  Mut.  Ins.  Co.,  47  Cal.  416, 

127,  823,  952 
Ferrier  v.  Saudieman,  Faculty  Dec,  1808  to 

1810,  p.  373,  1419 

Ferriss  v.  North  America  Fire  Ins.  Co.,  1  Hill, 

71,  50, 555 

Fiedler  v.  New  York  Ins.  Co.,  6  Duer,  282, 

578,  1438 
iField  V.  Citizens  Ins.  Co.,  11  Mo.,  50,  581 
V.  Insurance  Co.  of  North  America,  3 

Md.,  244,  379,  1258 

Fifield  B.  Insurance  Co.  of  Pennsj'lvauia,  47 

Penn.  St.,  166,  220 

Finley  v.  Lycoming  Ins.  Co.,  30  Penn.  St.,  311, 

98.  474 
Finney  e.  Bedford   Commercial  Ins.   Co.,  8 

Met.,  348,  '126,  491 

V.  Fairhaven  Ins.  Co.,  5  Met.,  192,      1091 

v.  Warren  Ins.  Co.,  1  Met.,  16,     996,  1229 

Fire  Association  -o.  Williamson,  26  Penn.  St., 

196,  1485 

Fire  and  Marine  Ins.  Co.  of  Wheeling  v.  Mor- 
rison, 11  Leigh,  354,  714,  1346 
Firemens  Benevolent  Ass'n  v.  Lounsberry,  21 

111.,  511,  1364 

Firemens  Fund  Ins.  Co.  e.  Congregation  of 

Kodeph  Sholem,  8  Chi.  Leg.  News, 

178,  69, 550 

Firemens  Ins.  Co.  v.  Crandall,  33  Ala.,  9, 

1135 

V.  Fitzluigh,  4  B.  Mon.,  16,  890 

V.  Powell,  13  B.  Mon.,  311, 

91,  298,  739,  1045,  1153 
First  Baptist  Church  v.  Brooklyn  Fire  Ins. 

Co.,  19  N.  Y.,  305 ;  18  Barb.,  69, 

337, 884,  1322 
V.  Brooklyn  Fire  Ins.  Co.,  28  N.  Y.,  153; 

23  How.  Pr.,  448,  337,  511 

First  Baptist  Society  «.  Hillsborough  Ins.  Co., 

19  N.  H.,  580,  869 

First  Congregational  Church  v.  Western  Ass. 

Co.,  26  U.  C.  Q.  B.,  175,  284 


First  National  Bank  n.  Insurance  Co.  of  North 
America,  50  N.  Y^,  45;  5  Lans.,  203, 

1517 

Fish  V.  Liverpool,  London  and  Globe  Ins.  Co., 
44  N.  Y.,  538,  256,  883 

Fisher  v.  Cochran,  5  Tyrw.,  496;  4  id.,  424;  1 
C.  M.  &  R.,  809;  2  Cromp.  &  M.,  581 ; 

3  L.  J.  (N.  S.)  Ex.,  185;  4  id.,  328, 

1238 
V.  Liverpool  Marine  Ins.  Co.,  8  L.  R.  Q. 

B.,  469  ;  9  id.,  418 ;  42  L.  J.  Q.  B.,  224 ; 

43  id.,  114;  22  W.  R.,  13,  951;  28  L. 

T.  (N.  S.),  867;  30  id.,  501,  353 

V.  Ogle,  1  Camp.,  418,  1280 

Fisk  V.  Masterman,  8  Mee.  &  W.,  165 ;  10  L.  J. 

Ex.,  306,  1231 

Fiske  V.  New  England  Ins.  Co.,  15  Pick.,  310, 

237,  2.50 

Fitch  v.  American  Popular  Life  Ins.  Co.,  2  N. 

Y.  S.  C,  247 ;  59  N.  Y.,  557, 

794,  1302 

Fitchburg  Railroad  v.  Charleston  Mutual  Fire 

Ins.  Co.,  7  Gray,  64,  1000 

Fitton  V.  Accidental  Death  Ins.  Co..  17  C.  B. 

(N.  S.),  122;  34L.  J.  C.  P.,  28,  43 

Fitzherbert  v.  Mather,  1  Term,  13,  247 

Fitzpatrick  d.   Mutual   Benevolent  Life  Ins. 

Ass'n,  25  La  An.,  443,  923 

Fitzsimmons  v.  City  Fire  Ins.  Co.,  18  Wis., 

234,  966,  1348 

• V.  Newport  Ins.  Co.,  4  Cranch,  185, 

1274 
Flanagan  v.  Camdea  Mut.  Ins.  Co.,  25  N.  J., 

506,  49, 77 

Flanigen  v.  Washington  Ins   Co.,  7  Penn.  St., 

306,  374,  947 

Fleming  v.  Insurance  Co.,  12  Penn.  St.,  391, 

68, 509,  1226 

^).  Smith,  1  H.  L.  Cas.,  513.  23 

t.  Smith,  8  C.  C.  S.,  627 ;  18  Scot.  Jur., 

319,  23 

11.  Marine  Ins.  Co.,  3  W.  &  S.,  144, 

787, 1064 

V.  Marine  Ins.  Co.,  4  Whart.,  59, 

815,  1063,  1064 
Fletcher  v.  Alexander,  3  L.  R.  C.  P.,  375 ;  37 

L.  J.  C.  P.,  193;  18  L.  T.  (N.  S.),  432; 

16  W.  R.,  803,  619 

V.  Commonwealth  Ins.  Co.,  18  Pick.,  419, 

248,373 

V.  Inglis,  2  B.  &  A.,  315,  1020 

V.  St.  Louis  Marine  Ins.  Co.,  18  Mo.,  193, 

444,1046 
Fliudt  V.  Scott,  5  Taunt.,  674;  15  East,  535, 

629 
V.  Waters,  15  East,  260,  30 


TABLE  OF  CASES. 


xxvu 


L.  J. 


K. 

798 
798 
8  L.  J.  K. 
591 
936 


Flinn  v.  HeadUm,  9  B.  &  C,  693; 

B.,  307, 

i-.  Tobin,  Moo.  &  M.,  307, 

Flint  V.  Flcmyng,  1  B.  &  Ad.,  45; 

B.,  350, 

•^ 1.  Ohio  lus.  Co.,  8  Oliio,  501, 

Flynu  V.  Mereliauts  Mutual  Ins.  Co.,  17  La. 

An.,  135,  149,  400,  974 
V.  North  America  Life  Ins.  Co.,  115  Mass., 

449,  76 
Fogg  V.  Griffin,  2  Allen,  1,  513,  972 
V.  Middlesex  Mutual   Fire   Ins.   Co.,   10 

Cush.,  337,  705 

V.  Pew,  10  Gray,  409,  1056 

Foley  V.  Moline,  5  Taunt.,  430 ;  1  Marsh.,  117, 

250 

V.  Tabor,  2  F.  &  F.,  663,  258 

V.  United  Fire  and  Marine  Ins.  Co.,  5  L. 

R.  0.  P.,  155;  39  L.  J.  C.  P.,  206;  22 

L.  T.  (N.  S.),  108;  18  W.  R,  437,  596 
Folsom  V.  Belknap  County  Mutual  Fire   Ins. 

Co.,  33  N.  H.,  231,  77 
v.  Merchants  Mutual  Ins.   Co.,  38  Me., 

414,  436,  565,  702 
V.  Merchants  Mut.  Ins.  Co.,  8  Blatch,  170; 

9  id.,  201 ;  18  Wall.,  237.  777 

Fontaine  v.  Columbian  Ins.  Co.,  9  Johns.,  30, 

784,  1013 

V.  Phoenix  lus.  Co.,  10  Johns.,  58,       1257 

V.  Phoenix  Ins.  Co.,  11  Johns.,  293,      042 

Foot  V.  ^tna  Life  Ins.  Co.,  4  Daly,  285, 

1295 
Forbes  v.  Agawam  Mutual  Fire  Ins.  Co.,  9 

Cush.,  470,  476,  854 
!).  American   Mutual  Life   Ins.   Co.,   15 

Gray,  249,  950,  1210,  1392 

V.  Aspinwall,  13  East,  323,  1479 

I).  Church,  3  Johns.  C,  158, 

398,  1227,  1488 

i\  Cowie,  1  Camp.,  520,  1011 

V.  Edinburg  Life  Ass.  Co.,  10  S.  &  D.,  451 ; 

4  Scot.  Jur.,  385,  1097, 1300,  1309 

V.  Manufacturers  Ins.  Co.,  1  Gray,  371, 

58,  1440,  1470 
Forbush  ^'.-Western  Massachusetts  Ins.  Co.,  4 

Gray,  337,  281 

Ford  V.  Buckeye  Ins.  Co.,  6  Bush,  133,     1317 

V.  Ryan,  4  Ir.  Ch.,  843,  896 

Foreshaw  v.  Chabert,  3  B.  &  B.,  158 ;  6  Moore, 

369,  121,  1202 

Forgay  v.  Atlantic  Mut.  Ins.  Co.,  2  Rob.  (N. 

Y.),  79,  565 

Fort  V.  Lee,  3  Taunt.,  381,  250 

Fosdick  V.  Norwich  Ins.  Co.,  3  Day,  108, 

178,  1099 
Foster  v.  Alvez,  3  Biug.  (N.  C),  896,  824 


Foster  v.  Christie,  11  East,  205,  1031 
V.  Equitable  Mutual  Fire  Ins.  Co.,  2  Gray, 

216,  156,  1340 

V.  Hoyt,  2  Johns.  C,  327,  1287 . 

V.  Jackson  Marine  Ins.  Co.,  Edw.  S.  C. 

(N.  Y.),290,  438,1143 
V.  Mentor  Life  Ass.  Co.,  3  El.  &  Bl.,  48; 

18  Jur.,  827;  23  L.  J.  Q.  B.,  145, 

204,  1450 

V.  Reeve.  5  L.  J.  K.  B.,  73,  1419 

V.  Steele,  3  Bing.  (N.  C),  892 ;  6  L.  J.  (N.  S.) 

C.  P.,  305,  824 

— —  V.  L'nited  States  Ins.  Co.,  11  Pick.,  85, 

562,  995,  1095 

v.  Van  Roed,  5  Hun.  (N.  Y.),  321,       1338 

J).  Wilmer,  2  Strange,  1249,  430 

Fourdiner  v.  Hartford  Fire  Ins.  Co.,  15  U.  C. 

C.  P.,  403,  310,  054 

Fowkes  V.  Manchester  &  London  Life  Ass. 

Co.,  3  F.  &  F.,  440;  3  B.  &  S.,  917; 

32  L.  J.  Q.  B.,  153;  11  W.  R..  022;  8 

L.  T.  (N.  S.)  309,  1208 

Fowler  v.  ^tna  Fire  Ins.  Co.,  0  Cow.,  673, 

520,  1519 

V.  .a;tna  Fire  Ins.  Co.,  7  Wend.,  270, 

818,  1440 
- —  V.  Atlantic  Mut.  Ins.  Co.,  8  Bos.,  332,  51 
V.  English  &  Scottish  Marine  Ins.  Co.,  18 

C.  B.  (N.  S.),  818;  11  Jur.  (N.  S.),  411 ; 

34  L.  J.  C.  P.,  253;  13  W.  R.,  058;  12 

L.  T.  (N.  S.),  381,  223 

V.  Mutual  Life  Ins.  Co.,  4  Lans.,  202,    678 

1!.  New  York  Indemnity  Ins.  Co.,  26  N. 

Y.,  422;  23  Barb.,  143,  956 
V.  Scottish  Equitable  Life  Ass.  Co.,  28  L. 

J.  Ch.,  225;  4  Jur.  (N.  S.),  1109,     1179 
Fowley  v.  Palmer,  5  Gray,  549,  803 

Fox  V.  Conway  Fire  Ins.  Co.,  53  Me ,  107, 

973,  1121 

p.  Phoenix  Ins.  Co.,  52  Me.,  333,  870 

Foy  V.  ^tnn  Ins.  Co.,  3  Allen  (N.  B.),  29      830 

V.  Bell,  3  Taunt.,  493,  1285 

Francis  v.  Butler  Mutual  Fire  Ins.  Co.,  7  R.  I.,' 

159,  157 
V.  Ocean  Ins.  Co.,  6  Cow.,  404;  2  Wend. 

64,     521,  535.  638,  753,  850,  1112,  1276 

V.  Somerville  Mut.  Ins.  Co.,  25  N.  J.,  78, 

655,  1129 
Franco  v.  Natusch,  6  Tyrw..  401, 

847,  1255,  1465 
Franklin  v.  Atlantic  Ins.  Co.,  42  Mo.,  456,    466 

V.  National  Ins.  Co.,  43  Mo.,  491,      93,  95 

Franklin  Fire  Ins.  Co.  v.  Brock,  57  Penu.  St., 

74,  1459 

V.  Chicago  Ice  Co.,  36  Md.,  102, 

134,  1116,  1380 


xxvm 


TABLE  OF  CASES. 


Franklin  Fire  Ins.  Co.  v.  Coates,  14  Md.,  285, 

262,  693,  1108 

V.  Findlay,  6  Whart.,  483,  101,  124 

V.  Hamill,  6  Gill.,  87 ;  5  Md.,  170, 

682,  973 

V.  Hewitt,  3  B.  Mon.,  231,  1173 

B.  Massey,  33  Penn.  St.,  221  49,  1071 

V.  Updegraff,  43  Penn.  St.,  350, 

377.  555,  833, 1129,  1131,  1145,  1214 

Franklin  Ins.  Co.  v.  Cobb,  2  Cin.  Sup.  Ct.,  87, 

1028,  1059,  1267 

V.  Culver,  6  Ind.,  137,  556,  732 

Louisville  and  Arkansas  Packet   Co.,  9 

Bush.,  590,  1317 

V.  McCrea,  4  Greene,  229,  129,  738 

Franklin  Life  Ins.  Co.  v.  Hazzard,  41  Ind.,  116, 

700 
Franklin  Marine  and  Fire  Ins.  Co.  v.  Drake, 

2  B.  Mod.,  47,  717,  872 

Fraternal  Mutual  Life  Ins.  Co.  v.  Applegate, 

7  Ohio  St.,  292,  514,  1221 

Frazer  v.  Galloway,  Faculty  Dec.  1808  to  1810, 

p.  298,  1077 

Frederick  County  Mut.  Ins.  Co.  v.  Deford,  38 

Md.,  404,  498,  502,  1124,  1210 

Freeland  v.  Glover,  7  East,  457;  6  Esp.,  14;  3 

Smith,  42,  354 

V.  Walker,  4  Taunt.,  478,  628 

Freeman  v.  Fulton  Fire  Ins.  Co.,  38  Barb., 

247;  14  Abb.  Pr.,  398,  956 

Friere  s.Woodhouse,  Holt  N.  P.,  572, 

2.57,  1061 

French  v.  Backhouse,  5  Burr.,  2727,    718,  1095 

V.  Connelly,  2  Anst.,  454,  735 

V.  Hope  Ins.  Co.,  16  Pick.,  397,  1099 

V.  Patten,  1  Camp.,  72,  180  b. ;  9 East,  351, 

121,  1313 

V.  Royal  Exchange  Ass.  Co.,  7  Irish  Ch., 

o23;  6  id.,  523,  720 

Frichette  v.  State  Mutual  Fire   and  Marine 

Ins.  Co.,  3  Bos.,  190,  1014 

Fried  v.  Royal  las.  Co.,  50  N.  T.,  243 ;  47  Barb., 

127,  315, 391 

Friedlander  v.  London  Ass.  Co.,  4  B.  &  Ad., 

193;  1  Nev.  &  Man.,  31,  541 

u.  London  Ass.  Co.,  1  M.  &  Rob.,  171, 

403,  453 
Friend  v.  Gloucester  Ins.  Co..  113  Mass.,  326, 

292 
Frierson  v.  Brenbara,  5  La.  An.,  540,  566 

Friesmith  v.  Agawara  Mutual  Fire  Ins.  Co., 
10  Cush.,  587,  667,791,1232 

Frink  v.  Hampden  Ins.  Co.,  45  Barb.,  384;  31 
How.  Pr.,  30 ;  1  Abb.  Pr.  (N.  S.J,  34.3, 

59 

Frisbie  v.  Faj-ette  Mutual  Ins.  Co.,  27  Penn. 

St.,  325,  1521 


Froelich  v.  Atlas  Life  Ins.  Co.,  47  Mo.,  406, 

921 
Frost  v.  Saratoga  County  Mut.   Ins.  Co.,  .5 

Denio,  154,  454,  1051 

Frothingham  v.  Prince,  3  Mass,,  563,  390 

Fullam  r.  New  York  Union  Ins.  Co.,  7  Gray, 

61,  771 
Fuller  V.  Alexander,  1  Brev.,  149,  820 
V.  Boston  Mutual  Fire  Ins.  Co.,  4  Met., 

206,  1470 
V.  Kennebec    Mutual    Ins.  Co.,  31  3Ie., 

325,  1.399 

V.  McCall,  1  Yealcs,  464 ;  2  Dall.,  219,     19 

V.  Madison  Mutual  Ins.  Co.,  36  Wis.,  599, 

671 
Fulton  t).  Lancaster  Ins.  Co.,  7  Ohio,  2d  part,  5, 

1150 
Fulton  Ins.  Co.  v.  Goodman,  32  Ala.,  108, 

7,  27,  535,  1060,  1441 

V.  Milner,  23  Ala..  420,  310,  14.50 

Furtado  v.  Rodgers,  3  B.  &  P.,  191,     367, 1233 


Gc. 

Gabay  v.  Lloyd,  3  B.  &  C,  793 ;  5  D.  &  R.,  641 , 

3  L.  J.  K.  B.,  116,  1021 

Gahagan  t.  Union  Mutual  Fire  Ins.  Co.,  43  N.  • 

H.,  176,  670 

Gahn  t.  Brooine,  1  Johns.  C,  120,  385 

Gairdner  v.  Milne,  20  C.  C.  S.,  585,  214 

«.  Senhouse,  3  Taunt.,  16,  411 

Gale  V.  Belknap  County  Ins.  Co.,  41  N.  H., 

170,  86S 

V.  Lewis,  9  Q.  B.,  730;  16  L.  J.  Q.  B.,  119, 

1077 
Galloway  v.  Craig,  28  C.  C.  S.,  12;  22  id.,  1211, 

1531 
Gamba  v.  Le  Mesuricr,  4  East,  407,  365 

Gambles  v.  Ocean  Marine  Ins.  Co.,  1  Ex.  D.,  8, 

1044 
Gambs  v.  Covenant  Mutual  Life  Ins.  Co.,  50 

Mo.,  44,  1329 

Gammon  0.  Beverly,  8  Taunt.,   119;  1  Moore, 

563,  89 

Gamwell  v.  Merchants  and  Farmers  Mut.  Ins. 

Co.,  12  Cush.,  167,  376,  828 

Gandy  v.  Adelaide  Marine  Ins.  Co.,  6  L.  R.  Q. 

B.,  746;  40  L.  J.  Q.  B.,  239,  258 

Garcelon  v.  Hampden  Fire  Ins.  Co.,  50  Me., 

580,  1513 

Gardere  v.  Columbian  Ins.  Co.,  7  Johns.,  514, 

478,  782,  1058 
G.ord  iner  1!.  Crosedale,  1  W.  Bl.  198;  2  Burr., 

904  979 


TABLE  OF  CASES. 


XXIX 


B.  Piscataquis  Mutual  Fire  Ina.  Co.,  38 

Mc.,439,  94,658 

».  Smith,  IJohns.  C,  141,  1406 

Ganincr  v.  Hamilton  Ins.  Co.,  33  N.  Y.,  421, 

338 

0.  Salvador,  1  M.  &  Rob.,  116,  782 

Garner  r.  Moore,  34  L.  J.  Ch.,  087;  3   Drew, 

277,  1094 

Garness  v.  Heinke,  40  L.  J  Ch.,  300,  59 

Garrels  v.  Kensington,  8  Term,  230,  814 

Garrell  v.  Hanna,  5  H.  &  J.,  412,  997 

Garrett  v.  Provincial  Ins.  Co.,  20  U.  C.  Q.  B., 

200,  1519 

Oarrigues  v.  Co.xe,  1  Biun.,  592, 

209,1015,1251 
Garrison  v.  Memphis  Ins.  Co.,  19  How.,  312, 

734 
G;isner  v.  Metropolitan  Ins.  Co.,  13  Minn.,  483, 

1457 
Gataycs  v.  Flather,  34  Beav.,  387,  167 

Gates  V.  Madison  County  Mut.  Ins.  Co.,  2  N. 

Y.,  43,  204 
V.  Madison  County  Mutual  Ins.  Co.,  5  N. 

Y,  469;  3  Barb.,  73, 

85,1152,  1457,1458 

V.  Smith,  4  Edw.  Ch.,  702.  104, 721 

Gaty  v.  Phoenix  Ins.  Co.,  30  Mo.,  50,  1514 

Gavin  v.  Glen,  Faculty  Dec.  1781  to  1787,  p. 

419,  1432 

Gay  V.  Union  Mutual  Life  Ins.  Co.,  9  Blatch.. 

142,  678, 1356 

Gaylord  v.  Lamar  Fire  Ins.  Co.,  40  Mo.,  13, 

40, 1374 
Gaytes  )'.  Hibbard,  5  Biss.,  99,  453 

Gazzam  v.  Cincinnati  Ins.  Co.,  6  Ohio,  71, 

819,1010.1207,1490 
Gcach  0.  Ingall,  14  Mee.  &  W.,  95;  15  L.  J. 

Ex.,  37;  9  Jur.,  091,  1308 

Gee  c.  Cheshire  County  Mut.  Ins.  Co.,  55  N. 

H.,  65.  856 

Geib  V.  International  Ins.  Co.,  1  Dil.  Cir.  C, 

443,  505,551,672,802,1063 

Gfcis  V.  Beclitner,  12  Minn.,  279.  189 

Gcisek  v.  Crescent  Mut.  Ins.  Co.,  19  La.  An., 

397,  1018 

General  Interest  Ins.  Co.  c.  Ruggles,  12  Wheat., 

408 ;  4  Mason ,  74 ,  251 

General  Mut.  Ins.  Co.  i'.  Sherwood,  14  IIow., 

351;  1  Blatch.,  251,  337,330 

General  Provincial  Life  Ass.  Co.,  In  re,  E.x 

parte  Daintree,  18  W.  R ,  396 ,        794 
Georgia  Home  Ins.  Co.  v.  Jones,  49  Miss.,  80, 

398, 095 
Georgia  Insurance  and  Trust  Co.  v.  Dawson,  3 

Gill,  365,  1153 


Georgia  Masonic  Mutual  Life  Ins.  Co.  v.  Gib- 

son,  52  Ga.,  640,  538,927 

V.  Whitman,  52  Ga.,  419,  283 

Gerhauser  v.  North  British  and  Mercantile 

Ins.  Co.,  6  Nev.,  15,  558 
V.  North  British  and  Mercantile  Ins.  Co., 

7  Nev.,  174.  257,403,485,558 

German  Mutual  Fire  Ins.  Co.  v.  Franck,  23 

Ind.,  364,  805 

Gcrmania  Fire  Ins.  Co.  d.  Curran,  8  Kan.,  9, 
69,835,952,1135,1140 

V.  Sherlock,  25  Ohio  St.,  33.         202,1154 

Germond  v.  Home  Ins.  Co.,  2  Hun.  (N.  Y ), 

540;  5N.  Y.  S.  C,  120.  1389 

Geruon  v.  Royal  Exchange  Ass.  Co.,  0  Taunt., 

383;  3  Marsh.,  88;  Holt,  N.  P.,  49, 

17, 1899 
Gerrish  v.  German  Ins.  Co.,  55  N.  H.,  355, 

737 
Getchel  v.  JEtna  Ins.  Co.,  14  Allen,  325.  1000 
Geyer  v.  Aguilar,  7  Term,  081 ,  1273 

Gibbs  V.  Queen  Fire  Ins.  Co.,  5  L.  J.,  235,  1383 
Gibson  v.  American  Mut.  Ins.  Co.,  37  N.  Y., 

580,  531,1130 
V.  Bradford,  4  El.  &  Bl..  586;  1  Jur.  (N. 

S ),  530;  34  L.  J.  Q.  B.,  159,  1035 
V.  Farmers   and   Merchants   Ins.   Co.,   1 

Ciu.  Sup.  Ct.,  410,  288 

1).  Overbury,  lOL.  J.  Ex.,  219,  760 

V.  Service,  5  Taunt.,  433;  1  Marsh.,  119, 

645 
V.  Winter,  5  B.  &  Ad.,  96 ;  2  N.  &  M.,  737. 

895 
Gilbert  v.  American  Ins.  Co.,  30  Mich.,  41D0, 

1313 
V.  Galloway,  Faculty  Dec.  1810  to  1813, 

p.  294,  215 

11.  National  Ins.  Co.,  12  Ir.  L.  R.,  143, 

953, 1378 
V.  North  American   Ins.  Co.,  23  Weud., 

43,  102,1120,1492 

V.  Phoenix  Ins.  Co.,  36  Barb.,  372,        853 

Giles  V.  Eagle  Ins.  Co.,  2  Met.,  140,  608, 890 
Gilfert  v.  Hallet,  2  Johns.  C,  390,  430,1407 
Gillespie  v.  British  American  Fire  and  Life 

Ass.  Co.,  7  U.  C.  Q.  B.,  108,  1151 
V.  Commercial  Mutual  Marine  Ins.  Co.^ 

13  Gray,  201,  12.82 
V.  Douglass,  Faculty  Dec.  1801  to  1807,  p. 

251,  240 

Gilliat  V.  Pawtucket  Mutual  Fire  Ins.  Co.,  8 

R.  I.,  282,  457,  829,  1520 

Gillilan  v.  Sun   Mut.   Ins.   Co.,  41   N.  Y.  (  2 

Hand),  370,  895 

Girard  Fire  and  Marine  Ins.  Co.  v.  Stephen- 
son, 37  Penn.  St.,  293  288,  1199 


XXX 


TABLE  OF  CASES. 


Girard  Ins,  Co.  v.  Field,  45  Penn.  St.,  129, 

187 
Gist  V.  Mason,  1  Term,  88,  823 

Gladstone  c.  Clay,  1  Mau.  &  Sel.,  418,  604 

V.  King,  1  Mau.  &  Sel.,  35,  247 

Gledstanes  «.  Royal  E.xchange  Ass.  Co.,  5  B. 
&  S.,  797;  11  Jur.  (N.  S.),  108;  34  L. 
J.  Q.  B.,  30;  13  W.  R.,  71;  11  L.  T. 
(N.  S.),  305,  333 

Glendale  Woolen  Co.  ■».  Protection  Ins.  Co.,  21 
Conn.,  19,  1452,  1518 

Glen  V.  Hope  Mutual  Life  Ins.  Co.,  56  N.  T., 
379 ;  1  N.  T.  S.  C,  463,  1.337 

J).  Lewis,  8  Exch.,  607;  23  L.  J.  Ex.,  228; 

17  Jui- ,  843,  1516 

Glennie  ».  Edmunds,  4  Taunt.,  775,  1290 

«.  London  Ass.  Co.,  3  Mau.  &  Sel.,  371, 

1503 

Glens  Falls  Ins.  Co.  v.  Judge  of  Circuit  Court 

of  Jackson   County,  21  Mich.,  577, 

1192 

Olidden  b.  Manufacturers  Ins.  Co.,   1  Sumn., 

232,  405 

Globe  Ins.  Co.  In  re,  Ex  parte  Braine,  3  Edw. 

Ch.,  635,  1284 

v.  Boyle,  21  Ohio,  St.,  119;  1  Cin.  Sup. 

Ct.,  444,  563,499,1115,1173 

V.  Sherlock,  25  Ohio  St.,  50,       1329,  1449 

Globe  Mutual  Life  Ins.  Co.  ti.  Reals,  48  How. 

Pr.,  502,  734 

Gloucester  Ins.  Co.  v.  Younger,  2  Curtis,  332, 

28,  32, 745,  1059 

Gloucester  Manufacturing  Co.  ®.  Howard  Fire 

Ins.  Co.,  5  Gray,  497,  1009,1518 

Glover  v.  Black,  3  Burr.,  1394;    1  W.  HI.,  396, 

399,  405,  423,  .    286 

Glynn  v.  Locke,  3  Con.  &  Law.,  21 ;  5  Irish 

Eq.  R.,  61,  733 

Goddard  s.  Monitor  Ins.  Co.,  108  Mass.,  56, 


343 
735 
1  W. 
458 
706 


Goddart  ».  Garrett,  3  Vern.,  269, 
Godin  D.  London  Ass.  Co.,  1  Burr.,  489 

Bl.,  103, 
Godsall  V.  Boldero,  9  East,  72, 
Goetzman  ■».  Connecticut  Mutual    Life  Ins. 
Co.,  3   Hun.  (N.  Y.),  515;  5  N.  Y.  S. 
C,  573.  ,         393 

Goicoechea  v.  Louisiana  State  Ins.  Co.,  18  Mar- 
tin (La.),  51,  1273 
Goit  V.  National  Protec  tion  Ins.  Co.,  35  Barb., 
189,                          180,  901,  1068,  1220 
Goix  V.  Knox,  1  Johns.  C,  337,                   1013 

V.  Low,  1  Johns.  C,  341,  814 

1).  Low,  2  Johns.  C,  480,  1376 

Goldschmidt  v.  Whifmore,  3  Taunt., 508,      198 
V.  Lyon,  4  Taunt.,  534,  534,  1290 


Goldsmid  v.  Gillies,  4  Taunt.,  803,  IS 

Goldstone  v.  Osborn,  2  C.  &  P.,  550,  135 

Goodall  ».  New  England  Mutual  Fire  Ins.  Co., 

25  N.  H.,  169,  68,  867 

Gooden  v.  Amoskeag  Fire  Ins.  Co.,  20  N.  H., 

73,  773. 

Goodfellow  V.  Times  &  Beacon  Ins.  Co.,  17 

U.  C.  Q.  B.,  411,  3.54 

Goodson  V.  Brooke,  4  Camp.,  163,  107H 

Gookin  v.  New  England  Mutual  Ins.  Co.,  13 

Gray,  506,  193 

Goold  V.  Shaw,  1  Johns.  C,  293,  8, 1421 

1).  United  Ins.  Co.,  2  Caines,  73,  811 

Goran  j).  Sweeting,  2  Saund.,  205,  966 

Gordon  v.  Massachusetts  Fire  and  Marine  Ins. 
Co.,  2  Pick.,  349, 

9,  14, 713,  782, 785. 139* 

v.  American  Ins.  Co.,  4  Denio,   360, 

577 

V.  Bowne,  3  Johns.,  150,  14,  1413 

v.  Morley,  3  Strange,  1265,  370 

V.  Remington,  1  Camp.,  123,  1021 

Goss  V.  Withers,  2  Burr.,  683;  2Ld.  Kenyon, 

325,  1410 

Gottlieb  ».  Cranch,  4  DeG.  M.  &  G.,  440;  23 

L.  J.  Ch.,  913;  17  Jur.,  704,  1349 

Gottsman  t.  Insurance  Co.,  56  Penn.  St.,  210, 

148.5 
Gould  V.  Citizens  Ins.  Co.,  13  Mo.,  524        78.3 

«.  Louisaca    Mut.  Ins.  Co.,  20  La.  An., 

259,  1503 

».  York  County  Mutual  Fire  Ins.  Co.,  47 

Me.,  403,  133,  894,  1485 

Goulstone  v.  Royal  Ins.  Co.,  1  F.  ifc  F.,  276, 

553,  693 

Gourdon    i:.  Insurance    Company  of  North 

America,  3  Yeates,  327,  76, 165 

1285 
Gourock  Rope  AVorks  Co.  v.  Flemming,  5  C. 
O.  S.  (3d  ser.),  501,  443 

Gove  !).  Farmers  Mutual  Fire  Ins.  Co.,  48  N. 
H.,  41  1153 

Goyon  v.  Pleasants,  3  Wash.  C.  C,  241,       425 
Gracie  v.  Bowne,  2  Caines,  30,  754 

«.  Marine  Ins.  Co.,  8  Cranch,  75,        1039 

V.  New  York  Ins.  Co.,  8  Johns.,  237, 

1408 

V.  New  York  Ins,  Co.,  13  Johns.,  161, 

144 

Grady  v.  American  Central  Ins.  Co,,  60  Mo., 

116,  1081 

Graff  t'.  Simons,  58  III ,  440,  1057 

Graham  v.  Barras,  5  B.  &  Ad.,  1011 ;  5  N.  & 

M.,  125,  352, 123!) 

1).  Commercial  Ins.  Co.,  11  Johns.,  352, 

42T 


TABLE  OF  CASES. 


xxxt 


Graham  v.  Firemans  Ins.  Co.,  2  Disney,  255, 

78 

J).  General  Mut.  Ins.  Co.,  6  La.  An.,  432, 

242 

V.  Ledda,  17  La.  An.,  45,  30 

«.  Pennsylvania  lus.  Co.,  2  Wash.  C.  C, 

113,  640,  731 

V.  Russell,  2  Marsh.,  5G1,  12b6 

Grainger  v.  Martin,  2  B.  &  S,,  456;  8  Jur.  (N. 
S.),  995;  31  L.  J.  Q.  B.,  186;  4  B.&S., 
9;  11  W.  R.,  758;  8  L.  T.  (N.  S.),  796, 

1443 
Granger  v.  Howard  Ins.  Co.,  5  Wend.,  200, 

112 

Grant  v.  ^tua  Ins.  Co.,  15  Moore  P.  C.  C,  516; 

8  Jur.  (N.  S.),  705;  10  W.  R.,  772;  6 

L.  T.  (N.  S.),  735,  1520 

«.  De  La  Cour,  1  Taunt.,  463,  1041 

■».  Hill,  4  Taunt.,  380,  1349 

V.  Howard  Ins.  Co.,  5  Hill,  10,  122 

V.  King,  4  Esp.,  175,  439 

V.  Le.xington  Ins.  Co.,  5  Ind.,  23, 

1050,  1241 

V.  Parkinson,  3  Doug.,  16;  6  Term,  483  n.; 

3  B.  &  P.,  85  n.,  1475 

V.  Paxton,  1  Taunt.,  407,  1041 

V.  Royal  Excliauge  Ass.  Co.,  5  Mau  &  Sel., 

439,  1292 

Graves  v.  Boston  Marine  Ins.  Co.,  2  Cranch, 

215,  994,  1175 

1).  Hampden  Fire  Ins.  Co.,  10  Allen,  281, 

1841 

V.  Marine  Ins.  Co.,  2  Caines,  339,  604 

v.  Niagara  District  Mut.'  Ins.  Co.,  25  U. 

C.Q.  B.,  127,  1144 

D.  Wasliinglon  Marino  Ins.  Co.,  12  Allen, 

391,  1114,  1312,  1398 

Gray  v.  Lloyd,  4  Taunt.,  136,  644 

■».  Murray,  3  Jolins.  Ch.,  167,       362,  1093 

• 0.  Sims,  3  Wash.  C.  C,  276,  641,  1320 

v.  Swan,  1  H.  &  .!.,  142,  1278 

Great  Falls  Mutual  Fire  Ins.  Co.  v.  Harvey,  45 
N.  H.,  292,  804 

Great  Indian  Peninsula  Railway  Co.  v.  Saun- 
ders, 1  B.  &  S.,  41 ;  7  Jur.  (N.  S.),  823 ; 
30  L.  J.  Q.  B.,  218 ;  4  L.  T.  (N.  S.),  240; 
2  B.  &  S.,  266;  31  L.  J.  Q.  B.,  206;  9 
Jur.  (N.  S.),  198;  10  W.  R.,  520;  0  L. 
T.  (N.  S.),  297,  1,504 

Great  Western  Ins.  Co.  j;.  Staaden,  26  111.,  360, 

113,  1117 
Greely  v.  Tremont  Ins.  Co.,  9  Cush.,  415, 

608,  1439 
Green  v.  Brown,  2  Strange,  1199,  1064 
V.  Elmslie  Pealies,  N.  P.  C,  278,  220 


Green  v.  Merchants  Ins.  Co.,  10  Piclt.,  402, 

243,  256,  480 

V.  Pacific  Mut.  Ins.  Co.,  9  Allen,  217, 

1410 

V.  Royal  Exchange  Ass.  Co.,  6  Taunt.,  68 ; 

1  Marsh.,  447,  379,590 

V.  Young,  2  Ld.  Raym.,  840,  447 

Greenfield  v.  Massacliusetts  Mutual  Life  Ins. 
Co.,  47  N.  Y.,  430,     06,  111,  975,  1489 
Greenleaf  D.  St.  Louis  Ins.  Co.,  37  Mo.,  25, 

1048 
Greenwald  u.  Insurance  Co.,  3  Phila.,  323, 

545 
Greenwell  v.  Nicholson,  1  Jur.,  285,  265 

Gregory  v.  Christy,  3  Doug.,  419,  1003 

Grcgson  v.  Gilbert,  3  Doug.,  232,  1030 

Grenier  v.  Monarch  Ins.  Co.,  7  L.  C.  Jur.,  100, 

553 
Grevemeyer  v.  Southern  Mutual  Fire  Ins.  Co., 
62  Penn.  St.,  340,  99 

Grey  e.  Swan,  1  H.  &  J.,  142,  54 

Griffith  ».  Insurance  Co.  of  North  America,  5 
Binn.,  464,  808 

Grigg  V.  Scott,  Holt  N.  P.,  129;  4  Camp,,  339, 

643 

Grim  v.  Phoenix  Ins.  Co.,  13  Johns.,  451,    1150 

Griswold  v.  New  York  Ins.  Co.,  1  Johns.,  205 ; 

3  id.,  321,  33,  575 

».  Union  Mut.  Ins.  Co.,  3  Blatch.,  231, 

1468 
Groning  v.  Crockett,  3  Camp.,  83,  631 

Grosvenor-v.  Atlantic  Fire  Ins.  Co.,  17  N.  Y., 
391;  5  Duer,  517;  1  Bos.,  469,  160 
Grousset  v.  Sea  Ins.  Co.,  24  Wend.,  210,  293 
Grubbs  v.  State  of  Indiana,  24  Ind.,  295,  1323 
Guardians  of  Carrick  on  Shannon  «.  Guarantee 
Society,  3  Ir.  C.  L.  R.,  422,  284,  961 
Guerlain  c.  Columbian  Ins.  Co.,  7  Johns.,  527, 

1503 
Guernsey  v.  American  Ins.  Co.,  17  Minn.,  104, 

484,  1178 

Guma  V.  Hope  Ins.  Co.,  16  La.  An.,  415,      821 

Gurney  v.  Rawlins,  6  L.  J.  (N.  S.)Ex.,  7;  3 

Mee.  &  W.,  87,  71 

Guthrie  v.  Armstrong,  5  B.  &  A.,  628;  1  D.  & 

R.,  248,        "  359 

H. 

Hackney  v.  Allegheny  County  Mut.  Ins.  Co., 
4  Penn.  St.,  185,  492,  1054 

Iladdow  V.  Parry,  3  Taunt.,  308,  207 

Hadkinson  v.  Robinson,  3  B.  &  P.,  388,      1429 
Hadlcy  v.  New  Hampshire  Fire  Ins.   Co.,  55 
N.  H.,  110,  61,  654,  869- 


3XX11 


TABLE  OF  CASES. 


Hafl'  V.  Marine  Ins.  Co.,  4  Johns.,  132;  An- 
thon's  N.  P.,  23,  1143 

v.  Marine  Ins.  Co.,  8  Julins.,  164, 

168,  1143 
Ilagan  s.  Ocean  Ins.  Co.,  10  Rob.  (La.),  333, 

1029 
Hagar  v.  New  England  Mutual  Marine  Ins. 
Co.,  59  Me.,  460,  1016,  1034, 1497 

Hagedorn  v.  Bazett,  3  Mau.  &   Sel.,  100, 

010 

V.  Bell,  ]  Mau.  &  Sel.,  450,  634 

V.  Oliverson,  2  Mau.  &  Sel.,  485,  634 

V.  Reid,  1  Mau.  &  Sel.,  567 ;  3  Camp.,  377, 

654 

c.  Whitmore,  1  Starkie,  l.")7,  1020 

HahuB.  Corbett,  2  Bing.,  205;  9  Moore,  392; 

3  L.  J.  C.  P.,  253,  1157 

Haigh  V.  De  La  Cour,  3  Camp.,  319,  552 

Hale  V.  Mechanics  Mut.  Ins.  Co.,  6  Gray,  169, 

160,  855 

V.  Mercantile  Marine  Ins.  Co.,  6  Pick., 

173,  443 

■D.Union  Mut.  Fire  Ins.  Co.,  33  N.  H., 

295,  157 

V.  Washington  Ins.  Co.,  2  Story,  176, 

227 

Haley  -c.  Dorchester  Mutual  Fire  Ins.  Co.,  13 

Gray,  545,  91,  824,  1007,  1491 
V.  Dorchester   Mutual  Fire    Ins.  Co.,  1 

Allen,  586,  824 

Halford  v.  Kymer,  10  B.  &  C,  724;  8  L.  J.  K. 

B.,  311,  700 

Halhead  d.  Young,  6  El.  &   Bl.,  312;   2  Jur. 

(N.  S.),  970;   25  L.  J.  Q.  B.,  290, 

990 
Hall  V.  Brown,  3  Dow,  367,  1487 

' •B.Dorchester  Ins.  Co.,  Ill  Mass.,  53, 

169 

V.  Franklin  Ins.  Co.,  9  Pick.,  466, 

9,  428,  780,  1421 
«.  Insurance  Co.  of  North  America,  58 

N.y.,  292,  1213 
V.  Janson,  4  El.  &  Bl.,  500 ;  1  Jur.  (N.  S.), 

571;  24  L.  J.  Q.  B.,  77,  1454 

V.  Molineux,  6  East,  385  n.,  1292 

V.  Ocean  Ins.  Co.,  21  Pick.,  472, 

1015,  1439 
t!.  People's  Mutual  Fire  Ins.  Co.,  6  Gray, 

185,  85,  1203,  1491 

r.  Railroad  Companies,  13  Wall.,  307, 

231 

f.  Rising  Sun  Ins.  Co.,  1  Disney,  308, 

1.509 

Hallet  V.  Columbian  Ins.  Co.,  8  Johns.,  272, 

201 

V.  Jenks,  1  Caines  Cas.,  43,  806 


Hallet  J).  Jenks,  3  Cranch,  210,  C25 

v.  Peyton,  1  Caines  Cas.,  28,  5,  1420 

V.  Wigram,  9  C.  B.  580;  19  L.  J.  C.  P., 

28i,  C13 
X.  Dowdall,  21  L.  J.  Q.  B.,  98;  18  Q.  B.,  2; 

16  Jur.,  463,  368 

V.  Phcenis  Ins.  Co.,  2  Wash.  C.  C,  279, 

719 
Hallock  V.  Commercial  Ins.  Co.,  26  N.  J.,  208, 

331 
Halton  V.  Provincial  Ins.  Co.,  7  U.  C.  C.  P., 

555,  80 

Hambro  v.  Hall  and  London  Fire  Ins.  Co.,  3 

H.  &  N.,  789 ;  28  L.  J.  Ex.,  62,  359 
Hamilton  v.  Baldwin,  15  Beav.,  233,  205 
V.  Crawford,  Faculty  Dec,  1781  to  1787, 

p.  451,  1006. 
v.  Lycoming  Mut.  Ins.  Co.,  5  Penn.  St., 

339,  323 

V.  Mendes,  2  Burr.,  1198;  1  W.  BL,  370, 

1438 

V.  Montreal  Ins.  Co.,  33  U.  C.  Q.  B.,  437. 

1145 

V.  Mutual  Life  Ins.  Co.,  9  Blatch.,  234, 

904 

V.  Phoenix  Ins.  Co.,  106  Mass.,  395,       140 

V.  Sheddon,  3  Mee.  &  W.,  49;  7  L.  J.  (N. 

S.),  Ex.  1,  419 

Hamilton  Mut.  Ins.  Co.  v.  Hobarl,  2  Gray,  543, 

1053 
Hammond  v.  American  Mutual  Life  Ins.  Co., 

10  Gray,  306,  914 

c.  Reid,  4B.  &  A.,  72,  414 

Ilauan  v.  Louisiana  Mut.  Ins.  Co.,  15  La.  An.. 

201,  1433 

Hancock  v.  Franklin  Ins.  Co.,  107  Mass.,  113, 

400 

V.  Macnamara,  2  Irish  Eq.,  486,  736 

Hancox  v.  Fishing  Ins.  Co.,  3  Sumn.,  133, 

1415,  1449 
Hand  v.  Williamsburg  City  Fire  Ins.  Co.,  57 

N.  Y.,  41,  690,863 

Hanover  Ins.  Co.  ».  Mannasson,  39  Mich.,  316, 

553 
Hanse  v.  New  Orleans  Marine  and  Fire  Ins. 

Co.,  10  La.  (O.  S.),  1,  58,  604,  733 

Hardie  v.  St.  Louis  Mutual  Life  Ins.  Co.,  26 

La.  An.,  343,  325 
Hardy  ■».  Inucs,  6  Moore,  567,  140 
V.  Union  Mutu.il  Fire  Ins.  Co.,  4  Allen, 

217,  866 
Hare  v.  Barstow,  8  Jur.,  928,  1005,  1453 
V.  Travis,  7  B.  &  C,  14;  9  D.  &  R.,  748; 

5  L.  J.  K.  B.,  348,  435 

Harkins  v.  Quincy  Mutual  Fire  Ins.  Co.,  16 

Gray,  591,  1128 


TABLE  OF  CASES. 


xxxn; 


Harman  v.  Vanhatton,  3  Vern.,  717,' 

373,  1357 

V.  Kingston,  3  Camp.,  150,  1407 

V.  Vaux,  3  Camp.,  429,  1323 

Harmony  Fire  ami  Marine  Ins.  Co.  t).  Ilazle- 

hurst,  30  Md.,  380,  lOS'i 

Harper  v.  Albany  Mut.  Ins.  Co.,  17  N.  Y.,  194, 

1213 

V.  New  York  City  Ins.  Co.,  33  N.  Y.,  441 ; 

J  Bos.,  530,  1211,  1212 

V.  Phoenix  Life  Ins.  Co.,  18  Mo.,  109, 

816 

V.  Phoenix  Life  Ins.  Co.,  19  Mo.,  506, 

394 

Harratt  v.  Wise,  9  B.  &  C,  712;  4  M.  &  R., 

531;  7L.  J.  K.  B.,  309,  210 

Harris  v.  Columbiana  County  Mut.  Ins.  Co., 

18  Ohio,  110,  738 

V.  Columbiana  Mut.  Ins.  Co.,  4  Ohio  St., 

285,  658 

V.  Eagle  Fire  lus.  Co.,  5  Johns.,  368, 

389,  1403 

V.  Equitable  Life  Ass.  Soc,  3  Ilun.  (N. 

Y.),  734;  0  N.  Y.  S.  C,  108;  13  Alb. 
L.  J.,  348,  932,  1224 

•».  Gasjiee  Fire  and  Marine  Ins.  Co.,  9  R. 

I.,  207,  269,  1329 

V.  Mercantile  Ins.  Co.,  17  How.  Pr.,  188, 

103 

U.Ohio   Ins.  Co.,  5  Ohio,  406;    Wright, 

544,  857 

B.  Phoenix  Ins.  Co.,  35  Conn.,  310, 

543,  763 

n.  Protection  Ins.  Co.,  Wright,  548, 

385,  733 

».  Scaramanga,  7  L.  R.  C.  P.,  481 ;  41  L. 

J.  C.  P.,  170;  20  VV.  R.,  777;  26  L.  T. 
(N.  S.),  797,  630 

».  York  Mut.  Ins.  Co.,  50  Peun.  St.,  341, 

693,  739 

Harrison  j).  Bank  of  Australasia,  7  L.  R.  Ex., 

39 ;  41  L.  J.  Ex.,  36 ;  20  W.  R.,  385 ;  25 

L.  T.  (N.  S.),  944,  610 

!i.  City  Fire  Ins.  Co.,  9  Allen,  231,        825 

V.  Douglas,  3  A.  &  E.,  396;  6  N.  &  M., 

180,  269,  899 

V.  Ellis,  7  El.  &  Bl.,  465;  3  Jur.  (N.  8.), 

908;  26  L.J.  Q.  B.,  339,  990 

■ V.  Universal  Marine  Ins.  Co.,  3  F.  &  F., 

190,  1033 

narrower  v.  Hutchinson,  5  L.  R.  Q.  B.,  584;  39 
L.  J.  Q.  B.,  329;  23  L.  T.  (N.  S.),  684; 
10  B.  &  S.,  469;  4  L.  R.  Q.  B.,  523, 

243 
Hart  r.  Delaware  Ins  Co.,  2  Wash.  C.  C,  346, 

585,  1431,  1468 
C 


Hart  V.  Western  Railroad  Co.,  13  Met.,  09, 

1328,  1348 

Hartford  Fire  Ins.  Co.  v.  Ross,  28  Ind.,  179, 

1390 

V.  Van  Duzor,  49  111.,  489, 

206,  821,  1481 

V.  Walsh,  54    111.,   164, 

826,  1387,  1483 

V.  Webster,  69  111.,  393,  494 

.  V.  Wilcox,  57  111.,  180.  888 

Hartford  Ins.  Co.  v.  Farrish,  5  Ins.  L.  J.,  46, 

822,  1073 

V.  Hadden,  38  111.,  260,  117,  730 

Hartford  Live  Stock  Ins.  Co.  v.  Matthews,  103 

Mass  ,  231,  1318,  1391 

Hartford  Protection  Ins.  Co.  v.  Harmer,  3  Ohio 

St. ,  452,    265,  379,  468,  694, 1 1 1 5, 1 1 99, 

1453,  1525 

Hartley  v.  Buggin,  3  Doug.,  39,  417 

Hartman  v.  Keystone  Ins.  Co.,  31  Penn.  St., 

466,  248,  533, 1301 

Hartshorn  v.  Shoe  &  Leather  Dealers  Ins.  Co., 

15  Gray,  340,  341 

Hartshorne  v.  Union  Mut.  Ins.  Co.,  36  N.  Y., 

173;  5  Bos.,  538,  6.1,  315 

Harvey  v.  Beckwith,  12  W.  R.,  819,  896;  10  L. 

T.  (N.  S.),  632,  739,  1103 

Hashagan  v.  Manlove,  43  Ind.,  330,  958 

Haskell  v.  Monmouth   Fire  Ins.  Co.,  53  Me., 

128,  169 

Haskins  v.  Hamilton  Mut.   Ins.  Co.,  5  Gray, 

433,  824,  973,  1160 

Hastle  B.  DePeyster,  3  Caines,  190,  J.,         118S 
Hathaway  ».  Sun  Mut.  Ins.  Co.,  8  Bos.,  33, 

618,  1365 
v.  Trenton  Mutual  Life  &  Fire  Ins.  Co., 

11  Cush.,  448,  1365 

Ilathorn  v.  Germania  Ins.  Co.,  55  Barb.,  28, 

1330 
Hatton  V.  Beacon  Ins.  Co.,  16  U.  C.  Q.  B.,  310, 

861 

V.  Provincial  Ins.  Co.,  7  U.  C.  C.  P.,  555 

80 
Haughton  v.  Empire  Mut.  Ins.  Co.,  1   L.  R. 

Ex.,  306 ;  4  H.-&  C,  41 ;  13  Jur.  (N.  S.), 

376;  35  L.  J.  E.x.,  117;  14  W.  R.,  645; 

15  L.  T.  (N.  S.),  80,  984 

r.Ertbank,  4Camp.  88,  953,1077 

Haverhill  Fire  Ins.  Co.  v.  Prescott,  43  N.  H., 

547,  1316 

Havelock  v.  Hancdl,  3  Term,  277,  199 

V.  Rockwood,  8  Term,  268,  1038 

Haven  c.  Gray,  12  Mason,  71,  1007 

V.  Holland,  3  Mass.,  330,  440 

Hawes  i'.  New  England  Mutual  Marine  Ins. 

Co.,  3  Curtis,  339,  533 


XXXIV 


TABLE  OF  C.VyES. 


HawKes  v  Dodge  Co.  Mut.  Ins.  Co.,  11  Wis., 

188,  675, 830 

Hawkins  «.  Coultluirst,  13  W.  R.,  835,         391 

V.  Woodgate,  7  Beav.,  .565,  138 

Hawortli  (!.  British  American  Ass.  Co.,  6  U.  C. 

C.  P.,  60,  817 

Hayman  v.  Parisli,  2  Camp.,  149,  115,  118 

llayuer  v.  American  Popular  Life  Ins.  Co.,  8 

J.  &Sp.,  266;  4  id.,  311,  913 

Hayward  v.  Blalie,  12  Mass.,  177,  808 

V.  Cain,  105  Mass.,  213,    .  1343 

v.  Liverpool  &  Loudon  Ins.  Co.,  42*  N. 

Y.  (3  Keyes),  456;  2  Abb.  Dec.  349;  7 

Bos.,  385;  5  Abb.  Pr.  (N.  S.),  142, 

547 

V.  National  Ins.  Co.,  52  Mo.,  181,  873 

V.  New  England  Mutual  Fire  Ins.  Co.,  10 

Cush.,  444,  666 

Haywood  v.  Rodgers,  4  East,  590;  1  Smith, 

298,  254 

Hazard  v.  Franklin  Mut.  Ins.  Co..  7  R.  I.,  429, 

99,  475 

V.  New  England  Marine  Ins.  Co.,  8  Pet., 

557;lSumn.,  218,  1034,1301 

Heads.  Providence  Ins.  Co.,  2  Cranch,  137, 

1060,  1318,  1446 

Heald  v.  Builders  Mut.  Ins.  Co.,  Ill  Mass.,  38 

702 

Healey  v.  Imperial  Fire  Ins.  Co.,  5  Nev.,  268, 

860 

Heard  v.  Holman,  13  W.  R.,  745;  11  Jur.,  (N. 

S.),  544 ;  12  L.  T.  (N.  S.),  455,  228 

Hearing,  Succession  of,  26  La.  An.,  326, 

1531 

Hearne  v.  Edmunds,  1  B.  &  B.,  388;  4  Moore, 

15,  1336 

V.  Marine  Ins.  Co.,  20  Wall.,  489, 

406,  1451 

Heath  v.  Franklin  Ins.  Co.,  1  Cush.,  357, 

402,  1113 

Heaton  v.  Manhattan  Fire  Ins.   Co.,  7  R.  I., 

502,  108, 916 

Hebdon  v.  West,  3  B.  &  S.,  579;  9  Jur.  (N.  S.), 

749;  32  L.  J.  C.  B.,  85;  11  W.  R.,423; 

9  L.  T.  (N.  S.),  854,  700 

Headburgt).  Pearson,  7  Taunt.,  154;  Holt  N. 

P.,  340;  3  Marsh.,  433,  1503 

Hedley  v.  Nashville  Ins.  Co.,  6  Rich.,  130, 

7,35 
Heebner  v.  Eagle  Ins.  Co.,  10  Gray,  131, 

3,  755,  843,  848,  1497 
Heiman  c.  Phoenix  Mutual  Life  Ins.  Co.,  17 

Minn.,  153,  350 

Heller  v.  Crawford,  37  Ind.,  279,    364,  513,  978 
Helme  v.  Philadelphia  Life  Ins.  Co.,  61  Penn. 

St.,  107,  916 


Hemmenway  v.  Bradford,  14  Mass.,  121,      901 

V.  Eaton,  13  Mass.,  108,  1426 

Henchman  v.  Offley,  3  Doug.,  135;  3  H.  Bl., 

345,  n.,  385,  1292 

Henderson  v.  Felters,  Faculty  Dec.  1810  to 

1813,  p.  518,  533 
V.  Lothian,  Faculty  Dec.  1796  to  1801,  p. 

428,  1281 
V.  Western  Marine   &  Fire  Ins.  Co.,  10 

Rob.  (La,),  164,  518,  547,  1153 

Hendricks  v.  Australasian  Ins.  Co.,  9  L.  R.  C. 

P.,  46');  43  L.  J.  C.  P.,  188;  30  L.  T. 

(N.  S.),  419 ;  22  W.  R.,  947,  62(> 

V.  Commercial  Ins.  Co.,  8  Johns.,  1,    1231 

Heneker  v.  British  American  Ass.  Co.,  13  IT. 

C.  C.  P.,  99,  660,  971 
V.  British  American  Ass.  Co.,  14  U.  C.  C. 

P.,  57,  653,  660 

Hening  o.  United  States  Ins.  Co.,  2  Dil.  Cir. 

C,  36,  754,  883,  887,  1004 

Hennessy,  Ex  parte,  1  Con.  &  Law.,  559;  2  Dr. 

&  War.,  555 ;  5  Irish  Eq.,  359,  17(> 

Henning  d.  United  States  Ins.  Co.,  47  Mo.,  435, 

lis 

Henrickson  v.  Margetson,  2  East,  544,  n., 

109!> 
Henry  c.  Agricultural  Ins.  Co.,  11  Grant's  Ch., 

135,  354 

V.  Staniforth,  4  Camp.,  270,  645,  13o(> 

Henry  Ewbank,  The  Ship,  1  Sumn.,  400,    435 
Henshaw  v.  Marine  Ins.  Co.,  2  Caines,  274, 

390, 10.34,  1487 

J).  Mutual  Safety  Ins.  Co.,  2  Blatch.,  99 

561,  94» 
Henson  v.  Blackwell,  4  Hare,  434;  14  L.J 

Ch.,  329,  1351 

Hentig  v.  Staniforth,  5  Mau.  &  Sel.,  132, 

648,  1230 
Henty  v.  Staniforth,  1  Starkie,  254,  643,  122» 
Herbert  v.  Champion,  1  Camp.,  134,  80 

V.  Hallet,  3  Johns.  C,  93,  57T 

Herckenrath  v.  American   Mut.   Ins.   Co.,  3 

Barb.  Ch.,  63,  758 

Hercules  Ins.  Co.  v.  Hunter,  14  C.  C.  S.,  147, 

142 

V.  Hunter,  14  C.  C.  S.,  1137,    384,  534,  541 

1).  Hunter,  15  C.  C.  S.,  800,  553 

Herkimer  County  Mut.  Ins.  Co.  ij.  Fuller,  14 

Barb.,  373 ;  7  How.  Pr.,  210,  154 

Herman  v.  Western  Marine  and  Fire  Ins.  Co., 

13  La.  (O.  S.),  516,  423 

Hernandez  v.  New  York    Mut.   Ins.   Co.,  6 

Blatch.,  326,  1501 

v.  Sun  Mut.  Ins.  Co.,  6  id.,  317,  120O 

Herrick  v.  Union  Mutual  Fire  Ins.  Co  ,  48  Me., 

558,  828 


TABLE  OF  CASES. 


xxx^ 


Herron  v.  Peoria  Marine  and  Fire  Ins.  Co.,  28 

111.,  2.S5,  8;i3,  847,  1241 

Ilerscy II.  Merrimack  County  Mutual  Fire  Ins. 

Co.,  27  N.  11.,  149,  481 

Ilervey  v.  Mutual  Fire  Ins.  Co.,  11  U.  C.  (J.  P., 

394,  054 

ITcsellou  V.  Allnutt,  1  Mau.  &  Sel.,  46,         435 
Hesterberg  v.  Equitable  Life  lus.  Co.,  1  Cin. 

Sup.  Ct.,  483,  1285 

Hcyligcr  r.  New  York  Firemens  Ins.  Co.,  11 

Johns.,  85,  607 

Hibbert  v.  Martin,  1  Camp.,  538,  1321 

v.  Carter,  1  Term.,  745,  697,  895 

v.  Ilalliday,  2  Taunt.,  428,  420 

V.  Pigou,  3  Doug.,  324,  371 

Ilibernia  Ins.  Co.  v.  O'Connor,  29  Mich.,  241, 

110,  372,  1124 
Hickey  v.  Anchor  Ins.  Co.,  18  U.  C.  Q.  B., 

433,  701 

llickic  V.  Itotlocanachi,  4  11.  &  N.,  455;  5  Jur. 

(N.  S.)  5.50 ;  28  L.  J.  E.K.,  273 ;  7  W.  It., 

545,  003 

Hickman  v.  L"ug  I^^hind  Ins.  Co.,  Eilm.  S.  C. 

(N.  Y.),  374,  554 

Hicks  V.  Fitzsimmous,  1  Wash.  C.  C,  279, 

1024 

Hidden  v.  Slater  Mutual  Fire  Ins.  Co.,  2  Cliff., 

200,  707 

Hide  V.  Bruce,  3  Doug.,  213,  1520 

Hi^bie  v.  Guardian   Mutual   Life  Ins.  Co.,  53 

N.  Y.,  003,  .531,  520,  790,  1303 
Higgins  V.  Livcrmore,  14  Mass.,  100,  1515 
V.  Sargent,  2  B.  &  C,  348;  3  D.  &  E., 

613,  720 

Higginson  v.  Dall,  13  Mass.,  90,        9,  490,  713 

V.  Gray,  8  Mass.,  .38.5,  300 

V.  Pomeroy,  11  Jlass.,  104,  296 

Hill  V.  Cumberland  Valley  Mutual  Protection 

Co.,  59  Pcnn.  St.,  474,  106 

V.  La  Fayette  Ins.  Co.,  2  Midi.,  470,     249 

V.  Patten,  8  East,  373;  1  Camp.,  73,    1313 

V.  Reed,  16  Barb.,  380,  398 

V.  Seerctan,  1  B.  &  P.,  315,  095 

Hillier  v.  Allegheny  County  Mutual  Ins.  Co., 

3  Penn.  St.,.470,  1194,  1289 

Hills  1).  London  Ass.  Cor.,  5  Mee  &  W.,  569; 

9  L.  J.  (N.  S.)  E.X.,  25,  013 

Hillyard  v.  Jlutual  Benefit  Life  Ins.  Co.,  35  N. 

.1.,  415,  07,  905 

Hiniely  v.  South   Carolina  Ins.-  Co.,  1  ]MilIs 

Const.  Kep.,  153,  237 

v.  Stewart,  1  Brev.,  209,  1147 

Hinck  V.  Home  Ins.  Co.,  19  La.  An.,  527, 

1473 

Uincken  v.  Mutual  Benefit  Life  Ins.  Co.,  50  N. 

•  Y.,  657,  1120 


Hinckley  v.  "Walton,  3  Taunt.,  131,  644 

Ilinmau  v.  Hartford  Fire  Ins.   Co.,  30  Wis., 

159,  1377,  1486 

Hitchcock  V.  Northwestern  Ins.  Co.,  26  N.  Y., 

08,  17r, 

Iloare  v.  Bremridgc,  8  L.  II.  Cli.,  22;  42  L.  J. 

Ch.,  1;  27L,  T.  (N.  S.),  593,  743 
Hobart  v.  Norton,  8  Pick.,  159,  427,  1487 
Hobbs  V.  Ilannam,  3  Camp.,  93,  202,  1348 
D.  Henning,  17  C.  B.  (N.  S.),  791 ;  11  Jur. 

(N.  S.),  223;  34  L.J.  C.  P.,  117;  13  W. 

R.,  431 ;  12  L.  T.  (N.  S.},  205,  636 

V.  Manhattan  Ins.  Co.,  50  Me.,  417, 

1189 

V.  Memphis  Ins.  Co.,  1  Sneed,  444, 

63,1390 
Hobby  V.  Dana,  17  Barb.,  Ill,  655 

Hobson  B.Wellington  Fire  Ins.  Co.,  0  U.  C.Q. 

B.,  350,  1459 

B.  Western  Ass.  Co.,  19  U.  C.  Q.  B.,  314, 

1136 
Hodgkins  v.  Montgomery  County  Mut.  Ins. 

Co.,  34  BaiO).,  313,  401,1110 

Hodgson  V.  Glover,  6  East,  310,  1098 

V.  Malcolm,  5  B.  &  P.,  336,  1031 

V.  Marine  Ins.  Co.,  5  Cranch,  100, 

398,  501,  790,  901,  903 
V.  Mississippi  Ins.   Co.,  2  La.   (O.   S.), 

341,  589 

V.  Richardson,  1  W.  Bl.,  463,  353 

Hodsdon  V.  Guardian  Life  Ins.  Co.,  97  Mass., 

144,  9U 

Hodson  V.  Observer  Life  Ass.  Soc,  8  El.  &  Bl., 

40;  3  Jur.  (N.S.),  1125;  20  L.  J.  Q.  B., 

303,  1462 

V.  Richardson,  3  Burr.,  1477,  301 

Hoffman  v.  Mlna  Ins.  Co.,  33  N.  Y.,  405 ;  1 

Rob.,  .501;  19  Abb.  Pr.,  335, 

103,  1139 

V.  Banks,  41  Ind.,  1,  1317 

V.  Marshall,  3  Biug.  (N.  C),  383;  5  L.  J. 

(N.S.)C.P.,70,  1337 
V.  Western  Marine  and  Fire  Ins.  Co.,  1 

La.  An.,  310, 

149,  384,  518,  557,  850,  1103 
Hogan  V.  Delaware  Ins.  Co.,  1  Wash.  C.  C, 

419,  488 

Hogle  ».  Guardian  Life  Ins.  Co.,  4  Abb.  Pr. 

(N.  S.),  346;  6  Rob.  (N.  Y.),  567, 

60,  819 
Holabird  v.  Insurance  Co.,  3  Dil.  Cir.  C,  100,  n., 

845,  1533 
Holbrook  v.  American  Fire  Ins.  Co.,  1  Curtis 

C.  C,  193,  103,  853 

V.  American  Ins.  Co.,  6  Paige,  220, 

1284 


XXXVl 


TABLE  OF  CASES. 


Holdsworth  d.  Wise,  7  B.  &  C,  794;  1   M.  & 

R,  673 ;  6  L.  J.  K.  B.,  134,    13G9, 1417 
Holland  v.  Russell,  1  B.  &  S.,  434:  30  L.  J.  Q. 

B.,  308;  7  Jur.  (N.  S.),  842;  4  L.  T. 

(N.  S.),  547;  4  B.  &  S.,  14;  32  L.  J.  Q. 

B.,  297 ;  11  W.  R.,  757 ;  8  L.  T.  (N .  S.), 

468,  1395 

V.  Smith,  6  Esp.,  11,  1332 

nolllDgwoith  B.  Broderick,  7  A.  &  E.,  40;  1 

Jur.,  430;  8  L.  J.  {N.  S.)  Q.  B.,  80;  3 

N.  &  P.,  608,  1254,  1269 

V.  Broderick,  4  A.  &  E.,  646 ;  6  N.  &  M., 

,   240,  277 

Hollingsworth  v.  Germauia  Fire  lus.  Co.,  45 

Ga.,  394,  1223 

HollomaQ  v.  Lil'e  Ins.  Co ,  1  Woods,  674, 

454,  801,  845,  1301 
Holmes  v.  Charlestown  Mutual  Fire  Ins.  Co., 

10  Met.,  211,  1470 

■0.  United  Ins.  Co.,  2  Johns.  C,  329, 

894,  1237 
Holtzman  v.  Franklin  Ins.  Co., 4  Cranch  C.  C, 

295,  1193 

Home  Ins.  Co.  v.  Cohen,  20  Grattan,  312, 

1118 

».  Curtis,  5  Ins.  L.  J.,  120;  33  Mich.,  403, 

359,976,1192,  1233 

V.  Davis,  39  Mich.,  338,  1193 

V.  Duke,  43  Ind.,  418,  958 

V.  Favorite,  46  111.,  363,  309,  736,  978 

«.   Heck,   65   111.  HI, 

206,  691,  1223,  1224 

V.  Northwestern  Packet  Co.,  32  Iowa.,  223 

745,  1313,  1330 
V.  Stanchfield,  2  Abb.  Cir.  C.,1 ;  1  Dil.  Cir. 

C,  424,  740 

V.  Western  Transportation  Co.,  51  K.  Y., 

93;  4  Rob.,  257;  33  How.  Pr.,  103, 

331 

Home  Life  Ins.  Co.  v.  Pierce,  5  lus.  L.  J.,  290, 

924, 1061,  1074 

Home  Mutual  Fire  Ins.  Co.  v.  Garlield,  60  111., 

124,  398,467,1160 

V.  Hauslein,  60  111.,  521,  163,  1390 

Homer  v.  Dorr,  10  Mass.,  36,  490 

Hone  V.  Mutual  Safety  Ins.  Co.,  1  Sandf.,  137; 
3  IS.  Y.,  235,  1184,  1451 

Honnick  v.  Phoenix  Ins.  Co.,  23  Mo.,  83,     301 
Honore  v.  Lamar  Fire  Ins.  Co.,  51  111.,  409, 

1339 

Hood  V.  Manhattan  Fire  Ins.  Co.,  UN.  Y.,  532 ; 

2  Duer.,  191,  299 

V.  Nesbitt,  1  Yeates,  114;  2  Dall,  137, 

419 

V.  Poughkeepsie  Ins.  Co.,  32  N.  Y.,  619, 

337 


Hooper  v.  Accidental  Death  Ins.  Co.,  5  H.  & 
N.,  551;  7  Jur.  (N.  S.),  73;  29  L.  J. 
Ex.,  484;  5  H.  &  N.,  546;  29  L.  J. 
Ex.,  340;  8  W.  R.,  616,  47 

V.  Hudson  River  Fire  Ins.  Co.,  17  N.  Y., 

424;  15  Barb.,  413,  53 

V.  Lusby,  4  Camp.,  66,  1095 

Hope  Ins.  Co.  v.  Lonergan,  48  HI.,  49,  821 

Hope  Mut.  Ins.  Co.  v.  Brolaskey,  35  Penn.  St., 
283,  1374 

Hore  V.  Whitmore,  Cowper,  784,  1238 

Horn  V.  Amicable  Mutu.al  Life  Ins.  Co.,  64 
Barb.,  81,  1303,  1300 

®.  Anglo  Australian  Life  Ins.  Co.,  30  L. 

J.  Ch.,  511;  7  Jur.  (N.  S),  673;  9  W. 

R.,  359 ;  4  L.  T.  (N.  S.),  143,  1359 

Horncastle  v.  Suart,  7  East,  399,  593 

Horneyer  v.  Lushington,  15  East,  46;  3  Camp., 

85,  648,989.1230 

Horwitz  V.  Equitable  Mut.  Ins.  Co.,  40  Mo., 

557,  874 

Hosack  «.  Rogers,  6  Paige  Ch.,  415,  30 

Hoskins  v.  Pickersgill,  3  Doug.,  222, 

817 

Hotchkiss    V.  Commercial    Mut.  Ins.  Co.,  1 

Rob.  (N.  Y.),  489,  1500 

V.  Germania  Fire  Ins.  Co.,  5  Hun.  (N.  Y.), 

90,  123,  532,  1069 

Hough  V.  City  Fire  Ins.  Co.,  29  Conn.,  10, 

505,  828,  1070,  1379 

V.  People's  Fire  Ins.  Co.,  36  Md.,  398, 

453 

Houghton  «.  Manufacturers  Ins.  Co.,  8  Met., 

114,  307 

Houghton  &  Gribble,  Ex  parte,  17  Ves.  Jun., 

251,  699 

Houstmau  ■».  Thornton,  Holt  N.  P.,  242, 

1419 
Houston  0.  New  England  Ins.  Co.,  5  Pick.,  89 ; 

443,480 

Houstoun  V.   Robertson,  Holt  N.  P.,  88;    2 

Marsh.,  138;   6  Taunt.,  448;  4  Camp., 

342,  1290 

V.  Bordenave,  6   Taunt.,   451 ;    2  Marsli., 

1-11.  1290 

Hovey  v.  American  Mut.  Ins.  Co.,  3  Duer.,  554» 

490,  834,  978 
How  V.  Allen,  1  Sandf,  171,  1054 

Howes  V.  Union  Ins.  Co.,  16  La.  An.,  235, 

1465 
Howard,  Sir    Robert's  Case,  Holt  K.  B.,  195, 

1373 
Howard  v.  Albany  Ins.  Co.,  3  Denio,  301, 

1388 
V.  Astor  Mut.   Ins.   Co.,  5  Bos. ,  38, 

1026 


TABLE  OF  CASES. 


xxxvu 


Howard  v.  City  Fiie  Ins.  Co., 4  Dt-nio,  502, 

479,540,  1141 

41.  Contiiiental  Life  Ins.  Co.,  48  Cal.,229, 

941 

».  Fninklin  JIariue  and  Fire  Ins.  Co., 9 

How.  Pr.,  45,  1208 

V.  Great  Western  Ins  Co.,  109  Mass.,  384 , 

880 

V.  Kentucky  and  Louisville  Mat.  Ins.  Co., 

13  B.  Mon.,  382.  87 

V.  Orient  Mut.  Ins.  Co.,  2  Rob.  (N.  Y.), 

r,;j9,  1205, 1292 

Howard  Fire  Ins.  Co.  v.  Bruner,  33  Penn.  St., 

50,  463,506 

Howard  Fire  and  Marine  Ins.  Co.  v.  Cormick. 

24  111.,  455,  467, 1241. 1483 

Howard  Ins.  Co.  v.  Scribner,  5  Hill.,  298,     450 

Howell  1).  Baltimore  Equitable  Soc,  16  Md., 

377,  658 

V.  Cincinnati  Ins.  Co. ,  7  Ohio.  1st  pt.,  276, 

11.50 

V.  Knickerbocker  Life  Ins.  Co.,  44  N.  Y., 

276;  3  Itob.,232;  19  Abb.  Pr.,217, 

355.911 

V  Protection  Ins.  Co.,  7  Ohio.  1st  pt.,  284, 

1037 

Howes  V.  Union  Ins.  Co..  16  La.  An.,  235, 

1465 

Hoxie  V.  Home  Ins.  Co.,  33  Conn.,  21 ,    481 ,  535 

V.  Home  Ins.  Co.,  33  Conn..  471,     142, 517 

V.  Pacific  Mut.  Ins.  Co.,  7  Allen,  211, 

1248 

Hoxsie  V.  Providence  Mutual  Fire  Ins.  Co.,  6 

R.  l.,517,  99,14.56,1472 
Hoyt  V.  Oilman,  8  Mass.,  335,  242.819, 1232 
0.  Mutual  Benefit  Life  Ins.  Co.,  98  Mass., 

539,  341 

ji.  New  York  Life  Ins.  Co.,  3  Bos.,  440, 

634 

Hubbard  v.  Glover,  3  Camp.,  813 ,  1200 

!).  Hartford  Fire  Ins.  Co.,  33  Iowa,  325, 

40, 328 

B.  Jackson,  4  Taunt,  109.  1314 

Huchberger  v.  Home  Ins.  Co.,  5  Biss.,  106, 

81 ,  554 

V.  Merchants  Fire  Ins.  Co.,  4  Biss.,  265, 

148, 554 

Huckins  v.  People's  Mutu.al  Fire  Ins.  Co.,  31 

N.  H.,  338,       538,  542, 1010, 1148, 1466 

Huckman  ».  Fernie,  3  Mee.  &  ■\V.,505;  7  L. 

J.  (N.  S.)  Ex.,  163 ;  2  Jur.,  444, 

793,  1310 

Hucks  !).  Thornton,  Holt  N.  P.,  30,      197,  1253 

Hudson  V.  Guestier,  6  Cranch,  281,  753 

-  —  V.  Harrison,  3  B.  &  B.,  97;  3  Moore.  28S, 

29 


Hudson  e.  Williamson,  3  Brev.,  342,  12,59 

Hugg  v.  Augusta  Insurance  &  Banking  Co., 

7  How.,  595 ;  Tan.  Dec,  159,    290,  585 
Hughes  V.  Mercantile  Mut.  Ins.  Co.,  10  Abb. 

Pr.  (N.  S.),  37;  41  How.  Pr.,  253, 

129 
V.  Mercantile  Mut.  Ins.  Co.,  55  N  Y  ,  265; 

44  How.  Pr.,  351,  338 

■!).  Tindall,  18  (-■.  B  ,  98.  475 

V.  Union  Ins.  Co  ,  3  Wheat.,  159,  439 

V.  Union   Ins.  Co.,  8  Wheat.,  294, 

48,  594 
Hugucnin  v  Rayley,  6  Taunt ,  186,  263 

Hull  V.  Cooper,  14  East.  479,  446 

Hullman  v.  Whitmore,  3  Man.,  &  Sel.,  387, 

633 
Humphrey  v.  Arabin,  L   &  G.  temp.  Plunk., 

318,  1354 

Humphreys  v.  Union  Ins.  Co ,  3  Mason.  429, 

18,  843,  1501 
Hunt  V.  Hudson  River  Ins.  Co.,  2  Duer,  481, 

950 
V.  Royal  Exchange  Ass.  Co.,  5  Mau   & 

Sel.,  47,  22, 1429,  1430 

V.  Simonds,  19  Mo.,  583,  56 

Hunter  v.  General  Mut.  Ins.  Co.,  11  La.  An., 

139,  616 

V.  Potts,  4  Camp.,  203,  1030 

V.  Wright,  10  B.  &  C,  714;  8  L.  J.  K.  B., 

259,  1234 

Huntley  ».  Merrill,  32  Barb.,  636,  1318 

Hurlbert  v.  Pacific  Ins.  Co.,  2  Sumn.,  471, 

1283 
Hurry  v  Royal  Exchange  Ass.  Co.,  2  B.  &  P  , 

430;  3Esp.,  289,  1043 
V.  Royal  Exchange  Ass.  Co.,  3  B.  &  P., 

308,  893 

Hurten  v.  Phcenix  Ins.  Co.,  1  Wash.  C    C. 

400,  15,  1405 

Hutchins  v.  Cleveland  Mut.  Ins.  Co.,  11  Ohio 

St.,  477,  671 

Hutchinson  v.  National  Loan  Ass.  Soc,  7  C.  C. 

S.,  467;  17  Scot.  Jur.,  25.3,  134 

V.  Read,  4  Exch.,  761 ;  19  L.  J.  Ex.,  222. 

960 

«.  Western  Ins.  Co.,  21  Mo.,  97,  87i{ 

V.  Wright,  25  Beav.,  444;  4  Jur.  C.N.  S.), 

749;  27  L.  J.  Ch.,  834;,  111,  676 

Huth  V.  New  York  Mut.  Ins.  Co  ,  8  Bos.,  538, 

571 
Hutton  V.  American  Ins.  Co.,  7  Hill,  331 ;  34 

Wend.,  330,  191 

V.  Waterloo  Life  Ins.  Co.,  1  F.  &  P.,  735, 

795 
Hyde  v.  Goodnow,  3  N.  Y.,  266,  755, 1318 

T.  Insurance  Co.,  2  Dil.  Cir.  C,  .525, 

1193 


XXXVIU 


TABLE  OF  CASES. 


Hyde  v.  Louisiana  State  Ins.  Co.,  14  Martin 
(La),  410,  7,  821,  1028 

V.  Lynde,  4  N.  T.,  387,  1051 

V.  Mississippi  Mariae  &  Fire  Ins.  Co.,  10 

La.  (O.  S.)),  543,  325 

Hygiim  V.  .<Etna  Ins.  Co.,  11  Iowa,  21,         800 
Hynds  v.  Schenectady  County  Mut.  Ins.  Co., 
UN.  Y.,  554;  16  Barb.,  119, 

750,  1113,  1128 


I. 


Ida  D.  Phoenix  Ins.  Co.,  2  Biss.,  838, 

882,  10G6 

Idle  V.  Royal  Exchange  Ass.  Co.,  8  Taunt., 
755;  3  Moore,  115,  590,604 

Illinois  Central  Ins.  Co.  v.  Wolf,  37  III.,  3.54, 

902 
Illinois  Fire  Ins.  Co.  v.  Stanton,  57  III.,  354, 

69,  805,  965,  1073 

Illinois  Mutual  Fire  Ins.  Co.  v.  Andes  Ins. 

Co.,  67  111.,  362.  1186 

D.  Fix,  53  111,  151,  162 

V.  Marseilles  Manufacturing  Co.,  6  111., 

236,  809,  718,  964,  974,  1374,  1391 

V.  O'Neil,  13  111 ,  89,  494,  873 

Illinois  Mut.  Ins.  Co.  v.  Malloy,  50  111.,  419, 

859 

Imperial  Fire  Ins.  Co.  v.  Murray,  73  Penn.  St., 

13,  693,  797  1071,  1115 

Independent  Mut.  Ins.  Co.  v.  Agnew,  34  Penn. 

St.,  96;  SPhila.,  193,  1396 

India  &  London  Life  Ass.  Co.  v.  Dalby,  4  De 

G.  &  S  ,  462,  706 

Indiana  Mut.  Fire  Ins.  Co.  v.   Chamberlain, 

8  Blackf.,  150,  757 

v.  Coquillard,  2  Ind  ,  645,  1057 

V.  Routledge,  7  Ind.,  25,  767 

Indiana  Mut.  Ins.  Co. B.Conner,  5  Ind.,  170, 

1052 
Indianapolis  Ins.  Co.  v.  Mason,  11  Ind.,  171, 

1500 
Inglis  V.  Vaux,  3  Camp.,  437,  1042 

Ingraham  v.  South  Carolina  Ins.  Co.,  8  Brev., 
522  ■  242 

Ingram  v.  Agnew,  15  East,  517,  648 

Ingrams  v.  Mutual  Ass.  Soc,  1  Rob.  (Va.),  661, 

670 
Inland  lus.  Co.  v.  Stauffer,  83  Penn.  St.,  397, 

838, 878 
Inman  v.  Western  Fire  Ids.  Co.,  12  Wend.,  452 

835 


lunes  V.  Alliance  Mut.  Ins.  Co.,  1  Sandf.,  310, 

845 
Insurance  Co.  b.  Bailey,  13  Wall.,  616,         740 

V.  Baring,  20  Wall.,  159,  206,  688 

V.  Boykin,  12  Wall.,  433,  1106 

V.  C.  D.  Jr„  1  Woods,  72,  1327 

V.  Chase,  5  Wall.,  509,  688 

V.  City  of  New  Orleans,  1  Wood,  85, 

225,  1363 

V.  Connor,  17  Penn.  St.,  136,  310 

V.  Colt,  20  Wall.,  560,  314,  881,  909 

V.  Dunham,  11  Wall.,  1,  745 

V.  Dunn,  19  Wall.,  214,  1188 

».  Fogarty,  19  Wall.,  640,  1505 

V.  Folsom,  18  Wall.,  237;  8  Blatch.,  170; 

9  id.,  201,  373, 777,  845,  1311 

•».  Francis,  11  Wall.,  210,  1189 

V.  Harris,  3  Phila.,  136,  621 

V.  Johnson,  23  Penn.  St.,  72,  343 

!).  Lyman,  15  Wall.,  664,  240,  488 

D.    ilahone,  21    Wall.,   152, 

504,  510,  530 

V.  Mordecai,  22  How.,  Ill,  585 

V.  Morse,  20  Wall.,  445;  49  How.  Pr.,314, 

1188,  1191 

V.  Mosely,  8  Wall.,  397,  515 

V.  Piaggo,  16  Wall.,  378 ,  28,  205, 681 

V.  Rupp,  29  Penn.  St.,  526,  380 

V.  Sea,  21  Wall.,  158,  206 

V.  Seaver,  19  Wall,  531 ,  393 

V.  Seitz,  4  W.  &  S.,  273,  1482 

V.  Slaughter,  12  Wall.,  404,  750 

V.  Thwing,  18  Wall.,  672,  880 

V.  Transportation  Co.,  12  Wall.,  194;  6 

Blatch.,  241 ;  34  Conn.,  561,  297 

V.  Trask,  8  Phila.,  33,  169 

V.  Tweed,  7  Wall.,  44,]  94,  547 

V.  Updegrali;  21  Penn.  St.,  513-, 

714, 1842 

V.  Webster,  6  Wall.,  129,  1218 

V.  Weide,  9  AVall.,  677,  '  520 

V.  Weide,  11  Wall.,  439,  478 

».  Wilkinson,  13  Wall.,  222;  2  Dil.  Cir. 

C,  570,  504,  1065,  1165 

V.  Weides,  14  Wall.,  375, 

521,543,554,1143 

V.  AVright,  1  Wall.,  456,  398,  313 

Insurance  Co.  of  North  America  v.  Hope,  58 

111.,  75,  822,1163 

V.  Jones,  2  Binn.,  547,  ""        573,  608 

V.  McDowell,  50  111.,  120,        81,  117,  553, 

557,  674,  838, 874, 1047, 1118, 1203, 1536 
Insurance  Co.  of  Pennsylvania  v.  Duval,  8  S. 

&  R,  138,  1497 

V.  Phoenix  Ins.  Co.,  71   Penn.  St.,  31, 

105 


TABLE  OF  CASES 


xxiax 


International  Life  Ass.  Soc.  In  re,  Ex  parte 

Mclver,  5  L.  K.  Cli.,  424,  758 

International  Life  Ass.  Soc.  ;iud  Hercules  Ins. 

Co.  In  re,  E.x  parte  Blood,  9  L.  R.  Eq., 

316;  39  L.  J.  Ch.  295;  18  W.  It.,  370; 

22  L.  T.  (N.  S.),  467,  841 

lonides  e.  Harford,  5  H.  &  N.,  944 ;  29  L.  J. 

Ex.,  30,  998 

— —  V.  Pacific  Fire  and  Marine  Ins.  Co.,  6  L. 

R.  Q.  B.,  674;  25  L.  T.  (N.  S.),  490;  21 

\V.  R.,  22;  20  L.  T.  (N.  S.),  738;  7  L. 

R.  Q.  B.,  517;  41  L.  J.  Q.  B.,  190, 

403,499,994 
V.  Pender,  9  L.  R.  Q.  B.,  531 ;  43  L.  J.  Q. 

B.,  227;  22  W.  R.,  884;  30  L.  T.  (N. 

S.),  547,  569 

«.  Universal  Marine  Ins.  Co.,  14  C.  B.  (N. 

S.),  259;  32  L.  J.  C.  P.,  170;  11  W.  R., 

858;  8  L.  T.  (N.  S.),  705,  223 

Iowa  State  Ins.  Co.  v.  Prossee,  11  Iowa,  115, 

153 
Irving  I'.  Excelsior  Ins.  Co.,  1  Bos.,  507,      993 

V.  Harrison,  3  L.  J.  Ch.,  48,  742 

V.  Richardson,  2  B.  &  Ad.,  193;  1  M.  & 

Rob.,  153,  1349 

Irwin  V.  National  Ins.  Co.,  2  Disney,  68,    273 

V.  Sea  Ins.  Co.,  23  Wend.,  380,  1201 

Isaacs  s.  Royal  Ins.  Co.,  5  L.  R.  Ex.,  290 ;  39 

L.  J.  Ex ,  189 ;  18  W.  R.,  982 ;  22  L.  T. 

(N.  S.),  681,  1373 


•J. 


Jacob,  In  re,  4  De  G.  &  S.,  524,  1350 

0.  Jansen,  3  Taunt.,  534,  637 

Jacobs  V.  Eagle  Mutual  Fire  Ins.  Co.,  7  Allen, 

•  132,  668,  1389 

T.  Equitable  Ins.  Co.,  18  U.  C.  Q.  B.,  14, 

373;   17  id. ,35;   19  id.,  250;    id.,  2.57; 

863 
V.  National  Life  Ins.  Co.,  1  Mac  Arthur, 

484,  973 
•».  National  Life  Ins.  Co.,  1  Mac  Arthur, 

632,  116,  519,  1067,  1361 

Jackson  v.  Mtna.  Ins.  Co.,  16  B.  Mon.,  243, 

110,  4.57.  1315.  1385 
V.  Farmers  Mutual  Fire  Ins.  Co.,  5  Gray, 

53,  67,  674,  866 
V.  Forester.  1  El.  &  El.,  463 ;  5  Jur.  (N.  S.J, 

C47;  38  L.  J.  Q.  B.,  160;  1  EI.  &  El., 

468;5Jar.(N.S.),1347;39L.  J  Q.  B.. 

8;7W.  R.,578,  163 


Jackson  v.  New  Yorlv  Ins.  Co.,  2  Johns.  C,'192, 
470,  8U 

V.  Massachusetts  Mutual  Fire   Ins.   Co  , 

23  Piolv.,  418,  105,  860 

V.  Union  Mutual  Ins.  Co.,  8  L.  R.  C.  P., 

572;  33  W.  R.,  79;  10  L.  R.  C.  P..  125, 

601 
James  River  Ins.  Co.  v.  Merritt  47  Ala.,  387, 

466,  507. 

Jameson  v.  Royal  Ins.  Co.,  7  Irish  R.  Law. , 

126,  1023,  1149 

Jenney  v.  Columbian  Ins.  Co.,  10  Wheat.,  411, 

26G 

Janson  v.  Solarte,  3  Tou.  &  Coll.,  127 ;  6  L.  J. 

(N.  S.)  Ex.  in  Eq.,  75,  127,  681 

Jardine  v.  Leathley,  3  B.  &  S.,  700;  3  P.  &  F., 

80;  9  Jur.  (N.  S.),  1035;  11  W.  R.,  432, 

27  L.  T.  (N.  S.),  783,  35 

Jarman  v.  Coape,  13  East,  394;  3  Camp.,  613, 

1049 
Jarrett  v.  Ward,  1  Camp.,  263,  420 

Jarvis  v.  Connecticut  Mutual  Life  Ins.  Co.,  8 
Chi.  Leg.   News,  327, 

724,  1358,  1361 
Jefferies  v.  Legeudra,  Holt  K.  B.,  465;  Show., 
320;  Carth.,  316,  309 

Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend.,  72, 

59,  131,  525, 1528 

Jeffries  v.  Economical  Mutual  Life  Ins.  Co., 

23  Wall.,  47,  790 

Jell  B.  Pratt,  2  Starliie,  67,  8U7 

Jellinghaus  v.  New  Yorli  Ins.  Co.,  4  Sandf., 

18 ;  8  Bos.,  381 ;  6  Duer,  1,  1088 

Jenkins  v.  Heycock,  8  Moore  P.  C.  C,  351;  5 

Moore  Ind.  App.,  301,  1245 

V.  Power,  6  Mau.  &  Sel.,  282,  648 

V.  Quiucy  Mutual  Fire  Ins.  Co.,  7  Gray, 

370.  491, 790 

Jennings  ».  Chenango  County  Mut.  Ins.  Co.,  3 

Denio,  75,  130 

V.  Insurance  Co.  of  Pennsylvania,  4  Binn., 

244,  2U 

Jessel  ».  Williamsburg  Ins.  Co.,  3  Hill,  88, 

74 

Jewett  V.  Home  Ins.  Co.,  29  Iowa,  .'>62,         860 

Job  «.  Langton,  0  El.  &  Bl.,  779;  3  Jur.  (N. 

S.),  109;  36  L.  J.  Q.  B.,  97,  613 

Joel  V.  Harvey,  5  W.  R.,  488 ;  39  L.  T.  (N.  8.), 

75,  1013 

Johnson  v.  Berkshire  Mutual  Fire  Ins.  Co.,  4 

Allen,  388,  1143 

V.  Columbian  Ins.  Co.,  7  Johns.,  315, 

899,  1113 

V.  Ocean  Ins.  Co.,  10  Rob.  (La.),  334, 

1029 
V.  Phoenix  Ins.  Co.,  113  Mass.,  49,       1138 


si 


TABLE  OF  CASES. 


Johnson  t.  Phoenix  Ins.  Co.,  1  Wash.  C.  C,  378, 

241 

. V.  Sheddon,  2  East,  581,  893 

——  V.  Ward,  6  Esp.,  47,  481,  513 

—  V.  West  of  Scotland  Ins.  Co.,  7  C.  C.  S., 

53,  1023 

Johnston  v.  Graham,  14  U.  C.  C.  P.,  9,         274 

■€.  Ludlow,  1  Caines  Cas.,  XXIX,         625 

^.  Ludlow,  2  Johns.  C,  481, 

638,  806,  1276 

V.  Sutton,  1  Doug.,  254,  646 

Johnstone  «.  Niagara,  13  U.  C.  C.  P.,  331, 

1090 

Joliffe  V. Madison  Mut.  Ins.  Co., 39  Wis.,  Ill, 

926 

Jolly  V.  Baltimore  Equitable  Society,  1  H.  & 
G.,  295,  3T8 

Jones  V.  Alliance  Mut.  Ins.  Co.,  1  Sandf.,  310, 

266 

V.  Consolidated  Investment  Ass.  Co.,  26 

Beav.,  256;  5  Jur.  (X.  S.),  214;  28  L. 
J.  Ch.,  66,  158 

1).  Firemen's  Fund   Ins  Co.,  51   X.  T., 

318,  661 

V.  Insurance  Co.,  2  Wall.  Jr.,  278,       1264 

V.  Insurance  Company  of  Xorth  Ameri- 
ca, 4  Dall.,  247,  599 

B.  Keene,  2  M.  &  R.,  348,  569 

■!!.  Maine  Mut.  Ins.  Co.,  18  Me.,  155,     870 

V.  MechaDics  Fire  Ins.  Co.,  36  N.  J.,29, 

81,532,555,  1124,  1141 

—  V.  Neptune  Marine  Ins.  Co.,  7  L.  R.  Q.  B., 

702;  41  L.  J.  Q.  B.,  370;  27  L.  T.  (N. 
S.),  808,  990 

V.  Nicholson,  10  Exch.,  28;  23  L.  J.  Ex., 

330,  200 

r>.  Provincial  Ins.  Co.,  3  C.  B.  (X.  S.),  65; 

3  Jur.  (X.   S.),  1004;  26  L.J.  Q.  B., 
272,  1306 

z.  Provincial  Ins.  Co.,  16  U.  C.  Q.  B.,  477, 

888 
■c.  Schmall,  1  Term,  130  n.,  1023 

t.  Sisson,  6  Gray,  288,  1056 

n.  St.  Joseph  Fire  and  Marine  Ins.  Co.,  55 

Mo.,  342,  126,  1483 

Jones  Manufacturing  Co.  v.  Manufacturers  Mu- 
tual Fire  Ins.  Co.,  8  Cush.,  82, 

845,  1206 

Jordaine  e.  Cornwall,  1  Starkie,  6,  1429 

Jordan  v.  Warren  Ins.  Co.,  1  Story,  342,  598 
Joyce  V.  Kennard,  7  L.  R.  Q.  B.,  78;  41  L.  J. 

Q.  B.,  17;  25  L.  T.  (X.  S.),  932;  20 

W.  R.,  233,  284 

T.  Maine  Ins.  Co.,  45  Me.,  168,       662,  828 

T.  Realm  Marine  Ins.  Co.,  7  L.  R.  Q.  B., 

580;  41  L.  J.  Q.  B.,  356;  27  L.  T.  (N. 

S.),  144,  984 


Jube  r.  Brooklyn  Fire  Ins.  Co.,  28  Barb.,  412, 

1143 
Judah  V.  Randal,  2  Caines  Cas.,  324,  1437 

Juhel  t.  Church,  2  Johns.  C,  333,  1098 

Jumel  V.  Marine  Ins.  Co.,  7  Johns.,  412, 

307,  1036, 1407 


K. 

Kahl  D.  Jansen,  4  Taunt.,  565,  513 

Kane  ®.  Columbian  Ins.  Co.,  2  Johns.,  265, 

441 

V.  Commercial  Ins.  Co.,  8  Johns.,  229,    00 

V.  Reserve  Mutual  Life  Ins.  Co.,  9  Phila., 

234,  685 

Kanes  t.  Knightly.  Skin.,  54,  495 

Kansas  Ins.  Co.  v.  Berrj-,  8  Kans.,  159. 

484,  538,  822,  1149,  1881 
Katheman  r.  Gener.al  Mutual  Ins.  Co.,  13  La. 
An.,  35,  589, 1473 

Kavanagh  v.  Waldron,  3  Jo.  &  Lat.,  214,     1349 
Keane  v.  Branden,  12  La.  An.,  20,  275 

Keeler  o.  Firemens  Ins.  Co.,  3  Hill,  250,      947 

V.  Xi.agara  Fire  Ins.  Co.,  16  Wis.,  52-3, 

469, 1105 

Keeley  r.  Insurance  Co.,  1  Phila.,  175,         726 

Keenan  v.  Dubuque  Mutual  Fire  Ins.  Co.,  13 

Iowa,  375,  458,  108T 

c.  Missouri  State  Mutual  Ins.  Co.,  12  Iowa, 

126,  458,  1074,  1146 

Keeny  v.  Home  Ins.  Co.,  3  X.  T.  S.  C,  478, 

1388- 
Keim  v.  Home  Mutual  Ins.  Co.,  42  Mo.,  38, 

325,  774 
Keith  c.  Globe  Ins.  Co.,  52  111.,  518, 

252,  1157, 1173 

s.  Quincy  Mutual  Fire  Ins.  Co.,  10  Allen, 

228,  825 

V.  Thompson,  Faculty  Dec,  1793  to  1796, 

p.  428,  1286 

Keir  t.  Andrake,  6  Taunt.,  499,  630 

Kellar  ».  Merchants  Ins.  Co.,  7  La.  An.,  29, 

1346 
Keller  v.  Equitable  Ins.  Co.,  28  Ind.,  170, 

1053 

V.  Gaylor,  40  Conn.,  813,  204 

Kellner  t.  Le  Mesurier,  4  East,  396;  1  Smith, 

72,  119, 30-.4 

Kelly  t.  Commonwealth  Ins.  Co.,  10  Bos.,  82, 

358,511,884 

e.  Home  Ins.  Co.,  97  Mass.,  288,  1455 

o.  Indemnity  Ins.  Co.,  38  X.  Y.,  322,    376 

0.  Solari,  11  L.  J.  Ex.,  10,  944 

r.  Worcester  Mut.  Ins.  Co.,  97  Mass.,  284, 

74Z 


TABLE  OF  CASES. 


xli 


Kelley  v.  Walton,  2  Camp.,  155,  23 

Kelsall  V.  Tyler,  11  E.\cli.,'  513;  25  L.  J.  Ex., 

ir,3,  130 

Kelsey  JJ.  Universal  Life  Ins.  Co.,  35  Conn., 

225,  130,  514 

Kemblo  i).  Bownc,  1  Caines,  75,  183,  201 

V.  Rliinelantler,  3  Johns.  C,  130,  020 

Kemp  V.  HallicUiy,  C  B.  &  S.,  723;  1  L.  K.  Q.  B  , 

520;  13  Jur.  (N.  S.),  582;  35  L.  J.  Q. 

B.,  1.50;  14W.  R.,  097;  14  L.  T.  (N. 

S.),  702,  1433,  1443 

V.  Vigne,  1  Term,  304,  411 

Kendall  b.  Holland  Purchase  Ins.  Co  ,  2  N.  Y. 

S.  C,  375,  527,  831 

Kendriclc  v.  Delafleki,  2  Caines,  07,  194 

Kennebec  County  v.  Augusta  Insurance  and 

BankingCo.,e  Gray,  204,  320 

Kennedy  v.  New  York  Life  Ins.  Co.,  10  La. 

An.,  809,  325,  1473 
».  St.  Lawrence  County  Mut.  Ins.  Co.,  10 

Barb.,  285,  83 

Kenney  i\  Clarkson,  1  Johns.,  385,        401,  089 
Kenaiston  o.  Merrimack  County  Mut.  Ins.  Co., 

14  N.  H.,  341,  285 

Kensington  o.  luglis,  8  East,  273, 

522,  632,  1314 
Kent  V.  Liverpool   and  Loudon  Ins.  Co.,  20 

Ind.,  294,  1011 

V.  Manufacturers  Ins.Co.,  18  Pick.,  19, 

451 
Kenton  Ins.  Co.  ».  Shea,  6  Bush.,  174,  873 

Kentucky  and  Louisville  Ins.  Co.  s.  Southard, 

8  B.  Men.,  034,        494, 904,  1200, 1529 
Kentucky  Farmers  Mut.  Ins.  Co.  v.  Mathers, 

7  Bush.,  23,  758 

Kentucky  Mul.  lus  Co.  v.  Jencks,  5  Ind.,  90, 

327 
Kerman  o.  Howard,  23  Wis.,  108,  1530 
Kern  v.  Groning,  1  Brev.,  500,  609 
V.  South  St.  Louis  Mut.  Ins.  Co.,  40  Mo., 

19.  524, 057 

KernaUan  v.  National  Ass.  Co.,  10  Ir.  L.  R., 

319,  778 

Kernochan  v.  New  York  Bowery  Ins.  Co.,  17 

N.  Y.,  428;  5  Duer.,  1, 

248,  1103, 1330 
Kerr  c.  Farlic,  1  S.  &  D.,  884,  1489 

V.  Quaker  City  Ins.  Co.,  33  Mo.,  158, 

1498 

V.  Rew,  5  Myl.  &  Cr.,  154,  449 

Kerr's  Policy,  In  re,  38  L.  J.  Ch.,  539;   17  W. 

R.,  989;  8L.  R.  Eq.,  331,  1333 

Ketchum  «.  Protection  Ins.  Co.,  1  Allen  N.B., 

136,  73,559,760,771,954,955, 

972,979,  1130 

Kett  T.  Robinson,  4  Ir.  C.  L.  R.,  186,  1281 


Kettell  V.  Alliance  Ins.  Co.,  10  Gray,  144, 

1507 

V.  Wiggin,  13  Ma^.,  68,  408 

Ivewley  v.  Ryan,  2  H.  Bl.,  343,  435 

Key  V.  Youug,  Faculty  Dec,  1781   to  1787,  p. 

196,  239 

Keyser  i\  Scott,  4  Taunt.,  600,  105O 

Kibbe  v.  Hamilton  Mut.  Ins.  Co.,  11  Gray,  103, 

1383 
Kidston  v.  Empire  Marine  Ins.  Co.,  3  L.  R. 

C.  P.,  357;  30  L.  J.  C.  P.,  150;    10  L. 

T.  (N.  S.),  119;  15  W.  R.,  709;  1  L.  R. 

C.  P.,  535;  12  Jur.  (N.  S.),  005;    15 

W.  R.,  03;  15  L.  T.  (N.  S.),  12;    35  L. 

J.  C.  P.,  250,  59(5 

Kill  V.  Hollister,  1  Wils.,  129,  135 

Killips  V.  Putnam  Fire  Ins.  Co.,  28  Wis.,  472, 

704,  1125,  1134 
Kimball  v.  Mtaa.  Ins.  Co.,  9  Allen,  540,        828 

V.  Hamilton  Fire  Ins.  Co.,  8  Bus.,  495, 

80 

V.  Howard  Fire  Ins.  Co.,  8  Gray,  33,    855 

King  v.  Accumulative  Life  Fund  Co ,  3  C.  B. 

(N.  S.),  151 ;  3  Jur;  (N.  S:),  1204,         8 
1>.  Delaware  Ins.  Co.,  6    Crauch,  71 ;    3 

Wash.  C.  C,  300,  576,1311 
!).  Enterprise  Ins.  Co.,  45  Ind.,  43, 

537,  541,  904,  977,  978,  1180,  1225,  1453 

D.  Glover,  5  B.  &  P.,  200,  1460 

T.  Hartford  Ins.  Co.,  1  Conn.,  333, 

27,  781,  10.50,  1051 
—  V.  n.irtford  Ins.  Co.,  1  Conn.,  422,  10 

V.  Middleton  Ins.  Co.,  1  Conn.,  184, 

1050,  1398 

V.  Preston,  11  La.  An.,  95,  1347 

V.  State  Mutual  Fire  Ins.  Co.,  7  Cush.,  1, 

1340 
V.  Walker,  2  H.  &  C,  384;    33  L.  J.  Ex., 

107;  3  H.  &  C,  209;  11  Jur.  (N.  S ), 

43;  33  L.  J.  Ex.,  325,  8 

■».  Western  Ass.  Co.,  7  U.  C.  C.  P.,  300, 

1444 
Kingsford  j.  Marshall,  8  Bing.,  458;  1  M.  & 

Scott,  057,  1326 

Kingsley  v.  New  England   Mutual  Fire  Ins. 

Co.,  8  Cush.,  393,  07,  517,  834,  84C 

Kinston  v.  Girard,  4  Dall.,  275,  404 

V.  Knibbs,  1  Camp.,  508  n.,  438 

Kinlock  v.  Campbell,  Faculty  Dec,  1814  to 

1815,  p.  421,  244 
V.  Duguid,  Faculty  Dec,  1812  to  1814,  p. 

108,  795 

Kinsman  v.  New  York  Mut.  Ins.  Co.,  5  Bos., 

400,  815 

Kip  V.  In  re  Mutual  Fire  Ins.  Co.,  4  Edw.  Ch., 

86,  710 


j-lii 


TABLE  OF  CASES. 


Kirby  v.  Smith,  1.  B.  &  A.,  073,  238 

Kirk  V.  Bennet,  Faculty  Dec,  1812  to  1814,  p. 

32,  ,  1286 

Klein  v.  Franklia  Ins.  Co.,  13  Penn.  St.,  247, 

374,  082 
Kliugender  v.  Bond,  14  East,  484,  632,  635 
V.  Home  and  Colonial  lu.^.  Co.,  15  L.  T. 

(N.  S.),  16,  584 

Kleinwort  v.  Sliepard,  1  El.  &  El.,  447;  5  Jur. 

CS.  S.),  863;  28  L.  J.  Q.  B.,  147;  7  W. 

K.,  227,  223 

Klctt  V.  Delaware  Ins.  Co.,  23  Penn.  St.,  262, 

1495 
Knickerbocker  Life  lus.  Co.  v.  Barker,  55  111., 

241,  964 

V.  Hoeske,  32  Md.,  317,  733 

V.  Weitz,  99  Mass.,  157,  1532 

Jiniglit  V.  Cambridge,  2  Ld.  Raymond,  1349;  1 

Straqge,  581 ;  8  Mood.,  230,  120 
V.  Faith,  15  Q.  B.,  649 ;  19  L.  J.  Q.  B.,  509 ; 

14  Jur.,  1114,  14 

Knightly  t.  Burdet,  2  Vern.,  11,  735 

Knill  y.  Hooper,  2  H.  &  N.,  277;  26  L.  J.  Ex., 

377,  1243 

Knorr  v.  Home  Ins.  Co.,  25  Wis.,  143,  1189 
Knowles  v.  Haughton,  11  Ves.  Jr.,  168,  742 
Knox  V.  Turner,  39  L.  J.  Ch.,  207,  750;  9  L.  R. 

Eq.,  155 ;  21  L.  T.  (N.  S.),  701 ;  5  L.  R. 

Ch.,  515;  23  L.  T.  (N.  S.),  237;  18  W. 

R.,  276,  873,  1353 

V.  Wood,  1  Camp.,  543,  703 

Koebel  v.  Saunders,  17  C.  B.  (N.  S.),  71 ;    10 

Jur.  (N.  S.),  930;  33  L.  J.  C.  P.,  310; 

12  W.  R.,  1106;  10  L.  T.  (N.  S.),  695, 

1271 
Kolgers  v.  Guardian  Life  Ins.  Co.,  2  Lans.,  480; 

58  Barb.,  185;  9  Abb.  Pr.  (N.  S.),  91, 

933 
. V.  Guardian  Life  Ins.  Co.,  57  N.  T.,  638; 

10  Abb.  Pr.  (N.  S.),  176,  142 

Kohn  V.  Insurance  Co.  of  North  America,  6 

Biun.,219;lWash.C.C.,93, 158,    240 
-^ —  V.  New  Orleans  Ins.  Co.,  13  La.  (O.  S.), 

348,  1017 

Koontz  V.  Hannibal  Savings  and  Ins.  Co.,  43 

Mo.,  126,  1484 

Eorn  «.  Mutual  Ass.  Soc,  6  Cranch,  192, 

153,  1447 
Koster  v.  Eason,  2  Mau.  &  Sel.,  113,  1291 

V.  lunes,  R.  &.  M.,  333,  1434 

V.  Reed,  6  B.  &  S.,  19,  1418 

'Kreutz  v.  Niagara  District  Mutual  Fire  Ins. 

Co.,  16  U.  C.  C.  P,  131,  159 

Krumbhaar  v.  Marine  Ins.  Co.,  1  S.  &  R.,  381, 

31 
Kugler,  Succession  of,  23  La.  An.,  455,      1530 


Kuntz  V.  Niagara  District  Mutual  Fire  Ins. 

Co.,  16  U.  t.  C.  P.,  593,  1457 

Kunzze  v.  American  Exchange  Fire  Ins.  Co., 

41  N.  T.  (2  Hand.),  412;  2  Rob.,  443, 

1194 
Kynaston  v.  Liddell,  8  Moore,  223,  140 


L. 

Lackey  v.  Georgia  Home  Ins.  Co.,  43  Ga.,  456, 

859 
Ladbroke  ».  Lee,  4  DeG.&  S.,  106,  214 

Lafayette  Ins.  Co.  v.  French,  18  How.,  404,    36 
Laidlaw  v.  Liverpool  and  London  Ins.  Co.,  13 
Grant  Ch.,  337,  331 

Laing  v.  Glover,  5  Taunt.,  49,  369 

V.  United  Ins.  Co.,  2  Johns.  C,  487,    1276 

Laird  v.  Robertson,  4  Bro.  P.  C,  488,  121 

Lake  v.  Brutton,  8  DeG.,  M.  &  G.,  440;  3  Jur. 

1333 
1336 


(N.  S.),  839 :  25  L.  J.  Ch.,  842, 

V.  Columbus  Ins.  Co.,  13  Ohio,  48, 

Lamar  Ins.  Co.  v.  McGlashen,  54  111.,  513,    893 
Lamatt  v.  Hudson  River  Ins.  Co.,  17  N.  T., 

199  n.,  489 

Lamb  v.  Lamb,  7  Chi.  Leg.  News,  411,       1315 
Lambe  ».  Smith,  Faculty  Dec,  1814  to  1815,  p. 

230,  255 

Lambert  «.  Liddard,  5  Taunt.,  480;   Marsh., 

149,  445 

Lampkin  v.  Ontario  Marine  and  Fire  Ins.  Co., 

13  U.  C.  Q.  B.,  578,  839 

D.  Western  Ass.  Co.,  13  U.  C.  Q.  B.,  361, 

760 
Lancey  v.  Phoenix  Fire  Ins.  Co.,  56  Me.,  5^, 

77,  503 
Landis  v.  Home  Mutual  Fire  Ins.  Co.,  56  Mo., 

591,  767,  1323 

Lane  v.  Maine  Mutual  Fire  Ins.  Co.,  12  Me., 

44,  101,  1008,  14S1 
V.  Nixon,  1  L.  R.  C.  P.,  413;  13  Jur.  (N. 

S.),  393;  35  L.  J.  C.  P.,  343;  14  W.  R. 

641,  1369 

Lang  V.  Anderdon,  3  B.  &  C,  495;  1  C.  ifc  P., 

171,  480;  5  D.  &  R.,  393;  3  L.  J.  K. 

B.,  62,  1337 

Langdale  v.  Mason,  1  Marsh,  on  Ins.,  688,    731 
Langdon  v.  Equitable  Ins.  Co.,  1  Hall  (N.  T.), 

325;  6  Wend.,  623,  750 

Langel  v.  Mutual  Ins.  Co.,  17  XL  C.  Q.  B.,  5a4, 

1138 
Langhorn  i>.  Allnutt,  4  Taunt.,  511,  445 

V.  Cologan,  4  Taunt.,  330,  120,  1233 

c.  Hardy,  4  Taunt.,  628,  605 


TABLE  OF  CASES. 


xliii 


Lapeer  County  Ins.  Co.  v.  Doyle,  30  Mich.,  159, 

374 
Lapcne  v.  Sun  Mut.  Ins.  Co.,  8  La.  An.,  1, 

1253 
Lapham  v.  Atlas  Ins.  Co.,  24  Pick.,  1, 

443,  533,  1440 

Lappin  V.  Chartei-  Oak  Fire  and  Marine  Ins. 

Co.,  58  Barb.,  325,  1388 

Lapsley  v.  United  States  Ins.  Co.,  4  Binn.,  502, 

1433 
Laroclie  v.  Oswin,  12  East,  131,  437 

La  Societe  v.  Morris,  34  La.  An.,  347, 

139,  923,  1109 

Lattomus  v.  Farmers  Mutual  Fire  Ins.  Co.,  3 

Houst.,  254,  1453 

Laurent  v.  Cbatliara  Ins.  Co.,  1   Hall  (N.  Y.), 

40,  383 

Lavabre  v  Fletcher,  1  Doug.,  284,  823 

V.  Wilson,  1  Doug.,  284,  417 

Law  0.  Goddard,  12  Mass.,  113,  296 

J).  Hollingsworth,  7  Term,  IGO,  948 

e.  London  Indisputable  Life  Policy  Co., 

1  Jur.  (N.  S.),  178;  24  L.  J.  Ch.,  196; 
1  Kay.  &  J.,  223,  687 

V.  Warren,  Drury,  81 ;  6  Ir.  Eq.,  299, 

1174 
Lawless  v.  Tennessee  Marine  and  Fire  Ins.  Co., 
Hunt's  Mer.  Mag.,  Feb.,  1853,  p.  205, 

1516 
Lawrence  v.  Aberdein,  5  B  &  A.,  107,         1031 

J).  Holyoke  Ins.  Co.,  11  Allen,  387,       161 

V.  Nelson,  21  N.  Y.,  158;  4  Bos.,  340, 

1287 
V.  New  York  Ins.  Co.,  3  Johns.  C,  317, 

892 
V.  Ocean  Ins.  Co.,  11  Johns ,  245  n., 

536, 1143 

V.  Ocean  Ins.  Co.,  11  Johns.,  340, 

434,  1119 

V.  Sebor,  3  Caines,  303,  497,  561,  1436 

u.  St.  Marks  Fire  Ins.  Co.,  43  Barb.,  479, 

690 

V.  Sydebotham,  0  East,  45;  2  Smith,  214, 

420 

V.  Van  Home,  1  Caines,  376,  388,  689 

Lawton  v.  Sun  Mut.  Ins.  Co.,  3  Cusb.,  500, 

196,  890 
Lazare  v.  Phoenix  Ins.  Co.,  8  U.  C.  C.  P.,  136, 

483 

Lazarus  v.  Commonwealth  Ins.  Co.,  5  Pick., 

70,  179 

V.  Commonwealth  Ins.  Co.,  19  Pick.,  81, 

181,  691 

Lea  V.  Hinton,  19  Beav.,  334 ;  5  DeG.  M.  &  G., 

835,  1333 

Loadbettcr  v.  JEtna  Ins.  Co.,  13  Me.,  265,      271 

Leatham  v.  Terry,  3  B.  &  P.,  478.  600 


Leathers  v.  Farmers  Mutual  Fire  lus.  Co.,  24 

N.  H.,  259,  1383 

Leathley  v.  Hunter,  7  Biug.,  517;  10  B.  &  (;., 

858 ;  1  Tyrw.,  355 ;  8  L.  J.  K.  B.,  274 ; 

9  L.  J.  Ex.,  118;  5  M.  &  P.,  457,     437 

Leavitt  v.  Western  Marine  and  Fire  lus.  Co.,  7 

Rob.  (La.),  351,  858 

Le  Chemiuaut  v.  Pearson,  4  Taunt.,  367, 

628,  1380 

Le  Cras  v.  Hughes,  3  Doug.,  81,  618,  096 

Lee,  Ex  parte,  13  Ves.  Jr.,  64,  305 

V.  Boardman,  3  Mass.,  237,  1408 

D.  Fraternal  Mut.  Ins.  Co.,  1  Handy,  217, 

57,  63,  1181 

V.  Guardian  Life  Ins.  Co.,  5  Ins.  L.  J.,  20, 

475 

V.  Howard  Mutual  Fire  Ins.  Co.,  11  Cush., 

334.  1201 

V.  Howard  Fire  Ins.  Co.,  3  Gray,  583, 

1455,  1516 

V.  Southern  Ins.  Co.,  5  L.  R.  C.  P.,  397 ; 

39  L.  J.  C.  P.,  218;  18  W.  R.,  863;. 23 

L.  T.  (N.  S.),  443,  600 

Leeds  v.  Mechanics  Ins.  Co.,  8  N.  Y.,  351, 

1078,  1207 

Lees  V.  Smith,  7  Term,  338,  306 

Leevin  v.  Cormac,  4  Taunt.,  483  n,  628 

Le  Feuvre  «.  Sullivan,  10  Moore  P.  C.  C,  1, 

10- 

Lefevre  v.  Boyle,  1  L.  J.  (N.S.)  K.  B.,  199, 

1393 

V.  Boyle,  3  B  &  Ad.,  877,  63 

Leftwitch  v.  St.  Louis  Perpetual   Ins.  Co.,  5 

La.  An.,  706,  817 

Leggett  V.  ^tna  Ins.  Co.,  10  Rich.,  203,       753 

Leiber  v.  Liverpool,  London  and  Globe  Ins. 

Co.,  6  Bush.,  639,  1370 

Leigh  V.  Adams,  25  L.  T.  (N.  S.),  566,  244 

«.  Knickerbocker  Life  Ins.  Co.,  26  La. 

An.,  436,  923 

V.  Matlier,  1  Esp.,  412,  418 

Le  Mesurier  v.  Vaughan,  6  East.,  382 ;  2  Smith, 

492,  1292,  1519 

Lemcke  v.  Vaughan,  2  L.  J.  C.  P.,  44 ;  7  D  it 

R.,  230,  633,  635 

Lemon  v.  Phoenix  Mutual   Life   Ins.  Co.,  38 

Conn.,  294,  166 

Leonarda  v.  Phcenix  Ass.  Co.,  2  Rob.  (La.),  131, 

1037 
Lenox  v.  United  Ins.  Co.,  3  Johns.  C,  178, 

394,  021 

V.  United  Ins.  Co.,  3  Johns.  C,  234,        81 

Lepeyre  v.  Thompson,  7  La.  An.,  218,  171 

Le  Pypre  v.  Farr,  2  Vern.,  716,  1479 

Le  Roy  t.  Gouverueur,  1  Johns.  C,  236, 

607,  1501 


xliv 


TAliLE  OF  CASES. 


Le  Roy  V.  Market  Fire  Ins.  Co.,  39  N.  Y.,  90, 

304,  402 

V.  Market  Ins.  Co.,  45  N.  Y.,  80,  304 

B.  Park  Ins.  Co.,  39  N.  Y.,  5G,  311 

V.  United  Ins.  Co.,  7  Jolins.,  344, 

383,  807 
Leslie  v.  Kniclverbocker  Life  Ins.  Co.,  2  Hun. 

(N.  Y.),  616;  5N.  Y.  S.  C,  193,      913 

V.  Linn,  Faculty  Dec.  1781  to  1787,  p.  173, 

214 
Lester  v.  Scott,  Faculty  Dec.  1808  to  1810,  p. 

403,  503 

Levi  V.  Allnutt,  15  East,  3G7,  221 

■».  Barnes,  Holt  N.  P.,  413,  216 

Levin  v.  Newnham,  4  Taunt.,  722,  1051 

Levy  V.  Brooklyn  Fire  Ins.    Co.,   35   Wend., 

687,  1164 

V.  Baillie,  7  Bing.,  349;  5  M.  &  P.,  208, 

817 

, V.  Merrill,  4  Me.,  180,  455,  1016,  1278 

V.  Vauglian,  4  Taunt.,  387,  1050 

Lewis  V.  Eagle  Ins.  Co.,  10  Gray,  508,  793 

- —  V.  Irving  Fire  Ins.  Co.,  15  Abb.  Pr.  (N.  S.), 

303,  n.,  1163 
®.  Monmouth  Mutual  Fire  Ins.  Co.,  52 

Me.,  493,  1107 

■ V.  Phoenix  3Iutual  Life  Ins.  Co.,  39  Conn., 

100,  686,  1333 

D.  Rucker,  3  Burr.,  1167,  389 

V.  Springfield  Fire  and  Marine  Ins.  Co., 

10  Gray,  159,  550 

v.  Thatcher,  15  Mass.,  431,  1515 

V.  Williams,  1  Hall  (N.  Y.),  430,  608 

Lexington  Ins.  Co.  v.  Paver,  16  Ohio,  324, 

149,  257,  1482 
Liberty  Hall  Ass.  Co.  v.  Housatonic  Mut.  Ins. 

Co.,  7  Gray,  261,  477,  501,  1491 

Liddle  v.  Market  lus.  Co.,  29  N.  Y.,  184 ;  4  Bos, 

179,  663 

Lidgett  V.  Secretan,  5  L.  R.  C.  P.,  412;  6  id., 

616;  39  L.  J.  C.  P.,  196;  40  id.,  257; 

18  W.  R.,  692;  19  id.,  1088;  23  L.  T. 

(N.  S.),  272;  34  id.,  943,        1043,  1470 
Liebenstein  v.  Mlna,  Ins.  Co.,  45  111.,  303, 

1005 

V.  Baltic  Fire  Ins.  Co.,  45  111.,  301,     1009 

V.  Metropolitan  Ins.  Co.,  45  111.,  305,     1009 

Life  Ins.  Co.  v.  Francisco,  17  Wall.,  673, 

10G3,  1305,  1301 
O.Terry,  15  Wall.,  .580;   1  Dill.  Cir.  C, 

403,  1355 

Lightbody,D.    North    America   Ins.   Co.,  23 

Wend.,  18,  358,  525,  981,  1068 

Lilly  i>.  Ewer,  1  Dong.,  72,  371 

Lime  Rock  Fire  and  Marine  Ins.  Co,  v.  Treat, 

oi  Me.  415.  272 


Lincoln  v.  Hope  Ins.  Co.,  8  Gray,  33, 

1440 

Lindauer  o.  Delaware  Mutual  S.ifely  Ins.  Co., 

13  Ark.,  461,  347,  401,  529,  889 . 

Lindsay  v.  Barmcotle,  13  C.  C.  S.,  718;  33  Scot. 

Jur.,  315,  1333 

V.  Leathley,  3  F.  &  F.,  902,  786,  1443 

V.  Janson,  4  H.  &  N.,  699;  28  L.  J.  Ex., 

315,  438 

V.  Union  Mutual  Fire  Ins.  Co.,  3  R.  I., 

157,  378 

Linford  v.  Provincial   Horse  and  Cattle  Ins. 

Co.,  34  Beav.,  291 ;  10  Jur.  (N.  S.),  1066 ; 

11  L.  T.  (N.  S.),  330,  1088 

Liotard  o.  Graves,  3  Caines,  336,  1092 

Lippincott  v,  Insurance  Co.,  3  La.  (O.  S.),  546, 

1173 

V.  Louisiana  las.  Co.,  3  La.  (O.  S.),  399, 

410,  493 

Liscom  ».  Boston  Mutual  Fire  Ins.  Co.,  9  Met., 

205,  868 

Lishman  v.  NorllLern  Slariue  Ins,  Co.,  8  L.  R 

C.  P.,  216;  10  id.,  179;  42  L.  J.  C.  P.. 

108;  21  W.  R,  386;  28  L.  T.  (N.  S.), 

165,  254 

Litchfield  d.  Dyer,  46  Me.,  31,  364 

Littledale  v.  Dixon,  4  B.  &  P.,  151,  263 

Livermore  v.  Newbur-yport  Marine  Ins.  Co., 

1  Mass.,  264,  34 

f.  Newburj-port  Marine  Ins.  Co.,  2  Mass., 

333.      -  1284 

Liverpool  Ins.  Co.  v.  Hunt.,  11  La.  An.,  623, 

94 

V.  State  of  Massachusetts,  10  Wall.,  566, 

136.^} 

Liverpool,  London  and  Globe  Ins. Co.  u.Creigh- 

ton,  51  Ga.,  95,  135,  1371 

Livingston  «.  Columbian  Ins.  Co.,  3  Johns., 

49,  603,  1407 

D.  Delafiekl,  3  Caines,  49,  237,  1062 

V.  Delafiekl,  1  Johns.,  522,      376,  511,  818 

».  Hastie,  3  Johns.  C,  293,  36,  38 

V.  Maryland  Ins.  Co.,  G  Cranch,  374, 

36,  806,  1449,  14.54 

V.  Maryland  Ins.  Co.,  7  Cranch,  506, 

325,  1204 

Livie  V.  Janson,  12  East,  648,  147 

Lloyd  r.  Fleming,  7  L.  R,  Q.  B.,  299;  41  L.  J. 

Q.  B.,  93;  20  W.  R.,  396;  35  L.  T.  (N. 

S.J,  834,  63 

Locke  «.  North  American  Ins.  Co.,  13  Mass., 

61,  691 

Lockett  V.  Firemens  Ins.  Co.,  10  Rob.  (La), 

333,  102!) 

V.  Merchants  Ins.  Co.,  10  Rob.  (La.),  339, 

436,  lOiS 


TABLE  OF  CASES. 


xW 


Lockwood  V.  Atlantic  Mut.  Ins.  Co.,  47  Mo., 
50,  590 

!).  Sungamo  Ins.  Co.,  40  Mo.,  71, 

7,  12fi8,  1473 

Lockyer  v.  Offley,  1  Term,  252,  1043 

Lodvvicks  1).  Ohio  Ins.  Co.,  5  Oliiq,  433,  1150 
Loelmer  v.  Home  Mut.  Ins.  Co.,  17  Mo.,  247; 

19  id.,  628,  520,  671*  1383,  1484 

Lomas  v.  Britisli  American  Ass.  Co.  22,  U.  C. 

Q.  B.,  310,  060,  971 

London  and  Norhwesteru  Riiilway  Co.  v.  Glyn, 

1  El.  &  El.,  052;  5  Jur.  (N.  S.),  1004; 

28  L.  J.  Q.  B.,  188,  994 

London  Ass.  Co.,  v.  Saiusbury,  3  Dong.,  245, 

79 

London  Investment  Co.  v.  Montefiore,  9  L.  T. 

(N.  S.),  088,  57 

London  Marine  Ins.  Assn.,  In  re  Smith's  case, 

4  L.  R.  Ch.,  611,  352 

Long  V.  Allen,  4  Doug.,  277,  1230 

D.  Dufi;  2  B.  &  P.,  209,  201,370 

Longhurst  v.  Star  Ins.  Co.,  19  la.,  304, 

471,  707 

Long  Pond  Mutual  Fire  Ins.  Co.  o.  Houghton, 
6  Gray,  77,  154,1050 

Locmiis  0.  Eagle  Life  Ins.  Co.,  0  Gray,  390, 

085 

V.  Shaw,  2  Johns.  C,  30,  1099 

Looney  v.  Looney,  116  Mass.,  283,         120,  802 
Loraine  ».  Thomlinson,  2  Doug.,  585,  1633 

Lord  V.  Dull,  12  Mass.,  115,  684,  080 

1'.  Neptune  Ins.  Co.,  10  Gray,  109. 

580,  1499 

0.  Robinson,  0  L.  J.  K.  B.,  212,  988 

Lorent  v.  South  Carolina  Ins.  Co.,  1 N.  &  Mc  C, 

505,  145 

Lorillard  Fire  Ins.  Co.  v.  SIcCuIloch,  21  Ohio 

St.,  176,  076 

Loring  v.  Manufacturers  Ins.  Co.,  8  Gray,  28, 

97 

V.  Neptune  lus.  Co.,  20  Pick.,  411,  88 

V.  Proctor,  20  Me.,  18,  323 

Losh  V.  Douglass,  20  C.  C.  S.,  58,  214 

i).  Martin,  19  C.  C.  S.,  101,  89 

Lothian  v.  Henderson,  3  B.  &  P.,  499,         1279 
Lothrop  V.  Greenfield  Stock  and  Mut.  Ins.  Co.,  2 
Allen,  82,  152 

Loud  V.  Citizens  Mut.  Ins.  Co.,  2  Gray,  221, 

132 

Louisville  Marine  and  Fire  Ins.  Co.  v.  Bland, 

9  Dana,  143,  94,  384,  1510 

Louisiana  Mut.  Ins.  Co.  v.  New  Orleans  Ins. 

Co.,  13  La.  An.,  246,  793 

Louisville  R.  R.  Co.  v.  Letson,  2  How., 497, 

743 

Louusbury  v.  Protection  Ins.  Co.,  8  Conn.,  459, 

949,  950,  1048,  1143,  1458 


Lovejoy  v.  Augusta  Mutual  Fire  Ins.  Co.,  45 

Me.,  472,  1485 

Lovell  0.  McMillan,  Faculty  Dec,  1808tol810_ 

p.  341,  1034 

Lovering  v.  Mercantile  Ins.  Co.,  12  Pick.,  348, 

11,  27,  34,  626,  1408,  1469 

Low  V.  Davy,  5  Binn.,  595 ;  2  S.  &  R.,  553, 

1037 

Lowell  V.  Middlesex  Mutual  Fire  Ins.  Co.,  8 

Cush.,  127,  1381 

Lowry  v.  Bordieu,  2  Doug.,  468,  1233 

Lozans  v.  Jauson,  2  El.  &  El.,  160;  5  Jur.  (N- 

S.),  1401;  28  L.  J.  Q.  B.,  337;  7  W.  R., 

054,  1413 

Lubbock  V.  Potts,  7  East,  449,  047 

V.  Rowcroft,  5  Esp.,  50,  H 

Lucas  V.  Jeflerson  Ins.  Co.,  0  Cow.,  635, 

1335 

Luce  V.  Dorchester  Mut.  Ins.  Co.,  105  Mass., 

297,  523,  527, 1404 

v.  Dorchester  Mutual  Fire  Ins.  Co.,  110 

Mass.,  361,  825 

Lucena  v.  Crawford,  3  B.  &  P.,  75;  5  id.,  270, 

690 
Luciani  v.  American  Fire  Ins.  Co.,  2  Whart., 
107,  48 

Luckie  v.  Bushby,  13  C.  B.,  864,  1293 

Ludlow  V.  Bowne,  1  Johns.,  2,  807 

Ludlow  V.  Columbian  Ins.  Co.,  1  Johns.,  335, 

1421 

V.  Union  Ins.  Co.,2  S.  &  R.,  119, 

813,  846 
Ludwig  V.  Jersey  City  Ins.  Co.,  48  N.  Y.,  379, 

353 

Luling  V.  Atlantic  Mut.  Ins.  Co.,  51  N.  Y.,  307; 

45  Barb.,  5 10 ;  50  id.,  520 :  30  How.  Pr., 

09,  623 

Lungstrass  v.  German  Ins.  Co..  48  Mo.,  201, 

320 

v.  German   Ins.   Co.,  57  Mo.,   107, 

1074 
Lj-coming  County  Ins.  Co.  «.  Schollenberger, 
44  Penn.  St.,  259, 

116,  377,  915,  1124,  1129 

V.  Schreffler,  43  Penn.  St.,  188;  44  id.,  269, 

37,517,838,1141 

Lycoming  Fire  Ins.  Co.  v.  Dunmore,  75  111., 

14,  1118 

Lycoming  Ins.  Co.  v.  Mitchell,  48  Penn.  St., 

367,  1406 

V.  Rubin,  8  Chi.  Leg.  News,  150, 

793,  816.  1089,  1143 

V.  Slockbower,  20  Penn.  St.,  199, 

445,  1473 

V.  Updegratr,  40  Penn.  St.,  311, 

1004,  1131 


xlvi 


TABLE  OF  CASES. 


Lycoming  Mut.  Ins.  Co.  v.  Sailer,  67  Peun.  St , 

108,  501 
Lyman  v.  Bonney,  101  Mass.,  503,  51 
v.  State  Mutual   Fire  Ins.  Co.,  14  Allen, 

329.  527, 656,  1231 

Lynch  r>.  Dalzell,  4  Bro.  P.  C,  431 ;  Marsh  on 

Ins.,  098,  710 

V.  Dunsford,  14  East,  494,  246 

V.  Hamilton,  3  Taunt.j  37,  246 

Lynn  v.  Burgoyne,  13  B.  Mon.,  399,  373 

Lynskey  v.  Asylum  Life  Ass.  Co.,  9  Ir.  L.R., 

299,  775 

Lyon  V.  Commercial  Ins.    Co.,  3  Rob.  (La.), 

266,  265,  663 

e.  M'Klew,  1  C.  C.  S.,  47,  1354 

Lysons  v.  Barrow,  5  L.  J.  (N.  S.),  C.  P.,  103, 

54 


M. 

McAllister  v.  New  England  Life  Ins.  Co.,  101 

Mass,  558,  915 

s.  Pennsylvania  Ins.  Co.,  28  Mo.,  314,    187 

V.  Tennessee  Fire  and  Marine  Ins.  Co.,  17 

Mo.,  306,  549 

McAndrews  n.  Bell,  1  Esp.,  873,  239 

McBride  v.  Marine  Ins.  Co.,  7  Johns.,  431, 

147,  383 

V.  Republic  Fire  Ins.  Co.,  30  Wis.,  562, 

252,  469,  507,  1109 
McCall  B.  Marine  Ins.  Co.,  8  Cranch,  59,  145 
5IcCaImont  r.  JIurgatroyd,  3  Teates,  27,  17 
McCann  v.  ^tna  Ins.  Co.,  3  Neb.,  198, 

351,  1111 
McCargo  v.  New  Orleans  Ins.   Co.,  10  Rob. 

(La.),  203,  1029 

V.  Merchants  Ins.  Co.,  10  Rob.  (La.),  349, 

1029 

V.  Merchants  Ins.  Co.,  10  Rob.  (La.),  334, 

1018 
McCarty  v.  Commercial  Ins.  Co.,  17  La.  (O.  S.), 

365,  709,  710 

McCloskee  v.  Glascow  and  Clyde  Marine  Ins. 

Co.,  6  C.  C.  S.,  2,  1249 

McClure  v.  Lancashire  Ins.  Co.,  6  Irish  Jur. 

(N.  S.),  63,  1195 

■».  Mutual  Life  Ins.  Co.,  55  N.  T.,  651, 

678 
McColl  I'.  Sun  Mut.  Ins.  Co.,  50  N.  T.,  332;  44 

How.  Pr.,  453;  3  .L  &  Sp.,  310,       399 
McComas  v.  Covenant  Mutual  Life  Ins.  Co., 

56  Mo.,  573,  63,  746,  1108 

McConnell  v.  Delaware  Mutual  Ins.  Co.,  18 

111.,  228,  170 


McConochie  t;.  Sun  Mutual  Ins.  Co.,  26  N.  Y., 

477;  3  Bos.,  99,  4 

McCorkell  v.  Murison,  9  C.  C.  S.,  149;  19  Scot. 

Jur.,  658,  1435 

M'Corthy  v.  Abel,  5  East  388;  1  Smith,  524, 

1429 
McCready  %  Woodhull,  34  Barb.,  80,  1095 
McCuUoch  r.  Eagle  Ins.  Co.,  1  Pick.,  278, 

339 
V.  Indiana  Mutual  Fire  Ins.  Co.,  8  Blackf., 

50,  670 
B.  Norwood,  58  N.  Y.,  563;  4  J.  &  Sp.. 

180,  1377 
V.  Royal  Exchange  Ass.  Co.,  3  Camp., 

406,  13:J4 

u.  Talladega  Ins.  Co.,  46  Ala.,  376, 

680,  978,  1076 
McDermott  v.  United  States  Ins.  Co.,  3  S.  &  R. 

604,  140 

McDonald  v.  Black,  20  Ohio,  185,  1344 

McDonell  c.  Beacon  Fire  Ins.  Co.,  7  U.  C.  C.  P., 

311,  878 

McDonnell  i\  Carr,  1  Hayes  &  Jones,  256,    928 

'0.  Carr,  Hayes,  375,  224 

McDowell  V.  General  Mutual  Ins.  Co.,  7  La. 

An.,  684,  946 

McEwan  v.  Guthridge,  13  Moore  P.  C.  C.  304; 

8  W.  R.,  265,  749 

McEweu  V.  Montgomery  County  Mutual  Ins. 

Co.,  5  111.,  101,  863 
V.  Western  Ins.  Co.,  1  Mich.  N.  P.  (Brown), 

118,  1389 

McEvers  v.  Lawrence,  Hofif.  Ch.,  172,    734, 835 
McFarland  t.  ^tna  Ins.  Co.,  6  W.  Va.,  437, 

466,  773,  774 

V.  Peabody  Ins.  Co.,  6  W.  Va.,  425, 

466,  773,  1390 
McFarlane  s.  Giannacopulo,  3  H.  &N.,  860; 

28  L.  J.  Ex.,  73,  898 

McFaul  V.  Montreal  Inland  Ins.  Co.,  3  TJ.  C. 

Q.  B.,  59,  116,  840 

McFee  v.  South  Carolina  Ins.  Co.,  2  McCord, 

503,  145,  370,  457,  983 

M'Gaw  V.  Ocean  Ins.  Co.,  23  Pick.,  405, 

573,  579 
McGivney  c.  Phoenix  Fire  Ins.  Co.,  1  Wend., 

85,  689 

McGowan  i\  Charier  Oak  Life  Ins.  Co.,  4  Am. 

L.  Rec,  559,  930 

McGregor  v.  Horsefall,  3  Mee.  &  W.,  330;  7  L. 

J.  (N.  S.)  Ex.,  71 ;  2  Jur.,  257,  273 

McHugh  v.  Imperial  Fire  Ins.  Co.,  48  How. 

Pr.,  330,  1176 

Mclntire  v.  Norwich  Ins.  Co.,  102  Mass.,  230, 

1375 
V.  Bowne,  1  Johns.,  239,  195 


TABLE  OF  CASES. 


xlvir 


M'lver  V.  Henderson,  4  Man.  &  Sel.,  57G, 

1411 
McKee  v.  Phoenix  Life  Ins.  Co.,  28  Mo.,  383, 

449 
M'Kellar  v.  Henderson,  Faculty  Dec,  1810  to 
1813,  p.  15,  1263 

McKibbin  v.  Peck,  39  N.  T.,  262, 

575 
M'Kim  V.  Phoenix  Ins.  Co.,  3  "Wash.  C.  C,  89, 

1477 

M'Kurdy  v.  North  British  Ins.  Co.,  20  C.  C.  S., 

463 ;  30  Scot.  Jur.,  235,  379 

McLachlan  v.  ^tna  Ins.  Co.,  4  Allen  N.  B., 

173,  360, 878 

M'Lanahan  v.  Universal  Ins.  Co.,  1  Pet.,  170, 

241, 375,  980,  1205,  1256 

McLaren  ■».  Hartford  Fire  Ins.  Co.,  5  N.  Y., 

151 ;  Edm.  S.  C,  210,  90 

McLaughlin  v.  Atlantic  Ins.  Co.,  57  Me.,  170, 

1512 

V.  Washington  County  Mut.  Ins.  Co.,  23 

"Wend.,  525,  719,  1127 

M'Laws  V.  United  Kingdom  Temp,  and  Gen- 

eral  Prov.  Institution,  23  C.  C.  S.,  559; 

33  Scot.  Jur.,  286,  379 

McLean  v.  Republic  Fire  Ins.  Co.,  3  Lans., 

431,  1221 

McLellan  «.  Maine  Fire  and  Marine  Ins.  Co., 

13  Miiss.,  246,  808 

McLoon  V.  Commercial  Mutual  Ins.  Co.,  100 

Mass.,  472,  1513 

M'Loghlin  v.  Uoyal  Exchange  Ins.  Co.,  9  Ir. 

L.,  510,  224 

McMahon  v.  Portsmouth  Mutual  Fire  Ins.  Co., 

22  N.  H.,  15,  807 

McMaster  v.  Insurance  Co.  of  North  America, 

55  N.  T.,   232;   64  Barb.,  536, 

486,  1140 

V.  Shoolbred,  1  Esp.,  2.37,  1424 

McMasters  v.  "Westchester  County  Mutual  Ins. 
Co.,  25  "Wend.,  379,  1112,  1133 

M'Millan  v.  Union   Ins.  Co.,  Rice,  248, 

946 

McQuaig  V.  Quaker  City  Ins.  Co.,  18  U.  C.  Q. 

B..  130,  386 

D.  Unity  Fire  Ins.  Co.,  9  U.  C.  C.  P.,  85, 

558 

McSwiney  d.  Royal  Exchange  Ass.  Co.,  14  Q. 

B.,  634;  19  L  J.  Q.  B.,  223;  18  id.,  193, 

698, 1098 

Maanss  v.  Henderson,   1  East.,  335, 

1097,  1290 

Macdonald  v.  Law  Union  Fire  and  Life  Ins. 

Co.,  9  L.  R.  Q.  B.,  328;  43  L.  J.  Q.  B., 

131;  23  W.  R.,  530;  30  L.  T.  (N.  S.), 

545,  794 


Macdougle  v.  Royal    Exchange   Ass.   Co.,   I 

Starkie,  130;  4  Camp.,  283;  4  Man.  & 

Sel.,  503,  132G 

Macdowall  v.  Eraser,  1  Doug.,  200,  119T 

Mackay  v.  Rhinelander,  1  Johns.  C,  408, 

796 
Mackenzie  v.  Coulson,  8  L.  R.  Eq.,  368, 

1179 

V.  Shedden,  2  Camp.,  481,  593 

V.  "WhitWorth,  10  L.  R.  Ex.,  142  ;  1  Ex.  D., 

36,  717 

Mackie  v.  European  Ass.  Co.,  17  W.   R.,  987 ; 

21  L.  T.  (N.  S.),  103,  333 

V.  Pleasants,  3  Binn.,  363,  808 

Mackintosh  v.  Marshall,  11  Mee.  &  "W.,  116; 
13  L.  J.  Ex.,  337,  483 

MacNair  v.  Coulter,  4  Bro.  P.  C,  450, 

.     1474 

Macomber  v.  Cambridge  Mutual  Fire  Ins.  Co., 

8  Cush.,  133,  78T 

V.  Howard  Fire   Ins.  Co.,  7  Gray,  257, 

747 
Macy».  Whaling  Ins.  Co.,  9  Met.,  354,        280, 

451,  1449,  1454 

V.  Mutual  Marine  Ins.   Co.,  12  Gray  497, 

126T 

Madison  Ins.  Co.  v.  Fellowes,  1  Disney,  217 ;  2 

id.,  128,  493,  763,  901 

Madsden  v.  Phoenix  Ins.  Co.,  1  So.  Car.,  24, 

1118 

Maggrath  v.  Church,  1  Caines,  196,       606,  6ia 

Magnus  v.  Butlemer,  21  L.  J.  C.  P.  119;  11  C. 

B.,  876;  16  Jur.  480,  1033,  132T 

Maher  v.  Hibernian  Ins.  Co.,  6  Hun.,  (N.  T.), 

353,  460,  972,  1521 

Mahony  v.  National  Widows  Life  Ass.  Fund, 

6  L.  R.  C.  P.,  252;  40  L.  J.  C.  P.  203; 

24  L.  T.  (N.  S.J,   548;  19  W.  R,  732, 

681 

Maine  Mutu.al  Marine  Ins.  Co.  v.  Swanton,  49 

Me.,  448,  1057,  1170' 

Malleable  Iron  Works  v.  Phoenix  Ins.  Co.,  25 

Conn.,  465,  1080 

Mallory  v.  Commercial  Ins.  Co.,  9  Bos.,  101 ; 

18  How.  Pr.,  395,  843 

V.  Travelers  Ins.  Co.,  47  N.  Y.,  52, 

42,  206,  684,  1302,  1301 

Man  V.  Shiffner,  2  East,  533,  759,  1290 

Manby  «.  Gresham  Life  Ass.  Co.,  29  Beav.  439 ; 

31  L.  J.  Clian.,  94 ;  7  Jur.  (N.  S.),  383 ; 

4  L.  T.  (N.  S.),  347 ;  9  W.  R.  547,     743 

Manchester  and  London  Life  Ass.,  In  re,  5  L. 

R.   Ch.,  640;  9  L.   R.  Eq.,  643;  39  L. 

J.  Ch.,  595;  23  L.  T.  (N.  S.),  332;  18 

W.  R.,  1185,  841 

Manfleld  v.  Maitland,  4  B.  &  A.,  583.  57S 


xlviii 


TAIJLK  OF  CASES. 


Jrtauhattau  Iiis.   Co.  t.  Barker,  7  IK-iskell,  .503. 

1381 

V.  Stein,  5  Bush,  632,  8.J0,  1109, 1386 

V.  Webster,  59  Penn.  St.,  227,  993 

Manlialtau  Life  lus.  Co.  v.  Warrick,  20  Grat- 
tan,614,  908 

Manistee,  The,  5  Biss.,  381,  81 

Mauley  v.  Insurance  Co.  of  North  America, 
]  Lans.,  20,  104, 180,  6.^0,  690 

Maulove  v.  Bender,  39  Ind.,  871,  ■  9o8 

■ ■  v.  Burger,  38  Ind.,  211,  78,  1053,  1058 

V.  Naw,  39  Ind.,  289,  958 

r.  Naylor,  38  Ind.,  424,  958 

Mann  i'.  Forrester,  4  Camp.,  60,  213 

V.  Herkimer  Coupty  Mutual    Ins.    Co., 

4  Hill,  187,  75 

v.  Western  Ins.  Co.,  19  U.  C.  Q.  B.,  190, 

1138 
Manning  v.  Gist,  8  Doug.,  74,  370 

D.Irving,  1  C.  B.,  168;  2  id.,  784;  6  id.  391; 

1  H.  L.  Cas.,  287,  1417 

. V.  Newnham,  3  Doug.,  130 ;  2  Camp,  624  n., 

1400,1510 

Mansur  ».  New  England  Mutual  ilarine  Ins. 

Co.,  13  Gray,  520,  1040 

Marblehead  Mutual  Fire  Ins.  Co.  v.  Hay  ward, 

3  Gray,  208,  154 

Marblehead  Mutual  Ins.  Co.  v.  Underwood,  8 

Gray,  210,  851 

3Iarcardier  v.  Chesapeake  Ins.  Co.,  8  Cranch, 

39,  200, 1431 

Marchesseau   o.  Merchants  Ins.   Co.,  1  Rob. 

(La.),  438,  384,  556 

Marco  o.  Liverpool  and  London  Ins.  Co.,  35 

N.  Y.,  C64,  299 

Marcy  v.  Merchants  Mut.  Ins.  Co.,  19  La.  An., 

388,  731 

V.  Sun  Ins.  Co.,  14  La.  An.,  262,  1063 

V.  Sun.  Mut.  Ins.  Co.,  11  La.  An.,  748, 

494. 1243 

Mariatigue  i).  Louisiana  Ins.  Co.,  8  La.  (0.  S.), 

65,  1041 

Marine  Fire  Ins.  Co.  ».  Burnett,  29  Tex.,  433, 

1244. 
;Marine   Ins.  Co.  v.  Hodgson,  6  Cranch,  206, 

539.  972 

. V.  Hodgson,  7  Cranch,  332,  740 

».  Tucker,  3  Cranch,  357,  980,  1405 

J).  Stras,  1  Mumf.,  408,  787,  1233 

V.  United   Ins.   Co.,  9  Johns.,   186, 

574 

V.  Wilson,  3  Cranch,  187,  267 

V.  Young,  1  Cranch,  332,  48 

Marion  i'.  Great   Republic   Ins.   Co.,  35    5Io., 

148,  556 

Mark  r.  JEtna  Ins.  Co.,  29  Ind.,  390,  350 


Markey  v.  Mutual   Benefit  Life  Ins.  Co.,  103 

Mass.,  78,  341,  109G 

Marks  v.  Hamilton,  7  Exch.,  323;  21  L.J.  Ex., 

109;  16  Jur.,  152,  715 
V.  Hope  Mut.  Life  Ins.  Co.,  117   Mass., 

528,  343 
t.  Louisiana  State  Marine  and  Fire  Ins. 

Co.,  3  Rob.  (La.),  454,  580 
V.  Nashville  Marine  and  Fire  Ins.  Co.,  6 

La.  An.,  126,  10, 1029,  1249 

Marland  v.  Royal   Ins.  Co.,  71  Penn.  St.,393, 

934 
Marquis  of  Queensbury    v.  Scottish    Union 

Ins.  Co.,  1  C.  C.  S.,  1213,  1333 

Marrigney  v.  Home  Mut.  Ins.  Co.,  13  La.  An., 

338,  871,  12.53, 1386 

Marsden  ».  City  and   County  Ass.  Co ,  1  L.  R. 

C.  P.,   232;  12  Jur.  (N.  S.),  76;  35  L. 

J.  C.  P.,  60;  1  H.  &  R.,  53;  13  L.  T. 

(N.  S.),  465;  14  W.  R.,  106,      298,  833 

«.  Reid,  3  East,  572,  446 

Marsh  v.  Miur,  1  Brev.,  134,  262,  487,  1020 
V.  Northwestern    National    Ins.   Co.,  3 

Biss.,  351,  910,  1219 

V.  Robinson,  4  Esp.,  98,  79,  710 

Marshall  v.  Columbian  Mutual  Fire  Ins.  Co., 

27  N.  H.,  157,  132,  308 
B.  Delaware   Ins.   Co.,  4  Cranch,  202;  2 

Wash.  C.  C,  54,  18 

V.  Emperor  Life  Ass.  Soc,  6  B.  &  S.,  886; 

1  L.  R.  Q.  B.,  35;  12  Jur.  (N.  S.),  293; 

35  L.  J.  Q.  B.,  89;  13   L.  T.  (N.  S.), 

281,  207 
V.    Nashville    Mutual    Fire    Ins.   Co.,  1 

Hump.,  99,  1371 

„.  Parker,  3  Camp.,  69,  1240,  1410 

V.  Union  Ins.  Co.,  2  Wash.  C.  C,  357, 

251 

Martin  v.  Crokatt,  14  East,  446,  13 

V.  Delaware  Ins.  Co.,  2  Wash.  C.  C,  354, 

416 
— r-  D.  Fishing  Ins.  Co.,  20  Pick.,  389, 

712,  982,  1107,  1248,  1519 

V.  Franklin  Fire  Ins.  Co.,  15  Am.  L.  Reg. 

(N.  S.),  229,  67 

V.  Franklin  Fire    Ins.  Co.,  5  Ins.   L.  J., 

144,  63 

D.Penobscot  Mutual    Fire   Ins.   Co.,  53 

5Ie.,  419,  1319 

«.  Salem  Marine  Ins.  Co.,  3  Mass.,  420, 

1026 

V.  Sitwell,  Holt  K.  B.,  25;  Show.,  156, 

1393 

Travelers  Ins.  Co.,  1  F.  &  F.,  505,   .       44 

Marline  v.  International  Life  Ins.  Co.,  53  N. 

Y.,  339;  62  Barb.,  181;  5  Lans.,  535, 

905 


TABLE  OF  CASES. 


xlix 


Maitineftu  v.  Kitchinjr,  7  L.  R.  Q.  B.,  430;  41 

L.  J.  Q.  B.,  227,  1353 

JIartz  V.  Detroit  Fire  and  Marine  Ins.  Co.,  28 

Mich.,  201,  189 

Marx  V.  National  Marine  and  Fire  Ins.  Co.,  25 

La.  An.,  39,  848,  358 

Maryland  Fire  Ins.  Co.  v.  Whitcford,  31   Md., 

219,  1153 

Maryland  Ins.  Co.  v.  Balhiirst,  5  G.  &  J.,  159, 

35,  113,  484,  540,  779, 1017,  1108 

V.  Bosley,  9  6.  &  J.,  337,  1509 

V.  Hossiere,  9  G.  &  J.   121,      308,  400,  98G 

V.  Graliam,  3  II.  &  J.,  62,  68 

V.  LeRoy,  7  Crancli,  26,  416 

V.  Kuden,  6  Craucli,338,  15,  207,  201 

V.  Woods,  6  Crancli,  29,  29,  209 

Mason  v.  Agricultural  Ins.  Co.,  16  U.  C.  C.  P., 

493,  553 

V.  Franklin  Fire  Ins.  Co.,  12  G.  &  J.,  408, 

1011 
V.  Harvey,  8  E.Kcli.,  819;    22  L.  J.   Ex., 

336,  1131 
V.  Louisiana  State  Ins.  Co.,  1  Kob.  (La.) 

192,  821 

V.  Sainsbury,  3  Doug.,  61,  1348 

Masters  v.  Madison  County   Mutual  Ins.  Co. 

11  Barb.,  624,  8.5,103,672 

Matthews  ».  General  Mut.  Ins.  Co.,  9  La.  An., 

590,  89 
V.   Iloword   Ins.   Co.,   11    N.   Y.,   9;    13 

Barb.,  234,  230,1150 
V.  Queen  City  Ins.  Co.,  2  Cin.   Sup.  Ct., 

109,  563, 1456 

Matthie  v.  Potts,  3  B.  &  P.,  23,  114 

Mauran  v.  Insurance  Cos.,  0  Wall.,  1,  217 

Mavor  v.  Simeon,  3  Taunt.,  497,  n.,  79 

Mavro  v.  Ocean  Marine  Ins.  Co.,  9  L.  R.  C.  P., 

595 ;  43  L.  J.  C.  P.,  339 ;  31  L.  T.  (N. 

S.),  186 ;  10  L.  R.  C.  P.,  414,  620 

Maxwell  0.  Brown,  1  S.-&  D.,  403,  660 

V.  Robinson,  1  Johns.,  333,  440 

May  V.  Buckeye  Mut.  Ins.  Co.,  25  Wis.,  291, 

301,  506,  1523 

V.  Christie,  Holt  N.  P.,  67,  233 

V.  Delaware  Ins.  Co.,  19  Penn.  St.,  312, 

891 
Mayall  v.  Mitford,  6  A.  &  E.,  670;  1  N.  &  P., 

732;  W.  W.  C&  D.,  310,  1523 

.  Maydew  v.  Forrester,  5  Taunt.,  615,  215 

V.  Scott,  3  Camp.,  205,  1050 

Mayer  v.  Mutual  Life  Ins.  Co.,  38  la.,  304,  926 
JIayhew  ji.  Phoenix  Ins.  Co.,  33  Mich.,  105, 

235 
Maynard  v.  Rhode,  1  C.  &  P.,  360;  3  L.  J.  K. 

B.,  64,  1307 

Maync  v.  Walter,  3  Douse,  79,  810 

D 


Mayo  V.  Maine  Fire  and  Marine  Ins.  Co.,  4 
Mass.,  374,  578 

V.  Maine  Fire  and  Marine  Ins.   Co.,  13 

Mass.,  259,  389 

V.  Pew,  101  Mass.,  555,  914 

Mayor  of  New  York  v.  Brooklyn  Fire  Ins. 
Co.,  43*  N.  Y.  (4  Keyes),  405;  3  Abb. 
Dec,  251 ;  41  Barb.,  231,  489,  975 

V.  Exchange  Fire  Ins.  Co.,  42*  N.  Y.  (3 

Keyes),  436 ;  9  Bos.,  434 ;  S  Abb.  Dec, 
201 ;  34  How.  Pr.,  103,  497 

V.  Hamilton  Fire  Ins.  Co.,  39  N.  Y.,  45; 

10  Bos.,  537,  762 

Meagher  v.  ^tna  Ins.  Co.,  19  U.  C.  Q.  B.,  530, 

971 

V.  ^tna  Ins.  Co.,  20  U.  C.  Q.  B.,  607, 

757,  1444 

V.  Home  Ins.  Co.,  10  U.  C.  C.  P.,  313, 

970 
Mead  v.  Davidson,  3  A.  &  E.,  303 ;  4  L  J.  (N. 
S.),  K.  B.,  193;4N.  &M.,  701, 

778,  1077 

V.  Northwestern  Ins.  Co.,  7  N.  Y.,  530, 

523, 1454 

V.  Westchester  Fire  Ins.  Co.,  3  Hun.  (N. 

Y.),  608,  339 

Meadowcraft  v.  Standard  Ins.  Co.,   61  Penn. 

St.,  91,  1001,  1078 

Mechanics  Fire  Ins.  Co.  v.  Nichols,  16  N.  J., 

410,  815,  819,  1144 

Mechler  v  Phoenix  Ins.  Co.,  38  Wis.,  065, 

469 
Mecke  v.  Life  Ins.  Co.,  8  Phila.,  6,  1394 

Medical  and  Invalid  Life  Ass.  Co.,  In  re  (Spen- 
cer's Case),  6  L-  R.  Ch.,  363,  841 

(GriiBth's  Case),  6  L.  R.  Ch.,  374;-40L. 

J.  Ch.,  464;  24  L.  T.  (N.  S.),  455;  19 

W.  R.,  491,  841 

Meech  v.  Philadelphia  Ins.  Co.,  3  Whart.,  473, 

585 

V.  Robinson,  4  Whart.,  360,  013 

Meeker  ®.  Klemm,  11  La.  An.,  104,  018 

Meema  v.  Niagara  Dist.  Ins.  Co.,  22  U.  C.  Q. 

B.,  214,  073 

Meigs  V.  Mutual  Marine  Ins.  Co.,  3  Cush.,  439, 

1044,  1451 
Meister  v.  The  People,  31  Mich.,  99, 

113,  151 
Melcher  ».  Ocean  Ins.  Co.,  59  Me.,  317,        603 

V.  Ocean  Ins.  Co.,  00  Me.,  77,  886 

Melleu  V.  Hamilton  Fire  Ins.  Co.,  17  N.  Y., 
009;  5Duer,  101,  100,  8.53 

V.  National  Ins.  Co.,  1  Hall  (N.  Y.),  453, 

571 

Mcllish  V.  Andrews,  3  Mau.  <6  Sol.,   27;  13 

East,  4;  10  id.,  313,  15,433 


TABLE  OF  CASES. 


029 
,  C.  S. 

383 


,  Co.  V. 


McUish  V.  AllDUtt,  3  Mau.&Sel.,  106, 

605,  899 

V.  Bell,  15  East,  4,  1483 

11.  Staniforth,  3  Taunt.,  499,  1050 

Mellon  V.  Bucks,  17  Martin  (La.),  371,  783 

V.  Louisiana  State  Ins.  Co.,   17  Martin, 

(La.),  5G3;  18  id.,  424,  35 

Melvill  V.  Stew.irt,  3  Faculty  Dec,  254,     1046 

Mennett  ».  Bonh.am,  15  East,  477, 

Menziesu.  North  British  Ins.   Co.,  9  C. 

(N.  S.),  694, 

Mercantile  Marine  Ins.  Co.  ■».  Titherington,  5 

B.  &  S.,  765 ;  11  Jur.  (N.  S.),  63 ;  34  L. 

J.  Q.  B.,  11 ;  13  W.  R.,  141 ;  11  L.  T. 

(N.  S.),  340,  1373 

Mercantile  Mut.  Ins.  Co.  ■».  Calebs,  20  N.  Y., 

173,  1336 

V.  State  Mutual  Fire  and  Marine  Ins.  Co., 

25  Barb.,  319,  281 

Merchants  Ins.  Co.  v.  Algeo,  31  Penn.  St.,  446, 

1530 

■».  Algeo,  31  Penn.  St.,  330, 

V.  Clapp,  11  Pick.,  56, 

v.  Edmond,  17  Grat.,  138, 

•».  Mazange,  23  Ala.,  168, 

».  Morrison,  63  111.,  343, 

V.  Paige,  60  111.,  448, 

Merchants  and  Manufacturers  Ins, 

ran,  45  Mo.,  143, 

-8.  Shillito,  15  Ohio  St.,  559, 

V.  Washington  Mut.  Ins.  Co., 

181,408,  1459 

Merchants  and  Tradesmens  Ass.  Soc,  In  re,  9 

L.  R.  Eq.,  694 ;  18  W.  R.,  725 ;  22  L.  T. 

(N.  S.),  364,  840 

Merchants  Mut.  Ins.  Co.  v.  Blandin,  24  La.  An., 

112,  1364 

V.  Butler,  20  Md.,  41,  574 

V.  Lacroix,  35  Tex.,  249,  775 

1).  New  Orleans  Ins.  Co.,  24  La.  An.,  305, 

1183 

V.  Sweet,  6  Wis.,  670,  1270 

v.  Underwood,  1  Sandf.,  474,  1316 

V.  Wilson,  3  Md.,  317,    533,  535,  850,  1065 

Merriam  «.  Middlesex  Mutual  Fire  Ins.  Co., 

21  Pick.,  163,  656 

Merrick  v.  Germania  Fire  Ins.  Co.,  54  Penn. 

St.,  377,  560 

V.  Provincial  Ins.  Co.,  14  U.  C.  Q.  B.,  439, 

1457 

Merrill  v.  Boyleston  Fire  and  Marine  Ins.  Co., 

3  Allen,  247,  1488 

B.  Farmers  and  Mechanics  Mutual  Fire 

Ins.  Co.,  48  Me.,  28.5,  161 

V.  New  England  Life  Ins.  Co.,  103  Mass., 

345,  93 


400, 1336 

983, 1344 

297,  636 

695 

1367 

778 

Cur- 

1490 

395 

1  Handy, 


Merritt  v.  Niagara  District  Ins.  Co.,  18  U.  C. 

Q.  B.,  539,  861 

Mershon  v.  National  Ins.  Co.,  34  Iowa,  87, 

181,  458,  1313 
Messonier  v.  Union  Ins.  Co.,  1  N.  &  McC,  155, 

11,  203 
Metcalfe  n.  Parry,  4  Camp.,  123,  369,  446 

Mey  V.  South  Carolina  Ins.  Co.,  3  Brev.,  329, 

184 
Meyer  v.  Gregson,  3  Doug.,  403,  133& 

Michael  v.  Gillespy,  3  C.  B.  (N.  S.),  627;  3 

Jur.  (N.  S.),  1319;  26  L.  J.  C.  P.,  306, 

361,  595 

V.  Mutual  Ins.  Co.,  10  La.  An.,  737, 

903,  905,  1383 
V.  Tredwin,  17  C.  B.,  551;  25  L.J.  C.  P., 

83,  1244 

Michigan  State  Ins.  Co.  v.  Lewis,  30  Mich., 

41,  473, 673 

Mickey  v.  Burlington  Ins.  Co.,  35  Iowa,  174, 

769,  1154,  1313 
Mickles  n.  Rochester  City  Bank,  11  Paige  Ch., 

118,  133£> 

Middlewood  o.  Blakes,  7  Term,  162,  413 

Miles  v.  Connecticut  Mutual  Life  Ins.  Co.,  3 

Gray,  580,  130 

Millaudon  v.  Atlantic  Ins.  Co.,  8  La.  (O.  S.), 

558,  139, 993 
V.  New  Orleans  Ins.  Co.,  11  Martin  (La.), 

002,  197 

V.  New  Orleans  Ins.  Co.,  4  La.  An.,  15, 

1029 
v.  Western  Marine  and  Fire  Ins.  Co.,  9 

La.  (O.  S.),  27,  1407 

Miller  d.  Aldrich,  31  Mich.,  408,  803 

jj.  De  Peyster,  3  Caines,  301 ,  1095 

V.  Eagle  Life  and  Health  las.  Co.,  3  E.  D. 

Smith,  268,  1464 

v.  Life  Ins.  Co.,  13  Wall.,  285,  90O 

V.  Mutual  Benefit  Life  Ins.  Co.,  31  Iowa, 

216,  471,  477,  794 

■B.  Mutual  Benefit  Ins.  Co.,  34  Iowa,  333, 

816 

v.  Phoenix  Ins.  Co.,  27  Iowa,  203, 

107.5 

V.  Russell,  1  Bay.,  309,  430,  1253 

V.  South  Carolina  Ins.  Co.,  2  McCord,  336, 

786,  1359- 

T.  Tate,  13  La.  An.,  160,  375 

1).  Tetherington,  7  H.  &  N.,  954 ;  8  Jur.' 

(N.  S.),  1039;  31  L.  J.  Ex.,  363;  10  W. 

R.,  356 ;  9  L.  T.  (N.  S.),  231 ;  6  H.  & 

N.,  278;  7  Jur.  (N.  S.),  314;  30  L.  J. 

Ex.,  217 ;  3  L.  T.  (N.  S.),  893,  397 
«.  Western  Farmers  Ins.  Co.,  1  Handy, 

208,  654 


TABLE  OF  CASES. 


U 


Miller  v.  Woodfall,  8  El.  &  Bl.,  493;  4  Jur.  (N. 

S.),  303;  27  L.  J.  Q.  B.,  120,  .    31 

Milles  V.  Fletcher,  1  Doug.,  231,  13,  1411 

Milligan  v.  Equitable  Ins.  Co.,  16  U.  C.  Q.  B., 

314,  715 

Milliken  v.  Kidd,  5  Ir.  Eq.,  396,  1334 

Mills  V.  Albiou  Ins.  Co.,  6  S.  &  D.,  409;  5  id., 

930,  887 

V.  Albion  Ins.  Co.,  4  C.  C.  S.,  575,        887 

V.  Campbell,  3  You.  &  Coll.,  389, 

449,  954 

1>.  Farmers  Ins.  Co.,  37  Iowa,  400,      1003 

V.  Insurance  Co.,  5  Phila.,  28,  754 

Miltenberger  d.  Beacom,  9  Penn.  St.,  198, 

363,  509 
Milward  o.  Hibbert,  3  A.  &  E.,  120;  11  L.  J. 

(N.  S.)  Q.  B.,  137;  6  Jur.,  706,         396 
Miner  v.  Judson,  2  Huu.  (N.  Y.),  441 ;  2  Lans., 

300;  SN.  Y.  S.  C,  46,  273 

V.  Phoenix  Ins.  Co.,  27  Wis.,  693,  469 

Minett  v.  Anderson,  Peakes  N.  P.,  277,      1448 

V.  Forrester,  4  Taunt.,  541  n,  1290 

Minturn  v.  Columbian  Ins.  Co.,  10  Johns.,  75, 

90 

V.  Manufacturers  Ins.  Co.,  10  Gray,  501, 

996 

V.  Warren  Ins.  Co.,  3  Allen,  86,  571 

Minzcsiieiner  v.  Contijiental  Ins.  Co.,  5  J.  & 

Sp.  (N.  Y.),  332,  1492 

Mississippi  Mut.  Ins.  Co.  v.  Ingram,  34  Miss., 

215,  388 

Mississippi  Valley  Life  Ins.  Co.  v.  Neyland,  9 

Bush,  430,  517,  919 

Mitchell  V.  Edie,  1  Term,  608,  13,  23 

v.  Gray,  1  S.  &  D.,  298,  1323 

V.  Home  Ins.  Co.,  33  Iowa,  421, 

379,  524,  694,  840,  1314 
V.  Lycoming  Mutual   Ins.  Co.,  51  Penn. 

St.,  402,  869,  1089 
V.  New  England  Marine  Ins.  Co.,  6  Pick., 

117,  1063 

V.  Union  Life  Ins.  Co.,  45  Me.,  104, 

686,  1241 
Mittleberger  v.  British  American  Ass.  Co.,  3 

V.  C.  Q.  B.,  439,  901 

Mix  v.  Hotchkiss,  14  Conn.,  31,  803 

Moadinger  v.  Mechanics  Fire  Ins.  Co.,  3  Hall, 

490,  1006 

Mobile  Dock  and  Ins.  Co.  v.  McMillan,  31 

Ala.,  711,  529,8^6,1320 

Moehring  i\  Mitchell,  1  Barb.  Ch.,  264;  How. 

App.  Ca.s  ,  503,  401 

Mohawk,  Propellor,  8  Wall.,  153,  .573 

Moir  r.  Royal  Exchange  Ass.  Co.,  6  Taunt., 

241;   4  Camp.,  84;    1  Marsh.,  570;   3 

Man.  &  Sel.,  461,  1239 


Moliere   v.    Pennsylvania   Fire    Ins.    Co.,   5 

Rawle,  343,  403,  1172 

Monadnock    Railroad   Co.  v.  Manufacturers 

Ins.  Co.,  113  Mass.,  77,  1010 

Monitor  Ins.  Co.  v.  Buffum,  115  Mass.,  343, 

3C2 
Monitor  Mutual  Fire  Ins.  Co.  v.  Toung,  lU 

Mass.,  537,  802 

Monk  V.  Union  Mutual  Life  Ins.  Co.,  6  R(jb. 

(N.  Y.),  455,  1295 

Monmouth  County  Fire  Ins.  Co.  v.  Hutchin- 

son,  21  N.  J.  Eq.,  107,  1339 

Monmouth  Mutual  Fire  Ins.  Co.  ».  Lowell,  59 

Me.,  504,  155 

Monongahela  Ins.  Co.  v.  Chester,  43  Penn.  St., 

491,  1015 

Monteath  v.  Crosse,  Faculty  Dec,  1787  to  1793, 

p.  87,  371 

Montgomery  v.  Egginton,  3  Term,  363,        592 

V.  Firemens  Ins.  Co.,  16  B.  Mon.,  427, 

301,  548 
Monticello,  Propellor,  v.  MoUison,  17  How., 

153,  1334 

Montoya  v.  London  Ass.  Co.,  6  Exch.,  451;  21 

L.  J.  Ex.,  354,  1022 

Montreal  Ass.  Co.  v.  McGillvray,  13  Moore  P. 

C.  C,  87,  353 

Moody  V.  Mina.  Ins.  Co.,  2  Thompson,  (N.  8.), 

173,  1337 

V.  Sunidge,  2  Esp.,  633,  1494 

■».  Webster,  3  Pick.,  434,  213 

Moore  v.  Atlantic  Mut.  Ins.  Co.,  56  Mo.,  343, 

1074 

■».  Perpetual  Ins.  Co.,  16  Mo.,  98,        1020 

V.  Protection  Ins.  Co.,  29  Me.,  97, 

543,  555,  753,  1047,  1141 
V.  Taylor,  1  A.  &  E.,  35 ;  3  L.  J.  (N.  S.)  K. 

B.,  132 ;  3  N.  &  M.,  406,833,  1005 
V.  Woolsey,  4  El.  &  Bl.,  343  ;  24  L.  J.  Q. 

B.,  140;  1  Jur.  (N.  S.),  468,    159,  1121 
Moran  v.  Jones,  7  El.  &  Bl.,  523 ;  3  Jur.  (N.  S.), 

663;  26  L.J.  Q.  B.,  187,  609 

Morck  V.  Abel,  3  B.  &  P.,  35,  1233 

Mordecai  «.  Firemens  Ins.  Co.,  12  Rich  ,  512, 

784 
Mordy  v.  Jones,  4  B.  &  C,  393 ;  3  L.  J.  K.  B., 

250;  6D.  &R.,479,  583 

Morean  v.  United   States  Ins.  Co.,  1  Wheat, 

219 ;  3  Wash.  C.  C,  256,  1501 

Morel  V.  Mississippi  Vallej'  Life  Ins.  Co.,  4 

Bush,  535,  1147 

Morgan  v.  Insurance  Co.  of  North  America,  4 

Dall.,  455,  576 

V.  Oswald,  3  Taunt.,  554,  431,  627 

V.  Price,  4  Ex.  Ch.,  615 ;  19  L.  J.  Ex.,  201, 

67" 


Hi 


TABLE  OF  CASES. 


Morland  B.  Isaac,  20  Beav.,  389;  1  Jur.  (X. 

S.),  989;  24  L.J.  Ch.,  753,  1331 

Morrell  v.  IrviDg  Fire  Ins.  Co.,  33  N.  Y.,  429; 

3  Am.  L.  Reg.  (N.  S.),  404,  11.59 

Morris  V.  Summer),  2  Wash.  C.  C,  203.  274 
Morrison  v.  Burtolomeo,  5  C.  C.  S.  (3d  ser.), 

848,  1355 
V.  Muspratt,  4  Bing.,  59 ;  5  L.  J.  C.  P.,  63 ; 

13  Moore,  231,  1311 
V.  Tennessee  Marine  and  Fire  Ins.  Co.,  18 

Mo.,  262,  714,  1374 
.  V.  Universal  Marine  Ins.  Co  ,  8  L.  R.  Ex., 

197;  42  L.  J.  Ex.,  115;  21  W.  R.,  774; 

8  L.  R.  Ex.,  40;  43  L.  J.  Ex.,  17;  21 

W.  B.,  196;  27  L.  T.  (N.  S.),  791,  363 
Morocco  Land  and  Trading  Co  v.  Fray,  11 

Jur.  (N.S.J,  76;  13  W.  R,  310;  U  L. 

T.,  618,  T42 

Morse  v.  Buffalo  Fire  and  Marine  Ins.  Co.,  30 

Wis.,  534,  391,  753 

Mortimer  v.  Broadwood,  17  W.  R.,  653 ;  20  L. 

T.  (N.  S.),  398,  1462 

Moses  V.  Brooklyn  Life  Ins.  Co.,  50  Ga.,  196, 

881 

• V.  Columbian  Ins.  Co.,  6  Johns.,  219, 

1397 

s.  Delaware  Ins.  Co.,  1  Wash.  C.  C,  885, 

241 

. v.  Pratt,  4  Camp.,  297,  593,  1234 

V.  Sun  Mat.  Ins.  Co.,  1  Duer,  159, 

1036,  1036,  1246 
Moss  V.  Byrom,  6  Term,  379,  199 
V.  Smith,  9  C.  B.,  94;  19  L.  J.  C.  P.,  225; 

14  Jur.,  1003,  583 
Motley  V.  Manufacturers  Ins.  Co.,  29  Me.,  337, 

61 
Motteux  V.  London  Ass.  Co.,  1  Atk.,  545, 

430,  741,  1174 

Mound  City  Ins.  Co.  v.  Curran,42  Mo.,  374, 

273 

Mound  City  Life  Ins.  Co.  ■!).  Huth,  49  Ala., 
529,  1077,  1091 

Mound  City  Mutual  Life  Ins.  Co.  v.  Twining, 
12  Kan.,  475,  .  927 

Mount  V.  Larkins,  8  Bing.,  108;  1  L.  J.  (N.  S.) 
C.  P.,  20,  417 

T.  Harrison,  4  Bing.,  388;  1  M.  &  P.,  14 

591 

V.  Waite,  7  Johns.,  434,  1227 

Mount  Vernon  Manufacturing  Co.  v.  Summit 
County  Mutual  Fire  lus.  Co.,  10  Ohio 
St.,  347,  90 

Moxou  V.  Atkins,  3  Camp.,  200.  437 

Mowry  ».  Charleston  Ins.  Co.,  6  Rich.,  146, 

1399 

— ^  V.  Home  Life  Ins.  Co.,  9  R.  I.,  346, 

378,  532,  686,  1072,  1472 


Mueller  v.  Putnam  Fire  Ins.  Co.,  4.5  Mo.,  84, 

974,  1149 
Muhleman  v.  National  Ins.  Co.,  0  W.  Va.,  508, 

940 
Muir  V.  United  Ins.  Co.,  1  Caines,  49,  8 

MuUer  v.  Thompson,  2  Camp.,  610, 

631,  1062,  1520 

Mullet  V.  Shedden,  13  East.,  304,  1411 

Mulliner  v.  Guardian  Mutual  Life  Ins.  Co.,  1 

N.  T.  S.  C,  448,  513 

Mulrey  v.  Shawmut  Mut.  Ins.  Co.,  4  Allen,  116, 

340,934 
Mulry  V.  Mohawk  Valley  Ins.  Co.,  5  Gray,  541, 

527,  973 

Mulvey  v.  Gore  District  Mut.  Ins.  Co.,  25  U.  C. 

Q.  B.,  434,  1144 

Mumford  ».  Church,  1  Johns.  C,  147,  5 

V.  Ilallett,  1  Johns.,  433,  1099, 1468 

V.  Phoenix   Ins.   Co.,   7  Johns.,  449, 

143 

Murdea  v.  South  Carolina  Ins.  Co.,  1   Mills' 

Const.,  96,  423,  1514 

Murdook  v.  Chenango  County  Mut.  Ins.  Co.,  3 

N.  Y.,  210,  74,  130,  304,  654 

Murgatroyd  v.  Crawford,  3  Yeates,  420;     3 

Dall..  491,  809 

Murray  v.  Alsop,  3  Johns.  C,  47,  1196 

V.  Columbian  Ins.  Co.,  4  Johns.,  443, 

986 

V.  Columbian  Ins.  Co.,  11  Johns.,  303, 

111,  285,  995 

V.  Harmony  Fire   and  Marine   Ins.  Co., 

58  Barb.,  9,  219 

J).  Insurance  Co.  of  Pennsylvania, 2  Wash. 

C.  C,  186,  1477 

V.  United  States  Ins.  Co.,  2  Johns.  C,  169, 

1515 

V.  United  States  Ins.  Co.,  2  Johns.  C,  263, 

26 

Murrison  v.  Gibbon,   Faculty   Dec,  1810  to 

1812,  p.  148,  344 

Murphrey  v.  Old  Dominion  Ins.  Co.,  5  Ins.  L. 

J.,  397,  716 

Murphy  t.  Bell,  4  Bing.,  567;   6  L.  J.  C.  P., 

118:  1  M.  &P.,  493,  363 

V.  Harris,  Batty,  206,  775 

V.  People's  Equitable   Mutual  Fire  Ins. 

Co.,  7  Allen,  239,  668,  976 

V.  Mutual  Benefit  Life  and  Fire  Ins.  Co., 

6  La.  An.,  518,  1304 

Mussey  v.  Atlas  Mut.  Ins.  Co.,  14  X.  Y.,  79, 

853 
Mutual  Ass.  Co.  v.  Mahon,  5  Call,  517, 

716,  1229 
Mutual  Ass.  Soc.  v.  Korn,  7  Cranch,  396, 

ft04 


TABLE  OP  CASES. 


liii 


Mutual  Beuefit   Life   lus.  Co.  v.  AtwoocI,  24 
Gratl.,  407,  908,  1530 

V.  C;iuuou,  48  Ind.,  2G4, 

125,  513,  820,  951,  977,  12U7 

v.  Davis,  12  N.  Y.,  5C9,  1446 

V.  Freuch,  2  Cin.  Sup.  Ct.,  321,  918 

V.  Holti'ilioff,  2  Cin.  Sup.  Ct.,  879,        725 

».  Jarvis,  23  Conn.,  148,  1053 

V.  Miller,  39  Intl.,  475,         309,  1297,  1528 

V.  Newton,  22  Wall.,  32;  2  Dill.  Cir.  C, 

154,  1139 

c.  Robertson,  59  111.,  123,  932,  1528 

V.  Ruse,  8  Ga.,  534,  938 

V.  Tisdale,  5  Ins.  L.  J.  127,  536 

V.  Wise,  34  Md.,  582, 

261,  846,  1191,  1296,  130.3 
Mutual  Fire  Ins.  Co.  v.  Deale,  18  Md.,  26, 

49,  1206 
Mutual  Life  Ins.  Co.  v.  Wager,  27  Barb.,  354, 

1303 

V.  Young,  5  Ins.  L.  J.,  17,  336 

Mutual  Marine  Ins.  Co.  v.  Munro,  7  Gray,  246, 

1470 

JIutual  Protection   Ins.   Co.  v.  Hamilton,  5 

Sneed,  269,  171 

Mutual  Safety  Ins.  Co.  v.  Cohen,  3  Gill.,  459, 

1399 

V.  Hone,  2  N.  Y.,  235;  1  Sandf.,  137, 

1184,  1451 
Myers  c.  Girard  Ins.  Co.,  26  Penn.  St.,  193, 

830,  1258 

V.  Keystone  Mutual  Life  Ins.  Co.,  27  Penu. 

St.,  268,  03,  344,  372 


N. 


Nantes  n.  Thompson,  3  East,  385,  953 

Napier  v.  Wood,  4  C.  C.  S.,  19,  1023 

Nash  V.  Union  Mut.  Ins.  Co.,  43  Me.,  343, 

935 
Natchez  Ins.  Co.  v.  Buckner,  5  Miss.,  63, 

1478 

T.  Stanton,  10  Miss.,  340,  431 

National  Bank  of  Scotland  v.  Forbes,  21  C.  C. 

S.,  79,  1391 

National  Banking  and  Ins.  Co.  v.  Knaup,  55 

Mo.,  154,  207,  1341 

National  Fire  Ins.  Co.  T.  Crane,  16  Md.,  260, 

109,  543,  870 
National  Ins.  Co.  v.  Chamber  of  Commerce, 

69  111.,  33,  125,  745 
D.  Irwin,  1  Disney,                          272,  430 


National  Life  Ins.  Co.  v.  Jones,  1  N.  Y.  S.  C, 
41)6,  1394 

V.  Minch,  53  N.  Y.,  144;  6  Lans.,  100, 

1391 

National  Mut.  Ins.  Co.  v.  Pursell,  10  Allen, 

231,  153 

National  Provincial   Life  Ass.    Soc,   In    ru 

Fleming's  Case,  6  L.  R.  Ch.,  393, 

841 

National  Traders  Bank  v.  Ocean  Ins.  Co.,  C3 

Me.,  519,  1173 

Nave  V.  Home  Mutual  Ins.  Co.,  37  Mo.,  430, 

550 

Navone  v.  Haddon,  9  C.  B.,  30;  19  L.  J.  C.  P., 

61,  1504 

Naylor  v.  Taylor,  Moo.  &  M.,  205,  210 

V.  Taylor,  9  B.  &  C,  718;  4  M.  &  R.,  536, 

11,210 

Neal  V.  Erving,  1  Esp.,  61,  1077 

Neely  v.  Onondaga  County  Mut.  Ins.  Co..  7 

Hill,  49,  474, 1493 

Neilson  v.  Columbian  Ins.  Co.,  3   Caines,  108, 

1501 

v.   Columbian    Ins.   Co.,  1   Johns.,  301, 

40G 

V.  Commerciai  Ins.  Co.,  3  Duer,  455, 

94,  120i) 
Nelson  v.  Belmont,  21  N.  Y.,  36;  5  Duer,  310, 

610 

0.  Louisiana    Ins.   Co.,  17  Martin   (La.), 

289,  1061,  1494 

D.  Salvador,  Moo.  &  M.,  309,  1238 

V.  Suffolk  Ins.  Co.,  8  Cush.,  477,  327 

Neptune  Ins.  Co.  v.  Robinson,  11  G.  &  J.,  256, 

252 
Nesbitt  V  Berridge,  9  L.  T.  (N.  S.),  588,     1353 

V.  Lushington,  4  Term,  783,         115,  1032 

Nevada,  State  of,  v.  Cohn,  9  Nev.,  179,        150 
Neves.  Columbia  Ins.  Co.,  2  McMullen,  220, 

858 
Nevins  v.  Rockingham  Mutual  Fire  Ins.  Co., 

25  N.  H.,  22,  68,  719,  767 

Neville  v.  Merchants  and  Manufacturers  Ins. 

Co.,  19  Ohio,  452 ;  17  id.,  192,  34.'; 

Newburyport  Marine   Ins.  Co.    v.  Oliver,   8 

Mass.,  402,  139 

Newby  v.  Reed,  1  W.  Bl.,  410,  452 

Nev?  Castle  Fire  Ins.  Co.  ».  Macmorran,  3 

Dow.,  255,  1516 

Newcomb  ■».  Cincinnati  Ins.  Co.,  23  Ohio  St., 

382,  1344 

Newell  v.  Norton,  3  Wall.,  257,  .  1.334 

New  England  Fire  and   Marine  Ins.  Co.   v. 

Schettler,  38  111.,  166,  873,1073 

V.  Wetmore,  32  111.,  221,        78, 158,  270, 

651,  665,  694 


liv 


TABLE  OF  CASES. 


New  England  Ins.  Co.  i".  Robinson,  2.')  Ind., 
536,  337,880,1109 

New  England  Life  Ins.  Co.  v.  Hasbrook,  32 
Ind.,  447,  886,919 

New  England  Mutual  Fire  Ins.  Co.  v.  Bel- 
knap, 9  Cush.,  140,  LW,  1055 

V.  Cutler,  34  Me.,  451,  804,  1057 

Newhall  B.  Union  Mutual  Fire  Ins.  Co.,  52 
Me.,  180,  651,  675 

New  Ilampshire  Mutual  Fire  Ins.  Co.  v. 
Hunt,  30  N.  H.,  219,  112,  957 

. D.  Rand,  24  N.  H.,  438,  804,  1050 

New  Hampshire  Savings  Bank  v.  ■  Union 
Mutual  Fire  Ins.  Co.,  38  N.  H.,  232, 

77 

Newlin  u.  Insurance  Company  of  North 
America,  20  Penn.  St.,  312;  5  Penn. 
L.  J.,  116,  1511 

Newman  v.  Home  Ins.  Co.,  20  Minn.,  422,    74 

D.  Niagara  District  Mut.  Ins.  Co.,  35  U. 

C.  Q.  B.,  435,  1164 

■».  Springfield  Fire  and  Marine  Ins.  Co., 

17  Minn.,  133, 

63,  311,  833, 1075,  1082 
Newmark  v.  Liverpool  and  London  Ins.  Co., 

30  Mo.,  160,  1141,  1370 

New  Orleans  Mut.  Ins.  Co.  o.  New  Orleans  & 

Jackson  R'y  Co.,  20  La.  An.,  302, 

231 

Newson  t.  Douglass,  7  H.  &  J.,  417, 

484,  509,  566,  719,  997 

Newton  V.  Insurance  Co.,  2  Dill.  C.  C,  154, 

515 

New  York  Belting  Co.  ■».  Washington  Fire 
Ins.  Co.,  10  Bos.,  438,  1517 

New  York  Central  Ins.  Co.  ».  National  Pro- 
tection Ins.  Co.,  14  N.  Y.,  85 ;  20  Barb., 
468,  1096 

1!.  Watson,  23  Mich.,  486,  858 

New  York  Equitable  Ins.  Co.  ■».  Langdou,  6 
Wend.,  633;  1  Hall,  226,  388 

New  York  Fire  Ins.  Co.  ».  Delavan,  8  Paige 
Ch.,  419,  740 

New  York  Marine  and  Fire  Ins.  Co.  v.  Rob- 
erts, 4  Duer,  141,  299,  1232 

New  York  Firemens'  Ins.  Co.  t>.  DeWolf,  3 
Cow.,  56;  30  Johns.,  314,  1376 

B.  Lawrence,  14  Johns.,  46,  434 

«.  Walden,  12  Johns.,  513,  376 

New  York  Gas  Light  Co.  ■».  Mechanics  Fire 
Ins.  Co.,  2  Hall,  108,  489,  1006 

New  York  Ice  Co.  v.  Northwestern  Ins.  Co., 

31  Barb.,  72;  20  How.  Pr.,  424, 

1176 

V.  Northwestern  Ins.  Co.,  23  X.  Y.,  357 ; 

32  Barb.,  534:  11  Abb.  Pr.,  419;  12 
id.,  414;  20  How.  Pr.,  424,  139 


New  York  Ins.  Co.  ■».  Robinson,  1  Johns.,  616, 

1410 

t.  Roulet,  34  Wend.,  505,  1830 

V.  Thomas,  3  Johns.  C,  1,  488,  1231 

New  York  Life  Ins.  Co.  c.  Best,  28  Ohio  St.. 
105,  1191 

0.  Clopton,  7  Bush,  179,  907 

».  Flack,  3  Md.,  341, 

169,  182,  374,  810 

E.  Graham,  2  Duv.,  506,  820,846 

».  Hendren,  34  Grat.,  536,  125,  908 

New  York  State  Marine  Ins.  Co.  b.  Protection 

Ins.  Co.,  1  Story,  458,  1183 

Niagara  District  Ins.  Co.  s.  Lewis,  13  U.  C.  C. 

P.,  123,  1112 

Niagara  Fire  Ins.  Co.  «.  De  Graff,  12  Mich., 

124,  1214 

Niblo  %.   North  American  Fire  Ins.   Co.,  1 

Sandf,  551,  383 

Nichols  r.  Faj-ette  Mutual    Fire  Ins.  Co.,  1 

Allen,  63,  866,  1464,  1471,  1491 

Nicholson  v.  Mercantile  Marine  Ins.  Co.,  106 

Mass.,  399,  ,  409 

».  Power,  30  L.  T.  (N.  S.),  580,  246 

Nickells  v.  Maine  Fire  and  Marine  Ins.  Co., 
11  Mass.,  353,  843 

Nicolet  V.  Insurance  Co.,  3  La.  (0.  S.),  366, 

383 

Nicoll  B.  American  Ins.  Co.,  3  W.  &  M.,  529, 

206,  398,  1198,  1527 

Nielsou  V.  De  La  Cour,  2  Esp.,  619,  415 

Nightingale  ®.  State  Mutual  Life  Ins.  Co.,  5 

R.  I.,  38,  55,  1366 

Nimick  v.  Mutual  Benefit  Life   Ins.   Co.,  3 

Brewster,  502,  1360 

Noad  V.  Provincial  Ins.  Co.,  18  U.  C.  Q.  B., 

584,  955,  970 

Noble   i).   Kennoway,  2  Doug.,  510, 

1046,  1450 
Nonnen  s.  Reid,  16  East,  176,  983 

Noonan  «.  Hartford  Fire  Ins.  Co.,  21  Mo.,  81, 

1145,  1493 
Norcross  %.  Insurance  Co.,  17  Penn.  St.,  429, 

713 
Norris  v.  Insurance  Co.  of  North  America,  3 

Yeates,  84,  356,  308  . 

North  America  Fire  Ins.  Co.  n.  Throop,  22 
Mich.,  146,  237 

'0.  Zaenger,  63  111.,  464,  826,  1141 

North  America  Ins.  Co.  v.  Whipple,  2  Bis.s,, 
418,  1167 

North  American  Life  and  Accident  Ins.  Co. 
V.  Burroughs,  69  Penn.  St.,  43, 

42,  1115,  1524 

North  America  Life  Ins.  Co.  t.  Wilson,  111 

Mass.,  542,  1394 


TABLE  OF  CASES. 


Iv 


North  Berwick  Co.  v.  New  England  Fire  and 

Marine  Ins.  Co.,  53  Me.,  33(>,  356 

Nortli  British  Ins.  Co.  v.  Ilallett,  7  Jur.  (N.  S.), 

1203;  9  W.  R.,  880,  173 

V.  Tummocli,  3  C.  C.  S.  (N.  S.),  1 ;  37  Scot. 

Jur.,  1,  1174 

North  British  and  Mercantile  Ins.  Co.  v.  Mof- 

fatt,  7  L.  R.  C.  P.,  25 ;  41  L.  J.  C.  P., 

1 ;  25  L.  T.  (N.  S.),  662 ;  20  W.  R.,  114, 

728 

Norwich  and  New  York  Transportation  Co. 

1).  Western  Massachusetts  lus.  Co.,  34 

Conn.,  501;  6  Blatch.,  241 ;   13  Wall., 

194,  1106 

Norwich  Fire  Ins.  Co.  v.  Boomer,  52  111..  442, 

349,  803,  839,  874,  1345 

Norwich  Ins.  Co.  v.  Thompson,  1  Scot.  Jur., 

292,  1287 

Norwood,  Ex  parte,  3  Biss.,  504,  1185 

Norwood  ».  Guerdon,  GO  111.,  2.53.  171 

V.  Resolute  Fire   Ins.  Co.,  4  J.  &  Sp.  (N. 

Y.),552,  1185 

Notnian  v.  Anchor  Ass.  Co.,  4  C.  B.  (N.  S.), 

476;  4  Jur.  (N.  S.),  712;  37  L.  J.  C. 

P.,  275,  1368 

Noyes  iJ.  Hartford  Fire  Ins.  Co.,  54  N.  Y.,  608, 

38 

V.  Washington  Ins.  Co.,  30  Vt.,  659, 

1108 
Nute  v.  Hamilton  Mutual  Ins.  Co.,  6  Gray,  174, 

763 
Nutt  ».  Bourdieu,  1  Term,  333,  20-'? 

Nye  V.  Ayres,  1  E.  D.  Smith,  533,  1287 

North  Carolina  Life  Ins.  Co.  v.  Powell,  71  N. 
C,  389,  1389 

North  of  England  Oil  Cake  Co.  v.  Archangel 
JIaritime  Ins.  Co.,  10  L.  R.  Q.  B.,  249, 

998 
North  of  England  Steamship  Ins.  Co.  v.  Arm- 
strung,  5  L.  R.  Q.  B.,  244 ;  39  L.  J.  q'. 
B.,  81 ;  21  L.  T.  (N.  S.),  822;  18  W.  R„ 
520,  1476 

North  River  Ins.  Co.  ■».   Lawrence,  3  Wend., 
483,  1446 

Northrup  v.  Mississippi  Valley  Ins.   Co.,  47 
Mo.,  435,  326,  357,  974 

V.  Railway  Passengers  Ass.  Co.,  43  N.  Y. 

(4  Hand.),  516;  2  Lans.,   166, 

1445 

Northwestern  Insurance  Co.  ■».  Atkins,  3  Bush, 

328,  1104 

Northwestern  Iron  Co.  v.  Mtnn  Ins.  Co.,  26 

Wis.,  78,  117,  363,  396 

V.  ^tna  Ins.  Co.,  23  Wis.,  160;  31  id.,  458, 

887 
Norton  D.  Le.xington  Ins.  Co.,  16  111.,  285,     S^ 


Norton  v.  Phoenix  Mutual  Life   Ins.  Co.,  36 
Conn.,  503,  373 

0.  RLUsselser  Ins.  Co.,  7  Cow.,  645, 

1127 
Norville  v.  St  Barbs,  5  B.  &  P.,  434,  294 


o. 

Oakman  v.  City  Ins.  Co.,  9  R.  J.,  356,  96S 

V.  Dorchester  Mutual  Ins.  Co.,  98  Mass., 

57,  67,  693 

Obcrraeyer  v.  Globe  Mutual  Ins.  Co.,  43  Mo., 

573,  874 

O'Brien  v.  Commercial  Fire  Ins.  Co.,  6.  J.  & 

Sp.,  517,  732,  837 

Ocean  Insurance  Co.  ■».  Carrington,  3  Conn., 

357,  343 

V.  Fields,  3  Story,  59,  734,  789 

V.  Francis,  3   Wend.,   64;  6  Cow.,  404, 

218,  1276 

V.  Polleys,  13  Pet.,  157,  744,  1293 

O'Connor  v.  Hartford  Fire  Ins.  Co.,  31  Wis., 

160,  1105,  1129 

Oddy  V.  Bovill,  3  East.,  473,  1373 

Odiorne  v.  New  England  Mutual  Marine  Ins. 

Co.,  101  Mass.,  551,  1101 

Odlin    V.  Insurance  Co.  of   Pennsylvania  3 

Wash,  C.  C,  313,  143 

Ogden  V.  Ash,  1  Dall.,  163,  1064 

V.  Columbian  Ins.  Co.,  10  Johns.,  273, 

5,  1465 

V.  East  River  Ins.  Co.,  50  N.  Y.,  388, 

380 

V.  General  Mutual  Ins.  Co.,"  2  Duer,  204, 

578 

V.  Montreal  Ins.  Co.,  4  U.  C.  C.  P.,  497, 

1334 

D.  Mutual  Ins.  Co.,  35  N.  Y.,  418;  4  Bos., 

447;  8  id.,  348,  1337 

V.  New  York  Piremens  Ins.  Co.,  12  Johns., 

25,  2-1 

1).  New  York  Piremans  Ins.  Co.,  12  Johns., 

114,  1338 

V.  New  York  Ins.  Co.,  10  Johns.,  177, 

5,24 
O'Hara  v.  Carpenter,  23  Mich.,  410,  1461 

Ohde  V.  Northwestern  Life  Ins.  Co.,  40  Iowa, 
357,  926 

Old  ij.  Eagle  Ins.  Co.,  4  Mason,  173,     488,  689 
Oldden  i:  McChesney,  5  S.  &  R..  71,  308 

Oldman  v.  Bewicke,  2  H.  Bl.,  577,  n.,        11-37 
Oliver  V.  Maryland  Ins.  Co.  7  Cranch,  487, 

41S 


Ivi 


TABLE  OF  CASES. 


Oliver  «.  Mutual  Commercial  Marine  Ins.  Co., 

2  Curtis,  277,  845,1166' 

0.  Ncwburyport  Marine  Ins.  Co.,  3  Mass., 

37,  1408 

Olivera  x.  Union  Ins.  Co.,  3  Wlieat.,  183, 

34,  143 

01  i verson  v.  Brightman,  1  C.  &  K.,  360 ;  8  Q.  B., 

781;  15  L.  J.  Q.  B.,  274;  10  Jur.,  175, 

2<J5 
Olmstead  v.  Iowa  Mut.  Ins.  Co.,  24  Iowa,  503, 

675 
O'Nicl  V.  Buflfalo  Fire  Ins.  Co.,  3  N.  Y..  122, 

122,  1132,  1458,  1520 
Oom  V.  Bruce;  12  East.,  225,  1230 

V.  Taylor,  3  Camp.,  204,  1050 

Oppenheim  «.  Fry,  3  B.  &  S.,  875;  11  W.  R., 

725;  8  L.  T.  (N.  S.),  385;  5  B.  &  S., 

348;  33  L.  J.  Q.  B.,  267;   12  W.  R., 

831;  10  L.  T.  (N.  S.),  539,  1512 

Orchard  n.  Mina.  Ins.  Co.,  5  U.  C.  C.  P.,  445, 

79 
O'Reilly  v.  Gonne,  4  Camp.,  249,  431 

n.  Guardian  Life  Ins.  Co.,  60  N.  Y.,  169; 

1  Hun.,  460;  3  N.  Y.  S.  C,  487, 

911,  1110 

V.  Royal  Excliange  Ass.  Co.,  4  Camp., 

246,  431 

Orient  Mut.  Ins.  Co.  v.  Wright,  23  How.,  401, 

335 
Oriental  Bank  v.  Tremont  Ins.- Co.,  4  Met.,  1 

719 
Orrell  v.  Hampden  Fire  Ins.  Co.,  18  Gray,  431, 

1385 
Orrok  u.  Commonwealth  Ins.  Co..  21  Pick., 
456,  483,  781,  843,  1312,  1439 

Osacar  d.  Louisiana  State  Ins.  Co.,  17  Martin 
(La.),  386,  719,  1045 

Osgood  V.  DeGroot,  36  N.  Y.,  348,  1284 

Osser  v.  Provincial  Ins.  Co.,  12  U.  C.  C.  P.,  141, 

878 

Oswell  v.  Vigne,  15  East.,  70,  648 

Ougier  t.  Jennings,  1  Camp.,  505,  n.,  438 

Overton  d.  St.  Louis  Mutual  Life  Ins.  Co.,  39 

Mo ,  122,  394 

Owen  V.  Farmers'  Joint  Stock  Ins.   Co.,  57 

Barb, 518;  10  Abb.Pr.  (N.S),  166,  n., 

66,673,  1123 

Owens  «.  Holland  Purchase  Ins.  Co.,  56  N. 

Y.,  565 ;  1  N.  Y.  S.  C,  285,      305,  461 

P. 

Pacific  Ins.  Co.  v.  Catlett,  4  Wend.,  75 ;  1  id., 

561,  995 

r.  Soule,  7  Wall ,  483,  1368 


Pacific  Mail  Steamship  Co  v.  Great  Western 
Ins.  Co.,  65  Barb..  334,  1287 

Pacific  Mut.  Ins.  Co.  v.  Gust-,  49  Mo  ,  329, 

155 

Packard  v.  Agawam  Mutual  Fire  Ins.  Co.  2 

Gray,  334,  067 

Padclford  v.  Boardman,  4  Mass.,  548, 

608,  ..  . 

1.  Providence  Mutual  Fire  Ins.  Co.,  3  R. 

I.,  103,  124,  051 

Paddock  ■».  Commercial  Ins.  Co  ,  2  Allen  9.3, 
786,  1027,  1370,  1445 

c.  Commercial  Ins.  Co.,  104  Mass ,  521, 

843,  1312,  1497 

•».  Franklin  Ins.  Co.,  11  Pick.,  227, 

286,  777,  1247, 1268 
Page  V.  Fry,  2  B.  &  P.,  240;  3  Esp.,  185, 

119 
Paine  v.  Agricultural  Ins.  Co.,  5  N.  Y.  S.  C, 

619,  827,  1164 

Palm  V.  Medina  County  Mutual  Fire  Ins.  Co., 

20  Ohio,  529,  329,  739,  1073 

Palmer  v.  Blackburn,  1  Bing.,  61 ;  7    Moore, 

339,  379, 591 
V.  Penning,  9  Bing.,  460;  2  M.  &  Scott, 

624,  417 
V.  Marshall,  8  Bing.,  79,  317;  1  L.  J.  (N. 

S.),  C.  P.,  19,  184,  417 
®.  Naylor,  10  Exch.,  382;  8  id.,  739;  23  L. 

J.  Ex.,  323 ;  2  W.  R.,  621,  1413 

».  Pratt,  2  Bing.,  185 ;  9  Moore,  358,    703 

V.  Warren  Ins.  Co.,  1  Story,  360,  291 

Palyart  v.  Leckie,  6  Mau.  &  Sel.,  290,  1234 

Paradise  v.  Sun  Mut.  Ins.  Co.,  6  La.  An.,  596, 

194,  540,  563,  604 
Parage  c.  Dale,  3  Johns.  C,  156,  19 

Parfitt  V.  Thompson,  11  Mee.  &  W.,  392;  14  L. 

J.  Ex.,  73,  1246,1483 

Park  0.  Hammond,  6  Taunt,  495;  4  Camp., 

344;  2  Marsh.,  189;  Holt  K.  P.,  SO, 

184 
Parken  v.  Royal  Exchange  Ass.  Co.,  8  C.  C.  S., 

365;  18  Scot.  Jur.,  147,  757 

Parker  v.  Amazon  Ins.  Co.,  34  Wis.,  363, 

518,  558,  Ilia 
V.  Arctic  Fire  Ins.  Co.,  1  N.  Y.  S.  C,  397; 

59  jST.  Y.,  1,  35G 

t.  Beasley,  2  Mau.  &  Sel.,  423,  1286 

V.  Bridgeport  Ins.  Co.,  10  Gray,  302, 

1205- 

1!.  Eagle  Fire  Ins.  Co.,  9  Gray,  153,    IIGO 

V.  Jones,  13  Mass.,  173,  29ft 

V.  Potts,  3  Dow,  23,  1260 

V.  Union  Ins.  Co.,  15  La.  An.,  688,      1247 

Parkes  v.  Bott,  9  Sim.,  388;  8  L.  J.  (N.  S.)  Cli., 

14,  1531 


TABLE  OF  CASES. 


Ivii 


Piirkhurst  v.  Gloucester  Fishing  Iiis.  Co.,  100 
Mass.,  301,  193 

Parkin  v.  Dick,  11  East,  503;  2  Camp.,  221, 

G47 

V.  Tuuno,  2  Camp.,  59;  11  East,  23, 

413 
Parks  v.  General  Interest  Ass.  Co.,  5  Pick.,  34, 

726 

Parmelee  v.  Hoffman  Fire  Ins.  Co.,  54  N.  Y., 

103.  1140 

Parmeler  v.  Cousins,  2  Camp.,  235,  988 

V.  ToJhuutcr,  1  Camp.,  541,  13,  211 

Parr  ».  Anderson,  0  East,  202,  817 

Parry  v.  AberUein,  9  B.  &  C,  411;  4  M.  &  H., 

343,  1418 

V.  Ashley,  3  Sim.,  97,  204 

Parsons  v.  Bignokl,  15  L.  J.  Ch.,  379;  13  Sim., 
518,  1178 

V.  Manufacturers  Ins.  Co.,  16  Gray,  403, 

436,  537, 599 

V.  Scott,  2  Taunt.,  363,  1428 

Partridges.  Life  Ins.  Co.,  1  Dill.  C.  C,  139, 

304 
Patapsco  Ins.  Co.  t.  Briscoe,  7  G.  &  J.,  293, 

1473 

V.  Coulter,  3  Pet.,  222,  1099,  1152 

■».  Smith,  6  H.  &  J.,  166,  272, 789,  896 

'B.  Southgate,  5  Pet.,  604,  3,  1397 

Patch  8.  Phoenix  Mutual  Life  Ins.  Co.,  44  Vt., 
481,  936 

Paterson  v.  Powell,  2  L.  J.  (N.  S.)  C.  P.,  13, 

1235 

V.  Powell,  9  Bing.,  330;  2  M.  &  Scott,  399, 

1402 
Patrick  v.  Commercial  Ins.  Co.,  11  Johns.,  14, 

679,  818 

V.  Commercial  Ins.  Co.,  11  Johns.,  9, 

1437 

V.  Eames,  3  Camp.,  441,  1478 

V.  E.vcelsior  Life  Ins.  Co.,  4  Hun.  (N.  Y.), 

263,  1356 

V.  Farmers  Ins.  Co.,  43  N.  H.,  621, 

772,  839 

V.  Hallet,  1  Johns.,  241,  1250,  1257 

V.  Hallett,  3  Johns.  C,  76,  815,  1257 

V.  Ludlow,  3  Johns.  C,  10,  183,  420 

Partridge  v.  Life  Ins.  Co.,  1  Dill.  C.  C,  139, 

304 

Patten  v.  Merchants  and  Farmers  Mutual  Fire 

Ins.  Co.,  38  N.  H.,  338,  6C9 

V.  Merchants  and  Farmers  Mutual  Fire 

Ins.  Co.,  40  N.  H.,  375,  405 

Patterson  v.  Continental  Ins.  Co.,  13  U.  C.  Q. 

B.,  9,  229 

V.  Duguid,   Bell's    Ses.   Cas.,  281, 

259 


Patterson  v.  Harris,  1  B.  &  S.,  330;  7  Jur.  (N. 
S.),  1276;  30  L.  J.  Q.  B.,  354;  2  B.  & 
S.,  814;  9  Jur.  (N.  S.),  173,  186 

fl.  Marine  Ins.  Co.,  5  H.  &  J.,  417,        147 

V.  Ritchie,  4  Man.  &  Sel.,  303,  1430 

V.  Triumph  Ins.  Co.,  64  Me.,  500, 

08,  141,  1114 

Pattison  v.  Mills,  2  Bli.  (N.  R.J,  519;  1  Dow  & 

C,  342,  334,  756,  1330 

Pawson!).  Watson,  Cowper,  785;  1  Doug.,  11, 

n.,  1208 

Peabody  v.  Washington  County  Mut.  Ins.  Co., 

30  Barb.,  339,  66 

Peacock  v.  New  York  Life  Ins.  Co.,  20  N.  Y., 

293 ;  1  Bos.,  338,  1301 

Pearson  v.  Amicable  Ass.  Co.,  27  Besiv.,  229, 

171 

V.  Commercial  Union  Ins.  Co.,  15  C.  B. 

(N.  S.),304;  10  Jur.  (N.  S.),517;33  L. 
J.  C.  P.,  85 ;  12  W.  R,  251 ;  9  L.  T.  (N. 
S.),  443;  8  L.  R.  C.  P.,  548;  43  L.  J.  C. 
P.,  164;  22  W.  R.,  100;  29  L.  T.  (N. 
S.),  279,  1033 

Peck  V.  Nashville  Fire  and  Marine  Ins.  Co.,  6 
La.  An.,  148,  1423 

V.  New  London  County  Mut.  Ins.  Co.,  22 

Conn.,  584,  505,  1070 

Pechner  I'.  Phoenix  Ins.  Co.,  6  Lans.,  411, 

865,  1190 
Pedder  d.  Mosely,  31  Beav.,  159,  17a 

Peddie  v.  Quebec  Fire  Ass.  Co.,  Stuart,  174, 

'  388 
Peele  v.  Merchants  Ins.  Co.,  3  Mason,  27, 

745,  1436 

V.  Northcote,  7  Taunt.,  478;  1  Moore,  178, 

1390 

V.  Suffolk  Ins.  Co.,  7  Pick.,  3.54,  29 

Peirce  v.  Oceen  Ins.   Co.,   18  Pick.,  83, 

1423 
Pelly  V.  Roysl  Exchange  Ass.  Co.,  1  Burr,  341, 

1002 
Penly  v.  Beacon  Ins.  Co.,  7  Grant's   Ch.,  130, 

331,  708 
Pennebaker  b.  Tomlinson,  1  Tcnn.  Ch.,  598, 

103,  181,  1378 
Pcnnell  v.  Chandler,  7  Chi.  Leg.  News,  327, 

768,  1109 

Penniman  b.  Tucker,  11  Mass.,  66,  1052 

Pennsylvania  Ins.  Co.,  v.  Bowman,  44  Penn. 

St.,  89,  181 

V.  Gottsman,  48  Penn.  St.,  151,   ,  660 

Penny  v.  New  York  Ins.  Co.,  3  Caines,  155, 

285 

Penson  v.  Lee,  2  B.  &  P.,  330,  1239 

Pentz  V.  Receivers  of  jElna  Ins.  Co.,  9  Paige, 

Ch.,  568;  3  Edw.  Ch.,  ;U1,  1339 


Ivdii 


TABLE  OF  CASES. 


Pcnzant  v.  National  Ins.  Co.,  15  Wend.,  453, 

8,  842,  1438 
People.  The,  v.  Beigler,  Hill  &  D.,  133,    151, 180 

V.  Chapman,  5  Dun.  (N.  Y.),  222,         399 

V.  Liverpool,  London  &  Globe  Ins.  Co.,  2 

N.  Y.  S.  C,  268,  66,  261,  765 

».  Hughes,  29  Cal.,  257,  150 

Peoples   Equitable  Mutual  Fire  Ins.   Co.  v. 
Arthur,  7  Gray,  367,  154,  954 

v.  Babbitt,  7  Allen,  235,  154 

Peoples  Fire  Ins.  Co.  v.  Heart,  24  Ohio  St., 

331,  '718 

Peoples  Mutual  Fire  Ins.  Co.  v.  Allen,  10  Gray, 

297,  152 

V.  Clark,  12  Gray,  165,  116,  398 

Peoples  Ins.  Co.  u.  Straehle,  2  Cin.  Sup.  Ct., 
186,  109,  1344 

V.  Spencer,  53  Penn.  St.,  353, 

49,  374,  464.  532 
Peopleston  v.  Kitchen,  3  Wash.  C.  C,  138, 

259,  375 
,  V.  Anapow, 
879 
1222 
78,821 
471, 763,  798 
361 


■Peoria  Marine  and  Fire  Ins.  Co, 

45  111.,  86;  51  id.,  283, 

V.  Botto,  47  111.,  516, 

V.  Frost,  37  111.,  333, 

D.  Hall,  12  Mich.,  203, 

V.  Hervey,  34  111.,  46, 

V.  Lewis,  18  111.,  553, 

835,  964,  976, 1008, 1117, 1526 

V.  Perkins,  16  Mich.,  380,        86,  973,  1002 

V.  Waiser,  32  Ind.,  73, 

271,  359,  851,  957,  976 

v.  Whitehill,  25  111.,  466,  49,  775,  977 

V.  Wilson,  5  Minn.,  53,  1194 

Peppin  V.  Solomons,  5  Term,  496,  119 

Perchard  v.  Whitmore,  3  B.  &  P.,  155,  n.,     119 
Percival  v.  Maine  Mut.  Ins.  Co.,  33  Me.,  242, 

377,  1206 
Perkins  J).  Augusta  lusurance  and  Banking 

Co  ,  10  Gray,  312,  425,  480,  527 

V.  Equitable  Ins.  Co.,  4  Allen  (N.  B.),  5G3, 

264 
V.  New  England  Marine   lus.   Co.,  12 

Mass.,  215,  1015 

V.  Proud,  62  Barb.,  420,  1338 

».  Washington  Ins.  Co.,  4  Cow.,  645 ;  6 

Johns.  Ch.,  48.>,  317,  882,  1067 

Peron  n.  Frone,  1  Barn.,  K.  B.,  304,  118 

Perrin  v.  Protecti<m  Ins.  Co.,  11  Ohio,  147, 

1150,  1154 
Perrins  v.  Marine  and  General  Travelers  Ins. 

Co.,  3  El.  &  El.,  317;  6  Jur.  (N.  S.), 

69;  29  L.  J.  Q.  B.,  17;  1  L.  T.  (N.  S.), 

iJ7;  6  Jur.  (N.  S.),  627;  2  El.  &  El., 

824;  29  L.  J.  Q.  B.,  242;  8  W.  K.,  563, 

1535 


Perrott  v.  Shearer,  17  Mich.,  48,  1345 

Perry  v.  Lorillard  Fire  Ins.  Co.,  6  Lans.,  201, 

96 

V.  Merchants  Ins.  Co.,  25  Ala.,  355  63 

V.  Newcastle  Fire  Ins.  Co.,  8  U.  C.  Q.  B., 

363,  373,  1396 

V.  Ohio  Ins.  Co.,  5  Ohio,  305,       843,  1019 

V.  Provident  Life  Ins.  Co.,  99  Mass.,  162, 

1372 

V.  Provident  Life  Ins.  Co.,  103  Mass.,  242, 

1373 
Perry  County  Mutual  Ins.  Co.  v.  Stewart,  19 

Penn.  St.,  45,  133,  377,  713 

Peters  v.  Delaware  Ins.  Co.,  5  S.  &  R.,  473, 

453 

V.  Phoenix  Ins.  Co.,  3  S.  &  R.,  25, 

1252,  1438 
V.  Warren  Ins.  Co.,  14  Pet.,  99;  3  Sumn., 

389 ;  1  Story,  463,  .  227 

Peterson  v.  Mississippi  Valley  Ins.  Co.,  24 

Iowa,  494,  1003 

Petriesi).  Atchinson,  3  C.  C.  S.,  511;  13  Scot. 

Jur.,  236,  215 

Pettegrew  v.  Pringle,  3  B.  &  Ad.,  514, 

1239 
Pettingill  v.  Hinks,  9  Gray,  169,  187 

Petty  V.  Willson,  4  L.  R.  Ch.,  574;  17  W.  R., 

778,  204 

Peyton  v.  Hallet,  1  Caines,  363,  478 

Phadenhauer  v.  Germania  Life   Ins.   Co.,   7 

Heiskell,  567,  1357 

Phelps  V.  Auldjo,  3  Camp.,  3.50,  421 

v.  Gebhard  Fire  Ins.  Co.,  9  Bos.,  404,    993 

Philadelphia  Ins.  Co.  v  Mills,  44  Penn.  St.,  241, 

754 

V.  Washington  Ins.  Co.,  23  Penn.  St.,  250, 

481, 1181 
Philadelphia  Life  Ins.  Co.  v.  American  Life 

and  Health  Ins.  Co.,  23  Penn.  St.,  65, 

1182 
Philadelphia  Safe  Deposit  Co.  v.  Fame  Ins. 

Co.,  9  Phila.,  292,  165 

Philbrook  i).  New  England  Mut.  Ins.  Co.,  37 

Me.,  137,  308,  475,  870 

Phillips  V.  Barber,  5  B.  &  A.,  161,  1030 

J).  Champion,  6  Taunt,  3;  1   Marsh.,  402, 

1046 

V.  Eastwood,  L.  &  G.  temp.  Sugdem.,  270, 

205 

V.  Headlam,  2  B.  &  Ad.,  380,  947 

V.  Irvine,  13  L.  J.  C.  P.,  145;  7  M.  &  G., 

325;  8  Scott.  N.  R.,3,  448 
V.  Kno.K  County  Mut.  Ins.  Co.,  20  Ohio, 

174,  702 
V.  Louisiana  Equi.table  Ins.  Co.,  26  La. 

An.,  404,  1357. 1359 


TABLE  OF  CASKS. 


lis 


Phillips  t'.  Merrimack  Mutual  Fire  Ins.  Co.,  10 
Cush.,  350,  60,  105 

V.  Nairnc,  4  0.  B.,  343;  IG  L.  J.  C.  P., 

194;  UJur.,  455,  1443 

V.  Perry  County  Ins.  Co.,  7  Phila.,073, 

387 
V.  Protection  Ins.  Co.,  14  Mo.,  220, 

544,  835,  1117 

V.  St.  Louis  Perpetual  Ins.  Co.,  11  La.  An., 

459,  30,  783,  843,  1018,  1443 

Philpott  V.  Swann,  11  C.  B.  (N.  S.),2~0:  7  Jur. 

(N.  S.),  1391 :  30  L.  J.  C.  P.,  358;  5  L. 

T.  (N.  S.),  183,  583 

Phoenix  Fire  Ins.  Co.  v.  Cochran,  51  Penn.  St., 

143,  293,  1153 

V.  Gurnee,  1  Paige,  278,  1168 

t).  Philip,  13  Wend.,  81,  535,530 

Phceni.\-  Ins.  Co.  v.  Favorite,  49  111.,  359, 

736,  1009 

V.  Figuef,  7  Johns.,  384,  1383 

V.  Hamilton,  14  Wall.,  504,  73,  736 

V.  Hoffheimer,  46   Miss.,  645, 

739,  1174 
V.  Lawrence.  4  Met.  (Ky.),  9, 

103,  110,457,665,  1484 

V.  McLnon,  100  Mass.,  475,  1471 

V.  Mitchell,  67  III,  43,  1380 

• V.  Munday,  5  Cold.,  547,  557,  976 

V.  Pratt,  3  Binn.,  308,  813 

V.  Taylor,  5  Minu.,  492,  1135,  1316 

Phcenix  Life  Ass.  Co.,  In  re,  31  L.  J.  Ch.,  749; 

3  Johns.  &  H.,  441,  1447 

V.  Sheridan,  8  H.  L.  Ca,,  745 ;  7  Jur.  (N. 

-      S.),  174;    31  L.  J.  Q.  B.,  91;    3  L.  T. 

(N.  S.),  564;  3  El.  &  El.,  763,  943 

Phyn  !).  Koyal   Exchange  Ass.  Co.,  7  Term, 

505,  203, 413 

Pierce  v.  Columbia  Ins.  Co.,  14  Allen,  330, 

1508 

V.  Empire  Ins.  Co.,  63  Barb.,  636,        1381 

1).  Nashua  Fire  Ins.  Co.,  50  N.  11.,  297, 

334,  1385 

D.  Ocean  Ins.  Co.,  18  Pick.,  83,  9 

t.  Travelers  Life  Ins.  Co.,  34  Wis.,  389, 

1357 
Pieschell  v.  Allnutt,  4  Taunt.,  793,  639 

Pike  V.  Merchants  Mut.  Ins.  Co.,  26  La.  An., 

393,  1019 
D.  Merchants  Mut.  Ins.  Co.,  26  La.  An., 

505,  709 

I'illans  V.  Dalgeruo,  Faculty  Dec,  1808  to  1810, 

p.  1,  948 

Pim  ?j.  Reid,  6   M.  &  6.,  1;    6  Scott  N.  R, 

983;  13  L.  J.  C.  P.,  299,  130,  289 

V.  Lewis,  2  F.  &  F.,  778,  2.58 

Pindar  v.  Continental  Ins.  Co.,  38  N.  Y.,  364, 

747 


Pindar  v.  Kings  Connly  Ins.  Co.,  36  N.  T.,  648, 

1213 
V.  Resolute  Fire  Ins.  Co.,  47  N.  Y.,  114; 

38  id.,  364,  .  531 

Pine  «.  Vauuxem,  3  Yeates,  30,  801 

Pinkham  v.  Morang,  40  Me.,  587,  1383 

Pino  V.  Merchants  Mut.  Ins.  Co.,  19  La.  An., 

214,  496,  922,  974 
Pipon  V.  Cope,  1  Camp.,  434,  115 
Pirie  v.  Anderson,  4  Taunt.,  652,  485 
V.  Steele,  8  C.  ■&  P.,  200;  2  M,  &  Rob.,  49, 

844 
Pitney  v.  Glens  Falls  Ins.  Co.,  61  Barb.,  335, 

103,  534,  865,  993,  1127 
Pitt  V.  Berkshire  Life  Ins.  Co.,  100  Mass.,  500, 

934 

Plahto  V.  Merchants  and  Manufacturers  Ins. 

Co.,  38  Mo.,  248,  349 

Planche  ».  Fletcher,  1  Doug.,  251,  933 

Plant  V.  Eufaula  Home  Ins.  Co.,  41  Ga.,  130, 

1372 

Plantamour  c.  Staples,  3  Doug.,  1;    1   Term, 

611  n.,  1031,  1023 

Planters  Mut.  Ins.  Co.  v.  Deford,  38  Md.,  383, 

486,498,503,557,1134 

V.  Lyons,  38  Tex.,  353,  876 

Piatt  V.  Gore  District  Fire  Ins.  Co.,  9  U.  C.  C. 

P.,  405,  1130 

Pleasants  v.  Maryland  Ins.  Co.,  8  Cranch,  56, 

1468 
Plumb  «.  Cattaraugus  Ins.  Co.,  18  N.  Y.,  392, 

459 
Pohalski  v.  Mutual  Life  Ins.  Co.,  45  How.  Pr., 
504;  4  J.  &  Sp.,  234;  56  N.  Y.,  640, 

1360 

Poingdestre  v.  Royal  Exchange  Ass.  Co.,  R.  & 

M.,  378,  843 

Pointer  v.  Merchants  Mut.  Ins.  Co.,  20  La. 

An.,  100,  1253 

Pole  ».  Fitzgerald,  Willes,  641;  4  Bro.  P.  C, 

439,  702,  1041 

Pollard  V.  Bell,  8  Term,  434,  221,  1515 

V.  Somerset  Mutual  Fire  Ins.  Co.,  42  Me., 

221,  107 

Polleys  V.  Ocean  Ins.  Co.,  14  Me.,  141,         517 
Pollock  V.  Donaldson,  3  Dall.,  510,  293 

Pomeroy  v.  Manhattan  Life  Ins.  Co.,  40  III., 
398,  755,  1533 

Pond  V.  King,  1  Wils.,  191,  1410 

V.  Smith,  4  Conn.,  297,  642 

PontifexD.  Bignold,  3  M.  &  G.,  63;  3  Scott  N. 

R.,  390,  509 

Pontz  ».  Louisiana  State  Ins.  Co.,  16  Martin 

(La.),  80,  730 

Poole  t).  Adams,  33  L.  J.  Cli.,  639;  13  W  R., 

683 ;  10  L.  T.  (N.  S.),  387,  1353 


Ix 


TABLE  OF  CASES. 


Poole  s.  Protection  Ins.  Co.,  14  Conu.,  47, 

1508 
Portage  County  Mut.   Ins.  Co.  r.  Stukey,  18 

Ohio,  4.J.5,  77.3 

V.  West,  6  Oliio  St.,  599,  ■     771 

Portsmoutli  Ins.  Co.  t.  Brazee,  16  Oliio,  81, 

14,  382,  1344 
Post  V.  .lEtna  Ins.  Co.,  43  Barb.,  351, 

319,  738,  884,  1106 
V.  Hampsliire  Mutual   Fire  Ins.  Co.,  12 

Met.,  55.i,  281 

V.  Placeuix  Ins.  Co.,  10  Jolins.,  80, 

429,  1408,  1480 
Potter  V.  Campbell,  16  W.  R.,  399,  597 

V.  Ocean  Ins.  Co.,  3  Siimn.,  27.      606,  844 

• V.  Ontario  Mut.  Ins.  Co.,  5  Hill,  147,    8C4 

V.  Providence  Washington    Ins.  Co.,    4 

Mason,  298,  606 
■C.Rankin,  G  L.  R.  Eng.  &  Ir.  App.,  83; 

42  L.  J.  C.  P.,  169 ;  5  L.  R.  C.  P.,  341 ; 

3  id..  562;  22  L.  T.  (N.  S.),  347;  18  id., 

712;  18  W.  R.,  607;  16  id.,  1U49;  13 

L.  J.  C.  P.,  147 ;  37  id  ,  357,       31,  597 

V.  Spilman,  117  Mass.,  322,  55 

V.  Suffolk  Ins  Co.,  2  Sumn.,  197,        1013 

Potts  V.  Bell,  8  Term,  548;  3  Esp.,  712,        646 
V.  Boyle.  Faculty  Dec,  1808  to  1810,  p. 

679,  .  1256 

Pouverin  v.  Louisiana  State  Ins.  Co.,  4  Rob. 

(La.),  2.34,  69,436 
Powell !).  Gudgeon,  5  Mau.  &  Sel.,  431,  1031 
c.  Hyde,  5  El.  &  Bl.,  607;  3  Jur.  (N.  S.), 

87;  35  L.  J.  Q.  B.,  65,  323 

Power  V.  Butcher,  10  B.  &  C,  329 ;  8  L.  J.  K. 

B.,  217,  54 

j>.  City  Fire  Ins.  Co.,  8  Pbila.,  566,      1305 

V.  Ocean  Ins.  Co.,  19  La.  (O.  S.),  28,      110 

V.  Whitmore,  4  Mau.  &  Sel.,  141,    613,  622 

Powles  ».  Innes,  11  Mee.  &  W.,  10;  12  L.  J. 

Ex.,  163,  710 

Prall  D.  Mutual  Protection  Life  Ins.   Co.,  o 

Daly,  298,  373 

Pratt  V.  New  York  Central  Ins.  Co.,  55  N.  Y.,' 

505;  64  Barb.,  .589,  356;  1104 

V.  Union  Mut.  Ins.Co.,  9  Bos.,  97,  315 

Prescott ».  Union  Ins.  Co.,  1  Whart.,  398,    1257 
Preston  v.  Greenwood,  4  Doug.,  28,  1003 

Price  V.  Bell,  1  East,  663,  221 

B.  Dupeau,  1  Brev.,  45-2,  793 

V.  Noble,  4  Taunt.,  123,  617 

V.  Phoenix  Mutual  Life  Ins.  Co.,  17  Minn., 

497,  63,  788,  847,  1196,  1107,  1305 

Prieger  «.  Exchange  Mut.  Ins.  Co.,  6  Wis.,  89, 

1523 
Priest  D.  Citizens  Mutual  Fire  Ins.  Co.,  3  Allen, 

602,  1107 


Prince  v.  Equitable  Safety  Ins.  Co.,  12  Gray, 

527,  282 

Prince  V.  Ocean  Ins.  Co.,  40  Me.,  48J,  1399 

Prince  of  Wales  Ass.  Co.  v.  Palmer,  25  Beav., 

605,  736 

Prince  of  Wales  Life  Ass.  Co.  v.  Harding,  El. 

Bl.  &  El.,  183 ;  4  Jur,  (N.S.),  851 ;  376 

L.  J.  Q.  B.,  297,  333 

Pringle  v.  Hartley,  3  Atk.,  195,  742,  903 

Pritchard  v.  Merchants  and   Traders   Mutual 

Life  Ins.  Co.,  3   C.  B.  (N.  S.),  622;  4 

Jur.  (X.  S.),  307;  27  L.  J.  C.  P.,  169, 

943 
Prichet  v.  Insurance  Co.  of  North  America,  3 

Yeates,  458,  1473 

Protection  Ins.Co.  v.  Hall,  15  B.  Mon.,  411, 

365,  556,  694 

v.  Pherson,  5  Ind.,  417,  1137 

V.  Wilson,  6  Ohio  St.,  553,  69,  1001 

Proudfoot  V.  Montefiore,  2  L.  K.  Q.  B.,  511 ;  15 

W.  R.,  920;  36  L.  J.  Q.  B.,  225;  16  L. 

T.  (N.  S.),  585,  345 

Providence  Life  Ins.  Co.  v.  Martin,  33  Md., 

310,  42,  534,  884 

Providence  and  Worcester  R.  R.  t.  Youkers 

Ins.  Co.,  10  R.  I.,  74,  1004 

Provident  Life  Ins.  Co.  t.  Baum,  29  Ind.,  236, 

840 

V.  Fennel.  49  111.,  180,  1525 

Provincial  Ins.  Co.  t.  Jitna  Ins.  Co.,  16  U.  C. 

Q.  B.,  135,  775 

T!.Lapsley,15Gray,262,  1318 

t).  Leduc,  23  W.  R.,  939;  31  L.  T.  (N.  S.). 

42;  43  L.  J.  P.  C,  49,  1103 

Prows  V.  Ohio  Valley  Ins.  Co.,  2  Cin.  Sup.  Ct, 

14,  675 

Pryce  p.  Security  Ins.  Co.,  39  Wis.,  370.     1320 
Puller  r.  Glover,  12  East,  134,  593 

V.  Halliday,  12  East,  494,  £93 

V.  Slaniforth,  11  East,  233,  593 

Pupke  V.  Resolute  Fire  Ins.  Co.,  17  Wis.,  378, 

163 
Putnam  v.  Mercantile  Marine  Ins.  Co.,  5  Met., 

386,  691 


Q. 


Quebec  Fire  Ass.  Co.  v.  St.  Louis,  7  Moore  P. 

C.  C,  286,  1330 

Quebec  Marine  Ins.  Co.  v.  Commercial  Bauk 

of  Canada,  3  L.  R.  P.  C,  234;  7  Moore 

P.  O.  C.  (N.  R.),  1;  39  L.  J.  P.  C,  53; 

18  W.  R.,  769 ;  22  L.  T.  (N.  S.),  559. 

1263 


TABLE  OF  CASES. 


1x1 


Queeu  v.  Unioa  Ins.  Co.,  3  Wash.  C.  C,  331, 

1420 
Queen  of  Spain  v.  Parr,  39  L.  J.  Cli.,  73, 

216 

Quigler  V.  Mutual  Life  las.  Co.,  4  Am.  Law 

Kec,  559,  1G8 

Quinu  V.  National  Ass.  Co.,  1  Jones  «&  Carey, 

316,  525,  682,801,  1203 


R. 

Raber  v.  Jones,  40  Ind.,  436.  733,  958 

Radclitr  V.  Coster,  Hoff.  Cli.,  98,  141 ,  1338 

Radcliffe  v.  United  Ins.   Co.,  9  Johns.,  38, 

308,  333 

!).  United  Ins.  Co.,  7  Johns.,  377, 

308,  1376 
Rafel  V.  Nashville  Fire  Ins.   Co.,  7  La.  An., 

244,  1010 

Rafferty  v.  New  Brunswick  Fire  Ins.  Co.,  18 

N.  J.,  480,  757 

Railway  Passengers  Ass.   Co.  v.  Burwell,  44 

Ind.,  460,  46,836 

0.  Warner,  1  N.  Y.  S.  C,  31  Add.,  400, 

543 
Raineu.  Bell,  9  East,  195,  431 

Rainsford  v.  Royal  Ins.  Co.,  1  J.  &  Sp.,  453; 

52N.  y.,  626,  1365 

Ralli  V.  Janson,  6  El.  &  Bl.,  433;  2  Jur.  (N.  S  J, 

566;  35  L.J.  Q.  B.,  300,  1504 
V.  Universal  Marine  Ins.  Co.,  4  DeG.,  F. 

&  J.,  1 ;  31  L.  J.  Ch.,  313;  8  Jur.  (N. 

a.),  495 ;  10  W.  K.,  378 ;  6  L.  T.  (N. 

S.),  34,  1476 

Ralston  b.  North  British  Ins.  Co.,  10  Scot.  Jur., 

52,  1309 

J).  Union  Ins.  Co.,  4  Binn.,  386,  19 

Ramsay  Woolen  Cloth  Co.  v.  Mutual  Fire  Ins. 

Co.,  11  U.  C.  Q.  B.,  516,  970,861 

Ramstrom  v.  Bell,  5  Mau.  &  Sel.,  267,  1314 
Randall  v.  Cockran,  1  Ves.,  98,  1331,  1353 
Rankin  v.  Andes  Ins.  Co.,  47  Vt.,  144,  717 

Rann  «.  Home  Ins.  Co.,  59  N.  Y.,  387,  123 
Rapp  );.  Allnutt,  15  East,  601 ,  1314 

Ralhbone  v.  City  Fire  Ins.  Co.,  31  Conn.,  193, 

402, 1114 
Rawlins  v.  Desborough,  8  C.  &  P.,  321;  2  M. 

&  Rob.,  328,  265,  513,  725 

Rawlinson  v.  Janson,  13  East,  3!:'3,  633 

Rawls  V.  American  Mutual  Life  Ins.  Co.,  37 

N.  Y.,282;  36  Barb.,  3.57, 

470,526,  6S4,  1528 


Rayner  v.  Godmond,  5  B.  &  A.,  235,  1334 

B.  Ritson,  6B.  &  S.,  888,  681 

Read  o.  Bonham,  3  B.  &  B.,  147 ;  6  Moore,  397, 

1400 

V.  Isaacs,  6  Moore,  437,  377 

!).  Mutual  Safety  Ins.  Co.,  3  Sandf.,  54, 

707,  1339 
Real  Estate  Mutual  Fire  Ins.  Co.  v.  Rocssle,  1 

Gray,  336,  340 

Reaper  City  Ins.  Co.  v.  Brennan,  58  111.,  158, 

40 

».  Jones,  62  111.,  458 ,  468 

Redfleld  v.  Holland  Purchase  Ins.  Co.,  56  N. 

Y.,  354,  233,689,1323 

Redman  v.  Loudon,  3  Camp.,  503 ;  5  Taunt., 

463;  1  Marsh.,  136,  413 
V.  Wilson,  14  Mee.  &  W.,  476 ;  9  Jur.,  714 ; 

14L.  J.  Ex.,  333,  1156 

Redmond  v.  Smith,  7  M.  &  G.,  457;  8  Scott  N. 

R.,250;  13  L.J.  C.  P.,  159;  8  Jur.  711, 

967,  1254 

Reed  v.  Baird,  Faculty  Dec,  1808  to  1810,  p. 

688,  1186 

B.Cole,  3  Burr.,  1512,  111 

V.  Commercial    Ins.  Co.,  3  Johns.,  353, 

211,426 

0.  Pacific  Ins.  Co.,  1  Met.,  166,  75 

Reeve  v.  Phcenix  Ins.  Co.,  33  La.  An.,  319, 

748 
Reichard  v.  Manhattan  Life  Ins.  Co.,  31  Mo., 

518,  725, 770 

Reid  V.  Allan,  4  Exch.,  326;  19  L.  J.  Ex.,  39; 

13  Jur.,  1082,  963 

!).  Harvey,  4  Dow.,  97,  248 

V.  McMillan,  Faculty  Dec,  1812  to  1814, 

p.  407,  244 
«.  Piedmont  &  Arlington  Life  Ins.  Co., 

58  Mo.,  421,  528,  820 

Reimer  v.  Ringrose,  6  Exch.,  363;  20  L.  J.  Ex., 

175,  1505 

Reis  «.  Scottish  Equitable  Life  Ass.  Co.,  2  H. 

&  N.,  19;  3  Jur.  (N.  S.),  417;  36  L.  J. 

Ex.,  279,  495 

Regnier  v.  Louisiana  Stale  Fire  and  Marine 

Ins.  Co.,  13  La.  (O.  S.),  336, 

149,  553 
Reso.  Gillson,  1  Taunt.,  95;  R.«S;  R.  C.  C,  138, 

150 

V.  Insur/ince  Co.,  2  Phila.,  357,  387 

Reyuer  v.  Hall,  4  Taunt.,  725,  333,  1051 

V.  Pearson,  4  Taunt.,  663,  1051 

Reynolds  v.  Accidental  Ins.  Co.,  18  W.  R.  1141 ; 

32  L.  T.  (N.  S.),  820,  43 
V.  Commerce    Fire  Ins.    Co.,  47  N.   Y., 

597,  497, 664 
V.  Mutual  Fire  Ins.  Co.,  34  Md.,  38l>,     99 


Ixii 


TABLE  OF  CASES. 


Reynolds  v.  Ocean  Ins.  Co.,  1  Met.,  160, 

28 

V.  Ocoan  lus.  Co.,  23  Peck.,  191,         1, 10, 

376,  608,  890,  14S9 

Rhiind  V.  Robb,  Faculty  Dec,  1801  to  1807,  p. 

433,  1477 

Rhind  v.  Wilkinson,  3  Taunt.,  237,       119, 48.5, 

607 

Rliinelander  «.  Insurance  Co.  of  Pennsylvania, 

4  Cranch,  29,  25, 1406 

Rhodes  v.  Hunter,  3H.  &  B.,  581,  209 

V.  Railway  Passengers  Ins.  Co.,  5  Lans., 

71,  46, 318 

Rice  1).  Homer,  13  Mass.,  230,  296,  1156 

V.  New  England  Marine  Ins.  Co.,  4  Pick., 

439,  796 

V.  Provincial  Ins.  Co.,  7  U.  C.  C.  P.,  548, 

553,  715 

V.  Tower,  1  Gray,  426,  101,  650 

Rich  1).  Parker,  7  Term,  705;  2  Esp.,  615, 

813 
Richards  v.  Cowell,  3  Keb.,  174,  966 

«.  Liverpool  &  London  Ins.  Co.,  25  U.  C. 

Q.  B.,  400,  73 

V.  Marine  Ins.  Co.,  3  Johns.,  307,  985 

V.  Protection  Ins.  Co.,  30  Me.,  273,      377, 

748 
Richardson  v.  Anderson,  1  Camp.  43  n., 

1077 

V.  Canada  Farmers  Mut.  Ins.  Co.,  16  U.  C. 

C.  P.,  430,  676,  1143 

V.  London  Assurance   Co.,  4  Camp.,   94, 

1043 

V.  Maine  Ins.  Co  ,  46  Me.,  394,  1087 

V.  North  Missouri  Ins.  Co.,  57  Mo.,  413, 

951 

V.  Stodart,  Faculty  Dec,  1781  to  1787,  p. 

299.  1433 

Richmondville  Seminary  ■».   Hamilton  Mut. 

Ins.  Co.,  14  Gra}-,  459,  86,  91,  480 

Rickards  v.  Murdock,  10  B.  &  C,  537;  8  L.  J. 

K.  B.,  310,  239,  534 

Rickman  v.  Carstairs,  5  B.  &  Ad.,  651 ;  2  N.  & 

M.,  560 ;  3  L.  J.  (N.  S.),  K.  B.  28 ;  2  N. 

&  M.,  563,  988, 1479 

Riddlesbarger  v.  Hartford   Ins.  Co.,  7  Wall., 

386,  770 

Rider  v.  Ocean  Ins.  Co.,  20  Pick.,  359,       113, 

537,  691,  1236 

Ridsdale  B.  Newnham,  4  Camp.,  Ill;  3  Man. 

&  Sel.,  456,  1339 

V.  Shedden,  4  Camp,,  107,  1237,  1314 

Riggin  «.  Patapsco  Ins.  Co.,  7  H.  &  J.,  279, 
300, 374,  410,  429,  1150 
Riley  V.  Delafield,  7  Johns.,  522, 

570 


Riley  v.  Hartford  Ins.  Co.,  2  Conn.,  368, 

466,  60O 

V.  Ocean  Ins.  Co.,  11  Rob.  (La.),  255, 

287,  i49» 

Ripley  v.  ^tna  Ins.  Co.,  30  N.  Y.,  136 ;   29 

Barb.,  552,  771 

V.  Astor  Ins.  Co.,  17  How.  Pr.,  444, 

60,  287,  76» 

V.  Insurance  Co.,  16  Wall.,  336,  4-i 

Rippstein  v.  St.  Louis  Mutual  Life  Ins.  Co.,  57 

Mo.,  86,  36,  58,  1108 

Rising  Sun  Ins.  Co.  v.  Slaughter,  20  Ind.,  520, 

951,  131S 
Rislej,  Succession  of,  11  Rob.  (La.),  298, 

175 
Ritchie  v.  United  States  Ins.  Co.,  5  S.  &  R.,  501, 

1428,  1438 

V.  St.  Barbe,  4  Taunt,  768,  119 

Ritt  11.  Washington  Fire  and  Marine  Ins.  Co., 
41  Barb.,  353,  236 

Ritter  v.  Sun  Mut.  Ins.  Co.,  40  Mo.,  40,         847 
Rix  V.  Mutual  Ins.  Co.,  30  N.  H.,  198, 

383,  832,  916 

Roach  V.  New  York  and  Erie  Ins.  Co.,  30  N. 

Y.,  546,  771 

Robbins  v.  New  York  Ins.  Co.,  1  Hall,  (N.  Y.), 

325,  571 

Robert  v.  New  England  Life  Ins.  Co.,  1  Disney, 

355,  937 

V.  Traders  Ins.  Co.,  17  Wend.,  631;    9 

Wend.,  474,  177,  1335 

V.  Chenango  County  Mut.  Ins.  Co.,  3  Hill, 

501,  304 

Robertson  v.  Atlantic  Mut.  Ins.  Co.,  5  J.  &  Sp. 

(N.  Y.),  442,  587 

V.  Carruthers,  2  Starkie,  571,  1400 

V.  Clarke,  1  Bing.,  445;  8  Moore,  633, 

780 

V.  Columbian  Ins.  Co.,  8  Johns.,  491, 

407,  1328 

■ V.  Ewer,  1  Term,  137,  1037 

«.   French,  4  East,  130;  4  Esp.,  246, 

989 

w.  Hamilton,  14  East,  533,  697 

V.  Majoribanks,  3  Starkie.  573,  1473 

V.  United  States  Ins.  Co.,  3  Johns.  C,  251, 

210 
Robinson  v.  Clitford,  2  Wash.  C.  C,  1,         483 

B.  Commonwealth  Ins.  Co.,  3  Sumn.,  220, 

1506 

i).  Corn  Exchange  Ins.  Co.,  1  Abb.  Pr.  (N. 

S.),186;  1  Rob.  (N.  Y.),  14,  53 

V.   Georges   Ins.  Co.,  17  Me.,  131, 

139,  784 

V.  International  Life  Ass.  Soc,  42  N.  Y. 

(3  Hand.),  54;  52  Barb.,  450,  904 


TABLE  OF  CASfiS. 


Ix 


III 


Rohinson  v.  Jones,  8  Muss.,  530,  431,  1377 

V.  Manufacturers  Ins.  Co.,  1  Met.,  143, 

286,  588 

B.  Marine  Ins.  Co.,  3  Jolms.,  89,  420 

B.  Mercer  County  Mut.  lua.  Co.,  27  N.  J , 

134,  601 

V.  Morris,  5  Taunt.,  730,  645 

V.  Toliin,  1  Starkie,  330,  358 

V.  Toiiray,  1  Mau.  &  Sel.,  317;  3  Camp., 

158,  1393 

V.  United  Ins.  Co.,  1  Johns.,  593,  53 

Roche  ».  Ladd,  1  Allen,  436,  1316 

Rockford  Ins.  Co.  v.  Nelson,  65  111.,  415, 

113,  279,  458,  408,  683,  094,  1378 
Rockingham  Mutual  Fire  Ins.  Co.  v.  Bosher, 

39  Me.,  353,  1343 

Rockwell  ».  Mutual  Life  Ins.  Co.,  30  Wis.,  335 ;  • 

31  id.,  548;  27  id.,  372,  925,  1310 

Rodi  V.  Rutgers  Fire  Ins.  Co.,  6  Bos.,  23, 

956 
Rodocanachi  v.  Elliott,  8  L.  R.  C.  P.,  649:  43 

L.  J.  C.  P.,  247;  31  W.  R.,  810;  28  L. 

T.  (N.  S.),  840;  9  L.  R.  C.  P.,  518;  43 

L.  J.  C.  P.,  255 ;  31  L.  T.  (N.  S.),  239, 

1414 
Roe  V.  Columbus  Ins.  Co.,  17  Mo.,  301,  549 
Roehner  v.  Knickerbocker  Life   Ins.  Co.,  4 

Daly,  513,  933 

Rogers  v.  Charter  Oak  Life  Ins.  Co.,  41  Conn., 

97  343 

-D.  Hosack,  18  Wend.,  319,  30 

11.  Mechanics  Ins.  Co.,  1  Story,  603;  3  id., 

173,  383,  483,  615 
V.  Nashville  Marine  and  Fire  Ins.  Co.,  9 

La.  An.,  537,  604 

V.  Niagara  Ins.  Co.,  2  Hall  (N.  Y.),  86, 

266 

V.  Niagara  Ins.  Co.,  3  Hall  fN.  Y.),  559, 

120 

V.  Traders  Ins.  Co.,  6  Paige  Ch.,  583, 

51,75,758,759,851,  1106 
Roget  V.  Tliurston,  3  Jolms.  C,  248,  404 

Rohl  V.  Parr,  1  Esp.,  444,  1030 

Rohrbach  v.  JEtua  Ins.  Co.,  1  N.  Y.  S.  C,  339, 

690 
Rolker  v.  Great  Western  Ins.  Co.,  42  N.  Y.  (3 

Keyes),  17 ;  4  Abb.  Dec,  76 ;  8  Bos., 

232;  3  Sweeney,  375,  501 

Rollins  V.  Columbian  Mutual  Fire  Ins.  Co., 

25  N.  H.,  200,  61,  108 

Roots  V.  Cincinnati  Ins.  Co.,  1  Disney,  138, 

498 
Roper  0.  Lendon,  1  EI.  &  El.,  835;  5  Jur.  (N. 

S.),  491 ;  38  L.  J.  Q.  B.,  260;  7  W.  R., 

441,  130, 837 

Roscow  V.  Corson,  8  Taunt.,  684,  198 


Rose  J).  Medical  Invalid  Life  Ass.  Soc,  11  C. 

C.  S.,  151, 345 ;  30  Scot.  Jur.,  534, 

353,  535 
Rosenheim  v.  American  Ins.  Co.,  33  Mo.,  330, 

262,  1370 
Rosetto  v.  Gurney,  11  C.  B.,  176;  30  L.  J.  C. 

P.,  357;  15  Jur.,  1177,  1443 
Ross  V.  Bradshaw,  1  W.  Bl.,  313,  1305 
V.  Commercial  Union  Ass.  Co.,  36  U.  C. 

Q.  B.,  533,  55» 
V.  Commercial  Union  Ass.  Co.,  26  U.  C. 

Q.  B.,5.59,  64,510 

V.  Hunter,  4  Term,  33,  199, 847 

Rossifer  b.  Trafalgar  Life  Ass.  Ass.,  37  Bev., 

377,  1085 

Rotch  V.  Edie,  0  Term,  413,  1023 

Roth  V.  City  Ins.  Co.,  6  McLean,  334, 

501,  1067 
Rothwell  V.  Cooko,  1  B.  &  P.,  173,  122» 

Roumage  v.  Mechanics  Fire  Ins.  Co.,  13  N. 

J.,  110,  371, 1136 

Rouse  s.  Insurance  Company,  3  Wall.  Jr.,  367, 

1256 
Rousset    v.  Insurance   Company    of    North 

America,  1  Binn.,  429,  165 

Routh  V.  Thompson,  13  East,  374;  11  id.,  428, 

097 
Routledge  v.  Burrell,  1  H.  Bl.,  254, 

271.  310,  1137 
Roux  V.  Salvador,  1  Bing.  N.  C,  526 ;  1  Scott, 

491;  1   Hodges,  49;  4  L.  J.  (N.  S.), 

C.   P.,   156;   3   Bing.,   N.   C,   266;  4 

Scott,  1;  3   Hodges,  209;  7  L.  J.  (N. 

S.)  Ex.,  328,  1337,  1510 

Rowley  v.  Empire  Ins.  Co.,  36  N.  Y.,  5.50 ;  43* 

N.  Y.  (3  Keyes),  557;  4  Abb.  Dec, 

131,  400,  863,  1068 

Roxburgh  v.  Thompson,  33  C.  C.  S.,  1187, 

804 
Ruan  V.  Gardner,  1  Wash.  C.  C,  145,  1418 
Rucker  ».  Allnutt,  15  East.,  378,  447 

. V.  Ansley,  5  Mau.  &  Sel.,  35,  634 

i\  London  Ass.  Co.,  3  B.  &  P.,  432  n.,     1046 

«.  Lunt,  3  P.  &  F.,  959,  216 

V.  Green,  15  East,  288,  1482 

V.  Palgrave,  1  Taunt,  419 ;  1  Camp.,  557, 

899. 
lluckmaw  v.  Merchants.  Louisville  Ins.  Co.,  5 

Duer,  342,  38,  780,  784,  1026 

Rugely  D.  Sun  Mut.  Ins.  Co.,  7  La.  An.,  379, 

1259,  143;i 
Ruggles  V.  Cliapman,  1  Hun.  (N.  Y.),  324;  3 

N.  Y.  S.  C,  600;  .59  N.  Y.,  163,  399 
Rundell  v.  Moore,  3  Johns.  C,  36.,  1093 

Rupiiert  V.   Union    Mutual    Life    Ins.   Co.,  7 

Rob.  (N.  Y.),  155,  75. 


l.viv 


TABLE  OF  CASES. 


Ruse  ».  Mutual  Benefit  Life  Ins.  Co,  23  N. 

Y.,  51G;  26  Barb.,  556;  24  N.  Y.,  653, 
756,  931,  956 
Uuss  V.  Waldo  Mut.  Ins.  Co.,  53  Me ,  187, 

174,  249 
Russell's  Policy,  In  re.  15  L.  R.  Eq.,  26;  27 

L.  T.  (N.  S.),  706,  173 

Kusscll  !>.  Bangley,  4  B.  &  A.,  396,  897 

V.  Dc  Grand,  15  Mass.,  35,  864 

c.  Dunskey,  6  Moore,  233,  89 

V.  Melropolitan  Ins.  Co.,  51  N.  Y.,  650, 

531 
J,'.  New  England  Marine  Ins.  Co.,  4  Mass., 

82,  994 

V.  State  Ins.  Co.,  55  Mo.,  585,        118,  875 

V.  St.  Nicholas  Fire  Ins.  Co.,  51  N.  Y., 

643,  531 
1).  Thornton,  4  H.  &  N.,  788;  29  L.  J,  Ex., 

9;  6  H.  &  N.,  140;  30  L.  J.  Ex.,  69;  6 

Jur.  (N.  S.),  1080;  8  W.  R.,  615,      245 

V.  Union  Ins.  Co.,  4  Dall.,  421, 

688,  1404 
Kyan  v.  World  Mutual  Life  Ins.  Co.,  41  Conn., 

168,  493,  815,  1086 

Kyder  v.  Commonwealth  Ins.  Co.,  53  Barb., 

447,  1160 
V.  Phoenix  Ins.  Co.,  98  Mass.,  185,        855 


s. 

Sadlers  Ci.  v.  Badcock,  3  Atk.,  554,  710 

Sage  !).  Middletown  Ins.  Co.,  5  Day,  409, 

537,  1050 

V.  Middletown  Ins.  Co.,  1  Conn.,  239, 

1050 
Saidlier  v.  Church,  1  Caines,  297,  u.,  24 

Sale  V.  Sun  Mutual  Ins.  Co.,  3  Rob.  (N.  Y.), 
603,  891 

Salisbury  v.  St.  Louis  Marine  Ins.  Co.,  23  Mo., 
553,  424 

Salouccl  V.  Woodmass,  3  Dong.,  345,  1273 

Saltus  V.  Commercial  Ins.  Co.,  10  Johns.,  487, 

516,  1397 

V.  Ocean  Ins.  Co.,  12  Johns.,  107, 

385,  586 

V.  Ocean  Ins.  Co.,  14  Johns.,  138, 

577,  607,  1.503 

V.  United  Ins.  Co  ,  15  Johns  ,  533, 

144,  366 
Salucci  V.  Johnson,  4  Doug  ,  324,  1279 

Salvador  v  Hopkins,  3  Burr.,  1707,  357 

Salviu  V.  James  6  East.,  571,  943 


Samble  v.  Mechanics  Fire  Ins.  Co.,  1  Hall  (N. 

Y.),  560.  ,  1163 

Samuel  v.  Royal  Exchange  Ass.  Co.,  8  B  &  C, 

119;  6  L  J.  K.  B,315,  1416 

Sanborn  v.  Firemana  Ins.  Co.,  16  Gray,  448, 

537,  885,  1070 
Sanders  v.  Hillsborough  Ins.  Co.,  44  N.  IL,  238, 

68,  283,  56a 
Sanderson  v,  M'Cullom,  4  Moore,  5,  123 

v.  Sy  monds,  1  B.  &  B.,  436 ;  4  Moore,  43, 

121 
Sandford  v.  Mechanics  Mutual  Fire  Ins.  Co , 

13  Cush.,  541,  183,  650 

V.  Trust  Fire  Ins.  Co.,  11  Paige  Ch.,  547, 

838 
Sands  Ale  Brewing  Co.,  In  re,  3  Biss.,  175, 

803 
Sands  V.  New  York  Life  Ins.  Co.,  50  N.  Y., 

636 ;  59  Barb.,  556,  904 

V.  St.  John,  36  Barb.,  638,  1831 

Sansom  v.  Ball,  4  Dall.,  459,  614,  688 

Sarah  Ann,  The  Brig,  3  Sumn,  206,  780 

Sarquy  ».  Hobson,  2  B.  &  C,  7 ;  4  Bing.,  131 ; 

3  D.  &  R,  193;  13  Moore,  474,      1U31 
Sarsfleld  v.  Metropolitan  Ins.  Co.,  61  Barb., 

479;  43  How.  Pr.,  97,  655 

Satterthwait  v.  Mutual  Beneficial  Ins.  Ass.,  14 

Penn.  St ,  393,  357,  805 

Saunders  v.  Frost,  5  Pick.,  359,  803 

Saurez  v.  Sun  Mut.  Ins.  Co.,  3  Sandf.,  483,      6 
Savage  v.  Corn  Exchange  Ins.  Co.,  36  N.  Y., 

055;  4  Bos.,  1,  389 
V.  Howard  Ins.  Co.,  53  N.  Y.,  503;  43 

How.  Pr.,  463 ;  44  id.,  40,  96 

V.  Pleasants,  5  Binn.,  403,  31 

Sawtell  s.  London,  5  Taunt.,  359;  1  Marsh, 

99,  233 

Sawyer  v.  Coasters  Mut.  Ins.  Co.,  6  Gray,  221, 

793,  1514 
V.  Dodge  County  Mut.  Ins.  Co.,  37  Wis , 

503,  1001 

V.  Freeman,  35  Me.,  543,  718 

V.  Maine  Fire  and   Marine  Ins.  Co.,  13 

Mass.,  391,  1397 

Sayles  8.  Northwestern  Ins.  Co.,  3  Curtis,  610, 

1817 
Soanlon  s.  Sceals,  5  Ir.  L.  R.,  139;  6  id.,  367; 

13  id.,  71,  1397 

V.  Union  Fire  Ins.  Co.,  4  Biss.,  511.     103 

Scatchard  v.  Equitable  Fire  Ins.  Co.,  8  U.  C. 

C.  P.,  415,  715 

Schaffer  v.  Baltimore  Marine  Ins.  Co.,  33  Md., 

109,  345 

V.  Kirk,  49  111 ,  351,  275 

1).  Missouri  Home  Ins.  Co.,  46  Mo.,  248, 

343 


TABLE  OF  CASES. 


Ixv 


Schoetzel  v.  Germantown   Farmers  Mut.  Ins. 

Co,  22  Wis.,  412,  127 

Schaible  v  Wasliiugtou  Lifo  Iiis  Co.,  9  Pliila, 

136,  5^8,  BOO 

Schenck  ».  Mercer  Counly  Mutual  Fire  Ins. 

Co.,  24  N.  J.,  447,     :J78,  .52,3,  838,  809, 

Schieffelin  v.  New  York  Ins.  Co.,  9  Johns.,  23, 

318 

Schmidt  v.  New  York  Union  JIutual  Fire  Ins 

Co.,  1  Gray,  529,  148 

S.Peoria   Marine  and   Fire  lus.   Co.,  41 

111.,  295,  494,  529,  1521 

■!>.  United  States  Ins.  Co.,  1  Johns.,  349, 

1407 

Schneider  v.  Provident  Life  Ins.  Co.,  24  Wis., 

28,  43 

Schnakoneg  v.  Andrews,  5  Taunt.,   716, 

1051 

School  District  v.  ^tna  lus.  Co.,  54  Me  ,  505; 

63  id.,  330,  lo85 

Schroeder  v.  Keystone  Ins.  Co.,  2  Phila.,  386, 

773 

a.  Stock  and  Mut.  Ins.  Co.,  46  Mo.,  174, 

778,  801,  1307 

V.  Thompson,  7  Taunt.,  463;  1  Moore,  163, 

433 
V.  Vaux,  15  East,  53;  3  Camp.,  84  n., 

631,  1320 
Schultz  V.  Merchants  Ins.  Co.,  57  Mo.,  331, 

820,  951, 1.529 

»,  Ohio  Ins.  Co.,  1  B.  Mon.,  336,  1060 

«.  Pacific  Ins.  Co.,  14  Fla.,  73, 

823,  1270,  1481 

Schwartz  ».  Germania  Life  Ins.  Co.,  18  Minn., 

448,  351 

V.  Insurance  Co.   of  North  America,  6 

Binn.,  378,  818 

V.  Insurance  Co.  of  North.  America,  3 

Wash.  C.  C,  117,  810 

V.  United  States  Ins.  Co.,  3  Wash.  C.  C, 

170,  1231 

Scoles  V.  Universal  Life  Ins.  Co.,  43  Cal.,  523, 

833, 1397 

Scott  V.  Avery,  8  Ex.,  487 ;  5  H.  L.  Cas.,  811 ;  2 

Jur.  (N.  S.),  815;  25  L.  J.  E.V.,  308;  22 

id.,  157,  287,  1S7 

V.  Bourdillion,  5  B.  &  P.,  213,  1494 

V.  Home  Ins.  Co.,  1  Itil.  C.  C,  105, 

148 

V.  Insurance  Co.,  9  Phila.,  266,  962 

V.  Irving,  1  B.  &  Ad.,  605,  897 

V.  Mcintosh,  3  Dow.,  322,  56 

V.  Miller,  7  S.  &  D.,  56;  5  Scot.  Jur.,  94, 

537 

V.  Niagara  District  Ins.  Co.,  25  U.  C.  Q. 

B.,  119,  991,  1112,  1131,  1144 

E  ■ 


Scott  V.  Phffinix  Ass.  Co.,  Stuart,  854, 

1183 

V.  Pha-ni.x  Ins.  Co.,  Stuart  153,  137 

V.  Quebec  Fire  Ass.  Co.,  Sluart,  147, 

1524. 

V.  Roose,  3  Ir.  Eq.,  170,  1333 

V.  Sea  Ins.  Co.,  3  C.  C.  S.,  467,  537 

V.  Thompson,  4  B.  &  P.,  181,  434 

Scottish  Amicable  Life  Ass.  Soc.  ®.  Fuller,  a 

Ir.  Eq.,  53,  743 

Scottish   Marine  Ins.  Co.  v.  Turner,  4  H.  L. 

Cas.,  311;    1  MacG.  H.  L.  Cas.,  334;  17 

Jur.,  631,  581 

V.  Turner,  15  C.  C.  S.,  33;  13  id.,  652,  989; 

23  Scot.  Jur.,  294,  455,  530,  581 

Scougall  V.  Young,  Faculty  Dec,  1796  to  1801, 

P-  166,  243 

Scriba  v.  Insurance  Co.  of  North  America,  3 

Wash.  C.  C,  107,  98G 

Scripture  v.  Lowell  Mutual   Fire  Ins.  Co.,  10 

Cush.,  356,  1157 

Scurry  v.  Cotton  States  Life  Ins.  Co.,  51  Ga., 

634,  487 

Sea  Fire  and   Life   Ins.  Co.,  In  re,  Ex  parte 

Greenwood,  2  Sm.  &  G.,  95, 
Sea  Ins.  Co.  v.  Fowler,  21  Wend.,  600,  848 

V  Gavin,  2  Dow.  &  C,  129;  4  Bli.  (N.  S.), 

578;.5  S.  &  D.,  535;  2  Scot.  Jur.,  239, 

445,  679 

Seabrook  ».  Underwriters' Agency,  43  Ga.,583; 

49  id.,  563.,  340 

Seagrave  v.  Union  Marine  Ins.  Co.,  1  L.  R.  C. 

P.,  305;  IH.  &R.,  302;  12  Jur.  (N. 

S.),  358;  35  L.  J.  C.  P.,  172;  14  W.  R., 

690;  14  L.  T.  (N.  S.),  479,       704 

Seaman  a.  Fonereau,  2  Strange,  1183,  240 

Seamans  v.  Loring,  1  Mason,  127, 

64,  183,  560,  565,  701 

Seavey  v.  Central  Mutual  lus.  Co.,  Ill  Mass., 

540,  1007 

Seccomb  v.  Provincial  Ins.  Co.,  10  Allen,  305, 

409,  1453 
Security  Fire  Ins.  Co.  v.  Kentucky,  Marine 
and  Fire  Ins.  Co.,  7  Bush.,  81,        885 
Security  Ins.  Co.  v.  Bronger,  6  Bush.,  146, 

552,  816 

v.  Fay,  22  Mich.,  467,  551,  858 

Security  Life  Ins.  Co.  v.  Gober,  50  Ga.,  404, 

939 
Sellar  v.  McVicar,  4  B.  &  P.,  23,  987 

SemmestJ.  Insurance  Cos.,  13  Wall.,  158;  36 
Conn.,  543,  761 

Senat  v.  Porter,  7  Term,  158,  787 

Seton  41.  Delaware  Ins.  Co.,  3  Wash.,  C.  C.  175, 

1438 
V.  Low,  1  Johns.,  C.  1,  626 


Ixvi 


TABLE  OF  CASES. 


878;  31  Scot. 
1334 


V.  Whipple,  1  Bos.,  557, 

Shaw  J),  ^tna  Ins.    Co.,  49  Mo.,  578, 


Settle  V.  St.  Louis  Perpetual  Ins.  Co.,  7  Mo., 
379,  417 

Sevei-eucc  v.  Continental  Ins.  Co.,  5  Biss.,  156, 

1176 

Sewell  V.  Royal  Exchange  Ins.  Co.,  4  Taunt., 
856,  364, 639 

V.  United  States  Ins.  Co.,  1 1  Pick.,  90, 

Sexton  V.  Montgomery  County  Mut.  Ins.  Co., 
9  Barb.,  191,  376,  864,  1089,  1113 

Shader  v.  Kailway  Passengers  Ass.  Co.,  3  Hun. 
(N.  T.),  424;  5  N.  T.  S.  C,  643,      734 

Shand  v.  Blackie,  31  C.   C.  S. 
Jur.,  486, 

Shannon  v.  Kugent,  Hayes,  586,  687 

Sharp  D.  Gladstone,  7  East,  24;  3  Smith,  399, 

600 
1288 

275 

V.  Berkshire  Life  Ins.  Co.,  103  Mass.,  354, 

934 
V.  Robberds,  6  A.  &  E.,  75 ;  6  L.  J.  (N.  S.), 

K.  B.,  106 ;  1  N.  &  P.,  279,  653,  1149 
Shawe  v.  Felton,  3  East,  109,  1475 

SliawmutMut.  Ins.  Co.«.  Stevens,  9  Allen,  332, 

1089 
Shawmut  Sugar  Co.  v.  Hampden  Mut.  Ins.  Co._ 

13  Gray,  540,  562 

Shear  v.  Phoenix  Mutual  Life  Ins.  Co.,  4  Hun. 

(N.  Y.),  800,  913 

Shearer  v.  Louisiana  Ins.  Co.,  14  La.  An.,  809, 

566 
Shearman  v.  Niagai-a  Fire  Ins.  Co.,  46  N.  Y., 

536 ;  3  Sweeney,  470 ;  40  How.  Pr.,  393, 

1379,  1384 

Shedden  v.  Logan,  Faculty  Dec,  1781  to  1787, 

p.  .520,  847 

Shee  V.  Clarkson,  13  East,  507,  1286 

Sheldon  v.  Atlantic  Fire  and  Marine  Ins.  Co., 

26  N.  Y.,  460,  910 
V.  Connecticut  Mutual  Life  Ins.  Co.,  35 

Conn.,  207,  917 

V.  Hartford  Fire  Ins.  Co.,  22  Conn.,  235, 

308,  1196 
SUephard  v.  Union  Mutual  Fire  Ins.  Co.,  38 

N.  H.,  233,  108,  656,  1385 

Shepherd  v.  Chewier,  1  Camp.,  274,  89 

Sheridan  v.  Phoenix  Life  Ass.  Co.,  El.  Bl.  & 

El.,  156 ;  4  Jur.  (N.S.),  831 ;  27  L.  J.  Q. 

B.,  227;7  W.  R,  106,  942 

Sheriff  v.  Potts,  5  Esp.,  96,  418 

Sherlock  v.  Globe  Ins.  Co.,  1   Cin.  Sup.  Ct., 

193,  24,  1154,  1253.  1474 

Sherwood  d.  Ruggles,  3  Sandf.,  55,  1370 

Shiflf  V.  Ins.  Co.,  1  La.  (O.  S.),  305,  891 


Shiff  V.  Louisiana  State  Ins.  Co.,  18  Martin 

(La.),  628,  623 

Shiffner  v.  Gordon,  13  East,  296,  647 

Shilling  V.  Accidental  Death  Ins.  Co.,  1  F.  & 

F.,  116;  3  H.  &  N.,  42;  26  L.  J.  Ex., 

366;  37  id.,  16,  700 

Shirley  v.  Wilkinson,  3  Doug.,  41 ;  1  id.,  306, 

n.,  338 

Shoemaker  v.  Glens  Falls  Ins.  Co.,  60  Barb., 

84,  307, 666 

V.  Smith,  3  Binn.,  239,  109a 

Shotwell  V.  Jefferson  Ins.  Co.,  5  Bos.,  247, 

•  385,  1339 

Shroudenbeck  v.  Phoenix  Ins.  Co.,  15  Wis., 

633,  189 

Shurtlefl"  v.  Phoenix  Ins.  Co.,  57  Me.,  137, 

850. 
Sibbaldj).   Hill,  2   Dow,  263;  Faculty,  Dec, 

1808  to  1810,  p.  303,  796- 

Siflken  u.  Allnut,  1  Mau.  &  Sel.,  39,     633,  798 

V.  Glover,  4  Taunt,  717,  628,  629 

V.  Lee,  5  B.  &  P.,  484,  1279 

Sillem  «.  Thornton,  3  El.  &  Bl.,  868;  18  Jur., 

748,  659 

Silloway  v.  Neptune  Ins.  Co.,  13  Gray,  73, 

7,  184,  259,  428,  692,  1507 
Silva  V.  Linder,  2  Marsh,  437,  734 

V.  Low.  1  Johns.  C,  184,  12o(i 

Silverthorne  v.  Gillespie,  9  U.  C.  Q.  B.,  414, 

1074 
Simeon  v.  Bazett,  2  3Iau.  &  Sel.,  94, 

634 
Simeral  i\  Dubuque  Mut.  Ins.  Co.,  18  Iowa, 

319,  100,309,398 

Simond  v.  Boydell,  1  Doug.,  268,  1230 

Simonds  v.  Hodgson,  3  B.  &  Ad.,  50;  1  L.  J. 

(N.  S.)  K.  B.,  51,  211 

V.  White,  3  L.  J.  K.  B.,  159  62a 

Simonton  v.  Liverpool,  London  and  Globe  Ins. 

Co.,  51  Ga.,  76,  1195. 

Simpson  v.  Accidental  Death  Ins.  Co.,  2  0.  B. 

(N.  S.),  257;  3  Jur.  (N.  S.),  1079;  2S 

L.  J.  C.  P.,  289,  943 
V.  Charleston  Fire  and  Marine  Ins.  Co., 

Dud.  Ap.  (S.  C),  239,  145 

V.  Mountain,  4  L.  J.  (N.  S.)  Oh.,  221, 

205 
V.  Pennsylvania  Fire  Ins.  Co.,  38  Penn. 

St.,  250,  857 
V.  Scottish  Union  Fire  and  Life  Ins.  Co., 

9  Jur.  (N.  S.),  711;  1  H.  &  M.,  618;  33 

L.  J.  Ch.,  339,  56 

V.  Walker,  2  L.  J.  (N.  S.)  Ch.,  55,        1333 

Sims  V.  Gurney,  4  Binn.,  513,  609 

V.  State  Ins.  Co.,  47  Mo.,  54, 

556,  920,  1105,  1203 


TABLE  OF  CASES. 


Ixvii 


Siuclair  o.  Maritime  Passenger  Ins.  Co.,  3  El. 

&  El.,  478;  7  Jur.  (N.  8.),  367;  30  L. 

J.  Q.  B.,  77;  4  L.  T.  (N.  S.),  15;  <J  W. 

R.,  343,  45 

Singleton  v.  Boone  County  Mut.  Ins.  Co.,  45 

Mo.,  250,  93 

Sinnissippi  Ins.  Co.  v.  Taft,  26  Ind.,  240,  155 
-^—  V.  Farris,  20  Ind.,  343,  155 

D.  Wheeler,  36  Ind.,  330,  155 

Siordett  v.  Hall,  4  Bing.,  006,  1031 

Siter  V.  Morns,  13  Pcnn.  St.,  218,  286 

Skidinore  v.  Desdoity,  3  Johns.  C,  77,  649 
Skipper  v.  Grant,  10  C.  B.  (N.  S.),  237,         143 

Slater  v.  Hay  ward  Rubber  Co.,  20  Conn.,  128, 

614 

Sleeper  v.  Union  Ins.  Co.,  61  Me.,  307,         565 

Sleght  e.   Rhinelander,  1  Johns.,  193;  3  id., 

533,  500,  899,  1537 

Sloat  V.  Royal  Ins.  Co.,  49  Penn.  St.,  14,  869 
Sloker  v.  Harris,  3  Mass.,  409,  408 

Slocutn  V.  United  States  Ins.  Co.,  1  Johns.  C, 

153,  5 

Small  V.  Gibson,  4  H.  L.  Cas.,  353;  20  L.J.  Q. 

B.,  153;  15  Jur.,  325;  16  Q.  B.,  128, 

141;  19  L.  J.  Q.  B.,  147;  14  Jur.,  368, 

1244 
Smith  V.  Accident  Ins.  Co.,  5  L.  R.  Ex.,  3')3; 

39  L.  J.  E.X.,  311;  18  W.  R.,  1107;  22 

L.  T.  (N.  S.),  801,  45 

V.  ^tna  Life  Ins.  Co.,  49  N.  Y.,  211,    1306 

B.  Bell,  3  Caiaes  Cas.,  153,  1430 

1!.  Bissett,  Faculty  Dec,  1808  to  1810,  p. 

017,  255,  1249 
V.  Bowditch  Mutual  Fire  Ins.  Co ,  6  Cush., 

448,  1381 
V.  Cash  Mutual  Fire  Ins.  Co.,  24  Penn. 

St.,  320,  476 

V.  Columbia  Ins.  Co.,  17  Pcnn.  St.,  353, 

668, 803 

V.  Delaware  Ins.  Co.,  3  Wash.  C.  C,  127, 

641 

V.  Delaware  Ins.  Co.,  3  S.  &  R.,  74,       638 

t).  Drake,  Faculty  Dec.  1808  to  1810,  p. 

244,  57 

V.  Dreever,  2  C.  C.  S.,  494,  1425 

V.  Empire  Ins.  Co.,  25  Barb.,  497, 

1085, 1485 
V.  Farmers  Mutual  Fire  Ins.  Co.,  19  Ohio 

St.,  287,  073 
».  Flemming,  12  C.  C.  S.,  138;  23  Scot. 

Jur.,  7,  1225,  1477 

V.  Glens  Faljs  Ins.  Co.,  60  Barb.,  556,    47 

V.  Haverhill    Mutual   Fire    Ins.   Co.,   1 

Allen,  397,  1130 
V.  Kerr,  7  C.  C.  S.  (3d  ser.),  863;  41  Scot. 

Jur.,  465,  1531 


Smith  V.  Lascelles,  2  Term,  187,  276,  1450 

V.  Macneil,  3  Dow,  538,  485 

V.  Mechanics  and  Traders  Ins.  Co.,  33  N. 

Y.,  399;  29  How.  Pr.,  384,     603.  1521 
v.  Mississippi  Marine  and  Fire  Ins.  Co., 

11  La.  (O.  S.),  142,  397 
V.  Mobile  Navigation  Ins.  Co.,  30  Ala., 

107,  1453 
V.  Monmouth  Mutual  Fire  Ins.  Co.,  50 

Me.,  96,  107,  174 

V.  Mutual  Lite  Ins.  Co.,  14  Allen,  336,    744 

V.  Newburyport  Mut.  Ins.  Co.,  4  Mass., 

668,  34, 373 
1).  Reynolds,  1  H.  &  N.,  321 ;  25  L.  J.  Ex., 

337,  1463 

V.  Robertson,  2  Dow,  474,  29 

V.  Robinson,  Hayes,  125,  1415 

V.  Saratoga  County  Mutual  Fire  Ins.  Co., 

1  Hill,  497;  3  id.,  508,  17a 

V.  Scott,  4  Taunt.,  120,  228 

V.  Surridge,  4  Esp.,  25,  433 

V.  Touro,  14  Mass.,  113,  1037 

V.  Universal  Ins.  Co.,  6  Wheat.,  176,      146 

B.  Williams,  2  Caines  Cas.,  110,  707 

Snapp  V.  Firemans  Ins.  Co.,  2  Handy,  252, 

1498 
V.  Merchants  and  Manufacturers  Ins.  Co., 

8  Ohio  St.,  458,  1035 

Snell  V.  Delaware  Ins.  Co.,  4  Dall.,  430;    1 

Wash.  C.  C,  509,  383 

Snethen  v.  Memphis  Ins.  Co.,  3  La.  An.,  474, 

1249 
Snow  V.  Columbian  Ins.  Co.,  48  N.  Y.,  624, 

434 
Snowden  v.  Phoenix  Ins.  Co.,  3  Binn.,  457, 

428 
Soares  ».  Thornton,  7  Taunt.,  027;  1  Moore, 

373,  198 

Sohier  v.  Norwich  Fire  Ins.  Co.,  11  .Allen,  330, 

899,  1015 
Solicitors  General  Life  Ass.  Soc.  v.  Lamb,  2 

DeG.,  J.  &  S.,  251 ;  10  Jur.  (N.  S.), 

739 ;  33  L.  J.  Ch.,  436;  12  W.  R.,  941 ; 

lOL.  T.  (N.  S.),  702,  1351 

Solly  «.  Whitmore,  5  B.  &  A.,  45,  414 

Solmes  J).  Rutgers  Fire  Ins.  Co.,  42*  N.  Y.  (3 

Keyes),  416 ;  4  Abb.  Dec,  279 ;  8  Bos., 

578;  5  Abb.  Pr.  (N.  S.),  201,  65 

Solvency  Mutual  Guarantee  Soc,  In  re  Haw- 
thorne's Case,  10  W.  R.,  573;  6  L.  T. 

(N.  S.),  574,  1218 

Somers  v.  Athenaeum,  9  L.  C,  61,  508 

Somerset  Ins.  Co.  v.  McAnally,  46  Penn.  St., 

41,  675 

Somes  V.  Equitable  Safety  Ins.  Co.,  13  Gray, 

531,    '  562, 1288 


Ixviii 


TABLE  OF  CASES. 


Somes  V.  Sugrue,  4  C.  &  P.,  2T6.  1400 

Sorbe  v.  Merchants  Ing.  Co.,  6  La.  (O.  S.),  185, 

982 

Soutli  Australasiaa  Ins.  Co.  ti.'Raudall,  3  L.  R. 

P.  C,  101 ;  6  Moore  P.  C.  C.  (N.  S.), 

341 ;  22  L.  T.  (N.  8.),  843,  727 

Southard  v.  Railway  Passengers  Ass.  Co.,  34 

Conn.,  574,  45 

Southconibe  x.  Merriman,  1  C.  &  M.,  SSG,    725 

Soulhern  Insurance  and  Trust  Co.  v.  Lewis,  42 

Ga.,  587,        467,  652,  820,  1142,  1378 

Southern  Life  Ins.  Co.  v.  Wilkinson,  53  Ga., 

535,  132,  510,  520,  529,  682,  1301 

Soye  V.  Merchants  Ins.  Co.,  6  La.  An.,  761, 

830 

Sparkes  v.   Marshall,  2   Bing.  N.  C,  761;  3 

Scott.,  172;  2  Hodges,  44,  715 

Sparrow  v.  Caruthers,  2  Strange,  1236,        1044 

Spaulding  v.  New  York  Life  Ins.  Co.,  61  Me., 

329,  1093 

Spence  v.  Union  Marine  Ins.  Co.,  3  L.  R.  C.  P,, 

427;  37   L.  J.  C.  P.,   169;  16  W.  R., 

1010;  18  L.  T.  (N.  S),  632,  1431 

Sperry  v.  Delaware  Ins.  Co.,  2  Wash.  C.  C,  243, 

251,  1153.  1275 
Spoyer  v.  New  York  Ins.  Co.,  3  Johns.,  88, 

1427 
Spitta  V.  Woodman,  2  Taunt,  416, 

114,  605,  637 
Spitzer  v.  St.  Marks  Ins.  Co.,  6  Duer,  6,  1195 
Spooner  v.  Rowland,  4  Allen,  485 ,  187 

Spratley  v.  Hartford  Ins.  Co.,  1  Dill.  C.  C,  392, 

59,  1006,  1106 

V.  Mutual  Benefit  Life  Ins.  Co.,  7  Chi.  Leg. 

News,  51,  756,1321 

Spring  V.  South  Carolina  Ins.   Co.,  8  Wheat., 

268,  213,520 

Springfield  Fire  and  Marine  Ins.  Co.  v.  Allen, 

43  N.Y.  (4  Hand),  309,  1375 

Spring  Garden  Mut.  Ins.  Co.  v.  Evans,  9  Md., 

1,  1111 

Sprott  V.  Ross,  16  S.  &  D.,  1145,  732 

Spruill  i\  North  Carolina  Mutu.al  Life  Ins. 

Co.,  t  Jones'  Law,  126,  730 

St.  John  V.  American  ISIutual  Fire  and  Marine 

Ins.  Co.,  11  N.  Y.,  510;  1  Duer.,  371, 

547 

V.  American  Mutual  Life  Ins.  Co.,  13  N. 

Y.,  31 ;  3  Duer.,  419, 

,59,183,718,818,1460,  1463 
St.  Louis  Ins.  Co.  v.  Glasgow,  8  Mo.,  713, 

958,  1154,  1514 

V.  Kyle,  11  Mo.,  378, 

118,834,840,  1116,  1126 

St.  Louis  Mutual  Fire  Tns.  Co.  t.  Boeckler,  19 

Mo.,  135,  153 


St.  Louis  Mutual  Life  Ins.  Co.  c.  Graves,  6 

Bush.,  268,  533,  678,  847,  1359 

V.  Kennedy,  6  Bush.,  450,  350 

v.  Grigsby,  10  Bush,  310,  920 

St.  Nicholas  Ins.  Co.  v.  Mercantile  Mut.  Idb. 

Co.,  5  B6s.,  238,  1451 

St.  Patrick  Ins.  Co.  v.  Brcbener,  8  S.  &  D.,  51, 

757 
Stacey  v.  Franklin  Fire  Ins.  Co.,  2  W.  &  S.. 

506,  478, 8G9 

Stagg  V.  Insurance  Co.,  10  Wall.,  589.        1091 

V.  United  States  Ins  Co.,  3  Johns.  C,  34. 

1416 
Stainbank  ii.  Fenning,  11  C.  B.,  51,  704 

V.  Shepard,  13  C.  B.,  418,  704 

Stamma  v.  Brown,  3  Strange,  1173,  303 

Standard  Oil  Co.  ».  Triumph  Ins.  Co.,  6  N.  Y., 

S.  C,  300,  1216 

Stauiforth  v.  Coombe,  5  Taunt.,  726,  627 

Stanley  v.  Western  Ins.  Co.,  3  L.  R.  Ex.,  71 ; 

37  L.  J.  Ex.,  73 ;  16  W.  R.,  369,  549 
Stanton  v.  Natchez  Ins.  Co., 6  Miss.,  744,  1478 
Starbuck  v.  New  England  Marine  Ins.  Co.,  19 

Pick.,  198,  1266 

Stark  V.  Chesapeake  Ins.  Co.,  7  Cranch,  430, 

225 
Starkweather  v.  Cleveland   Ins.   Co.,  3  Abb. 

C.  C,  67,  180 

Stark  County  Mutual   Ins.   Co.  v.  Hurd,  19 

Ohio,  149,  858 

State  Ins.  Co.  Ex  parte,  18  Wall.,  417,         1189 
State  Fire  Ins.  Co.  In  re,  1  DeG.  J.  &  S.,  634; 

33  L.  J.  Ch.,  123,  758 

State  Mutual  Fire  Ins.  Co.  v.  Arthur,  30  Penn. 

St.,  315,  474,  664 

0.  Roberts,  31  Penn.  St.,  438.  Ifil 

Statham  ».  New  York  Life  Ins.  Co.,  45  Miss., 

581,  366,  908,  953 

Stebbins  v.  Globe  Ins.  Co.,  3  Hall,  633, 

85, 131,  1198, 1451 
Steel  ».  Lacy,  3  Taunt.,  385,  1203 

Steele  v.  Franklin  Fire  Ins.  Co.,  17  Penn.  St., 

290,  565,  850,  1342 

Steinback  v.  Columbian  Ins.  Co.,  2  Caines,  129, 

1487 

V.  Insurance  Co.,  13  Wall.,  183,  1311 

D.  Lafayette  Ins.  Co.,  54  N.  Y.,  90, 

500,  1313 

1\  Ogden,  3  Caines,  1,  195 

».  Rhinelander,  3  Johns.  C.,268,      1227 

Steinmetz  d.  Franklin  Fire  Ins.  Co.,  6  Phila., 

31,  145.5 

V.  United  States  Ins.  Co.,  3  S.  &  R.,  303, 

267 
Stephens  v.  Australasian  Ins.  Co.,  8  L.  R.  C.  P., 

18;  43  L.J.  C.  P.,  12,  985 


TABLE  OF  CASES. 


Ixix 


Stephens  v.  Illinois  Mut.  Ins.  Co.,  -13  111.,  327, 

714 
Stephenson  v.  Pacific  Mut.  Ins.  Co.,  7  Allen 

232,  781 
V.  I'isc:itaqu;i   Fire  and   Marine  Ins.,  54 

Me.,  5.5, 
135,  386,  484, 498, 502, 781, 1248, 1478 
Stevens  v.  Columbian  lus.  Co.,  3  Caines,  43, 

586 
u.  Commercial  Mutual  Ins.  Co.,  20  N.  Y., 

397 ;  0  Duer,  594, .  408 
V.  riiccni.v  Ins.  Co.,  41  N.  Y.,  (2  Hand.), 

149;  24  How.  Pr.,  517,  1188 

Stevenson  «.  Cotton,  8  C.  C.  S.,  872;  18  Scot. 

Jur.,  405,  1354 
V.  London  and  Lancashire  Ins.  Co.,  20  U. 

C.  Q.  B.,  648,  717 

V.  Snow,  3  Burr.,  1237;  1  W.  Bl.,  315, 

1229 
Sterling  v.  Mercantile  Mut.  Ins.  Co.,  32  Penn. 

St.,  75,  962,  1050 

Stetson  V.  Insurance  Co.,  3  Phila.,  380, 

112,  1107 

0.  Insurance  Co.,  4  Phila.,  8,       106,  1289 

V.  Massachusetts  Mutual  Fire  Ins.   Co., 

4  Mass.,  330,  104,  790 

Steward  v.  Phoenix  Fire  Ins.  Co.,  5  Hun.  (N. 

Y.),  261,  306 

Stewart  v.  Aberdein,  4  Mee.  &  W.,  211 ;  7  L.  J. 

(N.  S.),  Ex.,  292,  890 

V.  Bell,  5  B.  &  A.,  238,  1002 

V.  Dunlop,  4  Bro.  P.  C,  483  n.,  247 

V.  Greenock  Marine  Ins.  Co.,  2  H.  L.  Cas., 

159;  1  Macq.  H.  L.  Cas.,  382;  8  C.  C. 

S.,  323;  18  Scot.  Jur.,  151,      602,  1410 
V.  Greenock  Mutual  Ins.  Co.,  6   C.  C.  S., 

359,  1444 
V.  Morrison,  Faculty  Dec,  1778  to  1781, 

p.  102,  239 
V.  Steele,  11  L.  J.  C.  P.,  155;  5  Scott.  N. 

R,  927,  1038 
V.  Tennessee  Marine  and  Fire  Ins.  Co.,  1 

Humph.,  242,  202,  421 
V.  West  Indian  &  Pacific  Steamship  Co., 

42  L.  J.  Q.  B.,  84;  21  W.  R.,  381 ;  27  L. 

T.  (N.  S.),  820;  8  L.  R.  Q.  B.,  362;  21 

W.  R ,  953 ;  28  L.  T.  (N.  S.),  742, 

014 

V.  Western  Marine  and  Fire  Ins.  Co.,  11 

La.  (O.  S.),  53,  892 

V.  Wilson,  12  Mee.  &  W.,  11 ;  13  L.  J.  Ex., 

27,  1203 

Stillwell  V.  Staples,  19  N.  Y.,  401 ;  0  Duer,  03, 

04,  720 

Stimpson  V.  Monmouth  Mutual  Fire  Ins.  Co., 
47  Me.,  379  01,  832 


Stirling  ».  Vaughan,  11  East.,  619;    2  Camp., 

225,  118,090 

Stittr.  AVardell,  3E6p.,  610,  418 

Slockdale  v.  Dunlop,  6  Mee.  &  W.,  334;  9  L. 

.L  (N.  S.),  E.\-.,  83;  4  Jur.,  681,  704 
Stocker  v.  Harris,  3  Mass..  409,  408 
Stokes  11.  Coffey,  8  Bush.,  533,  132!>,  1530 
V.  Cox,  1  H.  &  N.,  533;  3  Jur.  (N.  S.),45; 

20  L.  J.  Ex.,  113,  653 

Stokoe  V.  Cowan,  29  Beav.,  037;  7  Jur.  (N.  S.), 

901 ;  30  L.  J.  Ch.,  882;  9  W.  R,  801 ; 

4  L.  T.  (N.  S.),  095,  167 
Stone  V.  Aberdeen  Marine  Ins.  Co.,  11  C.  C.  S., 

1041,  2.56,778,13.56 

V.  Marine  Ins.  Co.,  1  Ex.  D.,  81, 

415,  1235 

V.  National  Ins.  Co.,  19  Pick.,  34,        196 

V.  United  States  Casualty  Ins.  Co.,  .34  N. 

J.,  371,  42,  1524 

Stooke  J!.  Stooke.  35  Bear.,  396,  204 

Storer  v.  Eaton ,  50  Me.,  219 ,  275 

V.  Elliot  Fire  Ins.  Co., 45  Me.,  175,     502 

V.  Gray,  2  Mass.,  565 ,  1407 

Stormont  v.  Waterloo  Life  and  Casualty  Ass. 

Soc,  1  F.  &  F.,  22,  1360 

Story  V.  Strettel,  1  Dall.  13,  536,  1436 

Stout  V.  City  Fire  Ins.  Co.,  12  Iowa,  371, 

094,  707,  1521 
Stover  V.  Insurance  Co.,  3  Phila.,  38,  1028 
Stowe  J).  Querner,  5  L.  R.  Ex.,  155;  39  L.  J.- 

Ex.,  00;  18  W.  R.,  406;  33  L.  T.  (N. 

S ),  29,  538 

Strachan  v.  M'Dougle,  13  S.  &  D.,  954,  175 
Street  v.  Augusta  Ins.  Co.,  12  Rich.,  13,  230 
Stringer  v.  English  &  Scottish  Marine  Ins^  Co., 

5  L.  R.  Q.  B.,  599;  18  W.  R.,  1201 ;  22 
L.  T.  (N.  S.),  802;  10  B.  &  S.,  770;  4 
L.  R.  Q.  B.,  676,  1403 

Stringham  v.  St.  Nicholas  Ins.  Co.,  42*,  N.  Y. 
(3  Keyes),  280;  4  Abb.  Dec.,  315;  37 
How.,  Pr.  365,  1084 

Strohn  v.  Hartford  Fire  Ins.  Co..  37  Wis., 

648,  70,  78,  350,  502 

V.  Hartford  Fire  Ins.  Co.,  37  Wis.,  025. 

350 
Strong  ».  Firemens  Ins.  Co.,  11  Johns.,  323, 

87 

V.  Harvey,  3  Bing,a04;  4  L.  J.  C.  P.,  57; 

11  Moore,  73,  58,  114,  1304 

V.  Manufacturers  Ins.  Co.,  10  Pick.,  40, 

101,  387,  713,  1374 

Ti.  Martin,  1  C.  C.  S.,  124.5,  200 

V.  Natally,  4  B.  &  P.,  10,  987 

— -  V.  Rule,  3  Bing.,  315  ;  4  L.  J.  C.  P.,  73 ;  11 
Moore,  86,  114 

V.  Sun  Mutual  Ins.  Co.,  31  N.  Y.,  103, 

547 


Ixx 


TABLE  OF  CASES. 


Sturge  «.  Ruhn,  4  Exch.,  646;  19  L.  J.  Ex., 

119,  960 

Sturges  V.  Bush.,  3  Day,  453,  116,  643 

Sturm  V.  Atlantic  Mutual  Ins.  Co.,  6  J.  &  Sp. 

(N.  Y.),  281,  66,  876,  515,  533, 

713,  1157,  1251,  1312,  1469 

V.  Williams,  6  J.  &  Sp.  (N.  Y.),  325, 

479,  537 
Suart  V.  Powell,  1  B.  &  Ad.,  206 ;  8  L.  J.  K.  B., 
391,  1254 

Buckley  ».  Delafleld,  3  Caines,  331, 

194,  625, 1301 
Suffolk  Eire  Ins.  Co.  v.  Boyden,  9  Allen,  123, 

134) 

Sullivan  v.  Cotton  States  Life  lus.  Co.,  43  Ga., 

433,  495, 939 

V.  Massachusetts  Mutual  Fire  Ins.  Co.,  3 

Mass.,  318,  300 

Summers®.  United  States  Insurance  and  Trust 

Co.,  13  La.  An.,  504,  69,  1018 

Sun  Fire  Office  v.  Wright,  3  Nev.  &  Man.,  819 ; 

1  A.  &  E.,  631,  382 

Sun   Ins.   Co.  v.  Earle,  39    Mich.,  400, 

533 
Sun  Mutual  Ins.  Co.  v.  Hall,  104  Mass.,  507, 

303 

V.  Wright,  33  How.,  413,  335 

Sunderland  Marine  Ins.  Co.  v.  Kearney,  16  Q. 
B,  925;  30  L.  J.  Q.  B.,  417;  15  Jur., 
1006,  50,  73,  953 

Supple  V.  Caun,  9   Ir.   C.  L.   R.,   1, 

929,  1331 

Susquehanna  Ins.  Co.  v.  Terrine,  7  W.  &  S., 

348,  1080 

Sussex  County  Ins.  Co.  v.  Woodruff,  30  N.  J., 

541,  361,  4.55,  521,  973,  1328 

Sutherland  v.  Pratt,  11  Mee.  &  W.,  396;    13  L. 

J.  Ex.,  335;  13  id.,  240,  778,  967 

V.  Pratt,  13  Mee.  &  W.,  10 ;    13  L.  J.  Ex., 

240;  7  Jur.,  201,  71 

V.  Sun  Fire  Office,  14  C.  C.  S.,775;  Stuart, 

710;  24  Scot.  Jur.,  440,  1103 

Sutherliu  v.  Underwriters'  Agency,  53  6a.,  443, 

137, 368,  443 
Suydam  v.  Columbus  Ins.  Co.,  18  Ohio,  459, 

888 

V.  Marine  Ins.  Co.,  1  Johns.,  183;   2  id., 

139,  4, 893 

Swanscot  Machine  Co.  v.  Partridge,  25  N.  H., 
309,  153,  187,  1289 

Swan  V.  Union   Ins.  Co.,  3  Wheat,  168, 

200 

Sweeney  v.  Franklin  Fire  Ins.  Co.,  20  Penn. 

St.,  337,  703 

Swete  V.  Fairlie,  6  C.  &  P.,  1,  1311 


Sweeting  v.  Pearce,  7  C.  B.  (N.  S.),  449;  9  id., 

534;  29  L.  J.  C.  P.,  265;  30  id.,  109;  D 

W.  R.,  343 ;  5  L.  T.  (N.  S.),  79,        898 
Swick  V.  Home  Life  Ins.  Co.,  3  Dil.  Cir.  C,  160, 

279,  683,  724,  791 
Swift  V.  Massachusetts  Mutual  Life  Ins.  Co.,  3 

N.  Y.  S.  C,  302;  5  Ins.  L.  J.,  53, 

514,  801 
J).  Mercantile   Mut.   Ins.  Co.,  113  Mass., 

287,  99f) 
V.  Vermimt  Mutual  Fire  Ins.  Co.,  18  Vt., 

305,  1380 

Swinnerton  v.  Columbian  Ins.  Co.,  37  N.  Y., 

174;  9  Bos.,  361,  219,373 

Swords  V.  Blake,  3  Edw.  Ch.,  112,  1288 

Syers  «.  Bridge,  2  Doug.,  527,  294 

Sykes  v.  Perry  County  Mutual  Fire  Ins.  Co., 

34  Penn.  St.,  79,  C57 

Symers  v.  Glasgow  Ins.  Co.,  19  Scot.  Jur.,  49, 

264,  1491 
Symonds  v.  Union   Ins.  Co.,  4  Dall.,  417 ;    1 

Wash.  C.  C,  382,  1403 


T. 

Tabbs  V.  Bendelack,  4  Esp.,  108 ;  3  B.  &  P.,  207 

n.,  225 

Tait  V.  Levi.  14  East,  481,  414 

Talamon  «.  Home  and  Citizens  Mut.  Ins.  Co., 

16  La.  An.,  426,  1193 

Talcot  V.  Commercial  Ins.  Co.,  2  Johns.,  124, 

1346 

V.  Commercial  Ins.  Co.,  3  Johns.,  467, 

818 

V.  Marine  Ins.  Co.,  3  Johns.,  130,       1119 

Tallman  ».  Atlantic  Fire  and  Marine  Ins.  Co., 

43  N.  Y.  (3  Keyes),  87 ;    4  Abb.  Dec, 

345;  39  How.  Pr.,  71,  991 

Tanner  i\  Bennett,  R.  &  M.,  183,  1434 

Tarleton  v.  Staniforth,  5  Term,  695;  1  B.  &  P., 

471 ;  3  Anst.  707,  i)43 

Tasker  v.  Cunuinghame,  1  Bli.,  87,  987 

Tate  0.  Citizens  Mutual  Fire  Ins.  Co.,  13  Gray, 

79,  76 

V.  Protection  Ins.  Co.,  20  Conn.,  481,    197 

Tatham  v.  Commerce  Ins.  Co.,  4  Hun.  (N.  Y.), 

130,  1388 

V.  Hodgson,  0  Term.,  656,  1032 

Taunton  Copper  Co.  v.  Merchants  Ins.  Co.,  22 

Pick.,  108,  39.5 

Tayloe  v.  Merchants  Ins.  Co.,  9  How.,  390, 

312,737,  1105 


TABLE  OF  CASES. 


Ixxi 


Taylor  v.  ^tua  Life  Ins.  Co.,  13  Gray,  434. 

1121,  13G7 
V.  Curtis,  Holt  N.  P.,  192;  2  Marsh,  309; 

6  Taunt.,  008 ;  4  Camp.,  337,  G12 

■».  Dean,  23  Beav.,  429,  739 

V.  Dewar,  5  B.  &  S.,  58;  33  L.  J.  Q.  B., 

141;  12  W.  R.,  579;  10  L.  T.  (N.  S.), 

2G7;  10  Jur.  (N.  S.)  361,  229 
V.  Dunbar,  4  L.  R.  C.  P.,  206;  38  L.  J.  C. 

P.,  178;17  W.  R.,383,  1033 

• «.   Germania  Ins.  Co.,  3  Dil.  C.   C,  282, 

1067 

•O.Lowell,  3  Mass.,  331,  081 

J).  Roger  Williams  Ins.  Co.,  51  N.  H.,  50, 

1134 

V.  Wilson,  15  East,  324, 

Teasdale  v.  Charleston  las,  Co.,  2  Brev, 


1488 
190, 
1424 
1   Allen, 
85 


Tebbets  v.  Hamilton  Mut.  lus.   Co., 

305, 
Tebbetts  v.  Hamilton  Mut.  Ins.  Co.,  3  Allen, 

569,  113, 491 

Teerpenniug  v.  Corn  Exchange  Ins.  Co.,  43  N. 

Y.  (4  Hand.),  279,  526 

Tiegumouth  &  General  Mutual  Ship  Ass'u  v, 

Martin's  Claim,  17  L.  R.  Eq.,  148;  41 

L.  J.  Ch.,  679 ;  26  L.  T.  (N.  S.),  684, 

93 

Tenet  v.  Phceni.x  Ins.  Co.,  7  Johns.,  363;     407 

Tennant  v.  Henderson,  1  Dow,  324,  423 

Tennessee  Fire  and  Marine  Ins.  Co.  v.  Scott, 

14  Mo.,  46,  405 

Tesson  v,  Atlantic  Mut.  Ins.  Co,,  40  Mo.,  33, 

741 
Teutonia  Life  Ins.  Co.  v.  Anderson,  77  111.,  382, 

902,  924 

V.  Beck,  7  Chi.  Leg.  News,  190,     509,  833 

v.  Mueller,  77  III.,  22  126,  903 

Thatcher  v.  Bellows,  13  Mass.,  Ill,  270 

Thayer  «.  Agricultural  Ins.  Co.,  5  Hun.  (N. 

Y.),  566,  476,  834 
c.  Middlesex   Mutual  Fire  Ins.  Co.,  10 

Pick,,  326,  340,  531 

Thelluson  v.  Fletcher,  1  Esp.,  73;  1  Doug.,  315, 

1433 

B.  Shedden,  5  B.  &  P.,  228,  485 

Thellusson  v.  Bewick,  1  Esp.,  77,  382 

V.  Ferguson,  1  Doug.,  360,  435,  1237 

Theobald  v.  Railway  Passengers  Ass.  Co.,  10 

Exch.,  45 ;  23  L.  J.  Ex.,  249,  44 

Thomas  v.  Achilles,  16  Barb.,  491,  153 

V.  Rockland  Ins.  Co.,  45  Me.,  116,  12 

V.  Royal  Exchange  Ass.  Co.,  1  Price,  195, 

447 
Thompson  v.  American  Tontine  Life  Ins.  Co., 

46  N.  Y.,  674,  909 


Thompson  v.  Buchanan,  4  Bro.  P.  C,  483, 

2.53 
V.  Hopper,  6  El.  &  Bl.,  173;  3  Jur.  (N.  S.), 

608;  25  L.  J.  Q.  B.,    340;  6  El.  &  Bl., 

937 ;  3  Jur.  (N.  S.),  133 ;  26  L.  J.  Q.  B., 

18;  El.  Bl.  &   El.,  1038;   5  Jur.  (N. 

S.),  93;27  L.J.  Q.  B.,  441,  1245 

V.  Irving,  7  Mee  &  W.,  367;  5  Jur.,  103, 

635 
V.  Mississippi  Marine  and  Fire  Ins.  Co.,  2 

La.  (O.  S.),  228,         144,  302,  639,  1410 

V.  Montreal  Ins.  Co.,  6  U.  C.  Q.  B.,  319, 

888,  961,  1024 

V.  Read,  12  S.  &  R.,  440,  147 

V.  Reynolds,  7  El.  &  Bl.,  172;  3  Jur,  (N. 

S.),  464;  26  L.J.  Q.  B.,  93,  229 

V.  Rowcroft,  4  East,  34,  603 

V.  Royal  Exchange   Ass.  Co.,   1  Mau.  & 

Sel.,  30,  213 

V.  Royal  Exchange  Ins.  Co.,  16  East,  314, 

1503 

■».  Shepperd,  7  S.  &  D.,  783,  1287 

V.  Speirs,  13  Sim.,  469,  175 

V.  St.  Louis  Mutual  Life  Ins.  Co.,  53  Mo., 

469,  921 

V.  Taylor,  6  Term,  478,  593 

■!).  Whitmore,  3  Taunt.,  337,  1030 

Thomson  v.  Bissett,  4  C.  C.  S.,  670,  946 
V.  Murison,  6  C.  C.  S.,  1120.;  16  Scot.  Jur., 

491,  1327 

V.  Redman,  12  L.  J  Ex ,  310,  954 

Thorndike   v.  Bordman,  4  Pick.,  471, 

443 
Thome  v.  Travelers  Ins.  Co.,  5  Ins.  L.  J.,  169, 

1316 
Thornley  v.  Hebson,  3  B.  &  A.,  513,  1433 

Thornton  v.  Enterprise  Ins.  Co.,  71  Penn.  St. 

234  1343 

V.  Knight,  16  Sim.,  509,  742 

v.  Lance,  4  Camp.,  231.  369 

V.  United  States  Ins.  Co.,  12  Me.,  150, 

621 
»    Western    Reserve    Fire    Ins.   Co.,  31 

Penn.  St.,  529,  1318 

Throop  V.  North  American  Ins.  Co.,  19  Mich., 

423,  959 

Thurston  ».  Columbian  Ins.  Co.,  3  Caines,  89  b, 

201,  406 

V.  Koch,  4  Dall.,  348,  368 

V.  Murray,  3  Binn.,  326,  538 

Thurlell  v.  Beaumont,  8  Moore,  612;  1  Bing., 

339 ;  2  L.  J.  C.  P.,  4,  150 

Thwing  V.  Great  Western  Ins.  Co.,  103  Mass., 

401,  880 
V.  Great  Western  Ins.  Co.,  Ill  Mass.,  93, 

753,  1114 


ixxu 


TABLE  OF  CASES. 


Thwing  V.  Washington  Ins.  Co.,  10  Gray,  443, 

6,  588,  1471 
Tidmarsli  v.  Washington  Fire  and  Marine  Ins. 

Co.,  4  Mason,  439,  845 

Tidswell  v.  Anlieistein,  Pealje's  N.  P.,  204, 

687 
Tifft  V  Phocnis  Mutual  Life  Ins.  Co.,  6  Laus., 

198,  338 

Tillou  V.  Kingston  Mut.  Ins.  Co.,  5  N.  Y.,  405; 

7  Barb.,  570,-  156 

Tilton  V.  Hamilton  Fire  Ins.  Co.,  14  How.  Pr., 

363 ;  1  Bo3.,  367,  1869 

V.  Tremont  Mut.  Ins.  Co.,  12  Gray,  519  n., 

192 

Times  Fire  Ins.  Co.  v.  Hawke,  1.  F.  &  F.,  406; 

5  H.  &  K,  935;  28  L.  J.  Ex.,  317, 

1161 

Times  Life  Ass.  and  Guarantee  Co.,  In  re,  5  L. 

R.  Ch.,  881,  841 

Tippecanoe  Township  v.  Manlove,  39  Ind., 

249,  958 

Tittemore  v.  Vermont  Mutual  Fire  Ins.   Co., 

20  Vt.,  546,  107 

Tobin  D.  Harford,  17  C.  B.  (N.  S),  528;  34  L. 

J.  C.  P.,  37;  10  Jur.  (K  S.),  850;  12 

W.  R.,  1062;  10  L.  T.  (N.  S.),  817;  18 

C.  B.  (N.  S.),  791 ;  9  Jur.  (N.  S.),  992; 

32  L.  J.  C.  P.,  134;  11  W.  R.,  436;  8 

L.  T.  (N.  S.),  21,  1479 

Todd  V.  Ritchie,  1  St;u-kie,  190,  202 

V.  Reid,  4  B.  &  A.,  210,  1290 

Toledo  Fire  and  Marine  Ins.  Co. ».  Speares,  16 

Ind.,  52,  397 

Tolman  v.  Manufacturers  Ins.  Co.,  1  Cush.,  73, 

164 
Tom  V.  Smith,  3  Caines,  245,  1097 

Tomlinson  v.  Monmouth  Mutual  Life  Ins.  Co., 

47  Me.,  232,  98 

Tonge  r..  Kennett,  10  La.  An.,  800,  275 

V.  Watts,  2  Strange,  1251,  572 

Tooley  v.  Railway  Passenger  Ass.  Co.,  3  Biss., 

399,  41 

Toppan  ».  Atkinson,  2  Mass.,  365,  995 

Toulmin  v.  Anderson,  1  Taunt.,  237,  643 

«.  Inglis,  1  Camp,  421,  198 

Towle  V.  National  Guardian  Ass.  Soc,  30  L. 

J.  Ch.,900;  7  Jur.  (N.  S.),  618;  10  W. 

R,  49;  5L.T.  (N.  S.),  193,  794 

Towne  v.  Fitchburg  Mutual  Fire  Ins.  Co.,  7 

Allen,  51,  668 

Townsend  v.  Merchants  Ins.  Co.,  4  J.  &  Sp., 

172;  45  How.  Pr.,  501;  56  N.  Y.,  655, 

509,  517 
D.  Narragansett  Ins.  Co.,  4  J.  &  Sp.,  170 ; 

46  How.  Pr.,  40;  56  N.  Y.,  655, 

517 


Townsend  v.  Northwestern  Ins.  Co.,  18  N.  Y., 
168,  123, 050 

V.  Phillips,  3  Root,  400,  12,  13 

Traders  Ins.  Co.  v.  Roberts,  9  Wend.,  404,    156 

V.  Robert,  9  Wend.,  474;  17  id.,  631, 

177, 1385 

Traill  v.  Baring,  4  DeG.  J.  &  8.,  318;  10  Jur. 

(N.  S.),S77;  12  W.  R.,  078;  10  L.  T. 

(N.  S.),  215;  4  Giff.,  485,  10  Jur.  (N. 

S.),  87;  33  L.  J.  Ch.,  521;  12  W.  R., 

334;  9  L.  T.  (N.  S.),  708,  795 

Train  v.  Holland  Purchase   Ins.  Co.,  1  Hun. 

(N.  Y.),  527;  3  N.  Y.  S.  C,  777;  5  Ins. 

L.  J.,  177,  339 

Trask  v.  State  Fire  and  Marine  Ins.  Co.,  29 

Penn.  St.,  198,  835 

Treadway  b  Hamilton  Mut.  Ins.  Co.,  29  Conn., 

68,  97 

Treadwell  o.  Union  Ins.  Co.,  6  Cow.,  270, 

779,  1250,  1257 
Treat  v.  Union  Ins.  Co.,  .56  Me.,  331,  1248 

Tredwin  ».  Hulman,  1  H.  &  C,  72;  8  Jur.  (N. 

1080;  31  L.  J.  Ex.,  398;  10  W.  R.,  652; 

7  L.  T.  (N.  S.),  127,  138 

Tredegar  v.  Windus,  19  L.  R.  Eq.,  607,         786 
Trench  v.  Chenango  County  Mut.  Ins.  Co.,  7 

Hill,  122,  84 

Trenton   Mutual   Life   and    Fire  Ins.   Co.  v. 

McKelway,  12  N.  J.  Eq ,  133,         803 

V.  Johnson,  24  N.  J.,  576,  685,  846 

Trew  11.  Railway  Passengers  Ass  Co.,  6  H.  & 

N.,  839;  7  Jur.  (N.S),  878;  30  L.J. 

Ex.,  317 ;  9  W.  R.,  671 ;  4  L.  T.  (N.  S ), 

883,  44 

Trimble's  Lyndics  v.  New  Orleans  Ins.  Co., 

3  Martin  (La ),  394,  1284 

Tripp  V.  Pacific  Mut.  Ins.  Co.,  7  Allen,  230, 

1289 
Triston  v  Hardy,  14  Beav ,  282,  1351 

Trott  V.  City  Ins.  Co.,  1  Cliff.,  439,  134 

Trough's  Estate,  8  Phila.,  214,  177 

Troy  Fire  Ins.  Co.  v.  Carpenter,  4  Wis  ,  20, 

534,  902,  951,  1125, 1155 
Trull  V.  Roxbury  Mut.  Ins.  Co.,  3  Cush  ,  263, 

1160 
Trumbull  v.  Portage  County  Mut.  Ins.  Co.,  13 

Ohio,  805,  109 

Trumbull  County  Mutual    Fire  Ins.   Co.  v. 

Horner,  17  Ohio,  407,  1057 

Truscott  V.  Christie,  2  B.  &  B.,  830  ;/5  Moore, 

33,  591 

Tucker  v  DeLonguemare,  1  Johns.,  20,       642 

V.  Provincial  Ins.  Co.,  7  Grant  Ch ,  123, 

1088 
V.  Uuited  Marine  and  Fire  Ins.  Co.,  13 

Mass.,  288,  1038 


TABLE  OF  CASES. 


]x.^ 


Tuckerman  v.  Home  Ins.  Co.,  9  R.  I.,  414, 

719,  819 
v.  Now  England  Mutual  Marine  Ins  Co., 

13  Cush.,  5.54,  1507 

Tulloch  V.  Boyd,  Holt  N.  P.,  487;  7  Taunt., 

472;  1  Moore,  174,  510,  045 

Tunno  v.  Edwards,  13  East ,  488,  1395 

Turley  o.  North  American  Ins.  Co  ,  25  Wend  , 

374,  1132 

Turnbull«.  Woolfe,  3Gi(r,  91,  458 

Turner  v.  Burrows,  5  Wend.,  541 ;  8  id  ,  144, 

248,  489,  995 

-0.  Protection  Ins  Co.,  25  Me ,  515,       430 

».  Quincy  Mut.  Ins.  Co ,  109  Mass.,  568, 

67,  1085 

■».  Stetts,  28  Ala,420.  49 

Turpin  v.  Bilton,  5  M  &  G,  455;  6  Scott,  N. 

R,  447;  7  Jur.,  9.50;  13  L.  J.  C.  P., 

167,  215 

Twemlow  v.  Oswin,  2  Camp,,  85,  1419 

Two  Catherines,  2  Mason,  319,  1242 

Tyler  ».  New  Amsterdam  Fire  Ins.  Co.,  4  Rob. 

(N.  T),  151,  339 

Tyrie  «.  Fletcher,  Cowper,  666,  1233 

l^son  «.  Gurney,  3  Term,  477,  810 


u. 


Uhde  V.  Walters,  3  Camp.,  16,  446 

Underbill  v.  Agawam  Mutual  Fire  Ins.  Co.,  6 

Cush.,  440,  532,  1113,  1526 

Underwood  n.  Farmers  Joint  Stock  Ins.  Co., 

57  N.  Y.,  500;  48  How.  Pr.,  367, 

1122 

1.  Robinson,  4  Camp.,  138,  782 

Underwriters  Agency  «.  Sutherlin,  46  Ga ,  653, 

308 
Unger  v.  Peoples  Fire  Ins.  Co.,  4  Daly,  96, 

554 
Union  Bank  s.  Union  Ins.  Co.,  Dud.  Ap.  (So. 

Car.),  171,  632 

Union  Central   Life  Ins.  Co.,  13.  Thomas,  46 

Ind.,  44,  512,  1310 

Union  Ins.  Co.  v.  Caldwell,  Dud.  Ap.  (So.  Car.), 

263,  379 

■».  Groom,  4  Bush.,  289,  820,  1019 

o.  Hoge,  21  How.,  35;  17  How.  Pr.,  127, 

1447 
e.  Stoney,  Harper,  235 ;  3'  McCord,  387 ; 

4  id.,  511,  350 
«.  Tysen,  3  Hill,  118,     ^                190,436 


Union  Mutual  Fire  Ina.  Co.  t.  Keyser,  33  N. 

H.,  313,  1070 

Union  Mutual  Life  Ins  Co.  ».  McMillen,  24 

Ohio  St.,  67,  937,1319 

United  Ins.  Co.  v.  Scott,  1  Johns.,  106,  51 

United  Life,  Fire  and  Marine  Ins.  Co.  v.  Foote, 

33  Ohio  St.,  340,  548 

United  Life  Ins.  Co.  o.  Insurance  Co.  of  North 

America,  43  Ind.,  588,  1083 

United    Ports    and  General    Ins.   Co.,   In  re 

Evens'  Claim,  10  L.  R.  Eq.,  3.54;  39 

L.  T.  (N.  S.),  22,  841 

United  Stales  Fire  and   Marine   Ins.   Co.  ■». 

Kimberly,  34  Md.,  224,        10*7,  1521 
United  States  Ins.  Co.  v.  Lenox,  1  Johns.  C, 

377;  2  id.,  443,  602 

United  States,  The,  ».  Amedy,  11  Wheat.,  392, 

150,  298 

V.  The  Paul  Shaerman,  Pet.  C.  C,  98, 

423 

r.  Wilder,  3  Sumn.,  308,  615 

Universal  Non  Tariff  Fire  Ins.    Co.,  In  re 

Forbes'  Claim,  19  L.  R.  Eq.,  485 ,     473 
Unthank  v.  Travelers  Ins.  Co.,  4  Biss.,  357, 

1123 
Upton  V.  Salem  Commercial  Ins.  Co.,  8  Met., 

605,  376,  1044 

Urquhart  v.  Australian  Ins.  Co.,  5  Scot.  Jur., 

348,  376 

r>.  Barnard,  1  Taunt.,  450,  445 

Usher  v.  Noble,  13  East,  639,  893 

Usparicha  v.  Noble,  13  East,  333,  632 

Utica  Ins.  Co.  v  American  Mut.  Ins.  Co.,  16 


Barb.,  171, 


453 


V. 


Vairin  «.  Canal  Ins.  Co.,  10  Ohio,  223,        481 

Vale  V.  Phoenix  Ins.  Co.,  1  Wash.  C.  C,  283, 

241 

Vallance  v.  Dewar,  1  Camp.,  503,  438 

Vallezjo  ».  Wheeler,  Lofft,  631 ;   Cowper,  143, 

197 

Valton  ».  National  Life  Fund  Ass'n,  20  N.  Y., 
32;  22  Barb.,  9;  40  N.  Y.  (1  Kcycs), 
21;  4  Abb.  Dec,  437;  17  Abb.  Pr., 
268,  65,479,683,791 

Van  Allen  ».  Farmers  Joint  Stock  Ins.  Co.,  4 
Hun.  (N.  Y.),  413,  1490 

Van  Buren  v.  St.  Joseph  County  Village  Ins. 
Co.,  28  Mich.,  398,  671 

Vance  v.  Forster,  2  Craw.  &  Dix.,  118,         384^ 


Ixxiv 


TABLE  OF  CASES. 


VandegraffB.  Medlock,  3  Porter  (Ala.),  389, 

1334 
Vandenheuvel  «.  United  Ins.  Co.,  1  Johns.,  406, 

611,  1397 

V.  United    States    Ins.  Co.,  3    Jolins.  C, 

127,  811,  1271 

«?.  United  States  Ins.  Co.,  2  Jolins.  Ch., 

4.52,  1276 

Vandervoort  v.  Smith,  3  Caines,  155,  488 

Van  Deiisen  v.  Charter  Oak  Ins.  Co.,  1  Abb. 
Pr.  (N.  S.),  349 ;  1  Rob.  (N.  Y.),  55, 
1133,  1384 
Vandyck  v.  Whitmore,  1  East,  475,  647 

Vandycke  v.  Hewitt,  1  East,  96.  1234 

Vanharthals  d.  Halbed,  1  East,  486  n.,  647 

Van  Inwagen  v.  City  of  Chicago,  61  111.,  31, 

1819,  1364 
Van  Natta  v.  Sun  Mut.  Ins.  Co.,  2  Sandf.,  490, 

717 

Van  Tuyl  v.  Westchester  Fire  Ins.  Co.,  55  N. 

Y.,  657,  1168 

Van  Valkenburgh  v.  Astor  Mut.  Ins.  Co.,  1 

Bos.,  61,  .    1257 

V.  Lenox  Fire  Ins.  Co.,  51  N.  Y.,  465, 

1093,  1319 

Van  Zandt  s.  Mutual  Benefit  Life  Ins.  Co.,  55 

N.  Y.,  169,  1356 

Varet  v.  New  York  Ins.  Co.,  7  Paige  Ch.,  560, 

1336 
Vase  s.  Ball,  2  Yeates,  178;  2  Dall.,  270, 

1377 
Vaughan  v.  Vanderstegen,  2  Drew,  289,  178 
Viall  V.  Genesee  Mut.  Ins.  Co.,  19  Barb.,  440, 

156,  455,  674 
Victorin  e.  Cleeve,  3  Strange,  1250,  370 

Viele  V.  Germania  Ins.  Co.,  26  Iowa,  9, 

277,  497,  665,  1075,  1215 
Vigers  v.  Ocean  Ins.  Co.,  12  La.  (O.  S.),  363, 

144 
Vigoreaux  v.  Lime  Rock  Ins.  Co.,  59  Me.,  457, 

797 

Violett  B.  Allnut,  3  Taunt,,  419,  983 

Visger  1).  Prescott,  5  Esp.,  184,  1410 

Vdgel  V.  Peoples  Mutual  Fire  Ins.  Co.,  9  Gray, 

23,  954,  1384 

Von  Bories  v.  United  Life,  Fire  and  Marine 

Ins.  Co.,  8  Bush.,  133,  873 

Von   Lindenau   v.  Disborrough,   3   C.   &   P., 

353,  7  L.  J.  K.  B.,  43;  3  M.  &  R.,  45; 

8  B.  &  C,  586,  686,  1307 

Von  Tunglen  v.  DuBois,  3  Camp.,  151,        809 

Vos  V.  Robinson,  9  Johns.,  192,    '       407, 1112 

V.  United  Ins.  Co.,  1  Caines  Cas.  VII, 

209 

V.  United  Ins.  Co.,  2  Johns.  C,  469 

806 


Vose  t).  Eagle  Life   and   Health    Ins.   Co.,  6 
Cush.,  42,  533,  1295 

V.  Hamilton  Mut.  Ins.  Co.,  39  Barb.,  302, 

864 


w. 


Waddell  v.  Columbian  Ins.  Co.,  10  Johns.,  61, 

1437 
Waddington  d.  United  Ins.  Co.,  17  Johns.,  23, 

1228 
Wadsworth  v.  Davis,  13  Ohio  St.,  123,         234 

V.  Pacific  Ins.  Co.,  4  Wend.,  34, 

373,  395,  889,  1503 

Wagdell  V.  Provincial  Ins.  Co.,  21  U.  C.  Q.  B., 

612,  754 

Wainewright  v.  Bland,  1  M.  &  Rob.,  481 ;  6 

Tyrw.,  417;  1  Mee.  &  W.,  33;  5  L.  J. 

(N.  S.)  Ex.,  147,  1197,  1462 

Wainhouse  v.  Cowie,  4  Taunt,  178,  644 

Wake  V.  Atty,  4  Taunt,  493,  255 

Wakefield  «.  Martin,  3  Mass.,  538,  177 

Walden  v.  LeRoy,  2  Caines,  263,  607 

V.  Louisana  Ins.  Co.,  12  La.  (0.  S.),  134, 

237,  264 

V.  New  York  Fire  Ins.  Co.,  12  Johns., 

128,  259 

Waldron  v.  Coorabe,  3  Taunt.,  162,        485,  893 
Wales  V.  China  Mut,  Ins.  Co.,  8  Allen,  380, 

1041 
Walker  9.  Boston  Ins.  Co.,  14  Gray,  288, 

389,  1293 

V.  Firemens  Ins.  Co.,  3  Handy,  256, 

997 

D.  Staitland,  5  B.  &  A.,  171,  lloo 

V.  Metropolitan  Ins.  Co.,  56  Me.,  371, 

334,  1114 

5.  Protection  Ins.  Co.,  39  Me.,  317, 

14,  1373 

V.  Provincial  Ins.  Co.,  7  Grant's  Ch.,  137; 

8  id.,  317,  354 

V.  United  States  Ins.  Co.,  11  S.  &.R.,  61, 

609,  1416 

V.  Western  Ass.  Co.,  18  U.  C.  Q  B.,  19, 

1119 

Wall  v.  East  River  Mut.  Ins.  Co.,  7  N.  Y., 

370;  3  Duer.,  264,  1515 

V.  Howard  Ins.  Co.,  51  Me.,  33,  551 

V.  Home  Ins.  Co.,  36  N.  Y.,  157;  8  Bos., 

597,  931 

Wallace  v.  De  Pau,  1  Brev.,  253.  1258 


TABLE  OF  CASES. 


Ixxv 


"Wallace  v.  Insurance  Co.,  4  La.  (O.  S.),  289, 

11(53,  1466 
— ^  V.  Ohio  Ins.  Co.,  4  Ohio,  234,  1498 

V.  Telfair,  2  Term,  188  n.,  276 

Waller  v.  Louisiana  Ins.  Co.,  9  Martin  (La.), 

276,  1063 

Wallersteiu  v.  Columbian  Ins.  Co.,  44  N.  Y., 

204;  3  Rob.  (N.Y.),  528,  1507 

Wallingford  «.  Ilome  Mutual  Fire  and  Marine 

Ins.  Co.,  30  Mo.,  46,  348 

Wain  V.  Thompson,  9  S.  &  R.,  115,  1098 

Walsh  V.  .^tna  Life  Ins.  Co.,  30  Iowa,  133, 

509,  499,  1367 

V.  Frank,  19  x\.rk.,  270,  276 

■ V.  Washington  Marine  Ins.^Cc,  32  N.  Y., 

427;  3  Rob.  (N.  Y.).  203, 

65,  479,  523,  1120,  1250 
Walters  v.  Washington  Ins.  Co.,  1  Cole,  404, 

166,  182,  188,  966 
Walthew  v.  Mavrojani,  5  L.  R.  Ex.,  116;  22 

L.  T.  (N.  S.),  310,  613 

Walton  V.  Louisiana  State  Marine  and  Fire 

Ins.  Co.,  3  Rob.  (La.),  563,  859 

V.  Bethune,  2  Brev.,  453,  1273 

Want  V.  Blunt,  12  East,  183,  943 

Waplcs  V.  Eames,  2  Strange,  1243,  1443 

Ward  4).  Law  Property  Ass.  and  Trust  See,  4 

W.  R.,  605,  835 

«.  Wood,  13  Mass.,  539,  66,  202,  442 

Warder  v.  Horton,  4  Binn.,  529,  813 

Warin  v.  Scott,  4  Taunt.,  605,  644 

Waring  ■».  Indemnity  Fire  Ins.  Co.,  45  N.  Y., 

606,  65, 992 

Warner -0.  Middlesex  Mut.  Ass.  Co.,  31  Conn., 

444,  1382 
V.  Peoria  Fire  and  Marine  Co.,  14  Wis., 

318,  1081,  1118 

V.  Beem,  36  Iowa,  385,  1053 

Warre  v.  Miller,  4  B.  &  C,  538 ;  1  C.  &  P.,  337 ; 

7  D.  &  R.,  1 ;  4  L.  J.  K.  B.,  8,  983 

Warren  v.  Davenport  Fire  Ins.  Co.,  31  la.,  464, 

402 

. V.  Franklin  Ins.  Co.,  104  Mass.,  518, 

633, 1384,  1453 

v.  Manufacturers  Ins.  Co.,  13  Pick.,  518, 

1351 

. V.  Ocean  Ins.  Co.,  16  Me.,  439,       126,  333 

V.  United    States   Ins.  Co.,  2  Johns.  C, 

332,  1242 

Warwick  v.  Scott,  4  Camp.,  63,  309 

Washingtou  County  Mut.  Ins.  Co.  v.  Daw.es,  6 

Gray,  376,  484,  1315 

V.  Chamberlain,  16  Gray,  165,  846 

Washington  Fire  Ins.  Co.  v.  Davison,  30  Md., 

91,  528,  635,  651,  871,  1074,  1459 
e.  Kelly  32  Md.,  421,  39,  109,  1345 


Washington  Ins.  Co.  v.  Hayes,  17  Ohio  St., 

432,  109, 858 

V.  Grant,  2  Penn.  L.  J.,  308,  165 

V.  Reed,  20  Ohio,  199,  1019 

V.  White,  103  Mass.,  238,  193 

Washington  Life  Ins.  Co.  i>.  Haney,  10  Kan., 

525,  133,  516,  529 
V.  Lawrence,  53  Barb.,  307 ;  41  N.  Y.  (3 

Hand),  620,  177 

Washington  Marine  Ins.  Co.  v.  Herckenrath, 

3  Rob.  (N.  Y.),  325,  370 

Washington  Mut.  I  us.  Co.  v.  Merchants  and 

Manufacturers  Ins.  Co.,  5  Ohio  St., 

450,  1460 

Washingtou  Union  Ins.  Co.  v.  Wilson,  7  Wis., 

169,  149 

Wass  V.  Maine    Mutual  Marine  Ins.  Co.,  01 

Me.,  537,  334 
Watchorn  v.  Langford,  3  Camp.,  422,  1011 
Waters  v.  Allen,  5  Hill,  421,  1229 
V.  Merchants  Louisville  Ins.  Co.,  11  Pet., 

213;  1  McLean,  275, 

193,  194,  544,  660,  962, 1152 
v.  Monarch  Fire   Ins.  Co.,  5  El.  &  Bl., 

870 ;  3  Jur.  (N.  S.),  375 ;  25  L.  J.  Q.  B., 

102,  727 

Watkins  v.  Durand,  1  Porter  (Ala.),  251, 

695 

Watson  V.  Clark,  1  Dow,  336,  1353 

V.  Delafield,  3  Caines,  324;  2  Johns.,  526, 

241 

V.  Insurance  Co.  of  North  America,   1 

Biun,  47;  4Dall.,  283.  11 
V.  Insurance  Co.   of  North  America,  3 

Wash.  C.  C,  1,  1478 
V.  Insurance  Co.  of  North  America,  3 

Wash.  C.  C,  480,  536, 539,  1247 
V.  Insurance  Co.   of  North  America,  2 

Wash.  C.  C,  152,  267 

V.  Mainwaring,  4  Taunt.,  763,  1305 

V.  Marine  Ins.  Co.,  7  Johns.,  57, 

388,  607,  6S0 
V.  Swann,  11  C.  B.  (N.  S),  756;  31  L.  J. 

C.  P.,  210,  567 
Watt  t).  Morris,  1  Dow,  32,  1260 
v.  Ritchie,  Faculty  Dec.  1781  to  1787,  p. 

43,  .  853 

Way  V.  Modigliani,  2  Term,  30,  989 

Webb  V.  National  Fire  Ins.  Co.,  2  Sandf.,  497, 

999,  lOOG 

V.  Protection  Ins.  Co.,  14  Mo.,  3,         1371 

V.  Protection  Ins.  Co.,  6  Ohio,  456, 

283,  1019,  1037 

V.  Thompson,  1  B.  &  P.,  5,  370 

Weber  v.  Morris  and  Essex  R.  R.  Co.,  35  N.  J., 

409,  82, 1343 


Ixxvi 


TADLE  OF  CASES. 


Webster  v.  De  Taslet,  7  lerm,  157.  704 

V.  Phoenix  Ins.   Co.,  36  Wis.,  e7, 

875 

-0.  Forster,  1  Esp.,  407,  239 

Wedderbuin  v.  Bell,  1  Camp.,  1,  1263 

"Weed  V.  Mutual  Benefit  Life  Ins.  Co.,  3  J.  & 

Sp.  (N.  Y.),  386,  ■         1360 

V.  Schenectady  Ins.  Co.,  7  Lans.  4."<2, 

306,  978,  1168 
AVeide  t.  Germania  Ins.  Co.,  1  Dil.  C.  C,  441, 

36,  551 
Weir  V.  Aberdeen,  3   B.   &  A.,  330, 

1254 
Wcisenbersrer  v.  Harmony  Ins.  Co.,  56  Penn. 
St.,  443,  493 

Weld  n.  Foster,  5   L.  J.   C.   P.,   13, 

966 

Willard  v.  Millers  and  Manufacturers  Ins.  Co., 

34  Mo.,  561;    30  id.,  35,  589 

Wellcome  v.  Peoples  Equitable  Mutual  Fire 

Ins.  Co.,  3  Gray,  480,  1180 

Welles  V.  Boston  Ins.  Co.,  6  Pick.,  183, 

1009,  1015 

B.  Gray,  10  Mass.,  43,  450,783 

Wells  V.  Archer,  10  S.  &  R,  412,  759 

V.  nopwood,  3  B.  &  Ad.,  20,  1824 

V.  Pacific  Ins.  Co.,  44  Cal.,  397,  331 

V.  Philadelphia  Ins.  Co.,  9  S.  &  R.,  103, 

453 
Welts  V.  Connecticut  Mutual  Life  Ins.  Co.,  48 
N.Y.,  34,  789,1015 

West  V.  Old  Colony  Ins.  Co.,  9  Allen,  316, 

1000 

V.  Reid,  3  Hare,  349 ;  13  L.  J.  Ch.,  245, 

175 

West  Branch  Ins.  Co.  v.  Helfenstein,  40  Penn. 

St.,  289,  105,  181,  833 

Westbury  v.  Aberdein,  2  Mee.  &  W.,  267 ;    6 

L.  J.  (N.  S.)  Es ,  83 ;  1  Jur.,  201,    338 
Western  v.  Genesee  3Iut.  Ins.  Co.,  13  N.  T., 

358,  755,  1447 

Western  Ins.  Co.  v.  Croppen,  33  Penn.  St.,  351, 

379 
Western  Massachusetts  Ins.  Co.  v.  Duffey,  3 

Kan.,  347,  273,  339,  953 

V.  Riker,  10  Mich.,  279,  1389 

V.  Transporta!ion  Co.,  13  Wall ,  201, 

383 
Westfall  r.  Hudson  River  Ins.  Co.,  12  N.  Y., 

389 ;  2  Duer,  490,  .  746 

Westlake  v.  St.  Lawrence  County  Mut.  Ins.  Co., 

14  Barb.,  206,  536,  864,  1106 

Weston  V.  Emes,  1  Taunt.,  115,  495 

Westropp  V.  Bruce,  Batty,  1.55,  514 

Westwood  V.  Bell,  Holt    N.   P.,  133, 

213 


Wetherell  t.  City  Fire  Ins.  Co.,  16  Gray,  276, 

656 
Wetmore  v.  Mutual  Aid  and  Benevolent  Life 

Ins.    Co.,    23  T.n,   An.,    770, 

1372 

Westmore  ach. .  6  Esp.,  109,  1003 

Wheeler  v.  New  York  Mut.  Ins.  Co.,  3  J.  & 

Sp.  (N.  Y.),247,  llOO 

Wheelton  v.  Hardisty,  27  L.  J.  C.  P.,  341 ;  5  Jur. 

fN.  S.),  14,  1198 
V.  Hardisty  8  El.  &  Bl.,  332;    26  L.  J.  Q. 

B.,  365,  507 

Whipple  c.  North  British  and  Mercantile  Ins. 

Co.,  5  Ins.  L.  J.,71,  89^ 

Whitaker  i;.  Farmers  Union  Ins.  Co.,  29  Barb., 

312,  319 

White  V.  British  Empire  Mutual  Life  Ass.  Co., 

7  L.  R.  Eq.,  394,  158 

V.  Brown,  2  Cush.,  412,  1340 

D.  Hudson  River  Ins.  Co.,  7  How.  Pr , 

341 ;  15  id.,  288,  713 

V.  "  Mary  Ann,"  The,  6  Cal.,  462, 

1?48 

V.  Mutual  Fire  Ass.  Co.,  8  Gray,  566, 

86,  498,  650 

V.  Republic  Fire  Ins.  Co.,  57  Me.,  91, 

1193 
Whitehead  v.  Price,  2  C.  M.  &R.,  447;  5  Tyrw., 

825 ;  1  Gale,  151,  967,  1524 

Whltehurstc.  North  Carolina  Mut.  Ins.  Co.,  7 

Jones'  Law,  433,  836 
V.  Fayetteville  Mut.  Ins.  Co.,  6  Jones' 

Law,  353,  1149,  1370 

Whiting  V.  Independent  Mut.  Ins.  Co.,  15  Md., 

297,  453,  1345 

Whitley  v.  Piedmont  and  Arlington  Life  Ins. 

Co.,  71  N.  C,  480,  940 

Whitman  i>:  Mason,  40  Ind.,  189,  958 

V  Meissner,  34  Ind.,  487,  1053 

Whitmarsh  v.  Conway  Fire  Ins.  Co.,  16  Gray, 

359,  13ia 

c.  Charter  Oak  Ins.  Co.,  3  Allen,  581, 

747 
Whitney  1).  American   Ins.   Co.,  3  Cow.,  210; 

5  id.,  713,  1468, 1469 

V.  Haven,  13  Mass.,  173,  427,  490 

V.  New  York  Firemen  Ins.  Co.,  18  Johus^ 

208,  COS 

V.  Ocean  Ins.  Co.,  14  La.  (O.  S.),  485, 

946 

Whiten  V.  Albany  City  Ins.  Co.,  109  Mass.,  24, 

480,  849 

V.  Old   Colony  Ins.   Co.,  3  Met,  1, 

286 

Whittier  v.  Hartford  Fire  Ins.  Co.,  55  N.  H., 

141,  nn- 


TABLE  OF  CASES. 


Ixxvii 


Wliittingham  v.  Thmnbuigli,  3  Vcrn.,  206;  Pr. 

In.  Ch.,  20,  1231 

Whitwell  V.  HiurLsoii,  2  E.\cli.,    137 ;  18  L.  J. 

E.\.,  46.5,  1044 

—  -V.  PutiKHu  Fire  lus.  Co.,  6  Lans.,  166, 


865 
40.5 
164 
419 

285 


W'grgin  V.  Amoiy,  1.3  Mass.,  118, 

o.  Ami'iicaii  Ins.  Co.,  18  Pick.,  1.58, 

«.  Amory,  14  Mass.,  1, 

».  Mercantile  Ins.  Co.,  7  Pick.,  271, 

V.  Suffolk  Ins.  Co.,  18  Pick.,  145, 

164,  451 
Wiglitman  v.  Western   Marine  and  Fire   Ins. 

Co.,  8  Uob.  (La.)  442,     149, 1124,  1524 
Wilbraham  v.  Wartnaby,  8  L.  J.  K.  B.,  255, 

640 
Wilbur?).  Bowditch  Mutual  Fire  Ins.  Co.,  10 

Cush.,  446,  667 

Wilcocks  V.  Union  Ins.  Co.,  2  Binn.,  574, 

196,  812 
Wilkes  V.  Peoples  Fire  Ins.  Co.,  19  N.  Y.,  184, 

712 
Wilkie  B.  Geddes,  3  Dow,  57,  1261 

Wilkins  v.  Tobacco  Ins.  Co.,  1  Cin.  Sup.  Ct., 

349,  1101,  1221 

V.  Tobacco  Ins.  Co.,  2  Cin.  Sup.  Ct.,  204, 

1110 
Wilkinson  b.  Clay,  6  Taunt.,  110,  895 
V.  Connecticut  Mutual  Lite  Ins.  Co.,  30 

la.,  119,  1304 

.V.  Coverdale,  1  Esp.,  75,  49 

e.  Hyde.  3  C.  B.  (N.  S.).  30;  4  Jur.  (N.  S.), 

482;  27  L.  J.  C.  P.,  116,  1511 

I'.  Lindo,  10  L.  J.  E.x:.,  94,  967 

Willard  o.  Millers  and  Manufacturers  Ins.  Co., 

24  Mo,,  561 ;  30  id.,  3o,  499,  589 

Willets  !).  Sun  Mut.  Ins.  Co.,  45  N.  Y.,  45, 

315 
Williams  J).  Albany  City   Ins.  Co.,  19  Mich., 

451,  938 

V.  Babcock,  25  Barb.,  109,  273 

•  t.  Cheney,  8  Gray,  206,  1315 

».  Cole,  16  Me.,  207,  1016 

V.  Corson,  5  Ins.  L.  J.,  313,  204 

V.  Crescent  Mut.  Ins.  Co.,  15  La.  An  ,  651 

871 

».  Delafleld,  3  Caines,  329,  706 

V.  Firemens  Fund  Ins.  Co.,  54  N.  Y ,  509, 

751 
V.  Insurance  Co.  of  North  America,  1 

Hill.,  345,  711,818 
V.  Insurance  Co.  of  North    America,  9 

How.  Pr.,  365,  956 

0.  Kennebec  Ins.  Co.,  81  Me.,  455,       1509 

V.  London  Ass.  Co.,  1  Mau.  &  Scl.,  318, 

6i: 


Williams  v.  Marshall,6  Taunt.,  390;  7  id.,  468; 
1  Moore,  168;  2  Marsh,  92,  045 

t'.  Mechanics  and  Traders  Ins.  Co.,  54  N. 

Y.,  .577,  975 

D.  New  England  Fire  Ins.  Co.,  29  Me., 

465,  706 

®.  New  England  Mut.  Ins.  Co.,  31  Mc, 

219,  199,  1153,  1521 

V.  Ocean  Ins.  Co.,  2  Met.,  803,        60,  1288 

V.  Peoples  Fire  Ins.  Co.,  57  N.  Y.,  374, 

661,  751 

V.  Phffinix  Ins.  Co.,  61  Me.,  67,  555 

V.  Republic  Ins.  Co.,  19  Mich.,  469,      938 

S.Roger  Williams   Ins.  Co.,  107  Mass., 

377,  402 

s.  Shee,  3  Camp.,  469,  433 

V.  Smith,  2  Caines,  1,  1013 

V.  Smith,  3  Caines,  13,      309,  388,  573,  7U 

».  Suffolk  Ins.  Co.,  13  Pet.,  415,  637 

V.  Thorp,  2  Sim.,  357,  175 

V.  Vermont  Mut.  Ins.  Co.,  20  Vt.,  222, 

772 

V.  Washington  Life  Ins.  Co.,  31  Iowa,  541, 

938 

Williamson  v.  Gore  District  Mut.  Ins.  Co.,  26 

U.  C.  Q.  B.,  145,  1467 

V.  Innes,  8  Bing.,  82  n;  1  M.  &  Rob.,  88, 

184,  594, 

V.  Niagara  District  Ins.  Co.,  14  U.  C.  C. 

P.,  15,  955,  970 

V.  Tunno,  1  Brev.,  151,  1278 

Willis  V.  Cooke,  5  El.  &  Bl.,  631 ;  1  Jur.  (N. 
S.),  1164;  25  L.  J.  Q.  B.,  16,  583 

V.  Glover,  4  B.  &  P.,  14,  238 

Wills  V.  Wells,  8  Taunt.,  264,  390 

Wilmot  D.Wilson,  3   C.  C.  S.,  815;  13  Scot. 

Jur.,  337,  214 

Wilson  V.  Min».  Ins.  Co..  27  Vt.,  99,  772 

V.  Conway  Fire  Ins.  Co.,  4  R.  I.,  141, 

1071,  1086 

V.  Creighton,  3  Doug.,  132,  1290 

V.  Forster,  6  Taunt.,  35;  1  Marsh.,  425, 

1428 

V.  Genesee  Mut.  Ins.  Co.,  14  N.  Y.,  418; 

16  Barb.,  511,  1078 

D.  General  Mut.  Ins.  Co.,  13  Cush.,  360. 

194 

V.  Hampden  Fire  Ins.  Co.,  4  R.  I.,  159, 

850,  1378 

B.  Herkimer  County  Mut.  Ins.  Co.,  6  N. 

Y.,  53.  83 

t).  Hill,  3  Met.,  66,  60,1340 

t).  Jones,  1  L.  R.  Ex.,  193 ;  4  H.  &  C,  221 ; 

36  L.  J.  Ex.,  78;  14  W.  R.,  499;  14  L. 
T.  (N.  S.;,  65;  2  L.  It.  Ex.,  139;  15  W. 
R.,  435 ;  15  L.  T.  (N.  S.),  669,  186 


Ixxviii 


TABLE  OF  CASES. 


Wilson  V.  Lynch,  1  Hiul.  &  B.,  336,      398,  969 

V.  Martin,  U  Excli.,  G84;  25  L.  J.Ex.,217, 

690 

V.  Marrjat,  8  Term,  36;  1  B.  &  P.,  430, 

226,  631 
V.  Nelson,  5  B.  &  S.,  354 ;  10  Jur.  (N.  S.), 

1044;  33  L.  J.  Q.  B.,  220;  12  W.  R., 

795;  10  L.  T.  (N.  S.),  523,  1467 
V.  Rankin,  6  B.  &  S.,  208,  221 ;  11  Jur.  (N. 

S),  173;  34  L.  J.  Q.  B.,  62;  13  W.  R., 

104;  12  L.  T.  (N.  S.),  20;  35  L.  J.  Q. 

B.,  203;  14  W.  R.,  198;  13  L.  T.  (N. 

S.),  564;  IL.  R.  Q.  B.,  162,  785 
V.  Royal   Exchange  Ass.  Co.,  2  Camp., 

623,  703,  1503 

V.  Smith,  3  Burr.,  1550;  1  TV.  Bl.,  507, 

1503 

V.  Trumbull   Mutual  Fire  Ins.   Co.,  19 

Penu.  St.,  872,  154 

V.  United  Ins.  Co.,  14  Johns.,  227,         147 

V.  Wordie,  Faculty  Dec,  1781  to  1787,  p. 

207,  1476 

Wiaans  v.  Allemania  Ins.  Co.,  38  Wis.,  342, 

470 
Winchesters.  Stebbins,  16  Gray,  52,  ~  1531 
Windus  V.  Tredegar,  15  L.  T.  (N.  S.),  108,  212 
Wing  V.  Harvey,  23  L.  J  Ch.,  511 ;  5  DeG.  M. 

&  G.,  26o;  18  Jur.,  394,  1367 

Winn  0.  Columbian  Ins.  Co.,  12  Pick.,  279, 

785,  1409,  1439 
Winneshiek  Ins.  Co.  v.  Holzgrafe,  53  111.,  516, 

349,  1087 

V.  Schuyler,  60  111.,  465, 

39,  83,  374,  740,  1118 
Winter  v.  Delaware  Mutual  Safety  Ins.  Co.,  30 

Penn.  St.,  334,  429 

V.  Easum,  2  DeG.,  J.  &  S.,  272,  15-34 

v.  Haldimaud,  2  B.  &  Ad.,  649;  9  L.  J.  K. 

B.,  313,  583 

Winthrop  v.  Union  Ins.  Co.,  3  Wash.,  C.  C.  7, 

399,  432,  539,  1451 
Wise  V.  St.  Louis  Mutual  Ins.  Co.,  33  Mo.,  80, 

78 
Witherlee  v.  Ocean  Ins.  Co.,  24  Pick.,  67, 

377 
Witherell  v.  Maine  Ins.  Co.,  49  Maine,  300, 

344,  464,  535,  1370 

Witt  V.  Amiss,  7  Jur.  (N.  S.),  499;  4  L.  T.  (N. 

S.),  283,  633 

Wittingham  v.  Thornborough,  Fin. ,20 ;  2  Vern., 

206,  36) 

Wolcott  V.  Eagle  Ins.  Co.,  4  Pick.,  429, 

285,  396, 1478 

Wolf  V.  National  Marine  and  Fire  Ins.  Co.,  30 

La.  An.,  583,  484 

V.  Goodhue  Fire  Ins.  Co.,  43  Barb.,  400, 

555 


Wolfe  V.  Horncastle,  1  B.  &  P.,  316,  696 
V.  Howard  Ins.  Co.,  1  Sandf ,  124 ;  7  N.  Y., 

583,  389 

V.  Security  Ins.  Co.,  39  N.  Y.,  49,  50 

Wolroth  V.  St  Lawrence  County  Mut.  Ins.  Co., 

10  U.  C.  Q.  B.,  525,  1384 

Wood  V.  Dwarris,  11  Exch  ,  493;  25  L.  J.  Ex., 

129,  508 
V.  Hartford  Fire  Ins. Co.,  13  Conn.,  533, 

651,  1516, 1528 

V.  Howard  Ins.  Co.,  18  Wend.,  646, 

399 

, V.  Now  England  Mut.  Ins.  Co.,  14  Mass., 

31,  190, 296 

V.  Northwestern  Ins.  Co.,  46  N.  Y.,  421, 

52,  751 

V.  Phcenix  Mutual  Life  Ins.  Co.,  23  La. 

An.,  617,  174 

V.  Pleasants,  3  Wash.  C.  C,  201, 

425,  1025,  1060 

V.  Poughkeepsie  Ins.  Co.,  32  N.  Y.,  619, 

337 

•».  Rutland  Mutual  Fire  Ins.  Co.,  31  Vt., 

553,  357,  996 

Woodbury  Savings  Bank  v.  Charter  Oak  Ins. 

Co.,  29  Conn.,  374,  76 

V.  Charter  Oak  Ins.  Co.,  31  Conn.,  517, 

762, 1171 

Woodfin  v.  Asherville  Mutual  Ins.  Co.,  6  Jones 
Law,  558,  836,  927 

Woodruff  V.  Columbus  Ins.  Co.,  5  La.  An., 
697,  886,  1180 

—. —  V.  Commercial  Mutual  Ins.  Co.,  2  Hilt., 
122,  119.5 

v.  Commercial  Mutual  Ins.  Co.,  3  Hilt., 

130,  1164 
Woods  c.  Atlantic   Mutual  Ins.  Co.,  50  Mo., 

112,  875 

Woodworth  v.  Insurance  Co.,  5  Wall.,  87, 

1385 
Wooldridge  t.  Boydell,  1  Doug.,  16,  987 

Woolf  D.  Clagsett,  3  Esp.,  257,  423 

Woolmer  c.  Mulman,  1  W.  Bl.,  427,  813 

Wooster  v.  Page,  54  N.  H.,  125,  187 

Worcester,   City  of,  «.  Worcester  Mut.  Fire 

Ins.  Co.,  9  Gray,  27,  1537 

Worcester  Bank  ■».  Hartford  Fire  Ins.  Co.,  11 

Cush.,  205,  854 

Work  V.  Merchants  and  Farmers  Mutual  Fire 

Ins.  Co.,  11  Cush.,  271,  75 

Workman  v.  Louisiana  Ins.  Co.,  2  La.  (O.  S.), 

507,  1001 

Works  c.  Farmers  Ins.  Co.,  57  Me.,  281. 

833 
World  Mutual  Life  Ins.  Co.  v.  Schultz,  5  Ins. 

L.  J.,  34,  1304 


TABLE  OF  CASES. 


l.\xi> 


Worsley  v.  Wood,  6   Term,  710;   2   H.  BI., 
574,  271 

Worthington  v.  Bearse,   13  Allen,  383, 

105 

T.  Charter  Oak  Life   Ins.  Co.,  41  Conn., 

373,  907 

Wright  V.  Barnard,  2  Esp.,  700,  486 

V.  Hartford  Fire  Ins.  Co.,  36  Wis.,  523, 

832,  1134 

v.  Orient  Mut.  Ins.  Co.,  6  Bos.,  269, 

1357 

V.  Shiffner,  11  East,  515;  2  Camp.,  247, 

1237 

V.  Ward,  24  L.  T.  (N.  S.),  439,  139 

V.  Welbie,  1  Cliitty,  49,  364,  1483 

Wustum  V.  City  Fire  Ins.  Co.,  15  Wis.,  138, 

826 

Wyman  v.  Peoples  Equity  Ins.  Co.,  1  Allen, 

301,  1139,  1377 

Wynne  v.  Liverpool,  London  and  Globe  Ins. 

Co.,  71  N.  C,  131,  125,  1203 


X. 


Xenos  V.  Fox,  4  L.  R.  C.  P.,  65;  3  id.,  630;  38 
L.  J.  C.  P.,  351 ;  16  W.  R.,  1053 ;  17  id., 
893,  1033 

».  Wickham,  3  L.  R.  Eng.  &  Ir.  App.,  296 ; 

14  C.  B.  (N.  S.),  861 ;  16  L.  T.  (N.  S.), 
800;  16  W.  R.,  38;  36  L.  J.  C.  P.,  313; 
13  C.  B.  (N.  S.),  381;  14  id.,  435;  9 
Jur.  (N.  S),  471;  10  id.,  339;  11  W. 
R.,  1067;  33  L.  J.  C.  P.,  13. 

1093,  1324 


Y. 

Yates  0.  Whyte,  4  Bing.  (N .  C),  373 ;  7  L.  J.  (N. 

S.)  C.  P.,  116,  134» 

Yeaton  v.  Fry,  5  Crauch.,  335,  391 

Yelton  V.  Smith,  Faculty  Dec,  1801  to  1807,  p. 

7,  669> 

York  County  Mutual  Fire  Ins.  Co.  v.  Bowden, 

67  Me.,  286,  155 

V.  Knight,  48  Me.,  75,  1330 

n.  Turner,  53  Me.,  335,      .  154 

Young  V.  Deas,  Faculty  Dec,  1796  to  1801,  p. 

140,  1477 

V.  Eagle  Fire  Ins.  Co.,  14  Gray,  150, 

97,  161 
V.  Pacific  Mut.  Ins.  Co.,  2  J.  &  Sp.  (N. 

Y.),  331,  848 
v.  Turing,  2  M.  &  G.,  593;  3  Scot.  N.  R., 

752,  1401 
v.  Washington  County  Mut.  Ins.  Co.,  14 

Barb.,  545,  1148 

Yonkers  Ins.  Co.  v.  Hoffman  Fire  Ins.  Co.,  6 

Rob.  (N.  Y.),  316,  501, 1184 

z. 

Zacharie  ii.  Orleans  Ins.  Co.,  17  Martin  (La.), 
637,  1045- 

Zallee  v.  La  Clede  Mutual  Fire  and  Marine 
Ins.  Co.,  44  Mo.,  530,  140 

Zeno  V.  Louisiana  State  Ins.  Co.,  2  La.  (0.  S.), 
533,  1373 

Zino  B.  Louisiasa  Ins.  Co.,  18  Martin  (La.),  62, 

1278. 

V.  Westmore,  6  Esp.,  109,  1002 


A  DIGEST 


OP 


THE  LA¥  OP  INSURANCE. 


ABANDONMENT. 

(SeeFKEianx;  Mastekof  Ship;  Total  Loss.) 

I.  Who  may  make. 
II.  What  is  sufficient. 

III.  IS  NOT  SCFFICIENT. 

IV.  JUSTIFIES. 

V.  DOES  NOT  JUSTIFY. 

VI.  When  necessary. 

VII.  NOT   NECESSARY. 

VIII.  IN   TIME. 

IX.  NOT   IS   TIME. 

X.  What  waives  the  kight. 

XI.  DOES  NOT  WAIVE  THE  RIGHT. 

XII.  When  conclusive. 

XIII.  What  it  carries. 

XIV.  IS  AN   ACCEPTANCE   OF. 
XV.                   IS  NOT  AN  ACCEPTANCE  OP. 

XVI.  Generally. 

I.  Who  mat  make. 

1.  The  person  insured  for  whom  it  may  con- 
cern, loss  payable  to  himself,  is  authorized, 
prima  facie,  to  abandon  in  case  of  loss  for 
himself  and  for  those  for  whom  the  insurance 
was  eflected.  Reynolds  v.  Ocean  Ins.  Co.,  23 
Pick.,  191. 

2.  The  agent  who  makes  insurance  for  his 
principal  has  authority  to  abandon  to  the  in- 
surers without  a  formal  letter  of  attorney ;  and 
a  deed  of  cession  is  unimportant,  because  it  is 
not  essential  to  the  rights  of  either  parly. 
Chesapeake  Ins.  Co.  v.  Stark,  6  Cranch,  308. 

3.  There  was  not  any  evidence  of  a  formal 

1 


abandonment;  but  the  person  who  held  the 
policy  called  on  insurers  and  made  a  demand 
as  for  a  total  loss.  Insurers  asked  him  if  the 
policy  was  indorsed,  or  if  he  had  a  power  of 
attorney;  he  answered  in  the  negative;  and 
insurers  told  him  the  matter  must  lie  over 
till  he  obtained  authority.  The  person  who 
made  the  demand  was  the  same  who  effected 
the  insurance.  Held,  he  was  authorized  to 
abandon,  and  demand  for  a  total  loss  was  an 
abandonment.  Cassedy  v.  Louisiana  State  Ins. 
Co.,  18  Martin  (La.),  431. 

II.  "What  is  sufficient. 

1.  The  master's  protest,  made  before  the 
American  consul,  contained  the  following 
clause:  '■  I,  the  said  consul,  at  the  request  of 
the  said  master,  Joseph  Sew  ard,  do  hereby  in- 
timate, declare  and  make  known  to  the  under, 
writers  of  the  said  schooner  Francis,  and  to 
the  underwriters  upon  her  cargo,  that  the  said 
master  for  himself,  and  in  behalf  of  the  own- 
ers of  said  schooner  and  cargo,  doth  abandon, 
cede,  and  leave  to  them,  the  said  underwriters, 
and  to  each  and  every  of  them,  all  his,  the 
said  master's,  and  theirs,  the  said  owners, 
right,  title,  interest,  profit,  property,  claim,  de- 
mand  and  produce  of  and  in  the  said  schooner 
Francis  and  her  cargo,  and  to  the  tackle,  ap- 
parel and  furniture  of  said  schooner,  and  that 
the  aforesaid  master  doth  claim  on  behalf  as 
aforesaid  reimbursement  for  the  same  as  a 
total  loss."  This  was  forwarded  to  the  insur- 
ers  May  4th,  and  the  insurers  said  that  further 


ABANDONMENT. 


What  is  not  sufficient. 


proof  of  loss  would  receive  immediate  atten- 
tion.  On  the  5th,  further  proofs  of  the  loss 
and  a  statement  of  it  were  forwarded  to  the 
underwriters;  the  protest  was  sent  by  the  in- 
sured to  their  insurers.  Held,  if  it  had  been 
communicated  fi'om  the  master  directly  with- 
out authority  shown  by  him  to  make  abandon- 
ment, it  would  have  been  invalid;  but  when 
the  insured  sent  the  protest  which  contained 
a  notice  of  abandonment  made  by  the  direc- 
tion of  the  master,  they  then  adopted  his  act 
and  it  became  a  valid  abandonment.  Patapsco 
Ins.  Co.  V.  Southgate,  5  Pet.,  604. 

2.  The  goods  were  seized  by  the  French 
government,  of  which  insured  had  notice  Au- 
gust, 1793.  Yellow  fever  soon  after  made  its 
appearance  in  Philadelphia,  and  insured  re- 
tired with  his  family  to  the  country,  Septem- 
ber 10th.  After  the  pestilence  abated,  he,  in 
common  with  other  citizens,  returned  to  Phil, 
adelphia  November  19th,  and  then  went  on  a 
business  journey  to  South  Carolina  January 
21st  following.  In  a  letter  to  his  insurers  he 
stated  that  he  "  meant  to  abandon."  Held,  it 
was  sufficient  if  the  plaintiff  mad&  out  that  he 
meant  to  abandon;  whether  the  abandonment 
was  in  time  was  a  question  for  the  jury,  who 
were  to  decide  whether  it  was  made  within  a 
reasoijable  time.  Bell  v.  Beveridr/e,  4  Ball., 
373;  1  Binn.,  53n. 

3.  All  that  the  law  requires  to  give  validity 
to  an  abandonment  is  an  unequivocal  deter- 
mination and  ofl'er  to  abandon,  together  with 
the  particular  cause  upon  which  it  is  ground- 
ed, and  the  requisite  documents.  Proof  of  in- 
terest and  loss  may  be  delivered  at  any  time 
after  the  abandonment.  Barker  v.  Phcenix  Ins. 
Co.,  8  Johns.,  307. 

4.  Tlie  letter  of  abandonment  stated :  "  Hav- 
ing received  information  of  the  condemnation 
of  the  ship  at  Humboldt,  Cal.,  I  hereby  aban- 
don all  in  said  vessel  insured  by  policy  of  the 
Eagle  Ins.  Co.,  No.  105,  dated  July  15,  1850, 
foi  $.5,000,  and  claim  as  for  a  total  loss."  Held, 
a  sufficient  abandonment.  Heebner  v.  Eagle 
Ins.  Co.,  10  Gray,  131. 

5.  The  broker  who  effects  the  policy  is  the 
agent  of  both  parties,  and  a  notice  of  aban- 
donment to  him  is  sufficient.  Crousillat  v.  Ball, 
8  Yeates,  375;  4  Dall.,  294. 

6.  The  "  Wilmington,"  while  navigating  the 
Mississippi,  exploded  one  of  her  boilers;  she 
was  partially  destroyed,  and  many  lives  lost. 
She  was  towed  to  the  port  of  St.  Louis,  where 

2 


tlie  insurers  kept  their  principal  office.  In- 
sured abandoned  her  at  St.  Louis,  and  stated 
as  cause  for  abandonment,  "the  destructioa 
of  the  Wilmington  by  the  late  disaster."  Held, 
a  sufficient  assignment  of  the  true  cause.  Citi- 
zens' Ins.  Co.  V.  Glasgow,  9  Mo.,  400. 

III.  What  is  not  sufficient. 

1.  On  cargo  to  port  or  ports  at  Cuba,  thence 
to  the  home  port,  free  from  loss  whicli  might 
arise  in  consequence  of  a  seizure,  or  detention 
for  or  on  account  of  illicit  or  prohibittd  trade. 
Persons  pretending  to  exercise  authority  pre- 
vented vessel  from  entering  the  port  of  destln;v. 
tion.  She  attempted  to  make  another  Cub.an 
port  but  was  driven,  by  bad  weather,  into  Port 
Republican,  in  the  island  of  Hispaniola,  at 
which  persons  pretending  to  have  authority 
took  out  the  cargo,  against  the  will  of  the 
master,  who  was  forced  to  sell  it  there  at  a 
great  loss.  Insured  abandoned  and  stated  as 
the  ground  of  abandonment,  that  the  master 
was  not  permitted  to  enter  the  port  of  destina- 
tion. Held,  a  denial  of  entry  at  the  port  of 
destination  without  any  seizure  or  arrest  by 
government  is  not  a  loss  within  tlie  policy; 
th.at  the  cause  assigned  being  insufficient,  the 
insured  was  bound  by  it,  and  could  not  be 
permitted  to  urge  a  subsequent  cause  without 
making  a  new  abandonment  on  that  ground. 
Suydain  v.  Marine  Ins.  Co.,  1  Johns.,  183. 

2.  If  the  causes  assigned  for  breaking  up 
the  voyage  are  not  sufficient  to  authorize  it, 
the  insurer  is  not  lialile  for  loss  on  ship,  car- 
go, or  freight.  Craig  v.  United  Ins.  Co.,  R 
Johns.,  326. 

3.  The  notice  of  abandonment  stated :  "  Tlie 
vessel  has  been  compelled  to  seek  the  port  of 
Savannah,  in  distress,  where  she  arrived,  we 
hear,  with  several  feet  of  water  in  her  hold 
The  cargo  was  landed  and  found  very  serious- 
ly damaged."  Held,  the  notice  of  abandon, 
ment  was  insufficient,  for  it  ought  to  have 
stated  truly,  not  only  the  grounds  of  abandon, 
ment,  but  they  should  have  been  set  forth  with 
such  piirticularity  that  the  underwriter  could 
have  determined  from  it  whether  he  was  or 
was  not  bound  to  accept  the  abandonment. 
McConochie  v.  Sun  Mat.  Ins.  Co.,  36  N.  Y., 
477;  reversing  S.  C,  3  Bos.,  99. 

4.  Insured  offered  to  abandon  in  the  follow, 
ing  words :    "  I  observe  by  the  Boston  news- 


ABANDONMENT. 


What  justUies. 


paper  of  January  29th,  that  the  ship  General 
Smith,  insured  in  your  office  per  policy  76G1, 
was  driven  asliore  in  a  heavy  gale  of  wind  De- 
cember (itli,  and  by  a  Cluerleston  paper  of  Jan- 
uary 20th,  that  on  ".iio  IJith  slie  was  not  got  off. 
In  so  dangerous  a  situation  as  Ilelvoet  Koads, 
it  is  to  be  feared  a  total  loss  has  ensued;  I 
therefore,  as  a  measure  of  precaution  both  for 
your  interest  and  my  own,  abandon  to  you  and 
claim  for  a  total  loss."  Held,  mere  stranding 
in  not  cause  for  abaudonment,  nor  docs  immi- 
nent danger  of  being  wrecked  justify  au.aban- 
donment  and  recovery  for  a  total  loss.  The 
danger  must  not  only  be  imminent,  but  the 
loss  must  be  in  the  highest  degree  probable. 
Bodey  v.  Chesapeake  Ins.  Go.,  3  G.  &  J.,  450. 

IV.  What  justifies. 

1.  On  cargo.  Ship  was  taken  by  a  British 
privateer  and  carried  into  New  Providence. 
Insured  abandoned  as  soon  as  intelligence  of 
the  capture  reached  them.  She  was  liberated 
before  the  abandonment  was  made,  but  the 
liberation  was  unknown  to  eitlier  party.  Held, 
the  abandonment  was  properly  made;  that  it 
fi.\ed  the  rights  of  the  parties  conclusively. 
Slocum  V.  United  Ins.  Co.,  1  Johns.  C,  152 ; 
Mumford  v.  Church,  id.,  147;  both  of  which 
cases  have  been  overruled;  Hallett  v.  Peyton, 
1  Caines  C,  38. 

2.  Two  policies,  one  on  ship  and  one  on 
freight,  at  and  from  Charleston  to  Liverpool. 
Ship  was  ready  for  sea  April  3d,  set  sail  the 
ue.\t  day,  and  when  about  half  way  between 
the  city  and  the  bar,  was  compelled  by  head- 
winds to  anchor  at  Rebellion  Roads,  and  was 
there  detained  till  April  10th.  when  an  embar- 
go became  efiectual  against  her.  April  20th 
slie  was  abandoned  to  tlie  insurers.  Held,  the 
embargo  was  a  justifiable  cause  of  abandon- 
ment. Ogden  v.  ]f.  Y.  Ins.  Co.,  10  Johns., 
177. 

3.  "Warranted  not  to  abandon  in  case  of 
capture  or  detention  until  six  months  after 
notice  thereof  delivered  to  the  company." 
Held,\ti\\d  not  extend  to  a  case  of  condemn- 
ation, but  limited  the  right  of  tlie  insured  to 
abandon  in  cases  of  capture  and  detention. 
Ogden  v.  Columbian  Ins.  Co.,  10  Johns.,  273. 

4.  The  master's  inability  to  procure  the 
necessary  money  to  make  repairs  may  be  a 
valid  cause  for  abandonment,  though  the  ves- 
sel is  not  damaged  to  one-half  her  value,  and  is 


not  at  tlie  port  of  destination.    American  Ins. 
Co.v.  Ogden,  15  Wend.,  533. 

5.  In  order  to  defeat  the  right  to  abandon, 
the  insurers  must  be  able.attlie  port  of  neces- 
sity, to  defray  all  expenses  Of  placing  her  in 
statu  quo.  They  have  no  right  to.  split  the  re- 
pairs  into  parts,  making  her  seaworthy  only 
at  that  port,  and  the  residue  at  the  port  of  des- 
tination or  elsewhere.  Center  v.  Amirican  Ins. 
Co.,  7  Cow.,  564;  affirmed,  4  Wend.,  40. 

6.  Ship  was  very  badly  damaged  at  the  port 
of  Havana.  Surveyors  were  appointed,  and 
they  reported  it  would  cost|9,900  to  make  full 
repairs,  a  sum  greatly  exceeding  a  moiety  of 
her  value;  but  that  partial  repairs,  sufficient 
to  enable  her  to  proceed  to  New  York,  might 
be  made  for  $960.  These  were  made,  but  at 
an  expense  of  $2,170,  a  sum  greatly  exceeding 
the  estimate.  She  proceeded  to  New  York 
with  a  light  cargo,  and  insured  otlered  to 
abandon  on  the  ground  that  the  damage  ex- 
ceeded one-half  her  value.  She  was  sold  for 
$8,000,  and  repaired  there  at  an  expense  of  loss 
than  half  her  value  (after  deducting  one-third 
new  for  old.)  Held,  making  partial  repairs  at 
the  port  of  distress,  to  enable  the  vessel  to  pro- 
ceed to  one  where  she  might  be  fully  repaired, 
were  expenses  in  the  nature  of  salvage,  for  the 
benefit  of  all  concerned,  and  did  not  impair 
the  owner's  right  to  abandon.  Saurez  v.  Sun 
Mat.  Ins.  Co.,  2  Sand.,  482. 

7.  Master's  letter  stated,  ship  had  been  sur- 
veyed and  condemned  ou  the.  ground  that  ex- 
pense of  repairs  would  not  warrant  making 
them.  Insured  forwarded  the  letter  to  insur- 
ers and  offered  an  abandonment,  which  was 
refused.  Within  thirty  days  thereafter  the 
master  arrived  and  insured  exhibited  his  pro- 
test and  the  surve}',  and  claimed  a  total  loss. 
The  protest  stated  she  had  sprung  a  leak  in  a 
heavy  sea,  and  was  kept  free  with  great  diffi- 
culty;  that  she  came  to  anchor;  was  surveyed 
and  decl.ared  incapable  of  proceeding  unless  re- 
caulked  and  recoppered;  that  the  expense  of 
doing  that,  with  other  incidental  charges, 
would  have  exceeded  her  value.  Held,  a  suffi- 
cient abandonment.  Thwir.g  v.  Washington 
Ins.  Co.,  10  Gray,  448. 

8.  The  survey  and  other  papers  relating  to 
the  loss  were  delivered  to  insurers  within  a 
few  days  after  insured  received  notice  of  tlie 
loss ;  and  insured  made  claim  for  a  total  loss. 
Held,  an  abandonment  need  not  be  in  writing; 
an  oral  abandonment  was  sufficient  if  insured 


ABANDONMENT. 


What  does  not  justify. 


distinctly  indicated  to  insurers  tliat  tliere  was 
a  total  loss  by  the  peril  insured  against.  Sil- 
loicay  V.  Neptune  Ins.  Co.,  12  Gray,  73. 

a.  To  authorize  an  abandonment  there  must 
be  at  the  time  of  the  abandonment,  or  at  least 
of  the  last  previous  intelligence,  a  total  loss, 
actual  or  constructive.  It  is  the  settled  doc- 
trine in  the  United  States,  if  the  abandonment 
be  justilied  by  the  facts  at  the  time,  the  rights 
of  the  parties  are  fixed,  and  will  not  be  changed 
by  subsequent  events  independently  of  their 
own  acts  or  consents,  and  if  the  expense  of 
repairing  an  injury  will  in  the  policy  exceed 
half  the  value  of  the  vessel  insured,  the  in- 
sured may  abandon  and  recover  as  for  a  total 
loss.  Cincinnati  Ins.  Co.  v.  Bakewell,  4  B. 
Mon.,  541. 

10.  The  repairs  exceeded  one-half  the  value 
of  the  vessel.  Held,  sufficient  to  justify  an 
abandonment.  Eedley  v.  Nashville  Ins.  Co.,  6 
Rich.,  130. 

11.  Ship  struck  a  snag  and  sunk.  Held,  if 
her  condition  was  such  as  to  produce  in  the 
minds  of  practical  and  reasonable  men  the 
opinion  that  she  could  not  be  raised  and  re- 
paired at  a  cost  of  less  than  half  her  value  at 
the  port  of  repairs,  insured  could  abandon  as 
for  a  constructive  total  loss ;  ^nd,  the  fact  that 
she  was  afterwards  raised  and  repaired  at  a 
cost  less  than  that  did  not  take  away  the  right. 
Fulton  Ins.  Co.  v.  Ooodman,  33  Ala.,  108. 

1 2.  If  the  boat  after  it  was  sunk  was  not 
worth  half  as  much  as  it  would  have  been 
afloat,  free  from  the  injuries  that  caused  the 
sinking,  insured  had  the  right  to  abandon  as 
for  a  total  loss.  Lockwood  v.  Sangamo  Ins. 
Co.,  46  Mo.,  71. 

1 3.  It  is  laid  down  by  Marshall,  Pakk 
and  Lord  Maxsfield,  that  "  if  the  voyage  be 
lust  or  not  worth  prosecuting,  if  the  salvage  be 
high  and  further  expense  necessary,  and  if 
the  insurer  will  not,  at  all  events  undertake  to 
pay  that  expense,  the  insured  may  abandon." 
Hyde  v.  Louisiana  State  Ins.  Co.,  14  JIarlin 
(La.),  410. 

14.  Ship  was  surveyed  in  port  near  the 
Cape  of  Good  Hope,  October  18,  1859,  of 
which  the  master  advised  the  ship's  husband 
at  Liverpool,  and  directed  him  to  give  insur- 
ers notice.  November  18th  following,  master 
wrote  ship's  husband,  describing  damage. 
That  it  was  the  opinion  of  the  surve3ors  she 
could  not  go  home  with  partial  repairs,  and 
that  after  complete  rupairs,  she  would  not  be 


worth  the  expense  of  repairing.  This  letter 
was  forwarded  to  insurers  November  24th. 
The  master  executed  a  notarial  act  of  aban- 
donment, and  sold  her  December  9th  follow, 
ing.  On  the  20th  he  again  wrote  the  ship'3 
husband,  stating  that  it  was  for  tlie  interest  of 
all  concerned  to  abandon  and  sell  her  without 
repairs ;  that  he  had  sold  her,  and  requested 
notice  thereof  to  be  given  insurers,  which  was 
accordingly  done.  She  was  not  in  fact  worth 
the  expense  of  repairing.  Held,  sufficient  no- 
tice of  abandonment  to  create  a  constructive 
total  loss,  and  that  it  was  made  in  time.  King 
V.  Walker,  3  H.  &  C,  209;  11  Jur.  (N.  &.),  43; 
33  L.  J.  Ex.,  395;  13  W.  R.,  233;  reversing 
S.  (7.,  2  H.  &  C,  384;  33  L.  J.  Ex.,  167. 

Y,  "What  does  not  justify. 

1.  Information  of  capture  and  recapture 
and  arrival  at  Plymouth,  where  recapturers 
libelled  as  salvors.  Held,  did  not  confer  the 
right  to  abandon.  Muirv.  United  Ins.  Co.,  1 
Caines,  49. 

2.  The  insured  on  ship  cannot  abandon  her 
and  recover  for  a  total  loss.if  she  can  be  repaired 
for  less  than  one-half  her  value;  and  the  fact 
that  the  voyage  has  been  broken  up,  because 
the  cargo  was  not  in  a  condition  to  await  re- 
pairs, does  not  aid  the  right  to  abandon  ship. 
Goold  V.  Shaw,  1  Johns.  C,  293. 

3.  A  technical  total  loss  had  occurred,  and 
the  insured  abandoned  immediately  on  hear- 
ing of  the  disaster;  but  she  was  then  in  safe- 
ty, on  her  vo3'age  home,  the  master  having 
caused  her  to  be  repaired.  Held,  the  right  to 
abandon  and  recover  for  a  total  loss  was  di- 
vested. Dickey  v.  American  Ins.  Co.,  3  Wend., 
658. 

4.  If  the  vessel  had  completed  her  voyage 
and  reached  the  port  of  destination  in  a  le- 
pairable  state  where  the  owners  reside,  an 
abandonment  cannot  be  made.  Pensant  v.  Na- 
tional Ins.  Co.,  15  Wend.,  453. 

5.  Assuming  that  the  facts  were  such  as 
would  have  conferred  the  right  upon  insured 
to  abandon,  yet  after  the  vessel  was  repaired 
and  successfully  pursuing  the  voyage,  the 
riglit  to  abandon  ceases,  and  the  recovery,  if 
any,  must  be  for  a  partial  loss  only.  Hepau  v. 
Ocean  Ins.  Co.,  5  Cow.,  63. 

6.  Valued  policy,  which  insured  to  the 
amount  valued;  ship  was  captured  and  recap. 


ABANDONMENT. 


10 


Wliat  does  not  justify. 


tured,  and  an  abandonment  made  to  foreign 
insurers,  who  accepted  it  and  paid  a  total 
loss.  Afterwards  insured  offered  to  abandon 
to  insurers  in  the  United  States.  Held,  the 
first  abandonment  left  him  nothing  to  aban- 
don lierc.     Jliyijinuin  v.  Dall,  13  Mass.,  96. 

7.  Where  the  insured  is  not  in  a  position  to 
make  an  abandonment,  he  must  recover,  if  at 
all,  for  a  partial  loss;  and  he  cannot  abandon 
alter  the  vessel  has  been  surveyed  and  sold 
for  account  of  whom  it  may  concern.  Gor- 
don D.  Mass.  Fire  &  Mdriae  Ins.  Co.,  2  Pick., 
249. 

8.  The  expense  of  saving  the  goods  and 
sending  them  on  to  the  port  of  destination 
would  have  been  less  than  fifty  per  cent,  of 
the  invoice  value.  Held,  the  master  was  not 
authorized  to  sell  them  at  the  port  of  necessi- 
ty, and  his  sale  conferred  no  right  to  abandon. 
Bryant  v.  Gornmonwealth  Ins.  Co.,  6  Pick.,  131. 

9.  Imminent  danger  of  total  loss  gives  no 
right  to  abandon,  and  if  ship  arrives  at  a  place 
where  her  repairs  will  cost  less  than  fifty  per 
cent,  other  value,  the  abandonment  cannot  be 
enforced.  Ball  v.  Franklin  Ins.  Co.,  9  Pick., 
406. 

10.  "Where  a  vessel  reaches  a  port  of  dis- 
tress, and  she  is  sold  by  the  master,  a  part 
owner,  without  consulting  insurers,  and  a 
Claim  for  total  loss  is  made  upon  the  insur- 
ers  —  they  being  credited  with  the  proceeds  of 
the  sale  and  charged  with  the  full  value  of  the 
vessel;  and  this  action  was  brought  averring 
the  interest  to  be  in  the  master  and  the  other 
owners  jointly.  Held,  the  master  could  not 
set  up  his  own  unauthorized  act  as  the  foun- 
dation of  the  claim;  that  no  distinction  could 
be  made  between  his  rights  and  the  other  part 
owners;  that  the  master  could  nc/t  make  an 
effectual  abandonment,  because  the  sale  had 
passed  his  interest  in  the  vessel ;  and  the  otlier 
part  owners  by  joining  in  the  claim,  and  by 
giving  credit  for  the  proceeds  of  the  sale,  had 
ratified  it,  and  so  disqualified  themselves  to 
abandon;  that  the  owners  were  not  warranted 
by  the  condemnation  and  sale  of  the  vessel  to 
make  an  abandonment;  and  that  the  master 
did  not,  under  the  circumstances,  become  the 
agent  of  the  insurer,  so  as  to  throw  on  the  in- 
surer the  responsibility  of  the  unauthorized 
sale.    Pierce  v.  Ocean  Ins.  Co.,  18  Pick.,  83. 

Jl.  Vessel  stranded.  Insurers  refused 
abandonment,  but  look  possession,  got  her  oft', 
repaired,  and  ofl'ered  to  restore  her  within  a 


reasonable  time.  Insured  made  no  objection 
on  account  of  the  incompleteness  of  the  re- 
pairs, though  deficiencies  in  the  repairs  were 
afterwards  discovered.  Beld,  this  did  not 
make  tlie  abandonment  effectual.  Reynolds  v. 
Ocean  Ins.  Co.,  23  Pick.,  191. 

1  'i.  Policy  provided,  "  In  case  of  capture  or 
restraint,  assured  is  not  to  abandon  until  the 
properly  is  condemned,  nor  until  it  shall  have 
been  proved  to  have  been  ninety  days  under 
detention."  It  was  seized  and  detained  for 
more  than  ninety  days,  and  insured  then 
abandoned;  but  at  the  time  the  abandonment 
was  offered,  the  property  had  been  restored  to 
the  agent  of  insured.  Held,  the  abandonment 
was  ineffectual.  Dorr  v.  Union  Ins.  Co.,  8 
Mass.,  502. 

13.  Vessel  was  captured  and  an  abandon- 
ment made,  when  the  insurer  supposed  the 
loss  continued  total,  but  was  after  the  final  ac- 
quittal and  order  for,  yet  belbre  actual  restitu- 
tion. Held,  the  abandonment  was  too  late. 
Adams  v.  Delaware  Ins.  Co.,  3  Binn.,  287. 

14.  Ship  was  cast  upon  the  rocks  at  Hell 
Gate,  and  there  remained  up  to  the  time  of 
abandonment  without  increase  of  danger.  The 
chances  were  in  favor  of  getting  her  off, 
though  good  judges  doubted  the  success  of 
the  experiment.  Held,  the  master  was  bound 
to  make  the  experiment,  and,  until  its  results 
were  known,  there  could  be  no  right  to 
abandon.  King  v.  Hartford  I)is.  Co.,  1  Conn., 
422. 

1  5.  Seizure  and  appropriation  by  a  foreign 
power  of  a  vessel  insured,  without  sentence  of 
condemnation,  gives  no  right  to  abandon. 
Barney  v.  Maryland  Ins.  Co.,  5  H.  &  J.,  139. 

16.  On  schooner,  her  stores  and  passage 
money.  She  was  driven  into  Key  West  where 
she  was  libelled  by  her  passengers  to  refund 
the  passage  money,  on  the  ground  that  she  was 
not  seaworthy  at  the  commencement  of  the 
voyage.  The  district  court  decreed  against 
the  vessel,  and  she  was  sold  to  satisfy  the  de- 
cree.  Held,  insured  could  not  abandon,  be- 
cause the  thing  insured  was  taken  out  of  the 
control  of  insured  by  an  act  not  insured 
against  (citing  Rice  v.  Homer,  12  Mass., 
230j.  But  he  was  entitled  to  recover  for  the 
expense  of  repairing  the  vessel.  Marks  v. 
Niisliville  Marine  and  Fire  Ins.  Co.,  6  La.  An., 
126. 

17.  Ship  was  captured  July  l.Jth,  c.irried 
into  SieTra  Leone  the  20th,  and   restored  Au. 


11 


ABANDONMENT. 


12 


Whon  necessary. 


gust  4ih.  She  liad  permissioa  to  remuiD  four 
montlis  OQ  the  coast  to  trade.  Held,  no  ground 
for  abandonment.  Meisonier  v.  Union  las.  Co., 
1  N.  &  McC,  155. 

18.  Stipulated:  "In  case  of  capture,  in- 
sured shall  not  abandon  till  condemnation. 
She  was  warned  by  the  Britisli  authorities  not 
lo  prosecute  the  trade  further,  but  this  was 
unauthorized  by  the  law  of  nations.  Held, 
that  a  fear  of  seizure  did  not  authorize  an 
abandonment  of  the  voyage.  Messonier  v. 
Union  Ins.  Co.,  1  N.  &  McC,  155. 

1 9.  On  goods  to  Naples,  Leghorn  or  Mes- 
sina, with  liberty  to  touch  at  Gibraltar  or 
any  other  port  in  the  Mediterranean.  She 
arrived  at  Minorca  and  found  Messina  in  the 
possession  of,  or  blockaded  b}'  the  French. 
Insured  offered  an  abandonment.  Held,  not 
sufficient  to  warrant  abandonment.  Lubbock 
V.  limccroft,  5  Esp.,  50. 

20.  On  goods  from  Liverpool  to  any  port  iu 
the  river  Platte.  Policj'  was  made  after  those 
ports  were  advertised  blockaded.  Ship  sailed 
after  they  were  advertised,  and  was  taken  by  a 
Brazillian  frigate  intheriver  Platte,  and  sent  to 
Rio  for  adjudication;  but  the  master  and  crew 
rescued  her,  navigated  her  to  Liverpool ;  land- 
ed and  warehoused  the  cargo.  Insured  aban- 
doned before  thej'  heard  of  the  rescue,  and 
the  jury  found  specially  that  the  master  did 
not  intend  to  violate  the  blockade.  Held,  the 
abandonment  could  not  be  sustained,  because 
the  right  to  abandon  was  to  be  governed  by 
the  facts  as  they  existed  at  the  time  it  was  of- 
fered. Naylor  v.  Taylor,  9  B.  &  C,  718;  4  M. 
&  R.,  536. 

VI.  "When  necessary. 

1.  If  insured  declares  for  a  total  loss,  but 
has  never  abandoned,  the  jury  may  estimate 
the  spes  rentperandi,  and  find  for  the  balance. 
Watson  V.  Ins.  Co.  of  Worth  America,  1  Binn., 
47 ;  4  Dall.,  283. 

2.  If  a  total  loss  is  claimed,  and  the  proof 
slnws,  at  most,  a  constructive  total  loss,  the 
insured  must  make  a  sufficient  and  valid 
abandonment  before  he  can  recover  for  it. 
Lovering  v.  Mercantile  Ins.  Co.,  12  Pick.,  348. 

3.  On  ship,  from  Spain  to  the  United  States 
(valued).  Cargo  consisted  partly  of  wine;  the 
deck  load  was  in  the  long-boat  amidships. 
She  sprung  her  mainmast,  sustained  other  sea 
damage    on    the  voyage,   and    put   Into    St. 

6 


Thomas.  Surveyors  estimated  cost  of  re- 
pairs would  be  nearly  $1,400,  and  that  Ler 
value  after  repairs  would  be  about  $1,000. 
She  was  sold,  and  brought  $460.  Held,  iu 
sured  might  have  abandoned  and  recovered 
for  a  total  loss;  but,  without  abandonment, he 
must  recover  for  a  partial  loss  only.  Ameri- 
can Ins.  Co.  D.  Francia,  9  Penn.  St.,  390. 

4.  Although  the  policy  stipulates  against 
captures,  j-et  if  the  capture  and  condemnation 
be  contrary  to  the  law  of  nations  and  without 
fault  of  master,  owner  or  mariners,  the  prop- 
erty cannot  be  considered  as  finally  lost,  for 
they  may  call  on  the  government  to  demand 
and  obtain  satisfaction  of  the  nation  (G.  B.) 
whose  subjects  have  committed  the  injury,  or 
upon  the  government  itself  to  make  repara- 
tion for  not  protecting  the  owners  in  their 
just  rights,  or  for  not  obtaining  redress  from 
those  who  committed  the  injury;  and,  there- 
fore, before  recovery  can  be  had  for  a  techni- 
cal  total  loss,  the  insured  must  abandon.  Toicn- 
send  V.  Phillips,  2  Root,  400. 

5.  If  there  is  spes  recuperandi,  insured  must 
abandon  before  he  can  recover  as  for  a  total 
loss.  Barney  ».  Maryland  Ins.  Co.,  5  H.  <&  J., 
139. 

0.  Ship  was  abandoned  at  sea  by  the  mas- 
ter and  crew,  in  December,  and  was  taken  by 
the  crew  of  another  vessel,  who  brought  her 
into  Boston,  and  libelled  her  for  salvage, 
where  she  was  sold  at  auction,  and  the  pro- 
ceeds carried  into  court.  The  salvors  were 
paid;  the  balance  of  proceeds,  $1,043.90,  was 
paid  to  her  owners,  and  a  balance  of  $3*i.33, 
proceeds  of  the  cargo,  was  paid  to  the  same. 
Insurers  were  notified  by  telegraph  of  her  ar- 
rival in  Boston  in  possession  of  salvors,  who 
found  her  abandoned  at  sea,  and  asked  for  in- 
siructious;  five  days  thereafter,  B.  wrote  to  in- 
surers, reiterating  the  information  contained 
in  the  telegram,  and  requesting  an  answer; 
and,  after  she  was  libelled  by  the  salvors,  in- 
formation thereof  was  sent  to  insurers,  and 
they  were  asked  to  give  directions,  all  which 
was  done  in  behalf  of  insured,  but  insurers 
paid  no  attention  to  it.  Held,  insured  could 
not  recover  for  an  actual  nor  for  a  construct- 
ive total  loss,  for  there  was  no  abandonment; 
but  they  were  entitled  to  recover  for  a  pjir- 
tial  loss.     Thomas  v.  Rockland  Ins.  Co.,  45  Me., 

lie. 

7.  The  cargo  was  insured  bj-  a  valued  poli- 
cy.   It  was  confiscated  and  sold  by  tlie  eae- 


13 


ABANDONMENT. 


14 


When  not  necessaiy. 


my,  but  the  enemy  permitted  the  foreign  con- 
signee to  retain  the  amount  of  liis  advances 
from  the  proceeds;  no  abandonment  was 
made.  Held,  the  insured  had  liis  option  to 
make  it  a  total  or  a  partial  loss,  and  that  he 
had,  by  a  failure  to  abandon,  elected  the  latter. 
Ooldsmid  v.  Oillies,  4  Taunt.,  SOS. 

8.  The  insured  cannot  recover  for  an  alleged 
total  loss,  unless  he  proves  that  the  property 
was  consumed  by  lire,  or  sunk  in  tlie  ocean  or 
tlie  lilie,  or  he  must  sliowan  abandonment  of 
tlie  subject  insured.  Tdwineiid  v.  Phillips,  2 
Root.  4C0;  Milles  V.  Fletcher,  1  Doug.,  231; 
Mitchell  V.  Edie,  1  Term,  G08. 

9.  There  raubt  be  an  abandonment  of  freight 
if  the  cargo  exists,  although  the  ship  is  inca- 
pable of  prosecuting  the  voyage.  Parmeier  'o. 
Todhunter,  1  Camp.,  541. 

10.  A  vessel  was  driven  into  a  port  where 
there  was  no  dock  to  make  repairs.  She  was 
surveyed  and  it  was  judged  expedient  to  break 
her  up  and  sell  her  as  old  timber.  Held,  an 
abandonment  was  necessary  before  insurers 
could  be  called  upon  to  pay  a  total  loss.  Bell 
V.  Nixon,  Holt,  N.  P.,  423. 

1  J.  Ship  was  obliged  to  put  into  a  port  of 
safety.  The  insured  did  not  abandon,  but  ap- 
plied to  insurers  for  instructions  how  to  pro- 
ceed,  upon  an  estimate  of  repairs,  who  de- 
clined to  interfere.  Insured  directed  a  sale  of 
tlie  ship  and  cargo  for  the  benefit  of  all  con- 
cerned, which,  after  payment  of  salvage,  left 
a  balance  against  the  insured  of  £20.  Held,  he 
could  not  recover  for  a  total  loss,  because  no 
abandonment  had  been  made.  Martin  v.  Cro- 
Icatt,  14  East,  446. 

12.  "On  flax,  warranted  free  from  par- 
ticular average."  Sliip  was  wrecked  off  Rye, 
and  all  hands  perished.  Part  of  it  floated  on 
shore  in  a  loose  state,  mixed  with  a  little 
sand,  and  injured.  Part  was  gotten  out  of  the 
hold  —  about  a  ton;  that  which  floated  ashore 
was  sold  on  the  spot,  the  net  proceeds  amount- 
ing to  .t'll.  No  abandonment  was  made.  Held, 
where  the  thing  exists  in  specie  there  must  be 
an  abandonment  to  constitute  a  total  loss; 
that  as  to  the  flax  totally  lost,  the  insurers 
■were  liable  without  abandonment;  but  as  to 
that  which  existed  in  specie,  they  were  not 
lial)le.     I)ary  v.  Mi/ford,  15  East,  559. 

13.  A  time  policy  —  one  year,  ending  Sep- 
tember 23d.  Ship  was  stranded,  got  oft', 
brought  into  Sanla  Croix  harbor,  September 
ICth,  where  she  remained  till  the  middle  of 


October,  during  which  time  she  was  kept  free  of 
water  and  cargo  discharged  into  other  vessels. 
She  was  then  beached,  surveyed,  and  found 
so  much  damaged  that  necessary  repairs  could 
not  be  made,  Ihero  being  no  dock,  workmen 
or  materials ;  nor  could  she  have  been  taken  to 
any  port  where  repairs  could  have  been  pru- 
dently made.  Master,  a  part  owner,  sold  her 
for  benefit  of  whom  it  might  concern.  No- 
tice of  abandoment  was  not  given.  Held,  not 
an  absolute  total  loss,  and  that  it  was  not  a 
technical  tohd  loss  because  an  abandonment 
had  not  been  made.  Knight  v.  Faith,  15  Q.  B., 
049;  19  L.  J.,  Q.  B.,  509;  14  Jur.,  1114. 

YII.  "When  not  necessary. 

1.  Ship  was  sold  at  a  port  of  distress  on 
the  ground  that  when  repaired,  she  would  be 
worth  less  than  the  cost  of  repairs.  Held,  if 
the  injuries  sustained  by  perils  of  the  sea 
were  so  great  that  they  could  not  be  repaired, 
so  as  to  make  her  seaworthj',  except  at  an  ex- 
pense exceeding  her  value  when  repaired,  then 
it  was  a  case  of  actual  total  loss  and  an  aban- 
donment was  not  necessary.  Bullard  v.  Roger 
Williams  Ins.  Co.,  1  Curtis,  148. 

2.  Where  a  vessel  has  not  been  heard  of  for 
a  time  long  enough  to  raise  a  presumption  of 
her  loss,  an  abandonment  is  not  necessary. 
Gordon  v.  Bownc,  2  Johns.,  150. 

3.  Where  the  property  is  destroyed  or  the 
title  legally  divested  by  a  lawful  sale,  an  aban- 
donment is  not  necessary.  Gordon  v.  Mass. 
Fire  and  Marine  Ins.  Co.,  2  Pick.,  249. 

4.  The  jury  were  instructed  that  a  vessel  on 
the  high  seas  might  be  considered  as  totally 
lost,  if  by  the  violence  of  the  wind  and  waves 
she  became  a  wreck  and  was  incapable  of  be- 
ing saved  and  brought  into  port.  The  jury 
found  an  actual  total  loss.  Held,  an  abandon, 
ment  was  not  uecessar}',  for  the  obvious  reason 
that  there  was  nothing  to  abandon.  Walker  v. 
Protection  Ins.  Co.,  29  Me,  317. 

.5.  The  boat  was  sunk  and  the  whole  cargo 
damaged.  Cargo  was  speedily  sent  to  New  Or- 
leans,  and  there  sold  without  notice  to  or  in- 
terference by  the  insured.  Held,  no  abandon- 
ment was  necessary.  Portsmouth  Ins.  Co.  v. 
Brazee,  16  Ohio,  81. 

6.  On  sevcntj'-five  hogsheads  of  sugar  from 
New  Orleans  to  Cincinnati,  dated  April  19, 
1801.  The  boat  was  passing  Helena,  Ark., 
when  a  mob  fired  a  cannon  across  her  bow, 

1 


15 


ABANDONMENT. 


IG 


When  in  time. 


compelled  her  to  land,  and  took  possession  of 
vessel  and  cargo.  Twelve  daj's  thereafter  the 
stale  seceded.  The  plaintiffs  were  residents 
of  Cincinnati.  Communication  between  New- 
Orleans  and  Cincinnati  ceased  and  was  not 
reopened  until  the  spring  of  1863.  A  demand 
for  paj'ment,  as  for  a  total  loss,  was  made 
early  in  1864,  and  this  action  was  commenced 
in  February  of  that  year.  Held,  an  abandon- 
ment in  legal  form  would  at  all  times  have 
been  an  idle  ceremony,  and  would  have  been 
of  no  benefit  to  the  insurers  (citing  Mullett 
V.  Sheddon,  13  East,  304;  Mellish  t.  Andrews, 
15  id.,  3);  that  the  demand  for  payment,  as 
for  a  total  loss  amounted  to  an  abandonment 
(citing  Cassedy  d.  Louisiana  Ins.  Co.,  18  Mar- 
tin, La.,  422).  Babbitt  v.  Sun  Mut.  Ins.  Co.,  23 
La.  An.,  314. 

7.  Insured  received  intelligence  Januar}' 
8th,  that  ship's  papers  were  taken  by  Swedish 
government,  December  7th,  preceding;  notice 
of  abandonment  was  not  given  till  January 
17th.  The  goods  were  finally  seized  and  un- 
laden by  the  Swedish  government,  April  3()tli, 
following.  England  was  not  then  at  war  with 
Sweden.  Held,  a  hostile  capture  that  notice 
of  abandonment  was  not  necessary.  Mellish 
V.  AndreiDS,  15  East,  13. 

8.  Policy  to  mortgagee.  The  ship  was 
•wrecked,  and  the  mortgagor  refused  to  incur 
any  expense  about  saving  her.  Insurers  sent 
their  agent,  who  took  charge  of  her,  had  her 
pumped  out  and  hauled  off,  and  she  remained 
in  his  custody  at  the  time  of  the  trial.  No 
abandonment  was  made.  Held,  the  insured 
was  entitled  to  recover  the  sum  insured. 
Crawford  v.  St.  Lawrence  Ins.  Co.,  8  U.  C.  Q. 
B.,  135. 


VIII.  When  in  time. 

1.  Insured  received  notice  of  the  capture 
on  the  22d,  and  wrote  on  the  25th,  offering  to 
abandon  to  the  insurers,  which  was  received 
in  the  course  of  mail  and  acted  upon. 
Held,  the  court  did  not  err  in  refusing  to  tell 
the  jury  that  insured  had  not  elected  to  aban- 
don in  a  reasonable  time.  Maryland  Ins.  Co. 
■V.  Ruden,  6  Cranch,  338. 

2.  Insured  received  notice  of  the  capture, 
July  30th.  August  5th,  an  abandonment  was 
offered.  Held,  the  abandonment  was  in  time. 
Eurtin  v.  Phoenix  Ins.  Co.,  1  Wash.  C.  C,  400. 

8 


3.  On  cargo.  Ship  was  taken  by  a  French 
privateer  and  carried  into  Cape  St.  Francois, 
and  acquitted,  of  which  insured  was  advised 
by  letter  received  at  Baltimore  between  April 
21st  and  28th,  in  which  his  correspondent 
wrote :  "  I  am  sorry  to  say  the  government 
will  take  her  cargo,  for  which  they  propose 
bills  on  France  drawn  by  the  colony  at  forty 
days'  sight."  There  was  no  definite  informa- 
tion till  June  10th,  as  to  whether  the  cargo 
had  been  taken  when  the  colony's  draft  for 
$12,462.03,  at  forty  days'  sight  on  Paris  was 
received.  Insured  abandoned  June  20th. 
Held,  the  information  contained  in  the  first 
letter  did  not  make  it  incumbent  upon  insured 
to  abandon  immediately;  that  the  abandon- 
ment was  in  time  under  all  the  circumstances 
of  the  case.    Duncan  v.  Koch,  Wall.  C.  C,  33. 

4.  On  ship.  She  was  captured,  December 
26,  1796.  Insured  was  on  board  at  the  time. 
The  policy  was  assigned  prior  to  her  sailing. 
On  the  11th  of  February,  1797,  sentence  of 
condemnation  was  pronounced,  from  which 
an  appeal  was  prosecuted,  and  October  6, 1797, 
the  papers  proving  the  condemnation  were  re- 
ceived,  and  an  abandonment  made.  BeW,  the 
abandonment  was  made  within  a  reasonable 
time.    Earl  v.  Shaw,  1  Johns.  C,  314. 

5.  Ship  insured  to  China;  she  was  captured 
by  a  British  cruiser  for  supposed  breach  of 
blockade,  carried  into  Canton  and  detained; 
afterwards  taken  to  Calcutta,  libelled  and  con- 
demned. Insured  knew  of  her  detention  at 
Canton,  and  six  months  afterwards  on  notice 
of  condemnation,  he  immediately  abandoned. 
Held,  the  abandonment  was  timely.  Dorr  v. 
Union  Ins.  Co.,  8  Mass.,  494. 

6.  Where  the  insured  receives  information 
of  a  disaster  to  the  ship,  but  is  in  a  state  of 
.uncertainty  as  to  her  actual  condition,  and 
waits  for  more  definite  information  and  Uien 
abandons,  the  abandonment  is  timely.  Rey. 
nolds  V.  Ocean  Ins.  Co.,  22  Pick.,  191. 

7.  On  cargo;  prime  cost  $1,400,  fitted  for  a 
French  market,  captured,  carried  into  Port  au 
Prince,  and  compelled  to  sell  cargo,  which 
produced  less  than  $900;  with  which  master 
purchased  5,000  pounds  coffee  which  arrived 
in  Wilmington.  Insured  and  insurer  with- 
drew from  Philadelphia  to  avoid  contagion 
of  yellow  fever.  About  a  month  after  the  ves- 
sel arrived  at  Wilmington,  insured  abandoutd, 
and  afterwards  the  coffee  was  sold  for  $1,131. 
Arbitrators  appointed  by  both  parties  were  of 


17 


ABANDONMENT. 


18 


When  not  in  time. 


opinion  that  insured  could  not  chiim  for  a 
total  loss.  Uehl,  the  delay  in  making  the 
abandonment  was  not  such  as  affected  the 
right  to  abandon,  and  the  insured  could  re- 
cover for  a  total  loss.  M'Calmont  v.  Murga- 
troyd,  3  Yeates,  27. 

8.  The  vessel  insured  was  captured  Decem- 
ber 7th,  and  no  abandonment  made  until  Sep- 
tember lOtli,  following;  it  was  then  made  on 
the  ground  of  condemnation.  ReUl,  although 
the  insured  might  have  abandoned  on  receiv- 
ing information  of  the  capture,  his  failure  to 
do  so  did  not  prevent  him  from  making  an 
effectual  abandonment  when  the  loss  became 
absolutely  total  by  condemnation.  Bohleii  v. 
Delmcare  Ins.  Co.,  4  Binu.,  430. 

9.  A  part  of  the  cargo  was  unshipped  and 
examined  December  21st,  but  no  complete  in- 
formation of  the  extent  of  the  damage  was 
obtained  till  January  7th,  when  an  abandon- 
ment was  made.  Held,  it  was  made  in  a  rea- 
sonable time.  Gernon  v.  Royal  Ex.  Ass.  Co.,  G 
Taunt,  383;  8.  G.,  1  Holt,  N  P.,  49;  2  Marsh., 
88. 

10.  Ship  waa  captured  by  pirates  in  the 
Straits  of  Magellan,  January,  1853,  recaptured 
by  an  English  war  steamer  and  taken  to  Val- 
paraiso. Intelligence  of  these  reached  insured 
about  the  end  of  April,  1852.  Abandonment 
made  April  30,  18.52.  Held,  the  abandonment 
was  timely.  The  abandonment  stated  the 
canse  of  loss,  that  she  had  been  condemned  as 
prize  which  was  inaccurate;  but  it  was  held, 
that  did  not  vitiate  the  abandonment.  Dean 
V.  Hornby,  3  El.  &  Bl.,  180 ;  23  L.  J.  Q.  B.,  129 ; 
18  Jur.,  625. 

1 1 .  At  and  from  Liverpool  to  the  coast  of 
Africa,  thence  to  the  West  Indies  and  America. 
Soon  after  her  arrival  on  the  coast,  the  crew 
mutinied  and  attempted  to  carry  the  ship  into 
an  enemy's  port;  but  none  of  them  being  able 
to  navigate  her,  they  applied  to  the  boatswain 
for  assistance,  who  pretended  that  he  was 
re.ady  to  assist  them  and  undertook  the  task; 
but  he  took  her  to  Barbados,  where  she  was 
boarded  and  taken  possession  of  by  a  ship  of 
■war.  The  government  agent  took  charge  of 
her,  and,  without  waiting  for  orders,  disposed 
of  the  cargo  and  stores.  The  government 
agent  advised  the  owners  of  what  had  oc- 
curred, and  afterwards,  on  the  master's  arrival 
at  Barbados,  he  found  her  with  nothing  but 
her  rigging,  advised  the  owners  of  her  condi- 
tion, recommended  a  sale,  and  she  was  subse- 


quently sold;  but  before  that  was  done,  the 
owners  offered  to  abandon,  which  was  refused. 
Held,  they  were  entitled  to  abandon;  that  it 
was  in  time,  and  the  sale  was  not  a  waiver  of 
the  abandonment.  Brown  v.  Smith,  1  Dow, 
349. 

IX.   When  not  in  time. 

1.  A  neutral  vessel,  while  proscculiug  the 
voyage  insured,  was  captured  by  a  belligerent 
cruiser,  carried  into  port  and  libelled  as  prize 
of  war.  July  9th  a  final  sentence  was  pro- 
nounced in  her  favor,  and  on  the  19th,  about 
1  P.  M.,  restitution  was  made.  The  insured 
received  information  of  the  capture  July  ITtli, 
and  an  offer  to  abandon  was  made  July  19th. 
Held,  the  real  stale  of  the  facts  at  the  time  the 
abandonment  was  made,  and  not  the  real  stale 
of  information,  determined  the  rights  of  the 
parties;  and  when  a  final  decree  of  restitution 
was  rendered,  trom  which  no  appeal  was  taken, 
the  peril  was  over;  after  which  there  was  no 
danger  of  a  total  loss,  and  therefore  the  insur- 
ers were  not  liable.  Marshall  v.  Delaware  Ins. 
Co.,  4  Cranch,  202;  afiirming,  S.  C,  2  Wash., 
C.  C,  54. 

2.  She  put  into  Lisbon  for  repairs;  they 
were  made,  but  exceeded  half  her  value.  They 
were  paid  by  money  obtained  on  bottomry. 
She  proceeded  on  her  voyage  and  arrived, 
four  days  before  her  arrival,  insured  offered  to 
abandon.  He  had  no  previous  knowledge  of 
the  disaster.  She  was  sold  to  satisfy  the  bot- 
tomry bond.  Held,  the  existence  of  a  total 
loss  must  continue  up  to  the  time  of  abandon- 
ment; that  when  the  loss  ceases  to  be  total, 
the  right  to  abandon  is  at  an  end  (citing 
Rhinelauder  v.  Ins.  Co.,  4  Cranch,  29 ;  Marshall 
V.  Delaware  Ins.  Co.,  4  id.,  202;  Wood  v.  Liu- 
coln  Ins.  Co.,  6  Mass.,  479;  Adams  «.  Delaware 
Ins.  Co.,  3  Binn.,  287 ;  Jumel  v.  Marine  Ins.  Co., 
7  Johns.,  412).  Humphreys  v.  Union  Ins.  Co., 
3  Mason,  429. 

3.  On  brig  from  New  York  to  Trinidad, 
thence  to  St.  Thomas,  valued  at  $4,000,  the 
sum  insured.  She  left  Trinidad  in  ballast, 
was  captured  by  a  French  privateer,  and  three 
days  after,  recaptured  by  an  American  frigate, 
who  carried  her  to  St.  Kilts,  where  she  ar- 
rived, December  15lh.  The  agent  of  the 
United  States  ships,  and  her  master  agreed 
that  one-third  of  her  gross  appraised  value 
should  be  paid   as  salvage.      He    borroweij 

9 


19 


ABANDONMENT. 


20 


When  not  in  time. 


money  on  a  bottomry  bond,  paid  the  salvage, 
and  offered  her  at  auction  for  the  benefit  of 
all  concerned.  Tlie  master  bought  licr  in  at 
^4,000.  There  was  no  offer  to  abandon  before 
lier  surrender  by  the  salvors.  Held,  the  right 
to  abandon  did  not  exist  after  she  arrived  at 
St.  Kitts;  that  there  could  be  no  recovery  be- 
yond the  amount  of  salvage  and  e.vpenses. 
Parage  v.  Dale,  3  Johns.  C,  156. 

4.  March  7,  1819,  ship  put  into  Port  Louis, 
Isle  of  France,  in  distress,  took  out  the  cargo, 
repaired  at  an  expense  exceeding  half  her 
value,  and  sailed  June  28th  for  a  port  in  Hol- 
land. She  arrived  at  Antn-erp,  October  1st. 
But  insured  abandoned,  July  6th.  Held,  when 
the  injui-y  was  repaired  on  which  the  right  to 
abandon  was  founded,  and  the  vessel  was  in 
every  respect  as  capable  of  performing  the 
voyage  as  before  damage,  the  right  to  abandon 
ceased,  and  the  recovery  must  be  for  a  partial 
loss  only.  Dickey  v.  New  York  Ins.  Co.,  4 
Cow.,  223. 

5.  On  cargo.  She  met  with  very  heavy 
weather,  and  it  was  so  much  damaged  it  be- 
came necessary  to  sell  at  a  port  of  distress. 
Held,  the  voyage  was  lost;  that  the  insured 
might  have  claimed  for  a  total  loss,  but  could 
recover  only  an  average  loss,  because  he  did 
not  abandon  until  nearly  four  months  after  he 
received  notice  of  the  disaster.  Fuller  v.  Me- 
Call,  1  Yeates,  464;  3  Ball.,  319. 

6.  Vessel  insured  from  Philadelphia  to  Ba, 
tavia,  theuce  to  Cowes  and  a  market,  "  with 
liberty,"  etc.  She  left  Cowes,  April  16th 
for  Antwerp,  and  a  market;  she  struck  a 
-sand  bank  near  Campvere  and  was  greatly 
damaged ;  but  was  got  off,  caulked  at  Camp- 
vere, and  by  great  exertions  reached  the  point 
of  destination,  where  she  was  surveyed  and 
found  irreparable  for  want  of  requisite  docks. 
Being  wholly  unseaworthy  to  go  anywhere, 
she  was  sold,  and  the  master  purchased  her  at 
a  fair  sale  for  less  than  cue-sixth  the  amount 
she  was  valued  at  in  the  policy,  and  below  the 
amount  necessary  to  repair  her.  He  navi- 
gated her,  with  great  danger,  to  London,  and 
repaired  her  for  less  than  flfty  per  cent,  of  her 
valuation.  After  she  was  repaired,  but  before 
insured  knew  of  it,  or  of  her  arrival  at  Lon- 
<l<)n,  he  abandoned.  Held,  the  altandon- 
nient  was  not  timely,  but  that  insurers  were 
liable  for  a  partial  loss,  which  must  include 
the  expense  of  getting  her  to  London.  Hals, 
ton  v.  Union  Ins.  Co.,  4  Binn.,  386. 

10 


7.  In  case  of  capture,  detention  or  arrest, 
though  the  loss  is  at  first  total,  it  may  be  ren- 
dered partial  by  subsequent  events.  The  in- 
sured  must,  in  a  convenient  and  short  time, 
signify  his  election  to  abandon,  and  if  he  does 
not,  and  the  loss  does  not  continue  total,  but 
subsequent  events  make  it  partial,  then  the 
insured  shall  not,  by  abandonment,  convert 
the  partial  into  a  total  loss,  but  shall  recover 
for  the  partial  loss  only.  Yet  if  the  property 
is  never  restored,  he  shall  recover  for  a  total 
loss.     Brown  v.  Pluenix  Ins.  Co.,  4  Binn.,  44.5. 

8.  On  cargo,   from   PhihuU'lphia   to   Ant- 
werp, stipulated :  "  Not  to  abandon  in  less  than 
sixty  days  after  advice  of  capture  or  detention, 
illicit  trade   prohibited."    Oclober   16th  she 
was  captured,  carried  into  Plymouth,  and  re- 
stored on  the  20th,  with  permission  to  pursue 
voyage.     Arrived  in  Flushing  Roads  and  cast 
anchor  October  20th,  but  being  reported  from 
England,  a  guard  was  put  and  kept  on  board 
until  she  departed.     Permission  to  enter  Ant- 
werp was  refused ;   she  was  ordered  to  leave 
the  Roads.    She  sailed  for  Rotterdam,  and  was 
captured  the  day  after  by  a  British  brig  and 
carried  into  the  Downs,  and  again   restored 
and  permitted  to  proceed  to  Rotterdam,  De- 
cember 24th,  on  payment  of  captors'  expenses. 
Master  was  in  London  December  39th  to  ob- 
tain  advice  and   assistance,  when    she    was 
obliged,  in  consequence  of  a  gale,  to  cut  her 
cables  and  run  to   Margate  Roads.    January 
10th  she  proceeded  for  Westgate  Bay,  encoun- 
tering a  gale,  suffered  damage  to  hull,  was 
saved  from  shipwreck  by  aid  from  shore,  at 
an  expense  of  £886.     She  went  to  Ramsgate 
for  repairs  and  was  damaged  by  collision  — 
the  master  remaining  in  London  to  obtain  ad- 
vances to  pay  salvage  and  repairs.     In  Febru- 
ary' master  heard  of  the  Holland  decree  for- 
bidding entry  of  all  vessels  that  had  been  in 
England.     He    therefore    took    the    ship    to 
London  February  23d,  deposited  the  cargo, 
obtaining  advances  from  the  bailees,  made  re- 
pairs and  satisfied  salvage.     Insured  heard  of 
the  first  capture   December  1,  1807,  and   on 
May  20th,  abandoned,  on  the  ground  that  the 
cargo  was  discharged  in  England  and  voyage 
broken  up.    Held,  going  to  anchor  at  Flush- 
ing was  not  a  deviation,  because  the  fort  at 
Flushing    commanded   the    passage    of    the 
Scheldt,  and  it  was  necessary  to  report  there; 
that    insurers    could    not     be    permitted    to 
avail    themselves  of   an  exemption    ou    the 


21 


ABANDOXMENT. 


99. 


When  not  in  time. 


ground  of  illicit  trade,  because  that  was  the 
conseciuence  of  a  peril  insured  against,  viz., 
tlio  capture  aud  carrying  into  England;  and 
that  the  voyage  having  been  .stopi)ed  by  the 
actual  force  of  the  government  at  Flusliing, 
insured  might  liave  abandoned  and  claimed 
for  a  total  loss,  but  that  the  almudonment  when 
made  was  not  timely ;  hence,  he  must  recover 
for  a  partial  loss  only.  Held,  also,  that  when 
she  was  stopped  at  Flushing,  she  ought  to 
have  proceeded  to  a  "near  port"  with  llie  in- 
tention of  prosecuting  her  original  voyage 
as  soon  as  the  danger  sliould  be  over;  that 
her  sailing  from  Flushing  to  Rotterdam  was 
not  within  the  policy,  and  that  insurers 
were  lial)le  only  for  such  losses  as  occurred 
prior  to  that  time.  Savage  v.  Pleasants,  5  Binn., 
403. 

9.  On  cargo.  Philadi-Iphia  to  Gotten- 
burgli,  free  from  loss  for  seizure  in  port  or 
by  illicit  or  proliibited  trade.  Encountercvl 
aeavy  weatlier,  ship  became  leaky  and  readied 
quarantine  at  Gottenburgh  December  8th. 
Here  tlic  master  lieard  of  the  decree  of  Den- 
mark prohibiting  the  entry  of  vessels  having 
colonial  produce.  Tlie  cargo  was  ginger  and 
coffee.  In  consequence  of  the  decree,  it  was 
not  practicable  to  proceed  to  Eckenford,  and 
permission  was  asked  to  land  the  cargo  at 
Gottenburgh,  which  was  refused  on  account 
of  the  decree  of  Sweden.  January  5, 1811,  she 
ran  for  Lcitli,  arrived  there  on  the  10th,  and 
went  into  dock  for  repairs;  discharged  cargo, 
leaving  a  part  of  it  at  Leith  to  pay  expense.s, 
but  finding  no  place  where  she  could  land  the 
balance,  sailed  for  Philadelphia  April  4tli 
and  arrived  tliere  May  18th.  Insured  com- 
municated these  facts  to  insurer  April  4tli,  but 
did  not  abandon  till  May  21st.  Cargo  was 
sold  in  Philadelphia  aud  insured  claimed  for 
a  loss,  charging  the  cargo  with  the  freight. 
Held,  the  abandonment  was  not  timely,  aud 
that  insured  was  not  entitled  to  recover  for  a 
total  loss.  Krmnbhaar  v.  Marine  Ins.  Co.,  1  S. 
&  R..  281. 

10.  "  On  cargo,  warranted  free  from  aver- 
age, unless  general,  or  otherwise  specially 
agreed."  Stipulated:  "  In  case  of  particular 
average  on  flour,  occasioned  by  the  sliip  being 
stranded,  to  pay  so  much  thereof  as  shall  e.x- 
reed  five  per  cent."  She  was  bound  to  St. 
John's,  Newfoundland;  arrived  at  Cork  in 
distress  November  Kith,  and  that  portion  of 
the  cargo  which  had  not  been  thrown  over- 


boaril  was  landed  and  warelioused  December 
8th.  An  abandonment  was  offered  the  18th. 
Held,  the  abaiidonmeni  was  not  in  time. 
Hant  V.  Royal  Exchange  Ass.  Co.,  5  Mau.  <fc 
Sel.,  47. 

1 1 .  On  wheat  warranted  free  from  average. 
In  proceeding  from -Walerford,  ship,  struck  a 
rock  in  tlie  river,  filled,  and  was  run  ashore  to 
prevent  sinking.  For  four  weeks  she  was  en- 
tirely submerged  at  liigh  water;  and  during 
low  water  the  cargo  was  removed.  All  of  it 
was  damaged,  some  to  sucli  an  extent  that  it 
was  thrown  into  the  sea,  aud  some  was  kiln 
dried.  Twenty-one  days  after  the  accident,  an 
abandonment  was  offered,  but  refused.  Held, 
the  abandonment  was  not  timely.  But  a  new 
trial  was  awarded  for  the  purpose  of  giving 
tiie  assured  an  opportunity  to  prove  that  tlie 
abandonment  was,  in  fact,  offered  sixteen  days 
prior.  Anderson  v.  Royal  Exchange  Ass.  Co., 
7  East,  35 ;  3  Smith,  48. 

1 2.  The  ship  was  arrested  August  17th,  sent 
to  Bristol,  where  slie  arrived  August  30lh, 
where  she  was  detained  till  October  8th,  but 
no  abandonment  was  made  till  October  14lh. 
Held,  it  was  out  of  time.  Barker  v.  Blakcs,  U 
East,  283. 

13.  On  cargo  from  a  port  in  the  United 
States  to  a  port  in  Ireland.  Insured  learned 
February  11,  1808,  that  the  sliip,  when  ready 
to  sail,  December  23,  1807,  had  been  detained 
by  the  American  eiubargo;  but  did  not  aban- 
don till  June  11th.  Held,  too  late.  Kelly  v. 
Walton,  2  Camp.,  .155. 

14.  An  American  privateer  stripped  her  of 
her  stores  aud  rigging  and  took  away  some  of 
her  sailors,  and  set  her  at  liberty,  after  detain- 
ing her  a  few  days.  She  bore  away  for 
Charleston  aud  arrived  there  February  18, 
1782,  at  which  place  she  was  put  into  the 
hands  of  a  part  owner,  who  sold  the  cargo, 
but  remitted  no  part  of  the  proceeds.  He  gave 
the  insurers  credit  for  the  amount  on  his 
books,  and  became  insolvent.  During  three 
years  no  abandonment  was  made.  Held,  tlie 
insured  had  waived  their  right  to  a  total  loss. 
Mitchell  V.  Edie,  1  Term,  G08. 

1 5.  Ship  arrived  at  Kinsale  November  24lli. 
Her  second  sur\'ey  was  made  December  14th, 
when  it  was  found  expense  of  repairs  would 
exceed  value  of  ship.  Notice  of  abandonment 
to  insurers  .Tanuary  fith.  Communication  be- 
tween Kinsale  and  London,  where  insurers  re- 
sided, could  liave  been  made  in  four  or  five 

11 


23 


ABANDONMENT. 


24 


What  waives  the  right. 


days.    BeU,  the  notice  of  abandonmeDt  was 
too  late.     Aldridrje  v.  Bell,  1  Stai-lcic,  498. 

IB.  On  ship  for  twelve  niontlis  from  Au- 
gust, 1841.  M.iy  31,  1843,  she  was  wrecked 
on  a  reef  off  the  Mauritius,  having  been  previ- 
ously  disabled  in  a  storm,  was  floated  off  and 
towed  to  Port  St.  Louis"  the  same  day,  where 
slie  was  afterwards  repaired  at  an  expense  of 
£.3,000,  to  defray  which  the  master  bottomed 
her  for  £5,383,  including  commissions  and 
other  expenses.  On  her  arrival  at  London,  in- 
sured refused  to  receive  her  or  to  pay  the  bond. 
She  was  accordingly  sold  by  the  holders  of 
the  bond,  and  brought  £2,800,  after  which  an 
abandonment  was  offered  and  refused.  Held, 
the  abandonment  was  not  timely,  therefore  an 
action  for  a  total  loss  could  not  be  maintained. 
Fleming  ».  Smith,  8  C.  C.  S.,  627;  18  Scot.  Jur., 
319. 

17.  On  ship  for  twelve  months  from  August 
18,  1841,  valued  at  £6,000.  April  12,  1842,  she 
sailed  from  Port  Adelaide  to  Bombay,  and  on 
May  18th  she  encountered  very  tempestuous 
weather  and  was  driven  into  the  Mauritius, 
where  she  arrived  May  81st  in  a  greatly  dam- 
aged condition.  She  was  repaired,  and  money 
to  pay  for  the  repairs  was  procured  on  bottom- 
ry. She  took  a  cargo  of  sugars  and  arrived  in 
England  Marcli  27, 184.3,where,  with  her  freight 
earned,  she  was  not  equal  in  value  to  the  sum 
secured  by  the  bottomry  bond,  £4,.536.  She 
was  then  abandoned  to  her  insurers  March  30, 
1843.  In  a  letter  written  by  the  vessel's  agents 
received  by  insured  November  13, 1842,  it  was 
stated  that  she  would  proceed  to  Bomba}' 
when  repaired;  that  they  had  advertised  for  a 
loan  of  $20,000  to  be  secured  by  bottomry; 
that  no  offers  had  been  made,  but  that  parties 
were  ready  to  advance  the  money  required, 
provided  she  proceeded  from  the  Mauritius 
direct  to  England,  and  that  they  had  offered 
lier  a  cargo  of  sugar  at  current  rates  of  freight 
for  England.  Held,  insured  had  failed  to 
abandon  in  time,  and  in  so  doing,  had  treated 
the  loss  as  partial  and  not  total ;  that  when  the 
owners  of  a  ship  insured  receive  intelligence 
that  she  is  capable  of  being  repaired  and  is 
lying  in  port,  they  must  then  abandon,  and 
failing  to  do  so  then,  they  cannot  claim  for  a 
total  loss,  and  abandon  after  she  is  repaired, 
Fleming  v.  SmiOi.  1  H.  L.  Cas.,  513. 

18.  On  leaving  Pernambuco,  she  struck 
a  rock  and  was  obliged  to  put  back  for  repairs, 
wliich  were  continued  for  a  long  time,  and 

12 


when  completed,  exceeded  the  value  of  ship 
and  freight.  The  master  not  being  able  to 
procure  money  to  pay  for  them,  pledged  ship, 
cargo  and  freight  in  a  bottomi-y  bond,  obtained 
the  money  and  discharged  the  debts.  She  ar- 
rived  at  the  port  of  destination,  delivered  ear- 
go  and  earned  freight.  No  abandonment  was 
offered  until  after  the  repairs  were  made. 
Ileld,  the  abandonment  ouglit  to  have  been 
offered  before  the  repairs  were  made ;  that  the 
master  having  elected  to  repair,  his  acts  were 
the  acts  of  the  owner,  and  an  abandonment 
offered  after  repairs  made  came  too  late.  Ben- 
ion  V.  Chapman,  3  H.  L.  Cas.,  096. 

X.  What  waives  the  eight. 

1.  Ship  was  abandoned  but  afterwards  got 
into  port,  was  repLiired  and  sent  on  another 
voyage.  Held,  a  waiver  of  the  abandonment. 
Saidlier  v.  Church,  1  Caines,  297  n. 

2.  After  an  abandonment  made,  insured 
caused  the  vessel  to  be  sold  and  bought  in  by 
their  agent  on  their  own  account,  and  em- 
ployed  her  on  another  voyage.  Held,  a  waiver 
of  the  abandonment.  Ogden  v.  Netc  York  Jim. 
Co.,  10  .Johns.,  177.     ' 

3.  If  the  property  insured  is  abandoned  and 
sold  for  the  benefit  of  whom  it  may  concern, 
and  the  insured  purchase  it  at  the  sale,  that 
waives  a  prior. abandonment.  Ogden  v.  Hew 
York  Firemen  Ins.  Co.,  13  Johns.,  25. 

4.  The  insured  must  elect  to  abandon  with- 
out unnecessary  delay;  if  an  unnecessary  de- 
lay is  proved,  that  is  a  waiver  of  the  right  to 
abandon.  Lirermore  v.  Neichuryport  ilarine 
Ins.  Co.,  1  Mass.,  264.  A  delay  of  thirty  days  is 
unnecessary,  and  takes  away  the  right.    Ibid. 

5.  The  plaintiff'  declared  for  an  absolute 
total  loss;  but  there  was  no  proof  of  abandon, 
ment.  Held,  insurers  could  by  their  conduct, 
waive  the  right  to  insist  upon  the  abandon- 
ment; th.at  an  absolute  refusal  to  p.ay  the  loss, 
founded  upon  reasons  other  than  a  failure  to 
abandon,  will  estop  insurer  from  insisting  up- 
on a  neglect  to  abandon;  that  a  claim  for  a 
total  loss  is  equivalent  to  an  abandonment 
(citing  Patapsco  .Ins.  Co.  v.  Southgate,  5  Pet., 
604;  Cassedy  v.  La.  State  Ins.  Co.,  18  Martin, 
431;  2  Parsons  on  Insurance,  172-176;  Thwing 
V.  Washington  Ins.  Co.,  10  Gray,  443;  Ports- 
mouth Ins.  Co.  V.  Brazee,  16  Ohio,  81).  Sher- 
lock V.  Globe  Tns.  Co.,  1  Cin.  Sup.  Ct..  193 ;  S.  C, 
25  Ohio  St.,  50. 


ABANDONMENT. 


26 


What  does  not  waive  the  right. 


6.  In  the  course  of  her  voyage,  she  was  in- 
jured by  perils  of  the  sea,  and  forced  to  a  port 
of  distress.  Two  surveys  were  made  under 
tlie  direction  of  the  admiralty.  Cargo  lauded, 
aud  from  the  injury  which  both  had  received, 
tiie  difficulty  of  repairing,  the  impediments 
resulting  from  the  laws  of  the  place,  as  well 
as  the  opinions  of  the  surveyors,  the  master 
treated  the  voyage  as  broken  up,  sold  the  ship, 
which  was  purchased  by  the  supercargo,  a 
part  owner,  on  behalf  of  the  owners,  who 
affirmed  the  purchase,  and  sold  her  for  their 
own  benefit,  after  she  returned  to  the  home  port. 
Ileld,  it  was  a  waiver  of  the  abandonment  aud 
claim  for  total  loss;  that  insured  could  recover 
for  an  average  loss  only.  Abbott  v.  Sebor,  3 
Johns.  C,  39.  And  on  a  policy  "  upon  profits 
of  the  cargo,"  it  was  Jteld,  that  the  established 
rule  in  respect  to  ships  and  cargo  should  ap- 
ply in  determining  whether  there  was  a  tech- 
nical total  loss  of  the  profits.    Ibid. 

XI.  "What  does  not  waive  the  eight. 

1.  Ship  was  taken  by  a  British  armed  ves- 
sel, carried  into  Bermuda  February  12th,  and 
libelled  as  prize  of  war.  Intelligence  of  the 
taking  reached  the  insured  February  26lh,  aud 
an  abandonment  was  offered  tlie  28th.  Ship 
and  cargo  were  acquitted  April  20,  1805,  but 
an  appeal  was  taken  from  the  decree  si)  far  as 
it  affected  the  cargo.  Held,  the  right  to  aban- 
don was  complete  when  she  was  taken ;  and 
at  the  time  the  abandonment  was  offered,  the 
loss  continued  total ;  that  the  existing  facts  at 
the  time  the  abandonment  was  offered  lixed 
the  rights  of  the  i)arlies,  hence  the  release  aud 
return  of  ship  and  cargo  did  not  deprive  in- 
sured of  the  right  to  recover  of  insurer  for  a 
total  loss.  Rhiiielander  v.  Insurance  Co.  of 
Penn.,  4  Cranch,  39. 

2.  Insured  addressed  a  letter  to  insurers  in 
which  they  staled  they  desired  to  take  every 
measure  they  might  judge  best  for  "our  mu- 
tual interest,  without  prejudice  to  our  rights." 
Insurers  examined  the  letter  and  indorsed  it, 
"Read  and  approved;"  and  returned  it  to  in- 
sured. Held,  insured  asked  permission  of  in- 
surers to  keep  their  right  to  abandon  in  abey- 
ance, and  the  iudorsement  granted  that  per- 
mission, which  was  to  continue  while  the 
property  continued  in  its  then  situation,  unless 
sooner  deteimiued  liy  one  of  the  parties;  that 
insurers  had  tltc  right  to  require  insured  to 


elect  to  abandon  or  to  waive  the  right,  and 
until  they  did  so,  the  original  permission  con- 
tinued in  force.  Livingston  v.  Maryland  Ins. 
Co.,  (i  Cranch,  274. 

3.  On  the  outward  voyage,  she  put  into 
Hampton  Roads  for  shelter,  and  was  driven 
ashore,  above  high  water  mark.  The  survey- 
ors recommended  a  sale  for  the  benefit  of  all 
concerned,  and  insured  abandoned.  She  was 
advertised  for  sale.  An  agent  of  insurers  ar- 
rived at  the  port  of  distress  and  oflered  to  sup- 
ply money  to  one  of  the  owners,  and  to  an 
agent  of  insured  to  get  the  vessel  off.  He 
stated  that  he  had  come  to  the  place  to  adopt 
such  measures  as  might  be  to  the  interest  of 
the  insurers,  and  to  aid  the  owners  of  the  ves- 
sel  in  getting  her  off.  He  forbade  the  sale 
which  was  then  advertised  in  the  newspapers 
of  Norfolk;  but  one  of  the  owners  refused  to 
accept  the  offer  or  to  allow  the  sale  to  be  post- 
poned. Held,  it  would  have  been  error  for  the 
court  to  have  told  the  jury  that  they  ought  to 
infer  a  revocation  of  the  abandonment;  that 
whether  the  insured  or  their  agents  intended 
to  act  for  the  benefit  of  the  owners  and  not  for 
the  underwriters,  was  a  question  of  intention 
to  be  decided  by  the  jury  upon  the  circum- 
stances of  the  case.  Columbian  Ins.  Co.  v. 
Ashby,  4  Pet.,  139. 

4.  Ship  was  sold  for  benefit  of  all  con- 
cerned, aud  purchased  by  one  of  the  owners 
for  account  of  insured  who  would  not  affirm 
the  purchase.  Held,  no  waiver  of  the  aban- 
donment.   Abbott  V.  Broome,  1  Gaines,  393. 

5.  Capture  by  a  friend,  or  carrying  into  a 
port  of  a  neutral  by  a  belligerent  for  adjudica- 
tion, as  contrailistinguished  from  capture  by 
an  enemj',  is  a  ground  of  abandonment,  and  is 
prima  facie  a  total  loss;  and  the  fact  that  the 
property  has  been  restored  before  abandonment 
does  not  affect  the  right  to  recover  unless  the 
insured  had  knowledge  of  the  restoration. 
Murray  v.  United  Ins.  Co.,  3  Jolins.  C,  363. 

6.  Abandonment  was  made  at  a  time  subse- 
quent to  the  release  of  the  properly  abandoned, 
but  neither  party  knew  of  the  release.  After- 
wards it  arrived  at  the  port  of  destination  in 
safety ;  was  then  tendered  to  insurers  who  re- 
fused it;  was  put  in  store,  kept  sixty  days  and 
sold  for  the  benefit  of  the  insurers.  Held,  not 
a  waiver  of  the  abandonment.  Livingston  v. 
Uiistie,  3  Johns.  C,  293. 

7.  The  vessel  was  redelivered  to  insured  by 
order  of  the  prize  court  upon  his  giving  bond 

31 


27 


ABANDONMEl^T. 


28 


When  c6nclusive. 


to  return  her  or  pay  her  value  in  case  of  con- 
demnation. Held,  no  determination  of  the 
hostile  detention.  Loveri  g  v.  Steraintile  Ins. 
Co.  12  Pick.,  348.  And  an  acceptance  of  her 
is  not  a  waiver  of  the  abandonment;  for  if 
the  abandonment  was  valid  the  person  ^vllo 
accepts  her  is  the  agent  of  the  insurer. 
Ibid. 

8.  On  ship  from  Philadelphia  to  Kingston 
and  a  port  in  the  island  of  Cuba.  She  was 
seized  in  Jamaica  and  abandoned,  but  the  in- 
surer refused  to  accept.  She  went  from  Ja- 
maica to  St.  Jago  de  Cuba,  and  thence  to 
Trinidad  (Cuba),  where  she  took  cargo  on 
account  of  insured,  and  then  returned  to 
Philadelphia.  Insured  offered  her  to  insurers, 
who  again  refused,  and  she  was  sold  at  pub- 
lic auction  for  their  benefit,  upon  notice  to 
them  —  they  had  consented,  that  insurance 
should  be  made  upon  her  home  voyage. 
Meld,  no  waiver  of  the  abandonment,  that 
after  abandonment,  if  that  be  legal,  the  in- 
sured is  agent  for  the  insurer  in  respect  to  the 
property  abandoned.  Curcier  v.  Philadelphia 
Ins.  Co.,  5  S.  &  R.,  113. 

9.  Ship  was  cast  upon  the  rocks  at  Heli 
Gate,  and  greatly  damaged.  Owner  aban- 
doned, and  insurers  authorized  him  to  bring 
her  into  the  Connecticut  river  if  practicable, 
and  to  do  whatever  should  be  needful  without 
militating  against  the  abandoment.  Held,  the 
agreement  did  not  waive  his  rights  under  the 
abandonment.  King  v.  Hartford  Fire  Ins.  Co., 
1  Conn.,  333. 

10.  She  was  mortgaged  by  insured,  and 
he  offered  to  abandon  to  insurers,  who 
knew  she  was  mortgaged.  They  made  no 
objection  to  the  abandonment  on  that  ground. 
The  mortgagee  assented  to  the  abandonment. 
Held,  insurers  could  not  object  that  the  aban- 
donment was  invalid,  on  the  ground  that  the 
mortgagor  had  no  authority  to  make  it;  for  it 
was  immaterial  whether  it  was  in  writing  or 
a  mere  oral  offer,  and  though  the  mortgagee 
proceeded  against  the  boat  under  the  mortgage 
and  foreclosed  it,  that  was  not  a  revocation 
of  the  abandonment,  so  far  as  the  mortgagor 
was  concerned.  Fulton  Ins.  Co.  v.  Goodman, 
32  Ala.,  108. 

11.  On  freight.  She  was  not  worth  repair- 
ing at  the  port  of  lading,  and  owners  aban- 
doned to  insurers  of  ship  and  insurers  of 
freight.  Held,  as  the  owner  was  not  under 
any    obligation  to  repair    in  order  to  earn 

U 


freight,  but  was  justified  in  abandoning  her 
to  insurers  of  ship,  the  loss  of  freight  arose 
from  a  sea  peril,  and  not  from  the  insured's 
act  of  abandonment;  for  to  hold  otherwise 
would  be  to  render  inoperative  all  policies  mi 
freight,  unless  the  insured  elected  to  repair 
the  ship.  Potter  v.  liankin,  6  L.  R.  Eng.  it 
It-.,  App.,  83;  affirming  S.  C,  42  L.  J.  C.  P., 
ICO;  5  L.  R.  C.  P.,  341;  22  L,  T.  (N.  S.),  347; 
18  W.  R.,  607;  39  L.  J.  C.  P.,  147;  reversing 
S.  C,  3  L.  R.  C.  P.,  562;  37  L.  J.  C.  P.,  257;  18 
L.  T.  (N.  S.),  712;  16  W.  R.,  1049. 

XII.    WuEX  CONCLUSIVE. 

1.  Insurers  had  accepted  the  abandonment. 
Held,  the  court  had  no  right  to  charge  that 
insured  had  not  the  right  to  abandon.  Ins. 
Co.  V.  Pi'iggo,  16  Wall.,  373. 

2.  Insurers  took  possession  of  the  vessel, 
repaired  and  offered  to  return  her  to  insured 
on  his  paying  a  portion  of  the  expense  of 
repairs.  Held,  it  was  an  acceptance  of  thfe 
abandonment,  notwithstanding  insurer's  de- 
claration to  the  contrar}'.  Gloucester  Ins.  Co~ 
V.  Younger,  2  Curtis,  322. 

3.  On  cargo.  Ship  was  captured.  Insured 
received  information  of  it,  December  30ili. 
Released,  January  15th.  Abandonment  made 
January  21st.  Neither  party  knew  of  the  re- 
lease when  the  abandonment  was  made.  Held, 
the  abandonment  was  effectual,  notwithsand- 
ing  the  property  afterwards  arrived  in  safety 
at  the  port  of  destination.  Livingston,  v. 
Hastie,  3  Johns.  C,  293. 

4.  Ship  was  driven  into  a  port  of  distress 
where  partial  repairs  were  made,  and  being 
unable  to  procure  the  necessary  funds  to  com- 
plete  them,  coupled  with  the  fact  that  the 
cargo  was  in  such  a  damaged  condition,  that 
the  further  prosecution  of  the  voyage  was  not 
worth  the  attempt,  the  master  sold  her  before 
abandonment  was  m.ade.  Held,  the  doctrine 
that  where  a  total  loss  is  claimed  on  the  ground 
that  the  ship  was  innavigable,  the  insurers 
may  defeat  an  abandonment  by  electing  to 
make  necessary  repairs,  has  been  rejected  l;j' 
the  courts  of  New  York  in  the  case  of  Ceut>-r 
V.  American  Ins.  Co.,  7  Cow.,  564;  4  Weud., 
45;  also,  by  Stobt  J.,  in  Peele  t.  Mercbauts' 
Ins.  Co.,  3  Mason,  29,  because  the  rigi.t  to 
abandon  is  not  a  shifting  right,  dependent 
upon  the  will  of  both  parties.  Hence,  where- 
it  has  once  rightfully  attached,  insured  can. 


29 


ABANDONMENT. 


30' 


What  it  oan-ii_'s. 


not  be  prevented  from  exercising  it,  nor  can 
that  riglit  be  defeated  by  any  act  or  ofler  on 
the  part  of  insurers.  Ruekman  v.  Merchants' 
Louumlle  Irs.  Co.,  5  Duer,  343. 

6.  Tlie  insurer  wbo  refuses  to  accept  aban- 
donment, but  talves  possession  for  tlie  purpose 
of  removing,  repairing  and  restoring  ship  to 
owner,  must  use  diligence  and  dispatcli.  A 
want  of  it  will  operate  as  an  acceptance  of  the 
abandonment,  although  the  repairs  are  after- 
wards made  with  reasonable  dispatch.  Rey- 
nolds ■».  Ocean  Ins.  Co.,  1  Met.,  160.  And,  a 
clause  in  the  polic}',  which  provides:  "That  the 
acts  of  the  insurer  in  recovering,  saving  and 
preserving  property  insured,  in  case  of  dis- 
aster, shall  not  be  considered  as  an  acceptance 
of  an  abandonment,"  does  not  affect  insurer's 
liability  in  such  a  case.    Ibid. 

6.  If  insured  persist  in  his  abandonment, 
and  insurer  expressly  or  impliedly  accept  it, 
insured  may  recover  for  a  total  loss ;  and  tak- 
ing possession  without  qualification  or  reser- 
vation, necessarily  implies  and  constitutes  an 
acceptance  of  a  previous  offer  to  abandon. 
Cincinnati  Ins.  Co.  v.  Bakeioell,  4  B.  Mon, 
641. 

7.  The  insured  refused  to  repair  the  ship, 
and  offered  to  abandon.  Held,  insurer  may 
repair  her  within  a  reasonable  time  and  restore 
her  to  insured,  if  the  repairs  cost  less  than 
one-half  her  value ;  but  if  the  restoration  was 
not  made  within  a  reasonable  time,  insurer 
forfeited  his  right  to  return  her  to  the  owner, 
and  he  must  be  treated  as  having  accepted  the 
abaudonment.  Feele  v.  Suffolk  Ins.  Co.,  7 
Picli.,  254. 

8.  On  cargo  of  wine,  valued  at  £25  per 
pipe,  to  Bristol,  Liverpool  and  Dublin,  all  or 
either,  including  the  risk  of  craft.  She  was 
wrecked  near  Bristol,  and  three-fourths  of  the 
cargo  so  much  damaged  as  to  make  it  impru- 
dent to  delay  a  sale  of  it  till  sent  to  the  ports 
of  Dublin  or  Liverpool.  The  day  after  the 
accident,  insurers  met  and  ordered  insured  to 
do  the  best  for  all  parties;  and,  on  that  day  a 
notice  of  abandonment  was  delivered.  More 
tlian  two  months  afterwards,  some  of  the  in- 
surers interfered,  and  forbade  a  sale  of  the 
damaged  wine.  Held,  not  having  repudiated 
the  abandonment,  insurers  must  be  presumed 
to  have  acquiesced.  Hudson  v.  Harrison,  3 
B.  &  B.,  97 ;  3  Moore,  288. 

9.  On  ship,  at  and  from  Halifax  to  Ply- 
mouth.    Captured  on  the  voyage  Sejitember 


16,  1805.  October  18,  1805,  the  owners  re- 
ceived  intelligence  of  the  capture,  and  offered 
to  abandon  on  the  following  day.  The  mas. 
ter's  protest  was  sent  to  insurers  October  19tli. 
It  was  referred  to  two  of  their  number  Octo- 
ber 21st,  who  returned  it  to  the  insurance  bro- 
kers October  24th,  saying  they  were  satisfied. 
On  the  same  day  the  owner  received  intelli- 
gence of  her  recapture;  some  of  the  under- 
writers settled  for  a  total  loss,  and  took  charge 
of  the  vessel  witliout  prejudice.  She  reached 
the  port  of  destination  and  earned  freight. 
Held,  the  insurers  had  acquiesced  in  the  aban- 
donment  and  claim  for  total  loss,  hence  they 
could  not  be  permitted  to  say  it  was  not  toUU, 
S7nith  V.  Robertson,  2  Dow,  474. 

XIII.  What  it  carries. 

1.  Ship  owner  insured  his  vessel  and  freight 
witli  different  insurers.  She  was  captured. 
Ue  abandoned  to  the  insurer  of  vessel,  and 
then  to  insurers  of  freight;  after  which,  in- 
surers of  ship  paid  fifty  per  cent,  of  the  claim, 
and  for  the  balance  assigned  their  rights  in 
the  res  to  insured.  Held,  insured  on  freight 
was  entitled  to  recover  the  freight  to  which 
the  insurers  on  ship  would  have  been  entitled. 
Davy  1}.  Hallett,  3  Caines,  16. 

2.  An  abandonment  of  the  ship  does  not 
affect  the  remedy  of  the  insured  on  freight  for 
loss  of  it.  Center  v.  American  Ins.  Co.,  7 
Cow.,  564 ;  affirmed,  4  Wend.,  46. 

3.  By  the  act  of  abandonment  the  si^es  recite 
peramli  is  completely  gone  from  the  insured, 
and  passes  to  the  insurer.  Rogers  v.  Hosaek, 
18  Wend.,  319.  And  this  is  so,  notwithstand- 
ing that  the  insurer  has  not  paid  the  loss. 
Ibid. 

4.  An  abandonment  rightfully  made,  though 
not  acccpte.l,  vests  the  spes  reciiperandi  in  the 
insurers;  but  the  insured  have  an  equitable 
lieu  as  against  other  debts  of  the  same  rank 
for  the  payment  of  the  claim.  Hosaek  v.  Rog- 
ers, 6  Paige  Ch.,  415. 

5.  If  the  total  amount  insured  by  all  the 
policies  does  not  equal  the  value  of  the  thing 
insured,  the  owner  is  liis  own  insurer  for  the 
difference,  and  is  entitled  to  a  pro  rata  share 
in  the  proceeds  of  the  salvage.  Phillips  v. 
St.  Louis  Perpetual  Ins.  Co.,  11  La.  An.,  4-')9. 

6.  The  goods  were  shipped  by  G.  &  Co., 
and  by  them  insured.  A  disaster  occurred  in 
the   course   of   the   voyage,   and    the   master 

\S' 


31 


ABANDONMENT. 


32 


What  is  an  acceptance  of. 


abandoned  vessel  and  cargo  to  insurers,  wliose 
agent  toolc  possession  of,  and  sold  ihe  cargo 
at  private  sale;  afterwards  confirmed  by  in- 
sured. Held,  the  abandonment  passed  a  valid 
title  to  insurers,  and  therefore  tlie  purchase 
from  insurers'  agent  must  be  upheld.  Gra- 
ham V.  Ledda,  17  La.  An.,  45. 

7.  On  steamboat  valued  at  $20,000,  insured 
for  $15,000.  She  was  sunk  in  the  Mississippi 
and  abandoned  to  the  insurers,  who  raised 
her,  and  realized  |3,000,  after  paying  all 
charges  and  expenses.  Insured  brought  this 
action  to  recover  one  fourth  of  tluit  sum,  their 
uninsured  proportion  of  the  net  salvage.  The 
policy  stipulated  :  "  In  case  of  abandonment, 
the  insured  shall  assign  and  set  over  to  this 
company  all  their  interest  in  and  to  said 
steamboat  and  every  part  thereof,  free  oi  all 
claims  and  charges  whatsoever."  Held,  they 
■were  entitled  to  recover,  for  the  abandonment 
did  not  carr)-  that  portion  of  the  interest  of 
which  the  owners  were  their  own  insurers. 
Cincinnati  Ins.  Co.  v.  Dvffield,  6  Ohio  St.,  200. 

8.  Ship  owner  insured  ship  and  freight,  and 
loaded  her  on  his  own  account.  She  was  strand- 
ed twenty  miles  from  destination.  He  aban- 
doned her  to  insurers  of  ship.  At  his  own  ex- 
pense conveyed  part  of  the  cargo  bj'  lighters 
to  port  of  destination,  and  at  his  own  expense 
got  the  ship  off  with  the  bahince  of  the  cargo, 
and  took  her  to  destination.  Held,  the  aban- 
donees of  ship  were  entitled  to  an  allowance 
for  the  carriage  of  that  part  of  the  cargo  from 
the  place  of  stranding  to  its  destination,  to  be 
estimated  at  the  current  rate  of  freight.  Mil- 
ler V.  Woodfall,  8  El.  &  Bl.,  493 ;  S.  C,  4  Jur. 
(N.  S.),  302 ;  27  L.  J.  Q.  B.,  120. 

XIY.  "What  is  an  acceptaxce  of. 

1.  On  steamboat,  stipulated:  "In  case  of  loss, 
the  party  insured  shall  use  every  pract  ical  effort 
for  the  safeguard  and  recoveiy  of  said  steam- 
boat, if  recovered,  cause  the  same  to  be  forth- 
with repaired,  and  in  case  of  neglect  or  refusal 
on  the  part  of  insured  to  adopt  prompt  and  efli- 
cient  measures  for  the  safeguard  and  recovery 
thereof,  insurers  are  hereby  authorized  to  in- 
terpose and  recover  the  said  steamboat,  and  to 
cause  the  same  to  be  repaired  for  account  of 
insured,  to  the  charges  of  which  the  said  in- 
surance companj'  will  contribute  in  propor- 
tion as  the  sum  herein  insured  bears  to  the 
agreed  value."  She  struck  a  snag  in  the  Mis- 
IC 


souri  river  and  sank.  Insured  gave  notice  of 
an  abandonment  which  was  refused;  but  in. 
surers  took  possession  for  tlie  purpose  of  rais- 
ing and  repairing  her  and  returning  her  to  in- 
sured. They  raised,  repaired,  and  tendered 
her  at  the  home  port  May  9,  1866.  The  acci- 
dent occurred  November  3,  1865.  Had  she 
been  tendered  earlier  in  the  season,  so  as  to 
have  been  put  into  the  spring  trade,  she  would 
have  been  worth  |5,000  more  than  when  ten- 
dered. It  would  have  cost  $5,000  more  than 
was  expended  upon  her  to  make  good  the 
deficiencies.  As,  tendered  she  was  worth 
.$12,000;  when  injured,  she  was  worth  $25,000. 
Held,  the  right  to  take  possession  of  the 
vessel  was  accorded  that  insurers  might 
make  indemnity  for  the  loss;  they  had  no 
right  to  take  possession  for  the  purpose  of 
making  partial  repairs,  that  did  not  amount 
to  indemnity  ;  thej-  were  bound  to  make  com- 
plete repairs,  without  unnecessary  delay;  and 
in  holding  possession  longer  than  was  neces- 
sary, they  held  as  owners  and  not  as  insurers; 
that  a  failure  to  return  her  within  a  reasoii- 
able  time  was  aa  acceptance  of  the  abandon, 
ment  (citing  Peele  v.  Suffolk  lus.  Co.,  7 
Pick.,  254;  Reynolds  v.  Ocean  Ins.  Co.,  23 
id.,  191;  Norton  v.  Lexington  Marine,  Life 
and  Fire  Ins.  Co.,  16  111.,  235).  Therefore  the 
insurers  were  liable  for  a  total  loss  notwith- 
standing insured  had  no  right  to  abandon 
when  he  offered  to  do  so  (affirming  S.  C, 
Wool,  C.  C,  278).  Copelin  v.  Ins.  Co.,  9  Wall , 
461;  5.  C,  46  Mo.,  211. 

2.  An  abandonment  was  made  by  the  mas- 
ter, and  the  owners  demanded  payment  for  a 
total  loss.  Insurers  authorized  efforts  to  be 
made  to  get  her  off  at  their  expense,  ordered 
her  to  be  stripped  and  the  rigging  stored,  and 
contracted  with  others  to  gel  her  off.  She  was 
brought  to  Gloucester,  repaired,  .and  tendered 
to  the  owners.  Held,  insurers'  acts  made  the 
abandonment  valid.  Gloucester  Ins.  Co.  v. 
Younger,  2  Curtis,  322. 

3.  Stipulated :  "  In  case  of  loss  or  misfor- 
tune, it  shall  be  the  duty  of  insured  to  use 
every  practicable  effort  for  the  safeguard 
and  recovery  of  the  schooner;  and  if  recov- 
ered, to  cause  the  same  to  be  forthwith  re- 
paired ;  and  in  case  of  neglect  or  refusal  on 
the  part  of  insured,  to  adopt  prompt  and 
efficient  measures  for  that  purpose,  then  in- 
surers  are  authorized  to  interpose  and  recover 
the  said  schooner  and  cause  the  same  to  be  re- 


33 


ABANDONMENT. 


34 


What  is  not  an  acceptance  of  —  Generally. 


paired  for  account  of  insured  to  the  chsirges 
of  wliich  the  insurance  company  will  contri- 
bute," etc.  She  was  wrecked  with  a  cargo  of 
stone  coal  and  pig  iron,  November  27,  1850, 
near  False  Presque  Isle,  an  uninhabited  coast 
one  hundred  and  fifty  miles  or  more  to  the 
nearest  settlement,  with  no  means  at  hand  for 
getting  her  off.  Insured  abandoned  February 
2<j,  1851,  stating  as  the  cause  that  she  had  four 
or  five  feet  of  water  in  her  hold,  that  all  efforts 
tu  pump  her  out  had  proved  unsuccessful,  that 
«he  was  hard  upon  the  rocks  and  boulders  in 
an  exposed  condition,  and  would  doubtless  go 
to  pieces  as  soon  as  the  ice  should  disappear 
in  the.  spring.  Insurers  refused  the  abandon- 
ment, and  employed  wreckers  in  the  spring 
who  discharged  her  cargo  in  two  days, /owed 
her  into  harbor,  where  she  sunk  in  abouteight 
feet  of  water.  She  was  again  raised,  taken 
away  and  repairs  completed  August  7th  fol- 
lowing, at  an  expense  of  $2,800.  What  her 
vilue  was  after  repairs  were  made  did  not  ap- 
l)ear.  She  was  then  tendered  to  insured  who 
refused  her.  Held,  considering  all  the  circum- 
stances of  the  case,  the  abandonment  was  in 
time.  And  though  it  was  not  timely,  if  in- 
surers took  her  to  repair  under  the  authority 
conferred  in  the  policy  and  failed  to  return 
her  in  a  reasonable  time,  they  must  be  held  to 
have  retained  her  under  the  abandonment,  and 
the  retention  would  be  an  acceptance  of  the 
abandonment.  Hence  insured  was  entitled  to 
recover  as  for  a  total  loss.  Norton  ».  Lexinrj- 
ingtoii  Ins.  Co.,  16  111.,  235. 

XV.  What  is  not  an  acceptance  of. 

1.  The  agent  of  insurer  superintended  the 
unloading  of  the  ship  in  order  to  repair 
her.  Held,  not  to  be  construed  into  an  ac- 
ceptance of  an  abandonment.  Griswold  v. 
New  York  Ins.  Co.,  1  Johns.,  205;  S.  C,  'd 
id.,  321. 

2.  On  ship,  stipulated:  "Insurer  shall  not 
be  liable  for  partial  loss  unless  it  amounts  to 
fifty  per  cent. ;  nor  shall  insured  abandon  for 
damage  merely,  unless  the  damage,  under  an 
adjustment  as  of  a  partial  loss  shall  exceed 
half  the  amount  insured."  She  was  stranded, 
an  abandonment  offered  and  refused.  Insurer, 
against  the  will  of  insured,  got  her  off,  repaired 
and  delivered  her  to  insured,  within  a  reas- 
onable time.   Held,  insurerwasjustified  and  he 

2 


was  entitled  to  recover  of  insured  the  expenses 
for  saving  and  repairing  the  ship.  Common' 
wealth  Ins.  Co.  v.  Chase,  20  Pick.,  142. 


XVI.  Generally. 

1.  On  Goods,  from  Philadelphia  for  LaGui- 

ra,  she  was  captured  by  a  British  privateer 
and  carried  into  Curracoa.  April  29th  the 
master  made  protest.  The  ship  and  goods 
being  still  in  possession  of  the  captors  and  by 
them  detained,  an  abandonment  was  offered 
June  13th.  Held,  the  capture  gave  the  right 
to  abandon,  but  the  judgment  was  reversed 
because  the  special  verdict  did  not  find  whether 
it  was  offered  in  due  time.  Chesapeake  Ins. 
Co.  V.  Stai'k,  6  Cranch,  268. 

2.  The  claim  was  for  a  technical  total  loss. 
Held,  the  loss  must  continue  total  up  to  the 
time  of  abandonment;  but  it  was  not  necessa- 
ry  that  it  should  be  known  as  existing  at  that 
time;  but  it  must  actually  exist,  of  which 
affirmative  or  negative  proof  may  be  given  at 
the  trial.  Olivera  v.  Union  Ins.  Co.,  3  Wheat., 
183;  Smith  v.  Newburyport  Mut.  Ins.  Co.,  4 
Alass.,  608. 

3.  The  right  to  abandon  may  he  waived. 
Abbott  V.  Broome,  1  Caines,  292. 

4.  A  clause  in  the  policy  which  restrains 
the  insured  from  abandoning  for  detention 
only,  till  after  notice  and  proof  of  such  deten- 
tion for  ninety  daj's,  postpones  the  right  to 
abandon  for  the  term  named ;  and  the  insured 
cannot  abandon  until  he  has  received  intel- 
ligence  and  proof  that  the  detention  has  con- 
tinued  for  the  term  of  ninety  days.  Lovering 
v.  Mercantile  Ins.  Co.,  12  Pick.,  348.  And  a 
premature  offer  to  abandon  may  in  conse- 
quence  of  the  acts  of  the  parties,  operate  as  a 
continuing  notice  of  abandonment,  which  will 
become  effectual  so  soon  as  the  assured  has 
the  right  to  abandon.    Ibid. 

5.  Vessel  and  cargo  were  insured  by  other 
companies,  and  the  freight  list  by  these  de- 
fendants.  She  was  wrecked,  and  vessel,  cargo 
and  freight  were  abandoned.  Insurers  of 
freight  list  accepted  the  abandonment.  Held, 
they  could  not  be  heard  to  say  the  less  was 
not  total,  nor  that  it  was  not  a  case  for  aban- 
donment, but  were  bound  to  pay  the  whole 
sum  insured.  Buffalo  City  Bank  v.  North- 
western Ins.  Co.,  30  N.  Y.,  251. 

6.  An  abandonment  rightfully  made  reverts 

n 


35 


ABATEMEN'l. 


35 


Matter  in  —  Pleading  in  —  Waiver  of. 


back  to  the  time  of  the  loss.    Clamageran  v. 
Batiks,  18  Martin  (La.),  5.il. 

7.  Tlie  party  who  abandons  must  have  the 
property  in  the  ship  (citing  Knight  v.  Faith, 
15  Q.  B.,  649).  Jardine  v.  Leathey,  3  B.  &  S., 
700:  -S,  C;  3  F.  &  F.,  80;  9  Jur.  (N.  S.),  1035; 
IIW.  R.,432;7L.T.  (N.  S.),783. 

8.  The  rule  in  the  United  States  in  respect 
to  the  right  to  recover  for  a  total  loss  founded 
upon  an  abandonment  differs  with  the  rule  in 
England.  In  the  United  States  the  right  to 
recover  for  a  total  loss  is  complete  if  the  cause, 
the  basis  of  the  abandonment,  is  sufficient  and 
continues  at  the  time  the  abandonment  is 
offered.  Maryland  Ins.  Co.  v.  Bathurst,  5  G. 
&  J.,  159. 

9.  Notice  of  the  vessel's  condition  was  not 
given  prior  to  the  time  an  abandonment  was 
offered.  Held,  no  defense  to  the  action.  Co- 
hen V.  Charleston  Ins.  Co.,  Dud.  Ap.  (S.  C), 
147 ;  Eedley  v.  Nashville  Ins.  Co.,  6  Rich.,  130. 

]  0.  Ship  was  forced  into  Savannah  and  was 
there  found  incapable  of  prosecuting  her  in- 
tended voyage ;  and  no  conveyance  being  found 
for  cargo,  it  was  sold.  Held,  the  insured  could 
not  recover  for  a  total  loss  unless  an  abandon- 
ment was  offered  within  a  reasonable  time,  of 
■which  the  jury  were  the  judges.  Mellon  v. 
Louisiana  State  Ins.  Co.,  17  Martin  (La.),  563 ; 
S.  C.  18  id.,  434. 


ABATEMENT. 

I.  Matter    in   ab.4.tement    CAiraroT    be 

HEARD  UNDER  A  PLEA  IN   BAR. 

IL  Pleading  in  bar  waives  matter  of 

ABATEMENT. 

III.  Waiver  op. 

I.  Matter  in  abatement  cannot  be 

HEARD  TJNDEE  A  PLEA  IN  BAR. 

1.  Stipulated:  "The  insured  shall,  if  re- 
quired, submit  to  an  esamiu.itiou  under  oath, 
and  exhibit  his  books  of  accounts,  etc.,  and 
until  such  proofs,  declarations  and  certificates 
are  produced  and  examination  and  apprizal 
permitted,  the  loss  shall  not  be  payable."  Beld, 
if  the  insured  refused  to  be  examined,  that  was 
matter  that  ought  to  have  been  pleaded  in 
abatement,  because  it  would  have  established, 
IS 


if  true,  no  present  cause  of  action.     Weide  v. 
Gerinania  Ins.  Co.,  1  Dil.  C.  C,  441. 

2.  The  nominal  plaintiff  was  not  an  alien, 
enemy;  but  the  person  for  whose  benefit  tlie 
insurance  was  made  was  a  citizen  of  Ham- 
burgh, which  became  hostile  after  the  making 
of  the  policy.  Insured  pleaded  the  general 
issue  only.  Beld,  the  defendant  could  not  un- 
der a  plea  in  bar  show  a  defense  which  was- 
merely  personal  and  which  might  be  removed 
in  the  future.    FUndt  v.  Waters,  15  East,  260, 


II.  Pleading  in  eae  -waives  matteb 

OF    ABATEMENT. 

1.  The  defendant  pleaded  to  the  jurisdiction 
stating  that  it  appeared  for  that  purpose  only; 
but  in  the  same  answer  denied  the  material 
allegations  contained  in  the  plaintiff's  peti- 
tion. Beld,  setting  up  a  defense  in  bar  waived 
the  matter  of  abatement.  Sippstein  v.  St 
Louis  Mutual  Life  Ins.  Co.,  57  Mo.,  86. 

III.  "Waiyee  of. 

1.  The  defendant  was  sued  in  the  state  of 
Ohio  by  the  name  of  The  President,  Directors 
and  Company  of  the  La  Fayette  Insurance 
Company.  A  certified  copy  of  the  judgment 
was  taken  to  Indiana  where  an  action  was- 
commenced  against  the  defendant  by  the 
name  of  Tbe  La  Fayette  Insurance  Company. 
The  declaration  described  the  judgment  cor- 
rectly and  then  averred  that  it  was  recovered 
against  the  defendant  by  the  name  of  the 
president,  directors,  etc.  Held,  the  judgment 
bound  the  defendant,  though  it  was  called  by 
a  ivroug  name.  The  mistake  should  have 
been  pleaded  in  abatement.  La  Fayette  Ins.  Co. 
V.  French,  18  How.,  404. 

2.  "  Loss  payable  within  sixty  days  after 
notice  and  proof."  The  general  insurance  act, 
under  which  insurers  were  incorporated,  pro- 
vided, suits  at  law  may  be  prosecuted  for 
losses,  if  payment  is  withheld  more  than  two 
months  after  due.  The  proofs  were  made 
July  24th,  and  this  action  commenced  No- 
vember 10th.  Beld,  tlie  loss  became  due 
when  the  proofs  were  delivered  and  payable 
two  months  thereafter,  hence  the  action  was 
not  premature.  Allen  v.  Budson  River  In*. 
Co.,  19  Barb.,  443. 


37 


ABSOLUTE  OWNER. 


38 


Who  is. 


3.  Policy  to  C,  upon  his  life,  payable  to 
him,  liis  executors,  administrators  ami  as- 
signs, for  the  benefit  of  the  plaiutifT,  who  did 
not  sue  as  administratrix,  but  for  her  own  use. 
Upon  the  third  trial  it  appeared  that  she  was 
tlie  wife  of  the  brother  of  the  deceased.  Held, 
she  had  the  equitable  interest  in  tlic  policy, 
tliough  not  the  title  to  support  an  action  at 
law;  that  defendant  by  repeatedly  contesting 
her  claim  upon  the  merits  had  waived  the 
riglit  to  suggest  at  the  third  trial  a  defect  ap- 
parent upon  the  writ  and  declaration.  Gamp- 
bell  V.  New  England  Life  Ins.  Co.,  98  Mass.,  381. 
4.  The  action  was  in  the  name  of  the  as- 
signee. The  case  had  been  tried  once  with- 
out objection  to  his  bringing  the  suit.  Ueld, 
defendant  could  not  object  on  that  ground  on 
the  second  trial,  for  it  was  in  the  nature  of  a 
plea  in  nbatement,  and  must  be  treated  as 
waived.  Lycoming  County  Ins.  Co.  v.  Sch/ref- 
fler,  44  Penn.  St.,  2G9. 


ABSOLUTE  OWNER. 

(SeO  INOTIJIBBANOE ;    INSURABLE    INTEKEST;   TiTLE.) 

I.  Who  is. 

II.  NOT. 

I.  Wno  IS. 

1.  Stipulated:  "If  insured  is  not  the  sole 
and  unconditional  owner  of  the  property,  or 
if  said  property  be  a  building  or  buildings, 
the  land  on  which  said  building  or  buildings 
stand,  by  a  sole  and  unconditional  ownership 
and  title,  and  it  is  not  so  expressed  in  the  writ- 
ten portion  of  the  policy,  then  it  shall  be 
void."  The  policy  was  written:  "$1,400  on 
their  frame  cotton  gin  house,  |600  on  press 
and  gin,  and  $.3,000  on  cotton  seed  and  cotton 
lint,  all  in  the  gin  house.  The  insurance  on 
the  gin  house  is  intended  to  cover  plaintiffs' 
interest  on  account  of  repairs."  Insured  were 
partners  in  the  business  of  cotton  growing, 
operating  a  plantation  not  their  property,  but 
for  which  they  were  to  furnish  supplies  and 
stock  to  the  amount  of  $10,000.  The  imple- 
ments and  stock  on  the  plantation  were  to  re- 
main, and  be  used,  and  whatever  else  might 
be  required,  insured  were  to  furnish;  but  the 
owner  was  to  make  all  permanent  improve- 
'..     The  proceeds  of  the  crop  were  to  be 


applied,  first,  to  reimburse  plaintiffs  all  ad. 
vances.  The  net  proceeds  equally  between 
insured  and  owner;  and  stock  and  implo- 
ments  equally  at  the  end  of  one  year.  Held, 
plaintiffs  were  either  partners  or  tenants  in 
common  with  the  owner,  in  respect  to  the 
cotton;  that  it  appearing  plaintiffs  were  enlU 
tied  to  all  of  the  proceeds  of  the  cotton,  be- 
cause they  had  expended  more  than  its  value, 
they  were  the  sole  and  unconditional  owners 
as  to  it ;  that  they  were  not  sole  owners  as  to 
any  other  part  of  the  property,  and  therefore 
not  entitled  to  recover  as  to  it.  Noyes  v.  Hart- 
ford Fire  Ins.  Co.,  54  N.  Y.,  668. 

2.  P.,  the  owner  of  the  mill,  agreed  to  sell 
it,  and  make  a  conveyance  upon  payment  and 
performance  of  certain  conditions.  The  con- 
tractee  took  possessicm,  bought  machinery  and 
put  it  in  the  mill,  and  executed  certain  chat- 
tel mortgages  upon  it.  Insured  purchased  at 
a  receiver's  sale,  and  took  possession.  Held, 
he  could  insure  the  property ;  that  the  insurer 
did  not  stand  in  the  position  of  creditor,  and 
could  not  question  his  title;  that  though  the 
insured  bought  the  property  for  another  per- 
son, that  was  no  defense  to  the  action,  because 
he  held  the  legal  title  against  the  whole  world 
except  the  beneficiaries.  Bicknell  v.  Lancaiter 
Ins.  Co.,  58  N.  Y.,  677 ;  8.  C,  1  N.  Y.  (S.  C), 
215. 

3.  Plaintiff  held  a  contract  for  a  deed  from 
B.,  and  had  made  several  payments  thereon. 
He  contracted  to  sell  to  C,  who  obtained  the 
deed  from  B.  without  ■plaintifl"'s  consent  or 
knowledge.  He  procured  this  policy,  exhib- 
iting to  the  defendants  his  cimtract  with  C. 
Held,  his  right  in  the  property  was  not  condi- 
tional,  but  absolute,  to  the  extent  of  his  own. 
ership  or  equitable  title  (citing  Chase  v.  Ham- 
ilton  Mutual  Ins.  Co.,  22  Barb.,  537;  Tylers. 
iEtna  Ins.  Co.,  13  Wend.,  507;  S.  C,  16  id., 
385).    Acer  v.  Merchants''  Ins.  Co.,  57  Barb.,  68. 

4.  Stipulated:  "If  the  interest  be  a  lease- 
hold interest,  or  other  interest  not  absolute,  it 
must  be  so  represented  to  the  company  and 
expressed  in  the  policy  in  writing,  otherwise 
the  policy  shall  be  void."  Insured  had  mort- 
gaged the  property,  of  which  insurers  had  no 
notice.  Held,  the  mortgagee's  claim  did  not 
vest  in  him  the  estate  in  the  lands  mortgaged; 
but  was  in  the  nature  of  a  debt,  and  the  mort- 
gagor's estate  was  not  a  leasehold,  but  an  ab. 
solute  interest,  and  therefore  it  was  not  neces- 
sary to  communicate  to  insurers  »hc  fact  tha 

19 


3'J 


ACCIDENT. 


40 


^Vllat  is. 


the  subject  was  mortgaged.    Washington  Fire 
Ins.  Co.  V.  Eelly,  33  Md.,  421. 

5.  The  declaration  averred  tliat  insured  was 
the  owner.  Held,  an  averment  of  an  estate  in 
fee,  and  a  deed  of  conveyance  to  insured  sup- 
ported it;  tliat  insured  was  not  bound  lo  show 
title  in  liis  grantor.  Winneshiek  Ins.  Co.  v. 
Schueller,  00  111.,  465.  For  actual  possession 
accompauied  with  claim  to  the  fee  raises  the 
presumption  of  an  estate  in  fee  (citing  Mason 
e.  Park,  4111.,  532;  Brooks  «.  Bruin,  18  111., 
539).    Ibid. 

6.  Policy  to  Morris  upon  goods  in  store. 
They  were  sold  to  Myers  and  the  policy  as- 
signed, to  which  insurers  assented.  Morris, 
one  of  the  firm  of  G.  &  M.,  had  taken  them 
for  a  debt  due  the  firm.  They  were  not  mixed 
with  the  stock  of  the  firm,  but  were  carried  to 
a  separate  store  insured  in  Morris'  name,  and 
subsequently  sold  to  flyers.  Held,  when  they 
were  sold  and  the  policy  assigned,  Myers  took 
a  complete  and  absolute  title  to  the  goods; 
and  as  to  Morris'  interest  in  them  prior  to  the 
sale  to  Myers,  it  was  unnecessary  to  inquire, 
for  insurers'  contract  was  in  substance,  though 
not  in  form,  a  new  agreement  with  Myers  (cit- 
ing  Tillou  v.  Kingston  Mutual  Ins.  Co.,  7 
Barb.,  573;  S.  C,  5  N.  Y.,  405;  Traders'  Ins. 
Co.  «j.  Robert,  9  Wend.,  404;  Charleston  Ins. 
Co.  V.  Neve,  3  McMullen,  237}.  City  Fire  Ins. 
Co.  V.  Mark,  45  111.,  482. 

7.  Stipulated:  "  If  the  premises  are  held  by 
lease  or  upon  leased  grounds,  or  the  interest 
of  the  insured  is  not  an  absolute  ownership, 
it  must  be  stated  in  writing  with  the  true  title 
of  the  insured."  Insured  was  a  married  wo- 
m.in ;  but  evidence  was  givou  to  show  that 
the  agents  of  insurer  were  informed  of  that 
fact  when  they  issued  the  policy.  Held,  she 
had  an  estate  absolute.  Held,  also,  if  that  were 
not  so,  the  neglect  of  the  agent  to  set  forth  the 
nature  of  her  estate  would  estop  insurer  to  ob- 
ject to  the  claim  on  that  ground.  Comnurcial 
Ins.  Co.  V.  Spankneble,  52  III,  53.  And  the 
fact  that  G.  held  a  deed  of  trust  which  con- 
veyed the  legal  estate  to  him  was  no  violation 
of  the  condition,  because  the  contract  itself 
stipulated  that  the  loss,  if  any,  should  be  paid 
to  G.,  trustee,  as  his  interest  may  appear.  Ibid. 

8.  The  premises  were  sold  under  a  decree 
of  foreclosure  Augusts,  1863.  The  purchas- 
ers assigned  the  certificate  of  sale  to  the 
plaintifi"s;  the  debtor  had  the  right  to  redeem 
within  fifteen  months;  the  purchasers  of  the 

20 


certificate  procured  this  policy  September  5, 
1863.  The  fire  occurred  October  9th  follow- 
ing,  and  no  redemption  was  ever  made  or 
offered.  A  deed  was  executed  to  the  pur- 
chaser  December  3,  1863.  Held,  the  deed 
operated  by  relation,  and  the  title  passed  abso- 
lutely from  the  day  of  sale.  Qnylord  t.  Lamar 
Fire  Ins.  Co.,  40  Mo.,  13. 

9.  The  policy  was  on  storehouse  $200,  and 
on  goods  $800.  Insured  represented  it  as  un- 
incumbered,  and  that  the  title  was  good. 
Held,  no  misrepresentation,  though  insured 
had  not  paid  all  of  the  purchase  money ;  if  he 
was  in  possession  by  virtue  of  his  purchase, 
he  was  the  absolute  owner.  Bonham  v.  Iowa 
Central  Ins.  Co.,  35  Iowa,  338. 

10.  Stipulated  to  be  void  unless  insured  is 
the  sole  and  unconditional  owner.  He  had 
made  a  chattel  mortgage  upon  the  property 
insured.  Held,  no  breach  of  the  stipulation. 
Hubbard  v.  Hartford  Fire  Ins.  Co.,  33  Iowa, 
325 

II.  "Who  is  not. 

1 .  Stipulated :  "  If  the  property  to  be  insured 
be  held  in  trust  or  on  commission,  or  be  a 
leaseliold  interest  or  an  equity  of  redemption, 
or  if  the  interest  of  the  insured  be  any  other 
than  the  entire,  unconditional  and  sole  owner- 
ship of  the  property,  for  the  use  and  benefit 
of  the  insured,  it  must  be  so  represented  to  the 
company,  and  so  expressed  in  the  written  part 
of  this  policy,  otherwise  the  policy  shall  be 
void."  At  the  time  the  insurance  was  effected, 
the  property  had  been  sold  on  a  judgment  and 
execution,  but  the  time  for  redemption  had 
not  expired.  Held,  the  nondisclosure  of  the 
sale  avoided  the  policy.  Reaper  City  Ins.  Co. 
V.  Brennan,  58  111.,  158. 


ACCIDENT. 

I.  What  is. 

II.  NOT. 

III.  Construction. 

IV.  Generally. 


I.  What  is. 


1.  Stipulated: "The  company  shall  not  be 
liable  for  loss  except  when  actually  received 


41 


ACCIDENT. 


42 


What  is. 


by  the  insured  ■wliile  actually  traveling  in  a 
public  conveyance  proviiled  by  common  car- 
riers for  the  tj-ansporting  of  passengers  in  the 
United  Stales  or  in  the  Dominion  of  Canada, 
and  iu  compliance  with  all  rules  and  regula- 
tions of  such  carriers,  and  not  neglecting  to 
use  due  dilligcnce  for  self  protection."  In- 
sured took  the  train  at  Chicago,  and  arrived 
at  Kankakee  about  seven  o'clock.  The  prac- 
tice was  for  the  train  to  stop  at  the  station, 
and  pass  on  to  the  coal  bin,  provided  it  was 
intended  to  proceed  beyond  Kankakee.  In- 
sured got  out  of  the  car,  and  the  train  remained 
at  the  station  several  minutes.  After  it  had 
taken  water,  the  conductor  signaled  with  his 
light,  and  insured  started  to  overtake  it.  He 
grasped  the  rail,  and  fell  between  two  passen- 
ger cars,  aud  was  instantly  killed.  Held,  the 
insurer  was  liable  for  injuries  received  by  the 
insured  while  necessarily  getting  on  or  off  the 
train  as  a  traveler  upon  it;  that  whether  he 
was  a  traveler  would  depend  on  whether  his 
journey  terminated  at  Kankiikee;  the  fact  that 
he  had  bought  a  ticket  for  Kankakee  only,  and 
that  the  conductor  had  taken  it  up,  and  he  had 
not  purchased  a  ticket  at  Kankakee  for  a  point 
beyond,  was  not  conclusivej  and  if  he  were  a 
passenger  proceeding  beyond  Kankakee,  he 
was  not  bound  to  remain  inside  the  car  all 
the  time,  but.  might  leave  it  and  return  to  it; 
he  was  bound  to  observe  only  such  rules  as 
a  general  traveler  might  be  presumed,  and 
ought  to  know ;  any  other  rule  of  law  would 
be  a  snare  upon  travelers;  but  it  was  his  duty 
to  use  such  cire  as  a  prudent  man  would  ob- 
serve under  the  same  circumstances;  and  it 
would  be  natural  for  a  prudent  man  intending 
to  go  further  on  the  train,  to  make  an  effort  to 
regain  his  place  on  it  while  the  train  was  in 
motion.  Tooley  v.  Railway  Passengers  Ass.  Co., 
3  Biss.,  399. 

2.  Against  personal  injuries  or  death  by 
accident.  Deceased  left  the  house  on  Sunday ; 
was  last  seen  alive  on  that  day  walking  toward 
a  railroad  bridge  across  a  stream  emptying  into 
the  sound.  This  bridge  was  used  by  pedes- 
trians to  cross  the  stream,  and  the  body  was 
found  in  the  pond  not  far  from  the  bridge. 
There  was  a  wound  upon  the  head  of  deceased, 
and  a  break  in  his  hat,  corresponding  to  the 
wound.  Held,  though  both  might  have  been 
made  while  deceased  was  in  the  water,  or  fall- 
ing in,  yet  it  was  evidence  for  the  jury  to  find 
that  the  death  was  caused  by  accident,  aud 


there  was  no  presumption  in  law  that  he  com. 
niitted  suicide.  Mallory  v.  Travelers  Ins.  Co., 
47  N.  Y.,  52. 

3.  Insurance  against  accident  while  trav- 
eling by  public  or  private  conveyances.  In- 
sured ran  and  jumped  upon  the  step  of  an  om- 
nibus, intending  to  get  into  it  while  it  was  in 
motion.  He  slipped,  fell  and  was  injured. 
Jleld,  a  loss  within  the  policy.  Champlin  v. 
Railway  Passengers  Ass.  Co.,  6  Lans.,  71. 

4.  Accident  policy  stipulated:  "The  in- 
sured  is  required  to  use  all  due  diligence  for  his 
personal  safety  and  protection."  He  was  h.iv- 
ing  a  barn  erected,  and  while  standing  upon  a 
joist  in  the  second  story  it  broke,  he  fell,  and 
was  killed.  Held,  no  defense  to  the  action. 
Stone  V.  U.  8.  Casualty  Ins.  Co.,  34  N.  J.,  371. 

5.  Stipulated:  "Not  liable,  unless  injury 
and  death  shall  be  caused  solely  by  accident." 
The  person  insured  went  out  to  assist  in  get- 
ting in  hay.  Shortly  before  dinner  he  returned 
in  great  pain,  and  said  that  while  pitching  hay 
the  fork  handle  slipped  through  his  hands  and 
struck  him  on  the  bowels.  This  produced 
peritonitis,  from  which  he  died.  Held,  an  ac- 
cidental  death.  NortJi  American  Life  and  Ac 
eident  Ins.  Co.  «.  Burroughs,  69  Penn.  St.,  43. 

6.  Against  loss  of  life  in  the  sum  of  $2,000, 
"To  be  paid  within  ninety  days  after  sufficient 
proof  that  insured  has  sustained  personal  in- 
jury  caused  by  any  accident  within  the  mean, 
ingofthis  policy,  and  the  conditions  hereto 
annexed."  One  of  the  conditions  provided 
that  "  No  claim  should  be  made  in  respect  of 
any  injury  unless  the  same  shall  be  caused  by 
some  outward  and  visible  means.  This  insur- 
ance shall  not  e-xtend  to  any  injury  caused  by 
his  willfully  exposing  himself  to  any  unne- 
cessary danger  or  peril."  He  was  insured  as 
a  locomotive  engineer,  and  while  in  the  dis- 
charge  of  his  duty,  backing  an  engine  on  a 
down'  grade  with  a  car  in  front,  he  directed 
the  fireman  to  manage  the  engine  and  he  went 
over  the  tender  into  the  car  to  set  the  brakes 
for  the  purpose  of  checking  the  speed  of  the 
car.  In  doing  so  he  slipped,  fell  between  the 
car  and  tender,  and  was  instantly  killed.  The 
speed  was  about  eight  miles  an  hour.  Held, 
an  accident  within  the  meaning  of  the  policy. 
Prooidence  Life  Ins.  Co.  v.  Martin,  33  Md.,  310. 

7.  Policy    against    injuries    by    accident. 
Stipulated:      "Not    liable    for    any    injury 
which  shall  happen  by  his  willfully  and  wan. 
tonly  exposing  himself  to  anj'  unnecessary- 
Si 


43 


ACCIDENT. 


4^ 


What  is  not. 


danger  or  peril.  Insured  attempted  to  get  on 
a  train  of  cars  while  they  were  in  slow  motion, 
fell  under  them  and  was  killed.  Held,  the 
court  erred  in  ordering  the  plaintiff  to  be  non- 
suited. Schneider  ■».  Provident  Life  Ins.  Co., 
24  Wis.,  28. 

8.  Stipulated:  "It  does  not  insure  against 
death  or  disability  arising  from  hernia,  or  any 
other  disease  or  cause  arising  within  the  sys- 
tem of  the  assured,  before  or  at  the  time,  or 
following  such  accidental  injury,  whether 
causing  death  or  disability  directly  or  jointly, 
with  such  accidental  injury."  He  accident- 
ally fell  with  violence  on  the  floor,  and  there- 
by became  ruptured  in  the  bowels,  and  afflict- 
ed with  strangulated  hernia  in  the  abdomen, 
whereupon  a  surgical  operation  was  necessa- 
rily performed  for  the  purpose  of  relieving 
l»ini,  from  which  he  died.  Held,  a  loss 
within  tlie  policy.  Fittvn  v.  Accidental  Death 
Ins.  Co.,  17  C.  B.  (N.  S.),  123;  S.  C,  34  L.  J. 
C.  P.,  28! 

9.  Stipulated:  "No  claim  shall  be  paya- 
ble in  respect  of  death  by  accident,  unless  the 
same  shall  be  occasioned  by  some  external  or 
material  cause,  operating  upon  the  insured 
person."  He  went  to  bathe  in  a  pool  one  foot 
deep,  became  insensible  and  fell  face  down- 
wards and  soon  after  found,  water  escaped 
from  his  lungs  in  a  manner  which  proved 
that  he  had  breathed  after  falling  in  the 
water.  The  immediate  cause  of  death  was 
suffocation  by  water;  but  that  would  not  have 
taken  place  had  he  been  capable  of  helping 
himself;  and,  his  inability  to  help  himself 
■was  the  consequence  of  his  insensibility. 
Held,  an  accidental  death.  Reynoldi  v.  Acci- 
dental Ins.  Co.,  18  W.  R.,  1141;  33  L.  T.  (N.  S.), 
820. 

10.  Against  death,  or  personal  injury 
caused  by  accident.  Stipulated:  "No  claim 
shall  be  allowed,  unless  caused  by  outward 
visible  means,  t>f  which  satisfactory  proof  can 
be  furnished  the  directors."  Deceased  left  his 
lodgings,  Monday,  7  o'clock,  P.  M.,  having  ex- 
pressed an  intention  to  bathe  before  his  return 
to  London.  His  clothes  were  found  on  the  steps 
of  a  bathing  machine,  and,  about  six  weeks 
thereafter,  a  body  was  found  on  the  Esses 
coast,  which  his  relatives  deposed  was  the 
body  of  the  person  insured ;  but  the  jury  found 
that  it  was  the  body  of  "  a  person  unknown." 
Held,  assuming  that  he  died  from  drowning, 
it  was  death  by  accident;  and  it  was  a  ques- 

23 


tion  of  fact  for  the  jury  to  determine,  whether 
de^th  was  caused  by  drowning  or  by  nalui'al 
causes  (overruling,  S.  C,  5  H.  &  N.,  211;  29 
L.  J.  Ex.,  318;  8  W.  R.,  191).  Trew  v.  Railway 
Passenger  Ms.  Co.,  6  H.  &  N.,  839;  7  Jur. 
(N.  S.),  878;  30  L.  J.  Ex.,  317;  9  W.  R.,  671; 
4  L.  T.  (N.  S.),  833. 

11.  Against  injury  from  accident  or  vi- 
olence:  "Provided,  the  injury  shall  be  oc- 
casioned by  any  external  or  material  cause, 
operating  upon  the  person  of  the  insured." 
Held,  an  injury  caused  by  lifting  a  heavy 
burden,  which  sprained  the  muscles  of  his 
back  was  within  the  policy.  Martin  v.  Trac- 
elers  Ins.  Co.,  1  F.  &  F.,  505. 

12.  £1,000  payable  to  legal  representa- 
tives In  event  of  death  happening  to  insured 
from  railway  accident  while  traveling  in  any 
class  carriage  on  any  line  of  railway  in  G. 
B.  or  I.,  or  a  proportionate  part  to  insured 
in  case  of  his  sustaining  any  personal  injury, 
by  reason  of  such  accident.  He  traveled  in  a 
railway  carriage  to  point  of  destination;  train 
stopped;  stepped  out  with  due  care,  but 
slipped  off  the  iron  step  and  sustained  injury. 
Held,  a  railway  accident  within  the  meaning 
of  the  contract.  ^Held,  also,  the  damage  was 
not  to  be  estimated  by  the  proportion  that  the 
injurj'  bore  to  the  amount  payable  in  case  of 
death.  Held,  also,  he  was  not  entitled  to  re- 
cover for  loss  of  time  or  loss  of  profits,  but  for 
all  expense  and  suffering  caused  by  the  injury. 
Theobald  «.  Railucay  Passenger  Ass.  Co.,  10 
Exchr.,  45;  23  L.  J.  Ex.,  249. 

II.  What  is  not. 

1.  Stipulated:  " The  company  shall  not  be 
liable  unless  death  shall  be  caused  by  an 
accident  while  the  insured  is  traveling  by 
public  or  private  conveyance."  He  left  the 
steamboat  to  walk  to  his  residence,  about 
eight  miles  distant;  and,  while  proceeding 
was  injured  by  accident  from  which  he  died 
Held,  ti'aveling  on  foot  was  not  traveling  by 
public  or  private  conveyance,  therefore  the 
company  was  not  liable.  Ripley  v.  Ins.  Co.,  16 
Wall.,  336. 

2.  Policy  against  death  or  injury,  by  vio- 
lent  or  accidental  means,  stipulated :  "  It  shall 
not  extend  to  any  injury  of  which  there  is  not 
visible  sign,  and  no  claim  shall  be  made  if 
the  injury  is  caused  by  over  exertion  or  lift, 
ing,  except  in  cases  of  perilous  necessity ;  not 


45 


ACCIDENT. 


46 


Coushiiclion  —  Generally. 


of  unnecesssary  exposure  to  clanger  or  peril; 
and  the  party  insured  is  required  to  use  due 
diligence  for  personal  safet}'  and  protection." 
Insured  went  by  train  to  Newcastle,  where  he 
liad  an  engagement  to  meet  a  person  next 
morning  at  eight  o'clock  at  the  depot,  at 
which  time  the  train  would  start.  He  failed 
to  find  the  person  at  one  depot,  but  was  in- 
formed  that  there  was  another  depot.  He 
jumped  off  the  train,  felt  no  shock,  and 
W'alked  briskly  to  the  other  depot,  where  he 
found  the  person  he  was  in  search  of.  Dur- 
ing the  day  he  felt  pain  about  the  knee  joint, 
and  on  application  to  a  physician  was  ex- 
amined, and  a  partially  developed  rupture 
was  found  in  his  right  loin.  Held,  the  injury 
<lid  not  result  from  anj-  accident  within  the 
meaning  of  the  contract,  for  running  or  jump- 
ing are  not  accidents.  Southard  v.  Railway 
Passenger  Ass.  Co.,  34  Conn.,  574. 

3.  "Against  accidents,  all  forms  of  cuts, 
€tabs,  tears,  bruises,  concussions,  crushings, 
when  accidentally  occurring  from  material  or 
-external  cause,  operating  upon  the  person  of 
the  insured,  where  such  accidental  injury  is 
the  direct  and  sole  cause  of  deatli  or  disa- 
bility; but  it  does  not  insure  against  death  or 
disablity  arising  from  gout,  hernia,  erj-sipelas 
or  auy  other  disease  or  secoudary  cause  or 
■causes,  arising  within  the  sj'stem  of  the  in- 
sured, before,  or  at  the  time  of,  or  follow- 
ing such  accidental  injurj-."  While  washing 
his  feet,  the  eartlienware  pan  was  accidently 
■broken,  his  foot  slipped  against  the  broken 
side,  and  he  received  a  cut  under  the  ankle. 
Five  days  thereafter,  erysipelas  set  in,  and  he 
■died  within  a  week  from  the  time  the  acci- 
dent occurred.  Held,  this  was  a  secondary 
cause  of  death,  which  was  excepted  by  the 
terms  of  the  contract.  Kelly,  C.  B.,  dissent- 
ing. Smith  V.  Accident  Ins.  Co.,  5  L.  R.  Ex., 
303;  39  L.  J.  Ex.,  311;  18  W.  R..  1107;  23  L. 
T.  (N.  S.),  861. 

4.  Against  accidents.  He  was  sunstruck, 
from  the  effects  of  which  he  died.  Held,  his 
<leath  must  be  attributed  to  natural  causes, 
nud  not  to  accident.  Sinclair  v.  Maritime  Pas. 
lengers  Ins.  Co.,  3  El.  &  El.,  478;  S.  C,  7  Jur. 
<N.  S.),  367 ;  30  L.  J  Q.  B.,  77 ;  4  L.  T.  fN.  S.),  15 ; 
S  W.  R.  342. 

III.    CONSTEUCTION. 
J.  Stipulated:  "The company  will  be  liable 


for  death  caused  by  accident,  while  traveling 
by  public  or  private  conveyance,  provided  for 
the  transportation  of  passengers."  Insured 
was  an  engineer  on  the  Pacific  railroad,  en- 
gaged  in  running  trains,  of  which  insurer  had 
notice  at  the  time  the  ticket  was  sold.  He 
was  accidentally  killed  while  in  that  employ, 
ment  upon  a  locomotive  engine.  Held,  as  he 
was  not  insured  as  a  passenger  and  traveler, 
but  against  accidents  without  regard  to  the 
capacity  in  which  he  was  acting,  the  rea- 
sonable inference  should  be,  that  the  ticket 
was  intended  to  cover  the  accident  by  which 
he  met  his  death;  if  the  meaning  was  doubt- 
ful, the  construction  must  be  for  the  plaintiff, 
for  the  promisor  could  not  have  failed  to 
apprehend  that  the  promisee  labored  under 
the  impression  that  he  was  insured  while  en- 
gaged in  his  business.  Brown  v.  Railway  Pas- 
senger Ass.  Co.,  45  Mo.,  221. 

IV.  Generally. 

1.  Stipulated:  "Defendant  is  liable  only 
for  loss  of  time,  from  the  time  of  the  accident 
and  injury  which  totally  disables  and  pre- 
vents all  kinds  of  business  by  reason  of 
bodily  injuries  etiected  during  the  term  of 
the  policy,  through  violent  or  accidental 
means."  Insured  was  injured  September 
2d,  he  continued  at  his  labor  from  daj'  to  day 
till  the  18th.,  when  the  injury  became  so 
painful  that  he  was  unable  to  work,  and  did 
not  resume  work  till  the  middle  of  November; 
but  between  the  2d  and  18th  of  September  his 
heel  was  caught  in  the  stairs,  whore  he  was  at 
work,  his  knee  was  wrenched,  and  the  former 
injury  so  aggravated  that  he  became  totally 
disabled  from  September  18th.  Held,  before 
Insured  could  recover,  it  must  appear  there 
was  a  total  disability  caused  by  an  accident 
within  the  term  insured.  Rhodes  v.  Railway 
Passenger  Ass.  Co.,  5  Lans.,  71. 

2.  Stipulated:  "  No  claim  shall  be  made 
under  this  policy  in  respect  of  any  injur}'  un- 
less  the  same  shall  be  cau.scd  by  some  outward 
or  visible  means,  of  which  proof  satisfactory  can 
be  furnished."  Held,  not  a  condition  prece- 
dent,  for  it  was  sufficient  to  make  the  proof 
upon  the  trial  of  the  cause.  Railway  Pas- 
senger Ass.  Co.  V.  Burwell,  44  Ind.,  460. 

3.  Stipulated:  "  In  case  such  accident  shall 
not  cause  death  immediately,  but  shall  wholly 
disable  him  from  following  his  usual  business, 

23 


47 


ACCORD  AND  SATISFACTION— ACTION. 


4S 


Form  of. 


occupation  or  pursuits,  the  company  will  pay 
a  compensation  in  money,  £5  per  weeli,  dur- 
ing tlie  continuance  of  sucli  disability  "  He 
sprained  his  ankle,  was  confined  to  his  bed- 
room, and  prevented  from  passing  liis  ac- 
counts as  registrar,  and  from  attending  at 
various  places  which  he  was  required  to 
attend,  to  complete  purchases  for  his  clients. 
Sdd,  he  was  wholly  disabled  from  fullowing 
his  usual  business,  occupation  or  pursuits. 
Hooper  v.  Accidental  Death  Ins.  Co.,  5  H.  <fc  N., 
657 ;  29  L.  J.  Ex.,  484 ;  7  Jur.  (N.  S.),  73 ;  affirm- 
ing S.  C,  5  H.  &  N.,  546;  29  L.  J.  Ex.,  340;  8 
W.  R.,  616. 


ACCORD  AND  SATISFACTION. 

I.  The  widow  received  $1,000  from  the  as- 
signee of  a  policy,  and  afterwards  she  took  out 
letters  of  administration  and  sued  for  the  bal- 
ance. Held,  the  receipt  of  what  was  paid  her 
in  her  own  right,  before  any  administration, 
could  not  affect  her  rights  as  administratrix. 
Oammaekv.  Zeicii,  15  Wall.,  643. 


ACCOUNT  BOOKS. 

(See  EviDENCT,  IX  and  XVI;   Proofs  op  Less,  VII.) 


ACCOUNT  STATED. 

1.  The  defendant's  president  adjusted  the 
loss,  and  promised  to  send  insured  a  check 
for  the  amount.  This  action  was  brought 
upon  the  policy.  The  court  refused  to  allow 
plaintiff  to  amend  and  proceed  upon  the  new 
pTODT-ise.  Held,  error,  for,  stating  an  account 
is  in  the  nature  of  a  new  promise  (citing 
Holmes  ?>.  D'Camp,  1  Johns.,  34;  Chitty  on 
Con.,  648).  To  sustain  an  action  upon  an  ac- 
count stated,  it  is  sufficient  to  prove  that  the 
defendant  admitted  tiiat  a  certain  sum  was 
due.  Smith  v.  Glens  Falls  Ins.  Co.,  66  Barb., 
556. 
24 


ACTION. 

(See  Abatestejjt;  Amendmests;  Contract;  Juki*. 
KICTIOS  ;   LUUTATIOX  OF  AcTioKs ;  Fleadinq.) 

I.  Form  op. 

II.   P.VRTIES. 

(a)  Misjoinder. 

(b)  Necessary  parties. 
III.  What  confers  right  of. 

I  v.  DOES  not  COXFEB  RIGHT  OF. 

V.  When  it  accrues. 
VI.  Who  mat  or  must  sue. 

(a)  Of  the  assignee,  payee,  mortgagee, 

or  trustee. 

(b)  Of  the  principal,  or  an  undisclosed 

principal  and  personal  represer^ 
tatices  of  insured. 

(c)  WIto  may  join. 

(d)  Who  need  not  join. 
VII.  Who  caxxot  sue. 

VIII.  When  prem.vture. 

IX.  NOT  premature. 

X.  Separate  causes  of. 


I.  Form  of. 

1.  Assumpsit  cannot  be  maintained  upon  a 
policy  under  seal,  nor  is  the  defect  cured  by 
verdict.  Marine  Ins.  Co.  v.  Young,  1  Cranch, 
833. 

2.  The  action  was  debt.  The  writ  and  dec- 
laration claimed  $2,000.  Held,  in  the  action 
of  debt,  the  writ  and  judgment  must  conform 
in  amount;  but  the  jury  had  a  right  to  find 
for  the  plaintiff  less  than  the  sum  claimed  bv 
the  writ  and  declaration,  and  the  plaintilT 
could  enter  a  remittitur  for  the  difference. 
Hughes  v.  Union  Ins.  Co.,  8  Wheat.,  294. 

3.  A  sealed  policy  was  made.  It  expired, 
and  an  agreement  was  made  to  renew  it  for 
another  term ;  but  the  agreement  was  not 
under  seal;  it  was  a  mere  receipt  for  the  pre- 
mium.  Held,  covenant  was  not  the  proper 
form  of  action.  Luciani  v.  American  Fire 
Ins.  Co.,  2  Wliart.,  167. 

4.  Policy  to  W.,  a  sealed  instrument,  for  the 
term  of  one  year,  and  for  anj'  future  time  for 
which  a  premium  should  be  paid  and  in- 
dorsed. It  was  assigned  to  plaintiff,  and  re- 
newed from  time  to  time  for  five  or  six  years- 
to  the  plaintiff,  who  paid  the  premiums,  which 
were  regularly  indorsed.    Held,  an  action  of 


49 


ACTION. 


50 


Piirties. 


debt  in  the  name  of  the  phxintiff  was  pi-oper. 
Franklin  Fire  Ins.  Co.  v.  Jlansei/,  3y  I'eun.  St., 
221. 

5.  Debt  on  a  policy  to  recover  for  a  stock  of 
barley,  malt  anil  hops.  Held,  the  action  would 
lie.  Peoples  Ins.  Co.  v.  Spencer,  53  Penn.  St., 
353. 

6.  Policy  under  seal  for  a  term.  It  did  not 
provide  for  continuing  it  in  force  after  the 
term  should  expire,  but  the  parties  agreed  to 
renew  it  for  another  term.  Held,  a  parol  con- 
tract.    Mutual  Fire  Ins.  Co.  v.  Deale,  18  Md.,  26. 

7.  Debt  upon  a  policy  of  insurance  under 
seal,  which  was  renewed  at  the  expiration  of 
term,  for  another  year,  for  a  new  considera- 
tion.  Held,  debt  was  not  the  right  form. 
Flanagan  v.  Camden,  Mut.  Ins.  Co.,  25  N.  J., 
506. 

8.  The  defendant  sold  goods  to  the  plaintiff 
on  credit,  and  it  was  agreed  between  them  that 
the  goods  should  be  manufactured,  and  that 
llie  defendant  should  hold  the  manufactured 
article,  and  sell  it  in  discharge  of  the  plain- 
tiff's indebtedness,  and  that  defendant  should 
insure  the  goods  in  his  own  name,  for  the  ben- 
efit of  the  plaintiff  and  himself.  They  were 
insured,  but  the  policy  stipulated:  "  Property 
held  in  trust  or  on  commission  shall  be  in- 
sured as  such,  otherwise  the  policy  will  not 
cover  it."  The  insurej'  paid  the  defendant  for 
his  own  goods,  but  refused  to  pay  for  what 
were  held  in  trust.  Held,  if  neither  the  plain- 
tiff nor  defendant  could  have  recovered  upon 
the  policy,  then  an  action  for  money  had  and 
received  could  not  be  maintained  against  the 
defendant.    Turner  v.  Stetts,  28  Ala.,  420. 

9.  Debt  on  a  policy  of  insurance  in  which 
there  was  an  averment  of  total  loss.  Held,  the 
plaintiff  could  recover  for  a  partial  loss.  Peo- 
ria Marine  and  Fire  Ins.  Co.  v.  Whitehill,  25 
111.,  466. 

1 0.  Case  will  lie  against  a  party  who  under- 
takes to  have  insurance  effected  for  another, 
if  the  party  so  undertaking  takes  steps  for 
that  purpose,  but  does  it  so  negligently  that 
the  insured  receives  no  benefit  from  it,  not- 
withstanding there  is  no  consideration  for  the 
service.     Wilkinson  v.  Coverdale,  1  Esp.,  75. 

11.  The  instrument  in  suit  covenanted  to 
apply  the  capital  funds  of  the  company  to  tlie 
payment  of  the  loss,  which  was  averred  to 
have  happened.  There  was  also  an  averment 
in  the  declaration  that  the  loss  was  total,  and 
the  verdict  was  for  the  sum  insured.    HHd, 


debt  was  maintainable  upon  it.  Sunderland 
Marine  Ins.  Co.  v.  Kearney,  16  Q.  B.,  925; 
20  L.  J.  Q.  B.,  417;  15  Jur.,  1006. 

II.  Paeties. 

(a)  Misjoinder. 

1.  Policy  to  E.  and  F.  The  former  assigned 
to  the  latter,  to  which  insurers  assented.  Held, 
an  action  in  their  joint  names  could  not  be 
sustained.  Ferriss  v.  North  American  Fire 
Ins.  Co.,  1  Hill.,  71. 

2.  Policy  to  one  will  not  permit  others  to 
join  in  the  action.  Burgher  v.  Columbian  Ins. 
Co.,  17  Barb.,  274. 

3.  The  Prat.  Mut.  Ins.  Co.  entered  into  a 
contract  with  theU.  S.  Life  Ins.  Co.,  by  which 
the  former  transferred  to  the  latter  all  its  prop- 
erty and  effects,  and  agreed  to  transact  all  its 
business  in  its  own  name,  but  for  the  exclu- 
sive profit  of  the  latter,  and  in  all  things  to  be 
under  the  control  of,  and  do  its  business 
through  the  agents  of  the  latter.  The  plaintiff" 
made  application  for  a  policy  on  the  life  of 
her  husband,  which  was  approved  by  the  U.  S. 
Life  Ins.  Co.,  and  granted  in  tlie  name  of,  and  as 
made  by,  the  Frat.  Mut.  Ins.  Co.  Another  policy 
was  made  and  delivered  by  the  U.  S.  Life  Ins. 
Co.,  upon  the  same  life,  for  same  amount,  and. 
on  the  same  terms,  to  the  Frat.  Mut.  Ins.  Co., 
by  way  of  reinsurance.  The  plaintiff"  brought 
suit  against  the  Frat.  Mut.  Ins.  Co.,  the  U.  S; 
Life  Ins.  Co.,  and  certain  stockholders  who 
were  alleged  to  be  indebted  for  capital  stock, 
claiming  a  joint  judgment  against  them  all, 
upon  the  policy  made  by  the  Frat.  Mut.  Ins. 
Co.  A  default  and  judgment  was  entered 
against  the  Frat.  Mut.  Ins.  Co.,  and  execution 
issued  thereon  for  the  whole  amount  claimed, 
which  company  assigned  to  the  plaintill'  the 
policy  of  reinsurance  from  the  U.  S.  Life  Ins. 
Co.  The  plaintiff,  in  a  supplemental  bill,  set 
up  the  assignment,  and  claimed  judgment 
against  the  TJ.  S.  Life  Ins.  Co.  Held,  when 
one  is  authorized  to  act  for  another,  for  his 
exclusive  benefit,  though  the  contract  is  in  the 
name  of  the  agent  only,  an  action  may  be 
brought  against  the  principal  himself,  wholly 
disregarding  the  agent;  or  the  action  maybe 
brought  against  the  agent  alone,  at  the  option 
of  the  party,  who  has  the  right  to  elect  which 
person  he  may  sue.  But  he  must  elect,  and 
cannot  make  both  liable  in  the  same  action, 

25 


51 


ACTION. 


52 


What  coiifei-s  right  of. 


for  they    are   not  joint    contractors.    Lee  v. 
Fraternal  Mat.  Ins.  Co.,  1  Haudy,  317. 

(b)  Necessary  paHies. 

4.  Twenty-two  persons  were  separate  in- 
surers on  a  sliip  from  New  York  to  Savannah 
and  thence  to  Kingston,  Jamaica.  These  paid 
a  total  loss  on  the  vessel,  which  was  captured 
on  the  voyage.  Others  insured  the  cargo  and 
freight,  and  these  also  paid  a  total  loss  on 
them.  The  cargo  being  abandoned  sold  for 
^9,727,  which  was  expended  by  the  master  for 
repairs,  expenses  and  disbursements  at  Jamai- 
ca. She  proceeded  on  another  voyage  and 
<'arned  freight.  Held,  each  underwriter  was 
interested  separately,  and  not  jointly,  in  the 
proportion  which  his  subscription  bore  to  the 
value  of  the  subject.  That  appointing  a  com- 
mon agent,  to  manage  the  subject,  did  not 
make  the  insurers  copartners ;  and  that  an  ac- 
tion brought  by  them  severally,  for  a  propor- 
tion of  the  proceeds  of  the  cargo,  necessarily 
applied  for  repairs  and  expenses  to  prosecute 
the  voyage,  could  be  maintained.    United  Ins. 

■Co.  V.  Scott,  1  Johns.,  106. 

5.  The  owner  mortgaged  the  property  for 
its  full  value,  and  the  policy  was  made  "  for 
account  of  whom  it  might  concern."  The  mort- 
gagees were  the  legal  owners  at  the  time  of 
the  loss.  Held,  tliey  were  tlie  only  necessary 
parties  to  the  suit;  that  the  mortgagor  was  not 
a  necessary  party.  Rogers  «.  Traders  Ins.  Co., 
6  Paige  Ch.,  583. 

6.  F.  brought  his  action  to  recover  on  the 
ground  that  the  interest  of  the  promisees  had 
been  extinguished.  Held,  it  was  necessary  to 
make  them  parties,  especially  as  it  was  not 
alleged  that  their  interests  had  been  extin- 
guished or  transferred  to  the  plaintiff  by  any 
act  done  by  them,  or  T\ith  their  knowledge  or 
assent.  Fowler  v.  Atlantic  Mat.  Ins.  Co,  8  Bos., 
333. 

7.  Bill  in  equity  may  be  maintained  against 
officers  of  a  mutual  insurance  company  who 
have  the  funds  of  the  company  to  paj'  claims, 
but  apply  them  to  their  own  uses;  but  the  com- 
pany must  be  made  a  party.  Lyman  v.  Bon- 
ney,  101  Mass.,  563. 

III.    "WUAT  CONFERS  IIIGHT  OF. 

1.  If  the  insurer  accepts  the  abandonment 
and  pays  the  claim,  and  the  propert}'  is  pur. 
26 


chased  of  the  captors  by  a  person  acting  for 
the  insured,  and  the  pi-oceeds  are  invested  ia 
goods  and  they  are  sent  to  the  insured,  the  in- 
surers  may  affirm  the  act  and  maintain  trover 
for  the  property.  Robinson  v.  United  Ins.  Co., 
1  Johns.,  593. 

2.  Sliip  owned  by  two  persons  in  different 
proportions;  one  of  them  agreed  to  keep  the 
vessel  insured.  He  insured  her  without  men- 
tioning for  whose  account.  A  loss  happened 
and  insurer  paid  him  the  sum  insured.  Held, 
ho  was  liable  to  his  coowner  for  his  interest 
Burrows  v.  Turner,  24  Wend.,  376. 

3.  Insured  contracted  to  sell  the  property- 
January  1, 1863,  ujjon  condition  that  0.  should 
perform  certain  agreements,  among  which 
were  paj-ment  of  the  expense  of  insurance, 
taxes  and  assessments.  Under  this  agreement, 
C.  entered  into  possession,  and  this  policy 
was  made  December  12,  1863,  stipulating: 
"  Claims  against  this  company  by  the  assignee 
or  mortgagee,  or  other  persons  holding  this 
policy  as  collateral  security,  shall  not  be  pay- 
able until  paj'ment  of  such  portion  of  the 
debt  shall  have  been  enforced  as  can  be  col- 
lected out  of  the  original  security,  and  this 
company  shall  only  be  held  liable  to  pay  such 
sum,  not  exceeding  tlie  sum  insured,  as  can 
not  be  collected  out  of  such  primary  security." 
The  premises  were  consumed  November  29, 
1866.  Held,  the  polic>  was  for  the  benefit  of 
C. ;  that  it  was  not  collateral  security,  hence 
the  stipulation  recited  had  no  efCect  upon  the 
rights  of  the  parties;  that  insured  had  an  in- 
surable interest,  sufficient  to  maintain  the  ac- 
lion  in  his  own  name.  Wood  v.  Northwestern 
Lis.  Co.,  46  N.  Y.,  431. 

4.  Policy  to  H.  &  B.  stipulated:  "Any 
ti-ansfer  or  termination  of  the  interest  of  in- 
sured by  sale  or  otherwise,  without  insurers 
consent,  shall  render  it  void."  The  entire  stock 
in  trade  was  sold  under  execution,  and  bought 
by  the  plaintifi',  who,  without  stating  what  he 
had  done,  asked  insurers  to  transfer  the  policy 
to  him,  which  they  did  by  indorsing:  "The 
interest  of  H.  &  B.  in  the  within  policy  is  as- 
signed to  H.,"  and  H.  &  B.  executed  an  assign- 
ment to  H.  Held,  had  a  loss  occurred  between 
the  sale  and  the  assignment,  no  recovery  could 
have  been  had,  for,  the  parties  insured  would 
have  sufi'ered  no  loss,  yet  the  policy  continued 
to  be  a  valid  subsisting  contract ;  and  had  H. 
&  B.  subsequently  purchased  the  same  or 
other  goods  and  brought  them  into  the  store, 


ACTION. 


54 


What  does  not  confer  right  of. 


t)iev  would  have  been  protected  by  the  policy ; 
that  wlien  it  was  assigned  to  llie  plaintitl'  witli 
the  company's  consent,  he  tooli  the  place  of 
H.  &  B.,  and  it  then  attached  to  his  goods,  for 
Uie  loss  of  which  the  company  must  answer. 
-looper  v.  Hudno/i  Ricer  Fire  Ins.  Co.,  17  N. 
r,  424;5.  C,  15  Barb.,  413. 

5.  Plaintiffs  shipped  a  quantity  of  corn  at 
Buffalo  for  New  York,  on  boats  owned  by  S., 
who  insured  it  with  the  defendants.  It  was 
'iunk  in  the  Hudson  river.  The  defendants 
intervened  and  saved  a  portion,  and  sold  it  for 
the  gross  sum  of  $2,320.37;  but  the  expense 
of  saving,  together  with  the  freight  and  other 
charges,  amounted  to  $760. .55,  leaving  in  the 
defendants'  hands  net  proceeds,  |1,556.83.  S. 
recovered  of  defendants,  on  his  policy,  the 
whole  value  of  the  corn,  less  the  net  proceeds. 
Held,  plaintiff  was  entitled  to  recover  the  net 
proceeds  and-  interest  from  the  time  demand 
made.  Robinson  v.  Corn- Exchanqe  Ins.  Co., 
1  Abb.  Pr.  (N.  S.),  18G;  ;5\  C,  1  liob.  (N.  Y.), 
14. 

•  6.  Policy  to  "  D.  or  as  agent."  It  was  in- 
tended to  be  for  the  benefit  of  D.  and  another 
joint  owner.  Held,  D.  could  recover  the  whole 
amount  of  the  loss  in  his  own  name.  Davis 
«.  Boardman,  13  Mass.,  80. 

7.  "  On  any  property  for  which  they  may 
be  liable  in  freight  buildings  or  yards  in 
•Charlestown."  Insured  were  common  car- 
riers. They  had  certain  goods  for  transporta- 
tion over  the  Vermont  &  M.  R.  R.  or  over  the 
Cheshire  &  S.  R.  R.  These  roads  had  entered 
into  an  agreement  with  insured  to  indemnify 
insured  for  any  loss  of  or  damage  to  any  and 
all  goods  and  freight  of  every  description 
while  in  transit  over  the  road  of  insured,  or  in 
its  depots  or  upon  its  premises.  Held,  not- 
withstanding the  V.  &  M.  R.  R.  as  well  as  the 
C  &  S.  R.  R.  were  liable  under  their  contracts 
with  insured  for  the  loss  of  the  goods,  insurers 
were  still  bound  to  respond  to  insured  under 
the  policy.  Commonwealth  v.  Hide  &  Leather 
Ins.  Co.,  112  Mass.,  136. 

8.  The  owner  of  cargo  is  personally  liable 
for  hi.s  contribution  in  general  average,  not- 
withstanding that  he  has  abandoned  to  his  in- 
«urers.  Delaware  Ins.  Co.  v.  Delaunie,  3  Binu., 
295. 

9.  The  policy  under  seal,  in  the  name  of  an 
agent,  was  intended  to  cover  the  interests  of 
both  owners;  but  one  of  them  disclaimed  au- 
thority to  make  the  insurance.    Held,  that  did 


not  defeat  the  right  of  covenantee  to  recover 
to  the  extent  of  the  other  owner's  half  inter- 
est. American  Ins.  Co.  v.  Insley,  7  Penn.  St. 
223. 

10.  Plaintiffs  were  ordered  to  ship  and  fully 
insure  certain  goods  on  account  of  Swan  et  al. 
Plaintiffs  shipped,  insured  as  directed,  and  re- 
tained the  policy.  They  were  captureil.  Held, 
the  plaintiffs,  as  holders  of  the  policy,  must 
have  recourse  to  the  insurers  in  the  first  in- 
stance.   Grey  v.  Swan,  1  H.  &  J.,  142. 

11.  A  broker  made  insurance  as  agent,  and. 
covenanted  in  the  policy  to  pay  the  premium 
to  the  insurers.  He  became  bankrupt.  Held, 
his  assignee  was  entitled  to  recover  of  the  in- 
sured the  premium  for  which  the  bankrupt  be- 
came debtor  to  the  insurers,  notwithstanding 
the  broker  had  not  paid  the  insurers.  Power 
V.  Butcher,  10  B.  &  C,  329;  8  L.  J.  K.  B.,  217. 

12.  Stipulated:  "Neither  the  directors  who 
signed  the  policy,  nor  the  insured,  nor  the 
holder  of  it,  shall,  as  members  of  the  societj-, 
be  liable  for  any  loss,  except  under  the  articles 
establishing  the  society."  The  action  was 
against  the  directors  who  executed  the  policy, 
with  averments  that  the  funds  of  the  society 
were  suflicient  to  satisfy  the  loss.  Held,  the  ac- 
tion was  properly  brought  against  them.  An- 
drews V.  Ellison,  0  J.  B.  Moore,  199.  The  stat- 
ute of  14  Geo.  Ill,  ch.  48,  g  2,  which  requires 
the  name  of  the  person  for  whose  benefit  the 
policy  is  made  to  be  inserted,  applies  only  to 
cases  between  insured  and  insurer,  and  does 
not  preclude  an  executor  from  recovering 
from  a  party  who  received  money  upon  a 
policy  which  did  not  conform  to  the  statute. 
Lysons  v.  Barrow,  5  L.  J.,  C.  P.,  102. 

lY.  What  does  kot  confer  eight  of, 

1.  Insurance,  if  effected  by  the  agent,  pursu- 
ant to  instructions  from  his  principal,  would 
have  been  void.  Held,  the  principal  could 
not  maintain  an  action  against  the  agent  for 
not  procuring  it  according  to  instructions. 
Alsop  V.  Coit,  13  Mass.  40. 

2.  Policy  to  B.,  payable,  In  case  of  loss,  to 
S.,  mortgagee.  There  was  no  written  evi- 
dence that  insured  had  assigned  the  policy; 
but  there  was  evidence  that  the  defendant 
brought  the  policy  to  the  office  of  the  plaint- 
iff, and  that  he  agreed  to  pay  the  assessments 
that  might  be  laid  upon  it,  and  that  it  remained 
there  till  suit  was  brought  upou  it  for  the  as- 

37 


55 


ACTION. 


What  does  not  confer  right  of. 


seBsmenfs.  Held,  the  plaintiff  could  not  re- 
cover. Bowditch  Mut.  Fire  Ins.  Co.  v.  Buffom, 
2  Gray,  550. 

3.  Tlic  plaintiff  procured  a  nonforfeitable 
policy  upon  liis  own  life,  payable  to  S.,  which 
called  for  the  payment  of  five  annual  premi- 
ums only ;  all  were  paid  except  the  last.  S. 
knew  notliiug  of  the  transaction.  The  plaint- 
iff retained  possession  of  the  policy  and  had 
it  at  the  trial  of  this  cause.  Before  the  last 
payment  became  due,  he  applied  to  the  com- 
•  pany  to  make  the  policy  payable  to  himself 
or  his  legal  representatives,  ■which  was  re- 
fused, unless  the  consent  of  S.  could  be  ob- 
tained, but  S.  refused  consent.  Held,  the  court 
had  no  power  to  compel  S.  to  give  that  con- 
sent or  to  assign  the  policy.  Potter  v.  Spil- 
man,  117  Mass.,  333. 

4.  Policy  on  life  of  A.  for  the  sole  use  of 
his  wife,  payable  to  him  and  them,  on  condi- 
tion it  should  not  be  assigned  except  for  the 
benefit  of  the  wife  and  children  of  insured,  if 
there  were  any;  but  might  be  assigned  to 
any  person,  with  the  assent  of  an  officer  of 
the  company;  and  in  case  insured  should  die 
without  making  a  valid  assignment,  or  with- 
out wife  or  children  surviving,  then  the 
amount  insured  should  be  added  to  the  per- 
manent funds  of  the  society.  He  made  an  as- 
signment of  one  half  of  the  policy  to  B.,  and 
died  without  wife  or  children  surviving.  Held, 
his  administrator  was  not  entitled  to  recover 
the  half  not  assigned.  Oommomoealth  v.  Unity 
Mut.  Life  Ais.  Co.,  117  Mass.,  337. 

5.  Valued  policy  on  vessel  for  one-third  her 
yalue.  Insurers  paid  a  total  loss,  and  were 
subrogated  to  all  the  rights  of  insured,  who 
brought  this  action  to  recover  his  proportion 
of  the  wreck.  Insurers  had  made  examina- 
tion and  determined  it  was  not  worth  the  risk 
of  attempting  to  raise  it.  Held,  they  were  not 
liable,  for  they  were  not  bound  to  look  after 
the  interest  of  the  insured.  Alleglieny  Ins.  Co. 
■D.  Ransom,  G9  Penn.  St.,  496. 

6.  Stipulated :  "  In  any  and  alt  such  cases, 
this  policy  shall  be  void  and  all  payments 
thereon  forfeited;  but,  in  case  of  forfeiture, 
the  party  interested  shall  have  the  benefit  of 
such  equitable  adjustment  as  may  from  time 
to  time  be  provided  for  by  the  board  of  di- 
rectors." Held,  the  court  could  not  interfere 
with  the  directors'  discretion  without  doing 
violence  to  the  contract.  Nightingale  v.  State 
Mut.  Life  Ins.  Co.,  5  IJ.  I.,  38. 

28 


7.  An  action  does  not  lie  against  officers  of 
insurance  compfvnies  who  have  combined  and 
confederated  to  refuse  to  take  insurauce  on  a 
steamboat.    Hunt  v.  Simonds,  19  Mo.,  583. 

8.  Insurance  against  the  consequences  of 
militia  ballots.  A  militia  ballot  was  illegally 
conducted,  in  consequence  of  which  every 
man  liable  to  the  ballot  was  actually  drawn. 
Held,  as  it  was  not  a  legal  proceeding,  it  im- 
posed no  obligations  upon  anybody;  hence  the 
insurer  was  discharged,  notwithstanding  the 
insured  served  in  person  (reversing,  S.  C.  in 
in  Court  of  Session).  Scott  v.  Mcintosh,  3 
Dow,  322. 

9.  F.  W.  &  M.,  trustees  and  directors  of  a 
flre  insurance  company,  executed  a  policy  to 
indemnify  A.  B.  C.  for  loss  by  fire,  whereby 
they  ordered,  directed  and  appointed  the  di- 
rectors, for  the  time  being,  to  pay  the  loss 
which  A.  B.  C.  should  sustain  in  consequence 
of  fire.  Held,  covenant  would  not  lie  upon 
the  instrument;  that  neither  the  parties  who 
executed  it,  nor  the  directors  for  the  time  be- 
ing, were  liable  at  law.  Alchorne  v.  SaciUe,-& 
J.  B.  Moore,  202,  n.;  4  L.  J.  Ch.,  47. 

10.  The  lessee  agreed  to  insure  the  premises 
against  fire,  and  effected  a  policy  upon  them. 
They  were  destroyed  by  fire,  and  the  lessor 
informed  the  secretary  of  the  agreement,  who 
said  that  the  company  regarded  the  destruc- 
tion of  the  houses  with  some  suspicion.  The 
lessor  thereupon  informed  the  secretary  that 
he  claimed  the  benefit  of  the  policj',  either 
the  money,  or  to  have  it  expended  in  rebuild- 
ing the  premises,  and  that  he  would  relj-  upon 
the  company's  refusal  to  pa}'  the  lessee.  It 
was  also  alleged  by  the  complainant  that  the 
company's  secretary  assented  and,  notwith- 
standing that  assent,  compromised  with  the 
lessee,  and  obtained  a  discharge  from  him  of 
all  liability  under  the  policy.  The  plaintiff 
rebuilt  the  premises,  and  claimed  payment  of 
tlie  money  in  respect  of  such  rebuilding. 
Held,  on  demurrer,  for  want  of  equity  there 
was  not  a  sufficient  request  within  14  Geo.  Ill, 
ch.  78,  sec.  83 ;  that,  had  there  been  one,  the 
plaintiff  could  not  rebuild  and  charge  the 
company  with  the  expense;  and  that  the  rem- 
edy, if  an}',  was  by  mandarnns.  Simpson  v. 
Scottish  Union  Fire  cC  Life  Ins.  Co.,  9  Jur.  (N. 
S.),  711 ;  1  H.  &  M.,  ei8;  32  L.  J.  Ch.,  329. 

11.  The  policy  was  assigned,  a  loss  oc- 
curred, and  the  assignee  applied  for  payment 
of  the  insurance  money,  which  was  refused 


57 


ACTION. 


58 


When  it  accrues  —  Who  may  or  must  sue. 


unless  he  would  procure  an  attachment,  which 
he  did.  Payment  was  then  refused  uutil  the 
attachment  should  bo  withdrawn,  whicli  was 
done,  the  plaintiff's  clerk  takin,5  with  him  to 
defendant's  notice  of  the  withdrawal.  He 
was  accompanied  by  the  person  insured,  and 
the  assignee's  clerk.  Thereupon  insurers  drew 
their  check  to  the  order  of  insured,  and  deliv- 
ered it  to  him.  He  received  the  money,  and 
refused  to  pay  any  of  it  over  to  the  assignee. 
Held,  it  was  a  question  of  fact  for  the  jury  to 
determine  whether  insurers  had  made  any 
promise  to  the  assignee.  Also,  held,  that  the 
action  could  not  be  maintained  in  the  absence 
of  such  a  promise.  The  jury  found  there  was 
no  such  promise,  hence  the  action  could  not 
be  maintained.  London  Investment  Co.  v. 
Montefiore,  9  L.  T.  (N.  S.),  688. 

12.  The  debtors  of  S.  assigned  a  policy  to 
him,  and  agreed  to  pay  the  premiums.  An 
order  was  made  to  wind  up  the  company,  and 
the  assignee  filed  this  bill,  praying  that  the 
assignors  be  compelled  to  pay  to  him  the 
amount  of  premiums  when  they  should  fall 
tluo  in  the  future.  Held,  upon  demurrer  to 
the  bill,  it  must  be  dismissed.  Oarniis  v. 
Hcinke,  40  L.  J.  Ch.,  306. 

13.  A  broker  procured  a  policy  on  cargo. 
It  arrived  safely,  but  the  consignor  stopped  it 
in  the  hands  of  the  carrier,  and  the  broker 
brought  this  action  against  the  consignor  for 
the  premium.  Held,  he  could  not  maintain  it. 
Smith  V.  Brake,  Faculty  Decs.,  1808  to  1810, 
p.  244. 


V.    "When  it  accrues. 

1.  Policy  to  a  wife  upon  the  life  of  her  hus- 
band, a  resident  of  the  state  of  Georgia. 
Thirteen  annual  premiums  had  been  paid  upon 
it,  when  the  civil  war  interrupted  all  inter, 
course  between  the  northern  and  southern 
states,  and  the  annual  premiums  during  the 
interruption  were  not  paid;  but  so  soon  as 
communication  was  restored,  they  were  ten- 
dered with  interest  and  refused;  and  during 
her  husband's  lifetime  she  brought  this  action 
to  compel  the  company  to  receive  the  premi- 
ums, or  to  repay  all  that  she  had  paid,  with 
interest.  Held,  the  court  had  jurisdiction  to 
determine  and  settle  the  rights  of  the  parties 
(citing  Baylies  v.  Payson,  5  Allen,  473;  Ball 
».  Coggs,  Brown's  Pari.  Rep.,  296;  Buxtou  v. 


Lester,  3  Atk.,  383;    2  Story  Eq.  Jur.,  826). 
Cohen  v.Jfiit.  Life  Ins.  Co.,  r>0  N.  Y.,  610. 

2.  Goods  jettisoned  must  be  paid  for  by  the 
insurer,  and  the  insured  need  not  demand  con- 
tribution from  the  persons  benefited  by  the 
jettison.  Forbes  v.  Manufacturers'  Ins.  Co ,  I 
Gray,  371. 

3.  Stipulated:  "The  loss  shall  be  paid 
ninety  days  after  proof  and  adjustment."  Held, 
it  applied  only  to  the  case  of  an  amicable 
adjustment;  when  that  cannot  be  made,  the 
insured  is  absolved  from  the  stipulation,  and 
his  right  of  action  accrues  immediately.  Al- 
legre  v.  Maryland  Ins.  Co.,  6  H.  &  J.,  408; 
affirmed,  2  G.  &  J.,  136. 

4.  The  insured  is  not  bound  to  wait  for  the 
adjustment  of  the  general  average,  nor  to  de- 
mand contribution  of  those  who  are  bound  by 
law  to  contribute.  Faulkner  v.  Augusta  Ins. 
Co.,  2  McMullen,  138. 

.5.  Insured  are  not  bound  to  await  the  pay. 
ment  of  the  contributions  to  a  general  average ; 
they  have  the  right  to  sue  their  insurers  di- 
rectly. Hanse  v.  New  Orleans  Ins.  Co.,  10  La. 
(O.  S.),  1. 

6.  Wagner  Stat.,  294,  sec.  28,  authorizes  suits 
to  be  brought  against  a  corporation  in  the 
county  where  the  cause  of  action  accrued,  and 
this  was  brought  upon  a  life  policy.  He  died 
in  the  county  of  Gasconade.  Held,  the  cause 
of  action  accrued  in  that  county.  Rippstein 
V.  St.  Louis  Mut.  Life  Ins.  Co.,  57  Mo.,  86. 

7.  By  the  terms  of  the  policy,  losses  were 
to  be  paid  three  months  after  adjustment  made 
by  a  committee;  but  they  refused  to  adjust  the 
loss.  Held,  the  insured  had  a  right  to  sue. 
Strong  v.  Haney,  3  Bing.,  304 ;  4  L.  J.  C.  P.,  57 ; 
11  Moore,  73. 

8.  Risk  of  jettison  included.  They  were 
jettisoned,  and  insured  was  entitled  to  contri- 
bution. He  sued  his  insurers  without  having 
first  collected  the  contributions.  Held,  insured 
were  entitled  to  recover  the  sum  insured,  and 
the  insurers  were  entitled  to  stand  in  the  place 
of  the  insured  and  take  the  contributions. 
Dickenson  v.  Jardine,  3  L.  R.  C.  P,  639 ;  37  L.  J. 
C.P.,321;  18L.T.(N.  S.;,717;  16W.R.,1169. 

VI.     "Who  mat  or  must  sue. 

(a)  Of  the  assignee,  payee,  mortgagee, 

or  trustee. 

1.  It  seems  that  after  the  loss  occurred,  in 

29 


50 


ACTION. 


60 


Who  may  or  must  sue. 


sured  gave  an  order  to  his  creditor  for  its 
payment.  Held,  the  creditor  became  the  as- 
signee, and  inasmuch  as  the  statute  law  of  the 
state  required  all  actions  to  be  brought  by  the 
real  party  in  interest,  the  creditor  was  tlie 
proper  person  to  bring  the  suit.  Spratley  v. 
Hartford  Ins.  Co.,  1  Dil.  C.  C,  393. 

2.  Policy  to  H.  &  D.,  or  whom  it  may  con- 
cern, loss  payable  to  H.  &  D.  Hehl,  they 
could  maintain  the  action.  Jefferson  Ins.  Co. 
1).  Cotheal,  7  Wend.,  72. 

3.  A  policy  subsisting  upon  one's  life  may 
be  assigned  by  the  person  whose  life  is  in- 
sured, to  a  trustee,  for  the  benefit  of  his  wife. 
After  his  death  the  money  belongs  to  her,  and 
may  be  recovered  in  her  own  name,  or,  where 
the  trust  is  expressed,  in  that  of  the  trustee. 
St.  John  V.  American  Mut.  Life  Ins.  Co.,  I'd 
N.  Y.,  31 ;  2  Duer,  419. 

4.  On  goods.  Insured  sold  tliem  to  S.,  who 
transferred  them  to  the  wife  of  E.  E.  assigned 
all  his  rights  in  the  policy  to  his  wife,  to 
which  insurers  assented.  'Held,  the  wife 
could  recover  for  a  loss  of  the  goods,  because 
her  rights  in  the  goods  and  in  the  policy  were 
united  by  the  transfer  of  both.  Wolfe  v.  Se- 
curity Ins.  Co.,  39  N.  T.,  49. 

5.  Policy  to  H.  upon  property  owned  by 
him,  loss  payable  to  F.  as  collateral.  Held, 
F.  could  maintain  the  action  (citing  Grosvenor 
■V.  Atlantic  Fire  Ins.  Co.,  17  N.  Y.,  391). 
Frink  v.  Hampden  Ins.  Co.,  45  Barb.,  384 ;  S. 
C,  31  How.  Pr.,  30';  1  Abb.  Pr.  (N.  S.),  343. 

6.  Policy  to  Palmer,  "  Loss,  if  any,  paj'able 
to  Cone,  as  his  interest  may  appear."  The 
property  had  been  sold  under  execution,  and 
Cone  held  the  sheriff's  certificate.  Palmcp 
and  Cone  agreed  that  in  case  Cone  secured 
title  to  the  premises,  and  Palmer's  w  ife  should 
execute  a  release.  Cone  would  discharge  cer- 
tain incumbrances,  and  indemnify  Palmer 
against  the  payment  of  a  certain  bond  for 
$4,000.  Held,  Cone  was  the  proper  person  to 
bring  the  action,  and  Palmer's  interest  was 
sufficient  to  sustain  it.  Cone  v.  Niagara  Fire 
Ins.  Co.,  3  K  Y.  S.  C,  33. 

7.  Policy  to  P.,  loss,  if  any,  payable  to  C. 
Held,  C.  was  the  proper  person  to  sue  upon  it 
(citing  Clinton  v.  Hope  Ins.  Co.,  45  N.  Y.,  544). 
Cone  V.  Niagara  Fire  Ins.  Co.,  60  N.  Y.,  619; 
S.  C,  3  X.  Y.  S.  C,  33. 

8.  W.  procured  insurance  on  his  life  by  a 
policy  payable  to  the  plaintiff,  by  which  de- 
fendants agreed  "  to  pay  to  the  assured,  his  ex- 

30 


ecutors,  etc.,"  the  sum  insured.  Held,  the 
word,  "his,"  following  the  word,  " assured," 
means  tlie  person  who  is  to  receive  the  benefit 
of  the  insurance,  for  it  cannot  be  intended 
that  the  word  "  assured,"  was  used  in  respect 
to  the  deceased.  Hogle  v.  Guardian  Life  Ins. 
Co.,  4  Abb.  Pr.  (N.  S.),  346 ;  S.  C,  6  Bob.  CS. 
Y.),  567.  But  if  this  were  not  so,  the  plaintiff, 
being  the  real  party  in  interest  could  maintain 
the  action.    Code,  sec.  111.    Ibid. 

9.  Policy  to  mortgagor,  loss,  if  any,  payable 
to  mortgagee.  Held,  tlie  mortgage  being  un- 
satisfied, the  mortgagee  was  the  only  person 
who  could  maintain  the  action.  Ripley  v. 
Astor  Ins.  Cv.,  17  How.  Pr.,  444. 

10.  Policy  to  E.  "  on  his  dwelling  house, 
loss,  if  any,  payable  to  B,  mortgagee."  There 
was  no  averment  in  the  complaint  that  B.  had 
been  paid  his  debt.  Held,  B.  had  an  absolute 
right  to  recover ;  that  payment  to  E.  w^ithout 
consent  of  B.  would  not  discharge  the  insurer 
so  long  as  the  mortgage  remained  unsatisfied; 
hence  B.  was  a  necessary  party  to  the  action. 
Funis  V.  Harmony  Fire  Ins.  Co.,  3  Bos.,  516. 

11.  A  policy  to  A.,  for  wliom  it  might  con- 
cern, stated  on  the  back  of  it,"  for  A.  B.  &  C, 
each  one  third,  payable  to  A.  in  ease  of  loss." 
all  sums  due  insurers  to  be  first  deducted. 
Held,  A.  B.  &  C.  might  sue  jointly.  Williams 
V.  Ocean  Ins.  Co.,  2  Met.,  303. 

12.  The  assignee  of  the  policy  brought  this- 
suit.  The  company  had  consented  to  the  as- 
signment, and  the  original  insured  had  sold 
the  property  to  the  assignee.  Held,  he  could 
maintain  the  action,  for  the  sale  of  the  prop, 
ert}^  snd  the  consent  of  insurers  to  the  assign- 
ment established  a  new  valid  contract  be- 
tween insurer  and  assignee.  Wilson  v.  Hill, 
3  Met.,  66. 

1 3.  It  seems  that  a  mortgagee  to  whom  the 
claim  is  to  be  paid  in  case  of  loss,  upon  the 
express  promise  of  the  insurer  to  pay  it  to 
him  may  in  his  own  name  maintain  the  ac- 
tion.   Barrett  v.  Union  Ins.  Co.,  7  Cush.,  175. 

14.  Insured  assigned  his  policy,  which  was 
assented  to  by  the  president  of  the  insurer. 
Held,  the  assignee  could  maintain  an  action 
upon  it  in  his  own  name.  Phillips  v.  Merri- 
mack Fire  Ins.  Co.,  10  Cush.,  a50. 

1 5.  B.  was  mortgagee  of  tlie  property  in- 
sured. He  procured  the  policy  in  the  name 
of  the  general  owner,  paving  the  premium 
himself,  the  loss  being  made  payable  to  him 
to  the  extent  of  his  mortgage  interest,  whicb 


61 


ACTION. 


62- 


Who  may  or  must  sue. 


exceeded  the  sura  insured.  Held,  he  could 
maintain  the  action.  Hadley  v.  New  Hamp- 
shire Fire  Ins.  Co.,  55  N.  H.,  1 10 ;  Chamberlain 
V.  Same,  id.,  249. 

16.  Policy  upon  the  life  of  the  husband  for 
the  use  of  his  wife  and  cliiUlren  by  which  in- 
sui'ers  agreed  to  pay  sum  insured  to  tlie  in- 
sured, his  executors,  administrators  and  as- 
signs. Insured  and  wife  assigned  it  to  M.,  who 
assigned  it  to  the  plaintiff  with  the  insurer's 
consent  for  a  valuable  consideration.  Held, 
the  plaintiff  had  the  right  to  maintain  the  ac- 
tion in  his  own  name.  Burroughs  v.  State 
Life  Ass.  Co.,  97  Mass.,  359 ;  Arhcibald  v.  Mu- 
tual Life  Ins.  Co.,  38  Wis.,  542. 

17.  The  act  of  incorporation  granted  di- 
rectors power  to  make  necessary  and  conven- 
ient by-laws.  They  provided  that  a  mortga- 
gee who  liad  the  policy  assigned  to  him  might 
by  consent  of  the  directors  have  it  ratified 
and  confirmed  for  his  benefit.  Held,  the  by- 
law was  valid;  also,  the  assignment  having 
been  made  and  ratified,  and  loss  claimed,  the 
action  for  it  must  be  brought  in  the  name  of 
the  assignee.  Sollins  v.  Columbian  Hut.  Fire 
Ins.  Co.,  25  N.  H.,  200).  But  if  the  policy 
■was  given  in  pledge,  without  a  transfer  of  an 
interest  in  the  subject  insured,  the  insured  is 
the  proper  person  to  bring  the  suit.    Ibid. 

18.  Payable  to  the  company  or  their  treas- 
urer. HeM,  not  a  promise  in  the  alternative; 
but,  whether  it  was  or  not,  it  was  a  contract 
with  the  company,  in  whom  the  right  of  ac- 
tion existed.  Atlantic  Mat.  Fire  Ins.  Co.  v. 
Young,  38  N.  H.,  451. 

19.  The  plaintiffs  were  the  trustees  of  a 
voluntary  association.  The  realty  was  mort- 
gaged  to  them  as  trustees.  Held,  the  riglit  of 
action  was  in  them.  Barnes  v.  Union  Mut. 
Fire  Ins.  Co.,  45  N.  H.,  21. 

20.  If  the  mortgagor  has  the  policy  made 
"  payable  to "  a  person  described  as  mort- 
gagee, the  mortgagee  may  ratify  the  act,  and 
bring  the  action  in  his  own  name;  and  bring- 
ing the  action  ratifies  the  act.  Motley  v.  Man- 
vfacturers'  Ins.  Co.,  29  Me.,  337. 

21.  Tlie  policy  was  assigned,  the  company 
ratified  the  assignment,  and  the  assignee  gave 
a  new  premium  note  for  tlie  premium.  Held, 
the  assignee  could  maintain  the  action  in  his 
own  name.  Stimpson  v.  Monmouth  Mut.  Fire 
Ins.  Co.,  47  Me.,  379. 

22.  An  assignment  of  the  policy,  after  a  loss 
has  occurred,  passes  tlie  whole  interest;  and 


the  assignee  can  maintain  an  action  on  it  ia 
his  own  name,  under  the  statute  of  1828,  or 
under  the  code.  Perry  v.  Merchants  Ins.  Co.y 
25  Ala.,  355. 

2.-J.  Policy  upon  the  life  of  the  husband  for 
the  use  of  the  wife.  Held,  she  could  main- 
tain tlie  action,  notwithstanding  there  was  an 
executor.  Myers  v.  Keystone  Mut.  Life  Ins. 
Co.,  27  Penn.  St.,  268. 

24.  Policy,  under  seal,  to  A.  Subsequently 
indorsed,  "Loss,  if  any,  payable  to  B."  Held, 
the  action  was  well  brought  in  the  name  of  A. 
(S.  C.  N.  J.)  Martin  v.  Franklin  Fire  Ins.  Co., 
5  Ins.  L.  J.,  144. 

25.  Plaintiff  declared  upon  a  writing,  under 
seal,  by  which  defendant  guarantied  to  the 
bearer  tlie  sum  of  $5,000  on  April  30,  1834,  oa 
presenting  such  writing  at  the  defendant's 
office.  Tlie  averments  necessary  to  show  that 
plaintiff  presented,  etc.,  were  made.  Held, 
the  plaintifi'  could  sue  on  it,  though  he  was 
not  the  party  to  whom  it  was  issued.  (This 
is  hardly  an  insurance  case,  though  against 
an  insurance  company.)  ElUeott  v.  Unitei 
States  Ins.  Co.,  8  G.  &  J.,  166. 

26.  Policy  reinsuring  the  Fulton  Co.,  for 
which  a  receiver  was  appointed  who  sold  the 
effects,  debts  and  demands  of  said  company, 
including  this  claim  for  reinsurance.  Held, 
the  purchaser  of  the  claim  could  maintain 
the  action.  Consolidated  Fire  Ins.  Co.  v. 
Cashoio,  41  Md.,  59. 

27.  The  policy  covenanted  to  pay  the  hus- 
band, his  executors,  administrators  or  assigns, 
but  the  consideration  was  expressed  as  paid 
for  the  use  and  benefit  of  the  wife.  Held,  the 
recital  in  the  policy  made  it  manifest  that  the 
insurance  was  effected  by  the  husbaud  for  the 
benefit  of  the  wife;  he  therefore  became  the 
trustee  of  an  express  trust  for  her,  the  Ijenefi- 
ciary;  the  statute  which  allows  a  trustee  to 
sue  in  his  own  name  did  not  preclude  the 
beneficiary  from  prosecuting  the  suit  without 
joining  the  trustee;  as  the  wife  was  the  real 
parly  in  interest,  she  had  the  right  to  bring 
the  suit,  for  a  recovery  by  her  would  bar  an- 
other action  brought  by  the  trustee.  McComas 
V.  Covenant  Mut.  Life  Ins.  Co.,  56  Mo.,  573. 

28.  Policy  of  reinsurance  issued  to  John 
Vattier  and  others,  for  their  sole  use,  in  trust 
for  the  Fraternal  Mut.  Ins.  Co;,  which  com- 
pany  assigned  their  rights  to  the  plaintiff. 
Held,  tl.e  beneficiary,  the  Fraternal  Mut.  Ins. 
Co.,  was  entitled  in  tact  to  the  fruits  of  the 

81. 


€3 


ACTION. 


64 


Who  may  or  must  sue. 


policy,  and  therefore  the  proper  party  under 
the  code  to  sue,  if  no  assignment  had  been 
made  by  it;  but  tliat  the  assignment  divested 
the  Fraternal  3Iut.  Ins.  Co.  of  all  interest,  and 
cast  it  upon  the  plaintiff;  hence  she  was  the 
proper  person  to  sue.  Lee  v.  Fraternal  Mut. 
Ins.  Co.,  1  Handy,  317. 

29.  Policy  to  Hobbs  and  Henley,  "On 
stock  of  groceries,  not  assignable  except  by 
consent  of  insurer."  Hobbs  assigned  all  his 
interest  in  the  stock  to  Henlej',  his  partner. 
The  stock  was  afterwards  consumed  by  fire. 
Held,  Henley  could  recover  for  that  which  had 
not  been  assigned  by  Hobbs,  and  for  th.it 
assigned,  if  the  insurer  assented  to  the  assign- 
ment.   Hohha  V.  Memplds  Ins.  Co.,  1  Sneed,  444. 

30.  Policy  on  the  life  of  the  husband  for 
the  benefit  of  tlie  wife  —  stipulated:  "In  case 
of  the  death  of  the  wife  before  tlie  decease  of 
the  husband,  tlie  sum  insured  shall  be  paya- 
ble to  their  children,  or  to  their  guardian  if 
tinder  age.  Held,  the  action  was  well  brought 
in  the  name  of  a  guardian  ad  litem;  it  was 
unnecessary  to  have  a  general  guardian  ap- 
pointed for  the  purpose.  Price  v.  Phanix 
Mut.  Life  Ins.  Co.,  17  Minn.,  497. 

31.  Policy  to  S.,  indorsed  by  insurer'.<( 
agent,  "  Payable  in  case  of  loss  to  N.,  to  the  ex- 
tent of  his  claim,"  who  brought  this  suit  to 
recover  tlie  amount  insured.  Held,  the  in- 
dorsement had  the  same  force  and  effect  as  if 
made  at  the  time  the  policy  was  made;  and 
as  the  pleadings  showed  that  plaintiff's  claim 
against  S.  exceeded  the  sum  insured,  N.  was 
entitled  to  maintain  the  action  in  his  own 
name.  S'ewman  v.  Springfield  Fire  and  Marine 
Ins.  Co.,  17  Minn.,  123. 

32.  Policy  upon  the  life  of  A.,  executed  by 
three  trustees  of  the  company.  A.  assigned 
it  to  B.,  and  died.  The  ti-ustees  paid  the 
loss  by  check  on  the  company's  bankers,  and 
the  assignee  acknowledged  the  receipt  of  the 
money  from  the  trustees.  The  trustees  brought 
this  action  to  recover  the  money  back,  alleg- 
ing that  the  policy  was  procured  by  fraud. 
Held,  the  action  was  well  brought  in  the  name 
of  the  trustees.  Lefevre  v.  Boyle,  3  B.  &  Ad., 
877. 

33.  After  the  loss  occurred,  the  policy  was 
assigned.  Held,  the  assignee  was  entitled  to 
maintain  the  action  in  his  own  name.  See  31 
and  32,  Vict,  c,  8G.  Llot/d  v.  Fleming,  7  L.  R 
<i.  B.,  299 ;  41  L.  J.,  93 ;  20  W.  R.,  296 ;  25  L.  T. 
(N.  S.),  24. 

33 


34.  Stipulated:  "In  case  the  policy  shall 
be  assigned  the  directors  may  confirm  it  tv 
the  assignee."  Insured  assigned  all  his  inter- 
est  in  the  property  and  policy  to  the  liiortga- 
gee.  The  debt  was  less  than  the  sum  insured. 
Held,  the  mortgagee  was  entitled  to  niaintaia 
the  action  in  his  own  name.  Burton  v.  Gore 
District  Mut.  Ins.  Co.,  14  U.  C.  Q.  B.,  342. 

35.  Policy  to  A.,  assigned  to  B.,  with  con- 
sent of  insurer's  agent,  who  indorsed  an  agree- 
ment that  the  policy  should  stand  for  the  ben- 
efit of  B.,  and  entered  the  transaction  in  a 
book  kept  by  him,  and  communicated  it  t.> 
the  head  office  in  Montreal.  The  secretary 
suggested  a  new  policy,  and  that  the  unearned 
premium  should  be  credited  upon  it.  B.  paid 
an  additional  premium  to  cover  increase  of 
risk.  Held,  the  assignee  could  maintain  tlie 
action.  Boss  v.  Commercial  Union  Ass.  Co., 
26  U.  C.  Q.  B.,  559. 

(b)  Of  the  principal,  or  an  undis- 
closed principal,  the  insured  and 
his  personal  representatvves. 

36.  There  was  no  warranty  or  representa- 
tion that  the  property  was  American.  Held, 
any  foreigner  who  had  authorized  the  insur- 
ance  to  be  made  could  receive  the  benefits  of 
it.    Seamens  o.  Loring,  1  Mason,  127. 

37.  Policy  on  account  of  the  owners.  Held, 
the  action  was  properly  brought  in  the  name  of 
two  persons  who  effected  it  to  cover  their  own 
individual  interest  in  the  adventure,  notwith- 
standing another  person  was  interested  in  the 
adventure  when  the  voj'age  commenced;  that 
as  between  themselves  and  their  insurer  their 
rights  could  not  be  affected  by  the  acts  of 
another  person  interested  in  the  subject  in- 
sured.  Catlett  v.  Pacific  Ins.  Co.,  I  Wend.,  561 ; 
affirmed,  4  id.,  75. 

38.  Where  one  acting  as  agent,  although 
without  actual  authority,  makes  a  contract  for 
the  benefit  of  another,  the  latter  may  at  any 
time  afterwards,  so  long  as  the  contract  con- 
tinues in  force,  upon  being  apprised  of  its  ex- 
istence, adopt  the  act  of  the  agent,  and  so  en- 
title himself  to  all  the  advantages  of  the  con- 
tract,  as  fully  as  if  it  had  been  originally  made 
by  his  express  authority.  Stillicell  v.  Staples, 
19  N.  Y.,  401 ;  S.  C,  6  Duer,  63. 

39.  Insured  mortgaged  the  property  and 
assigned   the  policy.     Held,  the  action  was 


65 


ACTION. 


Who  may  or  must  sue. 


riglitly  brought  iu  the  name  of  insured.  Con- 
over  V.  Mut.  Ins.  Co.,  3  Deuio,  254;  affirmed, 
1  N.  Y.,  290;  How.  Aijp.  Cas.,  004. 

40.  Policy  ou  ihe  lil'e  of  S.,  who  entered 
into  copartnership  with  V.  and  M..and  agreed, 
in  case  of  llie  doatli  of  S.  during  the  continu- 
ance of  the  partnership,  the  money  secured  by 
the  policj-  should  become  the  absolute  prop- 
erty of  v.  and  M.,  if  S.  should  remain  unmar- 
ried until  his  death.  Efkl,  upon  the  happen- 
ing of  the  comingency,  the  right  to  the  money 
due  upon  the  policy  vested  absolutely  in  V. 
and  M.,  and  they  were  authorized  to  sue  in 
their  own  names.  Valton  v.  National  Loan 
Fund  Ass.  Co.,  2o'n.  Y.,  32;  S.  C,  22  Barb.,  9; 
40  N.  Y.  (1  Keyes),  21;  4  Abb.  Dec,  437;  17 
Abb.  Prac,  268. 

41.  On  account  of  whom  it  may  concern. 
Meld,  the  person  in  whose  name  the  contract 
was  made  could  maintain  the  action.  Walsh  v. 
Washington  Ins.  Co.,  32  N.  Y.,  427 ;  S.  C,  3 
Rob.,  202. 

42.  Open  policy  to  I.,  D.  &  Co.  "  This  pol- 
icy to  he  deemed  continuous,  unless  otherwise 
directed  by  either  party,  thirty  days  notice 
being  given  to  the  insured  to  enable  the  risks 
to  terminate,  etc."  Insurers  sent  blank  certifi- 
cates to  I.,  D.  &  Co.,  to  describe  the  risks 
embraced  in  the  policy  to  be  reissued  to  per- 
sons who  should  be  insured.  Held,  when  the 
certificate  was  filled  up  and  delivered,  it  be- 
came a  valid  contract  of  insurance  in  favor  of 
the  liolder  of  it  who  could  sue  in  his  own 
name  upon  it.  Uartshorne  v.  Union  Mut.  Ins. 
Co.,  36  N.  Y.,  172;  S.  C,  5  Bos..  538. 

43.  The  policy  iu  the  name  of  the  husband, 
•was  returned  to  insurer,  with  a  statement  that 
the  property  belonged  to  the  wife,  and  that  she 
■wanted  the  loss  made  payable  to  Mary  En- 
twistlc.  Insurer's  secretary  made  the  loss 
payable  as  requested.  Held,  the  contract  was 
■with  the  wife,  and  the  company  liable  for  the 
loss  of  the  premises.  Solmes  v.  Itutyers  Fire 
Ins.  Co.,  42  N.  Y.  (3  Keyes),  416;  S.  C.,4  Abb. 
Dec,  270:  reversing  8.  C,  8  Bos.,  578,  and  5 
Abb.  Pr.  (N.  S.;,  201. 

44.  Policy  to  A.,  the  owner,  "  On  property 
Bold  but  not  removed."  Subsequently  A.  sold 
It  to  B.,  holding  it  for  him  without  charge, 
and  it  was  burned.  Held,  A.  could  maintain 
the  action  as  trustee  for  B.  Waring  v.  Indem- 
nity Fire  Ins.  Co.,  45  N.  Y.,  606. 

45.  Life  policy  payable  to  insured,  his  ex- 
ecutors, administrators  and  assigns,  two-thirds 


thereof  being  for  the  express  benefit  of  the 
wife,  and  one-third  for  the  mother.  Held,  the 
representatives  of  the  deceased  were  the  trust- 
ees  of  an  express  trust,  and  the  proper  parties 
to  maintain  the  suit  within  the  meaning  of 
sec.  113  ol'  the  code.  Greenfield  v.  Massachusetts 
Mut.  Life  Ins.  Co.,  47  N.  Y.,  430.  And  the 
beneticiaries  being  made  parties  defendant, 
upon  insurer's  motion  they  are  estopped  to 
ob.ject  that  the  joinder  was  improper.    Ibid. 

46.  Policy  to  B.  "  On  account  of  F.,  or 
whomsoever  it  may  concern."  B.  brought  the 
action  in  his  own  name,  alleging  the  interest 
iu  F.  and  C.  Held,  the  action  could  be  main- 
tained, the  principal  having  ratified  the  act  of 
B.  Bridge  v.  Niagara  Ins.  Co.,  1  Hall  (N. 
Y.),  247. 

47.  The  trustees  of  an  asylum,  in  pursuance 
of  an  act  of  the  legislature,  conveyed  the 
property  to  The  People,  and  the  defendant  in- 
sured  it.  Held,  the  people  could  maintain  the 
action  for  a  loss.  The  People  v.  Licerpool,  Lon- 
don and  Globe  Ins.  Co.,  2  N.  Y.  (S.  C),  268. 

48.  Policy  to  R.  assigned  by  him  to  P.,  who 
assigned  it  to  plaintiff.  The  complaint  did 
not  show  that  either  P.  or  the  plaintitf  had  any 
interest  in  the  property.  The  action  was 
brought  in  the  name  of  the  insured  and  the 
last  assignee.  Held,  R.  could  maintain  the 
action,  but  it  must  be  dismissed  as  to  the  last 
assignee  (under  the  code,  judgment  may  be 
given  for  or  against  one  or  more  of  several 
plaintifl's).  Peabody  v.  Washington  County  Mut. 
Ins.  Co.,  20  Barb.,  339. 

49.  Policy  to  A.,  "  Loss,  if  any,  payable  to 
W.,  L.,  B.,  and  the  insured,  as  their  interest 
shall  appear."  Held,  the  action  was  well 
brought  in  the  name  of  the  insured,  and  no 
valid  objection  could  be  made  for  the  want  of 
parties;  it  will  be  presumed  the  others  have 
no  interest  in  it.  Owens  v.  Farmers'  Joint 
Stock  Ins.  Co.,  57  Barb.,  518;  10  Abb.  Pr.  (N. 
S.),  166  n. 

50.  On  account  of  whom  it  may  concern. 
Held,  the  person  to  whom  the  policy  was 
issued  could  maintain  an  action  upon  it,  for 
ilip  benefit  of  all  persons  interested.  Sturm  v. 
Atlantic  Mut.  Ins.  Co.,  6  J.  &  Sp.  (N.  Y.),  281. 

51.  "On  ship  for  whom  it  might  concern." 
Insured  averred  in  the  declaration  that  it  wa.s 
made  for  himself  and  I.  S.  in  certain  proper- 
tinns.  Held,  the  action  w.is  well  brought  by 
the  insured  alone.    Ward  v.  Wood,  13  Mass.,  539. 

52.  On  ship  to  C.  and  L.  for  the  owners, 

83 


61 


ACTION. 


6» 


Who  may  or  must  sue. 


payable  to  C.  and  L.  Held,  the  suit  was  well 
brought  in  the  name  of  the  owner  with  the 
consent  of  C.  and  L.  Farrow  v.  Commonwealth 
Jns.  Co.,  18  Pick.,  53. 

53.  Owner  had  the  property  insured  and 
assigned  policy  to  purchaser,  with  insurer's 
assent.  Purchaser  reconveyed  by  mortgage 
to  the  insured,  and  reassigned  the  policy  to 
liim  with  insurer's  consent,  "To  hold  as  col- 
lateral  security  for  the  performance  of  condi- 
tions of  mortgage."  Held,  the  original  in- 
sured could  sue  in  his  own  name.  Kingsley 
n.  New  England  Mut.  Fire  Ins.  Co.,  8  Cush.,  393. 

.54.  Loss,  if  any,  payable  to  L.  to  the  extent 
of  §400.  Held,  the  action  could  be  maintained 
in  the  name  of  insured  w-ith  the  consent  of  L. 
Jackson  v.  Farmers'  Mut.  Fire  Ins.  Co.,  5 
Gray,  52. 

55.  A  mutual  company  made  the  polic}'  to 
A.  "for  account  of  whom  it  might  concern." 
The  act  of  incorporation  did  not  limit  the 
corporation  to  insurances  for  persons  in  inter- 
est. Held,  the  owners,  for  whose  benetit  the 
contract  was  made,  could  adopt  it  as  their 
own  and  sue  upon  it  in  their  own  names. 
Cobb  V.  Neio  England  Mut.  Marine  Ins.  Co., 
6  Gray,  192. 

56.  A.  and  B.  owned  certain  realty  as  co- 
partners. A.  died.  Held,  B.  could  maintain 
the  action  in  his  own  name  upon  a  policy 
made  to  A.  and  B.  Oakman  v.  Dorchester  Ins. 
Co.,  98  Mass.,  57. 

57.  Policy  to  T.,  "Loss,  if  any,  payable  to 
B.,  as  mortgagee."  The  action  was  brought 
in  the  name  of  T.,  with  the  assent  of  B. 
Held,  it  could  be  maintained  in  his  name. 
Turner  v.  Quincy  Ins.  Co.,  109  Mass.,  568. 

58.  Policy  to  a  trustee  for  the  benefit  of  the 
daughters  of  the  insured.  Held,  the  daughters 
could  maintain  the  action  in  their  own  name. 
Hillyard  v.  Mut.  Benefit  Life  Itis.  Co.,  35  K.  J., 
415. 

59.  Policy  to  A.,  indorsed:  "Loss  if  any, 
payable  to  V.,  as  mortgagee."  A.  brought  the 
action.  Held,  he  could  maintain  it.  S.  C.  of 
N.  J.  Martin  v.  Franklin  Fire  Ins.  Co.,  15 
Amer.  Law  Reg.,  N.  S.,  229. 

60.  Policy  on  ship  to  three  persons,  but 
only  two  were  owners.  Held,  sufficient  to 
maintain  the  action.  Bulkley  v.  Derby  Fish- 
ing Co.,  1  Conn.,  571. 

61.  Mortgagors  can  maintain  the  action 
though  the  policy  be  made  payable  to  the 
mortgagee  if  it  appears  that  the  mortgagees  I 

34 


have  consented  to  the  bringing  of  the  action. 
Patterson  v.  Triumph  Ins.  Co.,  64  Me.,  500. 

62.  A  sealed  policy  in  favor  of  a  person 
named  '•  and  as  well  in  his  own  name  as  for  and 
in  the  name  and  names  of  all  and  every  other 
person  and  persons  to  whom  the  property  in- 
sured does,  may  or  shall  appertain,"  must  be 
sued  in  the  name  of  the  covenantee.  De  Bolle 
V.  Pennsylvania  Ins.  Co.,  4  Wharton,  68;  Amer- 
ican Ins.  Co.  V.  Insley,  7  Penn.  St.,  223. 

63.  The  consignor  may  maintain  the  ac- 
tion, it  being  left  to  the  jury  to  say  whether  he 
or  the  consignee  was  the  owner.  Fleming  t>. 
Ins.  Co.,  12  Penn.  St.,  391. 

64.  A  sealed  policy  declared  that  W.  and  H. 
for  account  of  T.  G.,  did  make  insurance  and 
caused  themselves  and  each  of  them  to  be  in- 
sured,  etc.  Held,  the  action  was  well  brought 
in  the  name  of  T.  G.  Maryland  Ins.  Co.  v. 
Craham,  3  H.  &  J.,  62. 

65.  After  loss,  the  assignee  of  the  claim  ha» 
the  right  to  institute  and  prosecute  the  suit  in 
the  name  of  the  assignor,  and  without  any 
other  authority  than  that  implied  in  the  as- 
signment ;  the  assignment  being  coupled  witb 
an  interest  cannot  be  revoked,  and  althougli 
the  policy  states  that  in  case  of  loss  it  shaU 
be  payable  to  a  person  named,  the  action  is 
properly  brought  in  the  name  of  the  insured. 
Nevins  v.  Rockingham  Mut.  Fire  Ins.  Co.,  25- 
N.  H.,  22. 

66.  The  agent  of  a  disclosed  principal  re- 
quested insurance  upon  the  property  of  hia 
principal.  The  policy  recited  the  fact  of  his 
agency,  that  he  liad  become  a  member  of  the 
insurance  company,  and  insured  him,  his  suc- 
cessors and  assigns,  on  the  building  and  fixed 
machinery  of  his  principal.  Held,  Uie  action 
was  rightly  brought  m  his  name.  Ooodall  v. 
New  England  Mut.  Fire  Inn.  Co.,-^  N.  H., 
169. 

67.  The  property  had  been  sold  to  W.,  of 
which  the  defendants  liad  notice.  W.  mort- 
gaged  it  back.  Held,  the  right  to  sue  in  the 
name  of  the  plaintiff  was  not  affected  by  the 
transfer.  Sa7iders  v.  Hillsborough  Ins.  Co.,  44 
N.  H.,  238. 

68.  R.  &  Co.  sold  goods  to  P.,  on  a  credit 
of  four  montlis,  consigned  to  G.  M.  &  Co. 
Their  agent  made  in.surance  in  his  n.ame  for 
account  of  G.  M.  &  Co  The  agent  in  behalf 
of  his  principals  agreed  to  take  a  half  interest 
in  the  adventure,  the  purchase  money  to  be 
paid   by  a  promissory  note  to  mature  whea 


69 


ACTION. 


Who  may  or  must  sue. 


the  purchaser's  debt  for  the  goods  should  be- 
come due.  He  assigned  the  policy,  but  the 
note  was  never  executed.  G.  M.  &  Co.  became 
insolvent  and  the  goods  were  lost  by  perils  of 
the  sea.  Held,  the  consignee  had  an  insurable 
interest  in  the  goods;  the  assignment  of  the 
policy  by  the  person  with  whom  it  was  made 
was  valid;  the  plaintiff  had  a  right  to  main- 
tain the  action;  the  sale  of  one-half  the  inter- 
est in  the  adventure  was  never  completed ; 
and  therefore  the  insurer  was  liable  for  the 
whole  amount  insured.  Pouverin v.  Louisiana 
State  Ins.  Co.,  4  Rob.  (La.),  234. 

69.  The  policy  had  been  assigned,  but  the 
assignor  brought  the  suit.  Eeld,  it  was  proper 
to  receive  parol  testimony  to  show  that  the 
purposes  of  the  assignment  had  been  satisfied. 
Summers  d.  United  States  Ins.  and  Trunt  Co., 
13  La.  An.,  504. 

70.  Insurers  made  a  policy  to  W.  &  Co.,  for 
whom  it  might  concern,  it  being  understood 
between  the  parties  that  \V.  &  Co.  should  act 
as  agents  for  insurers.  L.  &  Co.,  forwarding 
merchants,  applied  to  W.  tfc  Co.  for  insurance 
upon  property  which  thej'  were  forwarding  to 
K.  &  R.,  which  was  granted  and  indorsed 
upon  the  policy  by  W.  &  Co.  Held,  the  suit 
was  well  brought  in  the  name  of  W.  &  Co., 
for  the  tise  of  K.  &  K.  Proteclioa  Ins.  Co.  %\ 
Wilson,  G  Ohio  St.,  3.i3. 

71.  Policy  to  a  mortgagor:  "  Loss,  if  any, 
to  be  paid  to  McClellau,  mortgagee."  Held, 
the  contract  was  with  the  mortgagor,  and  the 
action  properly  brought  in  his  name  for  the 
use  of  the  bcneficiarj'.  Illinois  Fire  Ins.  Co. 
V.  Stanton,  57  111.,  3.54. 

72.  A  religious  corporation  may  maintain 
an  action  in  its  own  name.  Rev.  Stat.  1874,  p. 
293,  sees.  35  and  41  (III.,  S.  C.)  Firemen's 
Fund  Ins.  Co.  «.  Congregation  of  Rodeph  STw- 
lem,  8  Chi.  Leg.  News,  178. 

7.3.  Note  executed  payable  to  A.  B.,  agent 
of  the  Enterprise  Ins.  Co.  The  consideration 
of  the  note  was  the  contract  to  insure  the 
maker  of  it.  Held,  the  insurance  company 
was  the  proper  party  to  sue  on  it.  Black  v. 
Enterprise  Ins.  Co.,  33  Ind.,  223. 

74.  The  insurer  contracted  to  make  the  loss 
good  to  insured,  his  executors,  administrators, 
etc.,  and  insured  died  before  the.  contract 
ripened  into  a  claim.  Held,  the  action  was 
properly  brought  in  the  name  of  his  adminis- 
tratrix. Germania  Ins.  Co.  v.  Curran,  8  Kan.,  9. 

75.  C.  claimed  of  insurers  the  benefit  of  an 


oral  agreement  to  insure  tobacco  owned  and 
held  by  him  in  store.  He  settled  with  insurers, 
and  receipted  "  without  prejudice  to  the  claims 
of  other  persons  for  whom  I  hold  property  in 
store."  Held,  the  plaintifT's  who  were  owners 
of  some  of  the  property  in  store,  could  sue 
without  joining  him,  for  he  was  to  be  regarded 
as  if  he  had  been  a  mere  nominal  party  from 
the  beginning.  Strohn  i>.  Hartford  Fire  Ins. 
Co.,  33  Wis.,  648. 

76.  Policy  to  H.  S.  &  L.  &  Co.  "  Loss,  if 
any,  payable  to  S.,  as  his  interest  may  appear." 
Held,  the  action  could  be  maintained  by  the 
insured,  the  rights  of  insured  were  not  de.- 
pendent  on  his  having  an  insurable  interest 
in  the  property,  hence  no  proof  in  respect  to 
his  interest  was  necessary.  Clay  Fire  tfc  i/a- 
rine  Ins.  Co.  v.  Huron  Salt  &  Lumber  Co.,  81 
Mich.,  346. 

77.  J.  S.  insured  for  himself  and  those  who 
should  have  goods  upon  the  ship ;  and  A.  B. 
brought  an  action  against  him  with  an  aver- 
ment  that  he  had  goods  upon  the  ship.  Held, 
the  action  was  well  brought.    Anon.  Skin.,  327. 

78.  To  Mark  Healy,  "on  account  of  whom 
it  concerns,  loss  payable  to  his  order."  He 
was  the  owner  of  the  ship  which  was  at  Bre- 
men. A.  advanced  $23,000  in  specie  and  four 
boxes  of  opium  to  the  master,  for  her  to  pro- 
ceed to  Sumatra,  purchase  cargo  there,  and  re- 
turn  with  it  to  Europe,  the  adventure  to  be  on 
the  joint  account  of  Mark  and  A.  The  cargo 
was  to  be  consigned  to  A.,  he  paying  h.alf  the 
freight  named.  JIark  was  to  make  insurance 
on  ship  and  cargo,  and  deposit  the  policy  in 
the  hands  of  M.,  the  agent  of  A.,  as  collateral 
security  for  his  half  the  purchase  cost  of  cargo. 
Mark  made  insurance  on  cargo  and  freight, 
but  by  mistake  failed  to  make  any  on  the  ship. 
The  policy  prohibited  an  assignment  of  it 
without  previous  consent  in  writing.  Held, 
A.  could  maintain  an  action  on  the  policy  in 
his  own  name,  for  the  terms  distinctly  ap- 
prised  the  insurer  that  Mark  intended  to 
secure  by  the  policy  any  interests  of  others  as 
well  as  his  own  (citing  Farron  v.  Common, 
wealth  Ins.  Co.,  18  Pick.,  53 ;  Jefferson  Ins. 
Co.  V.  Cotheal,  7  Wend.,  73 ;  Cooke  ».  Batch- 
elor,  3  Bos.  &  Pul.,  149 ;  Sargent  v.  Morris,  3 
Barn.,  &  Aid.,  277;  Hurlburt  v.  Pacific  Ins. 
Co.,  3  Sunin.,  471).  Aldrich  v.  Equitable  Safetif 
Ins.  Co.,  1  W.  &  M.,  273. 

79.  The  life  of  T.  S.  was  insured,  and  after 
his  death,  letters  testamentary  were  granted  at 

35 


71 


ACTION. 


72 


Who  may  or  mast  sue. 


Exeler,  where  he  died.  The  defendants  were 
commorant  and  resident  in  London,  and  all 
the  funds  of  the  company  were  located,  situ- 
ated, and  fixed  in  London.  Held,  the  execu- 
tors under  the  Exeter  probate  could  recover 
under  the  policy.  Gurney  v.  Rawlins,  6  L.  J. 
(N.  S.)  Kx.,  7 ;  2  Mee.  &  W.,  87. 

80.  The  consignees  of  goods  pledged  the 
bills  of  lading  as  security  for  certain  bills  of 
exchange  by  the  pledgee  accepted  for  the  ac- 
commodation of  the  consignees,  and  the  pol- 
icy, made  in  the  name  of  the  consignee,  was 
deposited  with  the  pledgee,  who  brought  suit 
in  his  own  name.  Held,  he  could  maintain 
tbe  action.  Sutherland  v.  Pratt,  12  Mee.  & 
W.,  16;  13  L.  J.  Ex.,  246;  7  Jur.,  361. 

81.  The  defendant  pleaded  the  bankruptcy 
•of  the  plaintiff  before  action  brought.  Rep- 
lication,  transfer  of  goods,  and  an  assign, 
meut  of  policy  to  F  before  bankruptcy,  with 
an  averment  that  plaintiff  sued  as  trustee  for 
F.  Rejoinder  tbat  the  goods  were  landed,  and 
the  right  to  the  return  premium  was  not  trans- 
ferred before  bankruptcy.  Held,  bad  upon  de- 
murrer, because  the  plaintiff  was  entitled  to 
sue  in  his  own  name  as  trustee  for  the  cause 
of  action  in  which  he  had  no  beneficial  inter- 
est at  the  time  of  his  bankruptcy.  Castdli  v. 
Boddington,  1  El.  &  Bl.,  66;  S.  C,  affirmed, 
id.,  879. 

82.  The  defendant  issued  a  certificate  to 
Joel  Lcduc,  "  $7,000  on  1063  barrels  of  flour 
from  Montreal  to  St.  John's,  jSTewfoundland, 
subject  to  all  conditions,  provisions,  and  ex- 
ceptions contained  in  the  policy  of  the  com- 
pany, copies  of  which  are  printed  upon  the 
back  of  this  certificate."  It  was  the  custom 
of  the  company  to  treat  this  as  a  provisional 
receipt,  to  issue  a  policj-  when  required,  in  the 
name  of  the  person  insured,  for  himself  and 
for  every  other  person  or  persons  interested. 
The  properly  was  deliverable  under  the  bills 
of  lading  to  appellant.  Leduc  debited  him 
■with  the  cost,  commission,  expenses,  and  in- 
surance premium,  transmitting  to  him  the  bills 
of  lading,  and  drew  on  him  for  the  whole 
amount,  which  draft  was  accepted  and  paid. 
Held,  an  undisclosed  principal  may  sue  and 
be  sued  upon  mercantile  contracts  made  by 
the  agent  in  the  agent's  name,  subject  to  any 
defenses  or  equities  whicli  may  exist  against 
the  agent;  that  the  Code  of  Lower  Canada  did 
not  atl'oct  this  right;  that  if  this  were  not  so, 
the  certificate  must  be  construed  with  refer- 

36 


ence  to  the  proved  usage  of  insurers,  which 
entitled  the  insured  to  a  policy  in  his  owu 
name,  for  the  benefit  of  others  interested. 
Brownig  v.  Prmincial  Ins.  Co.  of  Canada,  5 
L.  R.  P.  C,  263;  28  L.  T.  (N.  S.),  853;  21  W. 
R.,  587. 

83.  Mortgagor  made  insurance,  assigned 
policy  with  insurer's  consent  to  mortgagee, 
and  brought  this  action  for  the  use  of  the 
mortgagee.  The  defendant  demurred  on  the 
ground  that  plaintiff  had  not  any  interest,  and 
having  none  he  could  not  sue  as  trustee  for 
another.  Held,  the  demurrer  must  be  over- 
ruled.  Richards  v.  Liverpool  and  London  Ins. 
Co.,  2.5  U.  C.  Q.  B.,  400. 

84.  Insurers  of  a  building  burned  by  the 
negligence  of  a  third  party  paid  the  loss.  It 
was  admitted  that  the  value  of  the  building 
greatly  exceeded  all  the  insurance  made  upon 
it.  The  insured  brought  an  action  against  the 
wrong  doer,  and  the  insurers  sought  to  restrain 
him  from  compromising  with  the  wrong  doer, 
or  controlling  the  action.  Held,  insured  was 
entitled  to  be  master  of  the  action,  and  to 
compromise  it  bona  fide.  Commercial  TTnion 
Ass.  Co.  V.  Lister,  9  L.  R.  Ch.,  483 ;  43  L.  J. 
Ch.,  COl. 

85.  The  policy  provided  that  the  loss,  if 
any,  shall  be  paid  to  the  order  of  a  person 
other  than  the  insured.  Held,  it  did  not  pre- 
clude the  insured  from  maintaining  the  action 
in  his  own  name;  nor  was  it  necessar}'  in 
order  to  maintain  it,  to  aver  an  order  to  pay  it 
to  the  insured.  Ketchum  v.  Protection  Ins.  Co., 
1  Allen  (N.  B),  136. 

(c)    WTio  may  join. 

86.  H.  and  C  were  partners,  and  kept  their 
consignments  of  grain  in  an  elevator  which 
belonged  to  a  railroad  company,  whose  ser- 
vants had  entire  charge  and  care  of  it.  H. 
retired  from  the  firm  July,  1867,  but  no  notice 
of  the  dissolution  was  published.  C.  was  to 
be  allowed  to  carry  on  the  business  in  the 
partnership  name  until  the  end  of  the  year, 
and  this  policy  was  written  in  the  name  of  H. 
and  C.  on  grain,  tiieir  owu  or  held  by  them  in 
trust  or  on  commission  or  sold  and  not  deliv. 
ered.  Held,  H.  was  a  nominal  partner,  held 
out  to  the  world  by  his  own  consent,  as  a 
member  of  the  firm  of  H.  and  C. ;  that  while 
it  is  true  a  nominal  partner  is  only  adversely 
held  such  to  subject  him  to  liability,  and  not 


73 


ACTION. 


74 


Who  cannot  sue. 


for  the  puipose  of  giving  liim  tlie  benefits 
and  advant.tges  of  a  partner,  yet  his  liability 
as  sucli  entitles  liim  in  the  absence  of  any  at- 
tempt to  defraud,  to  join  -nith  the  otlier  mem- 
bers of  tlie  firm  in  ettecting  insurance  on  the 
property  of  the  concern;  that  it  does  not  al- 
ways require  either  the  legal  or  beneficial  in- 
terest in  the  property  to  entitle  a  party  other- 
wise connected  with  it  to  eflect  a  valid  insur- 
ance upon  it;  and  in  the  case  of  a  nominal 
partnersliip,  the  legal  interest  of  the  business 
is  in  the  firm,  while  the  beneficial  interest  is 
in  the  member  or  members  for  whose  use  it  is 
carried  on;  hence  the  action  was  rightly 
brought  in  the  name  of  the  firm.  Phmnix 
Ins.  Co.  V.  Hamilton,  14  Wall.,  504. 

87.  Where  the  policy  is  assigned  as  collat- 
eral, with  tlie  consent  of  the  insurer,  the  as- 
signor and  assignee  may  sue  jointly  under 
the  New  York  code.  Boynton  v.  Clinton  and 
Essex  if  lit.  Ins.  Co.,  16  Barb.,  254. 

88.  The  plaintiff  alleged  an  oral  contract, 
to  insure  him  for  the  benefit  of  himself  and 
others,  who  might  liave  tobacco  in  store  and 
to  be  stored  in  liis  warehouse,  and  he  averred: 
"  That  the  defendant  agreed  to  execute  and  de- 
liver an  open  policy  of  insurance  to  cover  his 
interest  and  that  of  all  persons  having  tobacco 
in  store  in  his  warehouse,  in  the  usual  form 
of  policies  being  made  by  defendants  at  that 
time,  to  .add  to  or  to  take  from  the  amounts  in- 
sured, as  said  stock  should  increase  or  dimin- 
ish, at  the  option  of  plaintift'  or  other  par- 
ties interested."  Held,  insured  and  all  the 
other  parties  interested  could  maintain  an  ac- 
tion in  their  joint  names.  Strohii  v.  Hartford 
Fire  Ins.  Co.,  33  Wis.,  648. 

89.  A  sealed  policy  to  Kearney,  ".as  owner, 
agent,  or  otherwise."  Held,  it  was  a  covenant 
to  pay  the  persons  who  were  interested  in  that 
subject  matter  and  for  wlioni  the  policy  was 
effected  —  a  designation  which  could  not  be 
mistaken  —  which  was  as  good  as  the  actual 
name  of  the  individual ;  and  therefore  the 
covenantee  as  well  as  the  person  for  whose 
benefit  the  policy  was  procured,  might  join  in 
an  action  of  debt.  Sunder/and  Marine  Ins. 
Co.  V.  Kearney,  16  Q.  B.,  935;  20  L.  J.  Q.  B., 
417;  15  Jur.,  1006. 

90.  By  the  rules  of  a  shipping  insurance 
olub,  its  affairs  were  to  be  managed  by  tlie 
members,  assisted  by  the  secretary  and  treas- 
urer. A  finance  committee  were  to  sign 
all  checks  and  see  that  tlie  funds  were  duly 


appropriated.  The  plaintiff  sued  seven  of 
the  members,  the  secretary  and  treasurer,  for 
tlie  lo.ss  of  his  ship,  there  being  no  finance 
committee.  Held,  not  an  improper  joinder, 
Bromley  v.  Williams,  33  Beav.,  177;  33  L.  J. 
Cli.,  710;  11  W.  R.,  893;  8  L.  T.  (N.  S.),  78. 

(d)    W/io  need  not  join  or  he  joined. 

91.  S.  was  indebted  to  N.,  $5,000,  February 
1,  1870.  He  agreed  to  mortgage  certain  prop- 
erty to  secure  the  debt,  but  by  mistake  of  the 
scrivener  the  description  in  tlie  mortgage  was 
not  that  of  the  property  intended.  A  policy 
was  made,  and  by  its  terms  was  made  payable 
in  case  of  loss  to  N.,  to  the  extent  of  his 
claim.  This  action  was  brought  to  reform 
the  mortgage.  Held,  insurers  were  not  a 
necessary  party  to  the  action,  for  they  had  no 
interest  in  the  matter.  Newman  v.  Home  Ins. 
Co.,  30  Minn.,  423. 

92.  The  trustees  of  the  company,  not  inter- 
ested in  the  profits,  liable  to  be  sued  alone  in 
an  action  on  the  policy,  were  made  sole 
plaintiffs  in  this  bill,  brought  against  third 
persons,  praying  that  a  certain  policy  should 
be  delivered  up  and  cancelled.  The  share- 
holders of  the  company,  so  far  as  known, 
were  made  party  defendants,  and  as  to  other 
shareholders,  it  was  alleged  their  names  could 
not  be  ascertained.  Held,  in  equity  it  is  sufli- 
cicnt  that  all  persons  interested  in  the  subject 
of  the  suit  should  be  before  the  court,  either 
as  plaintiffs  or  defendants,  that  the  sharehold. 
ers  might  be  made  either  plaintiffs  or  defend- 
ants; and  as  to  persons  whose  names  were 
unknown,  the  plaintiffs  were  not  bound  to  do 
that  which  was  impossible;  that  is,  to  bring 
unknown  persons  before  the  court.  Fenn  v. 
Craig,  3  Yon.  &  Coll.,  216. 

YII.    AVlIO    CANNOT   SUE. 

1.  Two  persons  were  insured  jointly;  the 
action  was  brouglit  in  their  joint  names.  One 
of  them  had  no  interest  in  the  loss.  Held,  the 
action  could  not  be  maintained.  Murdoch  v. 
Chenango  County  Mutual  Fire  Ins.  Co.,  2  N.  Y., 
210. 

2.  The  assignee  of  the  policy  cannot  main- 
tain  the  action  in  his  own  name.  Jessel  v. 
Williamgburgh  Ins.  Co.,  3  Hill,  b8. 

3.  The  assignee  of  a  chose  in  action  cannot 
sue  in  chancery  in  the  name  of  his  assignor; 

37 


75 


ACTION. 


76 


\Vlio  cannot  sue. 


the  suit  must  be  brought  in  the  name  of  the 
real  party  in  interest.  Rogers  t.  Traders  Ins. 
Co.,  6  Paige  Ch.,  583. 

4.  Policy  provided:  "If  the  property  in- 
sured shall  be  alienated  by  sale  or  otherwise, 
the  policy  shall  bo  void;  but  the  alienee  hav- 
ing the  policy  assigned  to  him,  may  have  it 
confirmed  to  his  use,  upon  application  to  the 
directors,  with  their  consent,  within  thirty 
days  next  after  alienation."  Held,  the  condi- 
tion having  been  observed,  the  assignor  could 
not  maintain  an  action  on  it;  that  it  became 
an  obligation  directly  to  the  assignee  himself, 
and  he  alone  must  sue  on  it.  Mann  v.  Herki- 
mer County  Mut.  Ins.  Co.,  4  Hill,  187. 

5.  The  A.  Mut.  Ins.  Co.,  of  A.,  issued  to 
plaintiffs  their  policy,  also  other  policies  to 
other  persons,  nineteen  in  all.  While  these 
policies  were  in  force,  the  Com.  Fire  and  Ma- 
rine Ins.  Co.  agreed  to  reinsure  the  former 
upon  all  the  policies  issued,  "  Loss,  if  any, 
payable  to  the  assured,  upon  the  same  terms 
and  conditions,  and  for  the  same  time  stated 
in  the  several  original  policies."  Hehl,  the 
•word  "  assured,"  in  the  contract,  meant  the 
party  reinsured,  and  not  the  plaintiffs ;  hence 
they  had  no  right  to  maintain  the  action  upon 
the  contract.  Carrington  v.  Commercial  Fire 
and  Marine  Ins.  Co.,  1  Bos.,  153. 

6.  Policy  "  for  the  sole  and  separate  use  of 
his  three  children  named,  to  be  paid  to  the 
said  insured,  their  executors,  administrators 
or  assigns."  The  insured  devised  the  policy, 
and  his  executors  brought  this  action.  Held, 
they  could  not  maintain  the  action,  for  the 
children  were  entitled  to  the  fund  in  question. 
Buppert  V.  Union  Mutual  Life  Ins.  Co.,  7  Rob. 
(N.  Y.),  155. 

7.  One  who  procures  insurance  in  his  own 
name  for  another,  or  for  account  of  whom  it 
may  concern,  cannot  maintain  an  action  in 
his  own  name  upon  the  policy,  if  his  author- 
ity is  disavowed  or  revoked  before  action  is 
brought,  unless  the  policy  authorizes  him  to 
sue,  or  he  has  alien  or  other  interest  which 
the  other  party  cannot  defeat.  Seed  v.  Pacific 
Ins.  Co.,  1  Met.  lOG. 

8.  A  policy  was  made  to  insure  Austin  & 
Co.  There  was  no  such  firm,  it  having  been 
dissolved  by  the  death  of  one  partner.  Held, 
the  heir  of  the  deceased  partner  could  not  join 
the  surviving  partner  in  an  action  upon  the 
policy.  Wo)k  V.  Merchants  and  Farmers  Mu- 
tual Fire  Ins.  Co..  11  Cush.,  271. 

88 


9.  Policy  to  M.  &  J.  on  their  stock  of  tools 
After  it  was  made,  and  before  the  property 
was  injured,  J.  conveyed  all  his  interest  in 
the.  property  to  M.,  and  the  suit  was  brought 
by  M.  in  his  own  name.  Held,  he  could  not 
maintain  the  action  in  his  own  name  alone, 
without  showing  that  insurer  had  notice  of 
the  transfer,  and  consented  to  an  assignment. 
Tate  V.  Citizens  Mutual  Fire  Ins.  Co.,  13  Gray, 
79. 

10.  Action  by  F.  upon  a  policy,  under  seal, 
on  the  life  of  R.  The  application  was  signed 
by  R.  for  F.  The  original  premium  was  paid 
by  F.  for  R.,  and  F.  paid  all  the  other  premi. 
ums;  but  the  promise  and  agreement  was 
made  to  and  with  R.  and  his  representatives, 
and  stipulated  that  the  insurer  would  pay  the 
sum  insured  to  F.  and  his  representatives. 
Hdd,  that  R.,  and  not  F.,  was  the  covenantee; 
hence,  the  action  was  not  well  Ijrought  in  the 
name  of  F.  Flynn  v.  North  America  Life 
Ins.  Co.,  1 15  Mass.,  449. 

11.  An  assignment  of  a  policy  of  insurance 
does  not  pass  the  right  of  action  to  the  as- 
signee; at  law,  the  suit  must  ?iot  be  in  the 
name  of  the  assignee,  unless  that  is  authorized 
by  statute.  Gourdon  v.  Insurance  Co.  of  North 
America,  3  Yeates,  837. 

12.  Policy  to  S.  upon  certain  property  de- 
scribed as  his;  loss,  if  any,  payable  to  W. 
Held,  W.  was  a  mere  appointee,  and  that 
the  action  brought  in  W.'s  name  could  not  be 
maintained,  and  evidence  tending  to  show 
that  it  was  the  intention  of  the  parties  to  in- 
sure W.  was  not  admissible,  for  it  was  a  con- 
tract with  S.,  and  not  one  with  W. ;  nor  was 
the  ruling  in  conflict  with  the  case  of  Peck  ». 
New  London  Ins.  Co.,  23  Conn.,  575.  Wood- 
bury Savings  Bank  v.  Charter  Oak  Ins.  Co.,  29 
Conn.,  874. 

13.  B.  applied  and  obtained  insurance  on 
his  stock  Jul3'  5lh.  He  mortgaged  it  August 
11th,  and  assigned  the  policy  to  the  mort- 
gagee, indorsing  the  assignment  on  the 
policy,  to  which  the  insurers  assented.  But 
the  charter  provided,  "  Whenever  the  property 
shall  be  alienated,  by  sale  or  otherwise,  the 
policy  shall  be  void ;  but  it  may  be  surren- 
dered to  the  directors,  who  may  assent  to 
the  assignment,  and  ratify  and  confirm  it  for 
the  assignee."  Two  of  the  directors  signed 
the  company's  consent  to  the  assignment,  but 
the  charter  provided,  "  The  board  of  directors 
shall  consist  of  not  less  than  five  members,  a 


ACTION. 


Who  cannot  sue. 


majority  to  constitute  a  quorum."  Held^ 
tlie  mortgage  was  not  an  alienation  of  tlie 
property ;  tliat  tlie  assignee  of  the  policy  did 
not  become  a  member  of  the  company ;  hence, 
the  suit  was  improperly  brought  in  his  name. 
JFolsom  V.  Belknap  County  Mutual  Fire  Ins. 
Co..  30  N.  11.,  281. 

14.  Policy  to  G. ;  loss,  if  any,  payable  to  B. 
Held,  the  action  could  not  bo  maintained  iu 
the  name  of  B.  Blnnchard  a.  Atlantic  Mutual 
Fire  Ins.  C'/.,  33  N.  H.,  9;  New  HampsJiire 
Savings  Bank  v.  Union  Mutual  Fire  Ins.  Co., 
38  id.,  232. 

15.  The  assignees  of  a  policy  brought  this 
action  in  their  own  names.  They  were  mort- 
gagees of  the  premises  insured,  and  held  the 
assignment  with  the  insurers'  assent.  Held,  a 
■demurrer  to  the  declaration  must  be  sustained. 
Flanagan  v.  Camden  Mut.  Ins.  Co ,  25  N.  J., 
506. 

16.  Covenant.  The  policy  had  been  as- 
signed to  plaintiff  as  collateral  security,  but 
the  assignment  was  not  under  seal ;  there  had 
been  no  transfer  or  assignment  of  the  property 
insured.  Held,  assignee  could  not  maintain 
<he  action,  because  the  original  contract  was 
its  foundation.  Bayles  v.  HilUborough  Ins. 
Co.,  27  N.  J.,  163. 

17.  Four  persons  procured  insurance  to  be 
made  to  them  jointly.  The  suit  was  brought 
in  the  name  of  one.  Held,  one  could  not  main- 
tain the  action.  Blanchard  v.  Dyer,  21  Me., 
111. 

18.  L.  made  insurance  in  his  own  name, 
and  subsequently  sold  one-half  of  the  property 
to  P.,  and  formed  a  copartnership  with  him, 
in  the  name  of  L.  &  Co.  The  policy  expired 
by  its  own  terms,  and  was  continued  for  a 
term  of  three  years  for  L.  &  Co.  Held,  the 
contract  was  with  L.  and  P.,  for  that  which 
■was  made  with  L.  alone  had,  by  its  own  terms, 
■ceased  to  e.xist.  Laneey  v.  Phoenix  Ins.  Co.,  56 
Me.,  562. 

19.  Policy  to  W.  and  L.,  for  $900,  on  their 
mortgage  interest  in  a  boarding  house.  It 
was  subsequently  renewed  for  |600  in  favor  of 
Stewart  &  Scroggs,  to  whom  the  policy  had 
been,  by  insurer's  consent,  assigned,  and  who 
were  the  assignees  of  the  mortgage.  Held,  the 
action  was  properly  brought  in  the  name  of 
W.  &  L.,  for  the  use  of  the  assignees.  It  is 
not  true  that  the  insured  must,  in  every  case, 
have  an  interest  in  the  property  at  the  time  of 
the  loss;  the  assignee  could  not  maintain  the 


action  in  his  own  name,  unless  authorized  by 
the  act  incorporating  the  insurance  company, 
or  by  the  general  law  (citing  Granger  ■». 
Howard  Ins.  Co.,  5  Wend.,  200).  New  England 
Fire  and  Marine  Ins.  Co.  t.  Wetmore,  32  111 .,  221 . 

20.  It  was  alleged  that  the  property  insured 
had  been  burned  by  the  negligence  of  the  de- 
fendants, who  were  in  possession  of,  and  using 
the  Logansport,  Peoria  &  Burlington  Railroad. 
The  insurers  paid  the  claim  for  the  loss,  and 
brought  this  action  in  their  own  name.  Held, 
the  insurers  could  not  recover  in  their  own 
name.  Peoria  Fire  and  Marine  Ins.  Co.  v. 
Frost,  37  111.,  333. 

21.  Action  for  an  assessment  upon  a  premi 
um  note.  The  company  had  become  insolv- 
ent and  a  receiver  appointed,  wlio  brought  the 
action.  Held,  lie  could  not  maintain  it  unless 
authorized  by  the  statute,  or  by  an  order  of  the 
court  from  which  he  received  his  appointment , 
and  in  the  absence  of  proof  of  these,  the  action 
must  be  brought  in  the  name  of  the  corpora- 
tion (citing,  Yeager  t>.  Wallace,  44  Penn.  St., 
294;  Newell  v.  Fisher,  24  Miss.,  392;  Kerr  on 
Receivers,  392).   Manlovev. Burger,  38  Ind., all. 

22.  A  policy  to  A.  stipulated:  "This 
policy  will  cover  any  other  shipment  only 
when  specially  applied  for  and  accepted  by 
indorsement  hereon  "  A.  made  a  shipment  of 
goods,  the  property  of  E.,  fnun  St.  Louis  to 
Council  Bluffs,  and  insurer  indorsed  the  risk 
upon  the  policy.  Held,  an  insurance  made  by 
a  person  in  his  own  name,  without  indicating 
in  the  policy  that  another  is  interested,  cannot 
be  applied  to  cover  any  interest  but  that  of  the 
person  insured.  As  this  action  was  not  insti- 
tuted by  the  person  in  whose  name  the  con- 
tract was  made,  it  could  not  be  ascertained 
whether  the  person  insured  had  such  an  inter- 
est in  the  goods  as  would  enable  him  to  main- 
tain an  action  for  their  loss.  Wise  v.  St.  Louis 
Mut.  Ins.  Co.,  23  Mo.,  80. 

28.  The  petition  set  forth  the  execution 
and  delivery  of  an  open  policj'  to  insure 
"  John  Bond,  in  such  sums  as  might  be  speci- 
fied by  application,  mutually  agreed  upon, 
and  indorsed  upon  said  policy,  against  all 
perils  of  the  river,  etc."  Insurers  indorsed  a 
risk,  and  made  the  loss  payable  to  the  plaint- 
iffs. Held,  the  plaintiffs  could  not  recover 
without  averring  and  proving,  that  this  insur- 
ance was  made  to  cover  the  interests  of  the 
plaintiffs.  &raham  v.  Fireman's  Ins.  Co.,  2 
Disney,  255. 

B» 


79 


ACTION. 


SO 


AMien  premature. 


24.  Insurer  cannot  maintain  an  action 
against  the  wrongdoer  in  his  own  name, 
though  he  lias  paid  the  loss.  London  Aas. 
Co.  t.  Saimhuru,  3  Doug.,  245. 

25.  Policy  in  the  name  of  Elizabeth  Marsh 
and  son.  Action  in  the  n.arae  of  tlie  son  oniy. 
Averment,  the  plaintiff  was  solely  interested. 
Held,  proof  of  a  sole  interest  could  not  be 
given.    Marsh  v.  Rnhinson,  4  Esp.,  98. 

26.  The  insured  procured  the  broker  to 
effect  policies  to  himself,  the  premiums  of 
which  were  to  cover  a  balance  due  from  the 
broker  to  the  insured,  and  the  premiums  were 
credited  in  account.  The  policies  were  de- 
posited with  the  insured  to  enable  him  to 
procure  payment  of  losses.  Held,  the  insured 
was  a  party  to  the  contract,  otherwise,  he 
could  not  sue  on  the  loss.  The  case  was  com- 
promised.    Mmor  v.  Simeon,  3  Taunt.,  497  n. 

27.  Two  persons  purchased  a  ship.  She 
was  registered  in  their  names.  Two  others 
became  part  owners  in  her,  but  there  was  no 
transfer  to  them.  Her  freight  was  insured  at 
£5,000  valued,  in  the  names  of  three  of  the 
part  owners.  Held,  the  four  had  not  such  a 
legal  title  to  the  ship  as  would  enable  them 
to  maintain  an  action  for  the  loss  of  freight. 
Camden  v.  Anderson,  5  Term,  709 ;  6  id.,  723. 

28.  The  action  was  brought  to  recover  con- 
tributions in  the  name  of  the  man.ager  of  a 
mutual  insurance  association,  who  signed  iu 
behalf  of  the  members.  Held,  on  demurrer, 
the  manager  had  no  authority  to  sue,  for  an 
incorporated  company  could  not  authorize 
its  manager  to  sue;  that  the  consideration 
did  not  pass  between  the  manager  and  the 
person  insured,  therefore,  the  demurrer  must 
be  sustained.    Ecans  v.  Hooper,  1  Q.  B.  D.,  45. 

29.  The  assignee  of  a  policy  of  insurance 
cannot  maintain  an  action  in  his  own  name, 
although  the  agreement  is  to  pay  insured  and 
his  assigns.  Beemer  v.  Anchor  Ins.  Co.,  16  U. 
C.  Q.  B.,  485. 

30.  On  freight  insured  to  the  master  who 
was  also  part  owner.  "  Loss,  if  any,  payable 
to  A.,  who  had  advanced  cash  to  the  master 
against  the  freight."  Held,  A.  could  not  main- 
tain  the  action  in  his  own  name.  Orchard  b. 
uStTM  Ins.  Co.,  5  U.  C.  C.  P.  445. 


YIII.  "When  peematuee. 

1.  Stipulated:  "The  loss  shall  be  paid  three 
40 


months  after  proof  thereof  is  made."  Held,  the 
commencement  of  a  suit  before  that  time 
elapsed  was  premature.  Chamberlain  v.  Mc- 
Call,  2  Yeates,  281;  2  Dall.,  280;  3  id.,  477. 

2.  By  the  terms  of  the  policy,  the  insurer 
was  to  have  notice  of  an  average  loss,  sixty 
days  before  he  should  be  liable  to  pay  it. 
Held,  an  action  brought  within  sLxly  days 
w-as  premature.  Bryant  n.  Commonwealth  Int. 
Co.,  6  Pick.,  131. 

3.  January  20,  1858,  the  proofs  were  pre. 
sented,  which  were  additional  to  those  fur- 
nished November  19, 1856.  Held,  if  the  defects 
iu  those  furnished  November  19,  1856,  were 
not  waived,  then  the  action  was  prematurely 
brought  January  23,  1858.  Kimball  i\  Hamil- 
ton, Fire  Ins.  Co.,  8  Bos.,  495.  And  if  the  com- 
pany upon  receiving  the  first  proofs  warned 
the  insured  that  they  were  uot  proofs,  that  he 
must  look  to  their  sufficiency  himself,  then 
there  is  no  evidence  of  waiver.    Ibid. 

4.  Stipulated:  "Said  loss  or  damage  to  be 
paid  within  sixty  days  after  due  notice  and 
proof  thereof,  in  conformity  to  the  conditions 
annexed  to  this  policy."  At  the  time  the 
writ  was  served  no  preliminary  proof  h.ad 
been  made,  but  it  was  subsequently  done. 
Held,  insured  could  not  recover.  Bacis  v. 
Davis,  49  Me.,  283. 

5.  The  plaintiff  commenced  his  action  be- 
fore sixty  days  had  elapsed  from  the  time  he 
delivered  his  preliminary  proofs  of  loss.  The 
policy  stipulated,  that  the  loss  should  not  be 
payable  until  sixty  days  after  delivery  of 
preliminary  proof.  Held,  he  must  submit  to 
a  nonsuit,  for  the  action  was  premature.  Hal- 
ton  ■».  Provincial  Ins.  Co.,  7  U.  C.  C.  P.,  555. 

6.  Stipulated :  "  The  capital  stock,  and  other 
securities,  funds  and  property  of  the  com- 
pany, shall  algne  be  liable  to  answer,  and 
make  good  all  claims  and  demands  upon  the 
company,  and  no  director,  officer  or  share- 
holder sh.all  be  individuall)'  or  personally 
liable."  Tlie  directors  dissolved  the  com- 
pany and  transferred  its  shares  and  property 
to  another,  who  were  to  assume  their  lia- 
bilities. The  insured  brought  this  action 
against  his  insurers,  charging  them  with  a 
wrongful  transfer  and  alienation  of  the  property 
whereby  he  lost  his  money,  profits,  etc.  Held, 
until  the  event  happens  by  which  the  money 
becomes  payable  under  the  contract,  no  action 
would  lie ;  for  it  does  not  follow  that  when  the 
monev  shall  be  due  it  will  not  be  paid.   Kiny 


81 


ACTION  — AD  DAMNUM. 


82 


When  not  premature  —  Separate  causes  of. 


V.  Accumulative  Life  Fund  Co.,  3  C.  B.  (N.  S.), 
151;  5.  C,  3  Jur.  (N.  S.)  1364. 

IX.  When  not  premature. 

1.  Stipulated:  "The  cUTim  shall  not  be 
payable  until  sixty  days  after  due  nefice  and 
proof  of  loss."  Insured  presented  proofs, 
March  13th,  and  on  the  23d  following,  sub- 
mitted to  an  examination  under  oath.  This 
action  was  commenced  May  16th.  Held,  the 
riglit  to  sue  accrued  sixty  days  from  March 
13th.  The  insurer  could  not  extend  indeti- 
uitel_v  the  time  of  payment  b}'  requiring  in- 
sured to  submit  to  an  examination.  Hack- 
herger  v.  Home  Ins.  Co.,  5  Bissell,  106. 

2.  The  libellant  had  not  paid  the  loss  at 
the  time  the  libel  was  filed  against  the  wrong- 
doer. Held,  the  company's  liability  to  pay 
the  loss  conferred  an  equitable  right  to  what- 
ever might  remain  of  the  property  injured, 
and  the  abandonment  takes  eflect  by  relation 
(citing,  The  brig  Ann  C.  Pratt,  1  Curtis,  310). 
The  owner  and  insurer,  in  respect  to  the 
property  insured,  are  to  be  considered  as  one 
.person.    T/ie  Manistee,  5  Bissell,  381. 

3.  On  goods, "  Loss  to  be  paid  within  thirty 
days  after  proof  thereof."  Held,  the  right  of 
action  accrued  thirty  days  after  the  master's 
protest,  the  usual  form  of  bill  of  lading  and  in- 
voice were  presented  to  insurer.  Lenox  v. 
United  Ins.  Co.,  3  Johns.  C,  224. 

4.  Insured  furnished  bills  of  purchases 
April  3, 1871,  but  refused  to  show  what  property 
was  and  what  was  not  inventoried  by  the  gov- 
ernment of  the  United  States.  Demand  for  it 
was  made  July  20,  1871,  and  refusal  given 
the  following  day.  This  action  was  com- 
menced four  days  thereafter.  Held,  insurers 
must  promptly  make  their  objections  to  proofs ; 
they  cannot  be  permitted  to  remain  silent  until 
the  loss  is  due,  and  then  raise  objections,  for 
that  would  be  al'owing  them  to  escape  pa}'- 
ment,  by  taking  advantage  of  their  own  wrong 
(citing  Peacock  v.  New  York  Ins.  Co.,1  Bos., 
338).  Jones  v.  Mechanics  Fire  Ins.  Co.,  36  N. 
J.,  29. 

5.  The  insurers  had  the  right  to  determine 
within  lliirty  days  whether  they  would  re- 
build, and  the  loss  was  payable  within  sixty 
days  after  proof  made.  The  suits  were  brought 
within  ninety  days  after  loss.  Held,  they  were 
not  prematurely  brought.  Insurance  Co.  of 
North  America  v.  McDowell,  50  111.,  120. 


6.  If  the  insurer  peremptorily  refuses  to  pay 
the  claim,  the  insured  is  not  bound  to  wait 
sixty  days  before  commencing  suit.  uEtna 
Ins.  Co.  V.  Maguire,  51  111.,  342. 

7.  The  preliminary  proofs  of  loss  were  fur- 
nished May  11th  (loss  payable  sixty  days 
after  proof  of  loss),  and  sometime  thereafter 
insured  was  required  to  submit,  under  the 
terms  of  the  policy,  to  a  personal  examination. 
The  suit  was  commenced  August  23d,  follow, 
ing.  Held,  it  was  not  prematurely  brought. 
Winneshiek  Ins.  Co.  v.  Schueller,  60  111.,  465. 

8.  Stipulated:  "The  loss  shall  not  bej)ay- 
able  till  sixty  days  after  proof  thereof."  Proofs 
were  made  January  6,  1869,  and  on  February 
19th,  following,  insurer  denied  all  liability 
under  the  policy,  and  refused  to  pay  the  loss 
or  any  part  of  it,  on  the  ground  that  the  cir. 
cumstances  attending  the  fire  were  such  as  to 
justify  the  refusal.  Held,  when  the  company 
denied  all  liability  for  the  loss,  and  refused  to 
pay  it,  placing  its  denial  and  refusal  upon 
grounds  other  than  the  failure  to  give  notice, 
or  to  furnish  proofs,  all  necessity  for  notice 
and  proofs  were  waived,  and  it  also  waived 
the  right  to  claim  tlie  sixty  days  delay,  for  it 
could  not  be  permitted  to  deny  all  liability 
under  the  contract,  and  at  the  same  time  claim 
all  the  benefits  of  the  stipulation,  which  pro- 
vided for  the  time  and  mode  of  payment 
Cohl)  V.  Insurance  Co.  of  North  America,  11 
Kan.,  93. 

X.  Sepaeate  causes  of. 

1.  In  a  case  where  there  are  two  separate 
causes  of  action  totally  distinct  from  each 
other,  though  arising  upon  the  same  instru- 
ment, an  action  may  be  brought  upon  each  of 
them.  Gastelli  v.  Boddington,  1  E.  &B.,  66; 
S.  C.  affirmed,  id.,  879. 


AD  DAMNUM. 

1.  An  action  was  brought  in  the  name  of 
the  owner  for  the  use  of  his  insurer,  but  the 
declaration  concluded  to  the  damage  of  the 
"insurance  company."  Held,  a  declaration 
without  an  ad  damnum,  under  which  nothing 
but  nominal  damages  can  be  recovered.  But 
phiinliif  was  allowed  to  amend.  Weber  v. 
Morris  &  Essex  R.  R.,  35  N.  J.,  409. 

41 


S-6 


ADJACENT  BUILDINGS. 


84 


When  they  must  be  disclosed. 


ADJACENT  BUILDINGS. 

(See  Application;  Estoppel;  Pbincip  aland  Agent; 
Kepkesestatioss.) 

I.  When  thet  jiust  be  disclosed. 

II.  NEED  NOT  BE  DISCLOSED. 


I.  When  thet  must  be  disclosed. 

1.  Condition  annexed  required  a  description 
of  the  property  insured,  ils  relative  situation  as 
to  other  buildings,  and  distance  from  each  if 
less  than  ten  rods.  Insured  did  not  state  all  of 
tliebuildings -within  ten  rods  of  that  c<mtaining 
the  goods  insured.  Held,  a  concealment  wliich 
avoided  the  policy.  Wilsoji  v.  Herkimer  Co. 
Mut.  Ins.  Co..  6  2Sr.  Y.,  53;  Kenned;/  v.  St. 
Lawrence  Co.  Mut.  Ins.  Co.,  10  Barb.,  285. 

2.  The  plaintiff  -was  required  bj'  the  terms 
of  the  contract  to  state  the  relative  situation  of 
the  store  as  to  other  buildings,  distance  from 
each  if  less  than  ten  rods.  He  mentioned  five 
buildings  as  standing  within  that  distance. 
i/eW,  this  was  an  agreement  that  there  were 
no  buildings  within  ten  rods  of  the  build- 
ing insured  other  than  those  mentioned,  and 
tliis  being  found  untrue,  he  could  not  recover, 
because  liis  agreement  amounted  to  a  warran- 
ty ;  hence  whether  the  fact  misrepresented  or 
concealed  was  material  to  the  risk  was  a  ques- 
tion not  in  the  case.     Burritt   v.  Saratoga 

■County  Mut.  Ins.  Co.,  5  Hill,  188. 

•'5.  Policy  insured  $750  on  stock,  and  $750 
on  machinery-  (and  it  seems  it  was  also  on  the 
building,  a  paper  mill).  "Reference  being 
had  to  the  application  of  insured  for  a  more 
particular  description,  and  the  conditions  an- 
nexed as  forming  part  of  this  policy,  etc." 
The  conditions  annexed  required  all  applica- 
tions to  be  in  writing,  according  to  the  printed 
forms  prepared  by  the  company,  "  'Whxh 
must  state,  among  others,  of  what  materials  it 
is  composed,  its  dimensions,  number  of  chim- 
neys, etc.,  how  constructed,  and  for  what  occu- 
pied; its  relative  situation  from  other  build- 
ings, distance  from  each,  if  less  than  ten  rods." 
Held,  the  application  was  part  of  the  contract, 
and  was  a  warranty  tliat  it  truly  indicated  or 
described  all  buildings  within  less  than  ten 
rods  from  the  paper  mill;  that  the  application 
having  omitted  all  mention  of  a  plough  shop 
and  dwelling  house  witliiu.  ten  rods  of  tlie 
43 


mill,  tlie  policy  was  void  as  to  the  paper  mill 
only;  that  the  warranty  was  limited  to  the  pa- 
per mill  only,  and  did  not  include  personal 
property,  whether  machinery  or  stock.  Trench 
V.  Cheiuingo  County  Mut.  Ins.  Co.,  7  Hill,  122. 

4.  Stipulated:  "The  application  is  part  of 
the  contract."  Insured  was  required  to  an- 
swer  these  questions:  Belative situation  as  lo 
otlier  buildings ;  distance  from  each  within  ten 
rods;  for  what  purpose  occupied."  To  whicli 
insured  replied:  "In  the  middle  of  a  block; 
three  stores,  one  grocery,  one  hardware  and 
stove  store,  one  tin  shop;  Mansion  House 
across  the  street,  about  six  rods,  cabinet  shop 
three  rods,  harness  shop  five  rods,  grocery  and 
dwelling  house  six  rods,  wagon  shop  and 
blacksmith  shop  about  eight  rods,  two  small 
houses  from  four  to  eight  rods,  new  building 
to  be  used  for  tin  shop  about  three  rods,  one 
stone  house  and  one  barn  about  four  rods." 
Following  these  were  the  printed  words,  "All 
of  the  exposures  within  ten  rods  are  men- 
tioned." A  wooden  building  within  ten  rods 
of  the  premises  insured  was  not  mentioned. 
Held,  the  application  constituted  a  warranty 
that  all  the  buildings  within  ten  rods  of  that 
insured  were  mentioned;  that  whether  the 
building  not  mentioned  constituted  an  expos- 
ure was  immaterial,  and  ought  not  to  have 
been  submitted  as  a  question  of  fact  to  the 
jury.  Chaffee  v.  Cattaraugus  Mut.  Ins.  Co., 
18  N.  Y.,  376;  Brown  v.  Same,  id.,  385. 

5.  In  the  application,  this  question  was  pro- 
pounded: "What  is  the  distance  of  said 
building  from  other  buildings  within  one 
hundred  feet,  and  how  are  such  other  build- 
ings constructed  and  occupied?  Annex  a 
ground  plan  to  the  application."  Answer: 
"  See  diagram."  A  description  of  the  neigh- 
boring property-  was  marked  on  the  diagram 
but  three  carpenters'  shops  were  not  men 
tioned  nor  indicated.  The  jury  found  sj)e. 
cially  that  these  were  not  material  to  the 
risk.  The  by-laws,  a  part  of  the  contract,  pro- 
vided: "Unless  the  applicant  shall  make  a 
correct  description  of  and  statement  of  all 
facts  required  or  inquired  tor  in  the  applica- 
tion, and  also  all  other  facts  material  in  refei- 
ence  to  the  insurance  or  to  the  risk  or  to  the 
value  of  the  property,  the  policy  shall  be  void." 
Held,  it  was  void,  because  the  application  did 
not  make  a  correct  description  of  and  state- 
ment of  all  facts  required  or  inquired  for  in 
the  application.    Tebbet  v.  Hamilton  Mut.  Ins- 


€5 


ADJACENT  BUILDINGS. 


86 


When  they  need  not  be  thsclosed. 


Co.,  1  Allen,  305 ;  Calvert  v.  Hamilton,  Mut. 
Ins.  Co.,  id.,  308. 

6.  It  was  stilted  in  the  apiilication  tlierc  is 
no  building  witliin  300  feci  of  the  mill  except 
the  stock  house.  The  mill  was  described  as 
"  a  wooden  four-slory  paper  mill,  50  by  70 
feet:"  There  was  a  salt  box,  24  by  18  feet,  14 
feet  high,  and  beyond  that  there  was  a  brick 
bleach  house,  30  by  30  feet,  which  was  not  the 
stock  house,  and  which  was  within  300  feet 
of  the  mill.  Ildd,  the  warranty  was  broken. 
Day  V.  Conway  Ins.  Co.,  53  Jle.,  GO. 

II.  "When  they  need  not  be  disclosed. 

1.  After  the  policy  was  made  other  build- 
ings were  erected  near  that  insured,  whereby 
the  risk  was  increased.  Held,  in  the  absence 
of  a  stipulation  prohibiting  such  erection,  it 
was  no  defense  to  the  action.  Stebbins  v.  Globe 
Ins.  Co.,  2  Hall,  632. 

2.  In  the  application  insured  was  asked: 
How  bounded,  and  distance  from  other  build- 
ings, if  less  than  ten  rods?  Insured  described 
the  buildings  insured  as  his,  and  gave  tlie  dis- 
tance to  the  nearest  buildings  in  each  direc- 
tion, and  as  to  buildings  more  remote,  but 
within  ten  rods  (though  material  to  the  risk), 
no  statement  was  made.  Held,  no  conceal- 
ment. Gates  V.  Madison  County  Mut.  Ins.  Co., 
6  N.T.,  469;  3  Barb.,  73. 

3.  The  agent  and  surveyor  of  the  insurer  in 
the  absence  of  the  insured  inspected  the  prem- 
ises and  made  a  survey,  and  the  agent  made 
out  the  application,  in  which  he  omitted  to 
mention  all  the  buildings  within  ten  rods  of 
the  premises  insured.  Held,  the  failure  of  the 
company's  agent  to  state  all  the  buildings  was 
no  defense  to  the  action.  Masters  u.  Madison 
County  Mut.  Ins.  Co.,  11  Barb.,  634. 

4.  The  application  required  insured  to  state 
the  relative  situation  as  to  other  buildings. 
He  answered:  "Dwelling  about  four  feet 
distant  one  side,  about  fifteen  feet  to  a  small 
dwelling  and  storehouse."  Tliere  were  other 
buildings,  not  disclosed,  a  few  feet  further 
from  the  buildings  insured.  Held,  no  defense 
to  the  action.  Hall  «.  People's  Mutual  Fire 
Ins.  Co.,  6  Gray,  185. 

5.  The  application  stated:  "No  other 
buildings  withiu  four  rods."  There  were, 
within  that  distance,  a  hog  house  and  hen 
house,  three  and  a  half  feet  high  in  rear  and 
six  in  front,  covered  with  boards,  but  neither 


shingled  nor  battened.  The  hogs  were  sepa- 
rated from  llie  fowls  by  a  board  partition. 
Held,  they  were  not  buildings.  White  v.  Mu- 
tual Fire  Ass.  Co.,  8  Gray,  566. 

6.  Insured  was  asked  to  state  the  distance 
and  direction  from  each  other  and  from  other 
buildings  that  were  within  150  feet  from  the 
buildings  insured,  also  the  purpose  for  which 
occupied.  There  was  a  rough  structure,  forty- 
five  feet  long  by  eighteen  feet  high  withiu 
fifty  feet  of  the  property  insured,  used  by  car- 
penters employed  to  erect  the  building  in- 
sured, of  which  nothing  was  said.  Held,  the 
omission  did  not  affect  the  policy  unless  the 
materials  usually  deposited  in  it,  or  the  use  to 
which  it  was  applied  would  have  increased 
the  premium  had  it  been  made  known  to  the 
insurer.  Sichmondville  Seminary  v.  Hamilton, 
Mut.  Ins.  Co.,  14  Gray,  459. 

7.  Insured  was  required  to  state  in  the  ap- 
plication the  relative  position  of  the  premises 
as  to  other  buildings;  distance,  if  less  than 
six  rods;  and  for  what  purposes  occu;)ied. 
To  which  answer  was  made:  "East,  eight  feel, 
dwelling  house;  east,  thirty-two  feet,  another 
house;  west  and  nearly  adjoining,  a  simil.ii- 
tenement;  ne.xl  west,  a  street;  north  of  out- 
building, a  street,  and  across  it,  buildings; 
south,  street,  about  sixty  feet.  Held,  the  court 
rightly  refused  to  instruct,  as  matter  of  law, 
that  the  existence  of  a  livery  stable,  painter's 
and  carpenter's  shop,  were  materi.il  to  the  risk. 
Clark  V.  Union  Mutual  Fire  Ins.  Co.,  40  N.  H., 
333. 

8.  The  application  contained  this  question: 
"  Describe  all  other  buildings  and  how  occu- 
pied, and  all  other  exposures  to  fire,  their  dis- 
tance from  the  risk  and  from  each  other 
within  one  hundred  feet."  Answer:  "North, 
nothing  within  one  hundred  and  twenty  feet; 
east,  thirty  feet  to  a  small  building;  south, 
ninety  feet  to  cross  street;  west,  sixty -six  feet 
to  brick  hotel  across  street."  Held,  the  answer 
did  not  assume  to  describe  all  tlie  buildings 
within  one  hundred  and  fifty  feet,  and  in  ac- 
cepting the  application  the  company  treated 
the  answers  as  sufficient.  Peoria  Marine  Fire 
Ins.  Co.  V.  Perkins,  16  Mich.,  380. 

9.  The  policy  required  insured  to  state  the 
relative  situation  of  the  building  insured  to 
other  buildings,  the  distance  from  each,  if  less 
than  ten  rods,  and  the  purposes  for  which 
such  other  buildings  were  occupied.  Held, 
no  implied  agreement  that  the  relative  situa- 

43 


87 


ADJUSTMENT. 


88 


Conclusive  —  Not  conclusive. 


tion  of  the  building  insured  with  reference  to 
other  adjacent  buildings  should  remain  the 
same  during  the  continuance  of  the  polic}-. 
The  insured  was  not  responsible  fur  the  acts 
of  persons  who  owned  adjoining  land.  ■  How- 
ard V.  Kentucky  and  Louisville  Uut.  Ins.  Co., 
13  B.  Mon.,  283. 

10.  Policy  described  the  premises  as  "A 
house  bounded  in  the  rear  by  a  stone  build- 
ing covered  with  tin,  and  by  a  yard;"  in 
•which  yard  there  was  being  erected  a  first 
class  store,  which  would  and  did  communi- 
cate with  the  building  insured.  Ilehl,  valid, 
although  there  was  between  the  house  and 
stone  building,  a  brick  building  covered  with 
shingles,  communicating  with  both  by  doors; 
there  being  no  proof  that  the  omission  to 
mention  in  the  description  the  communicating' 
doors  was  fraudulent,  and  it  being  proved 
that  the  loss  was  not  caused  by  the  connecting 
buildings.    Casey  v.  Goldsmid,  4  L.  C,  107. 


ADJUSTMENT. 

pee  Damages;  General  Average ;  One-third  New 
FOB  Old;  Paeticulab  Atekagb  and  Partial 
Loss.) 

I.  Conclusive. 
II.  Not  conclusive. 
III.  Rule  fob  determininq  amount  of  loss. 


I.  Conclusive. 

1.  An  adjustment  cannot  be  opened  except 
for  fraud  or  mistake  of  facts  not  known. 
{Dow  V.  Smith,  1  Caines,  33.)  But  the  English 
cases  treat  an  adjustment  as  prima  facie  evi- 
dence only  against,  the  insurer,  and  decide 
that  it  may  be  impeached  for  fraud,  mistake 
in  law,  or  material  fact.    (See  note  a,  p.  36.) 

2.  A  general  average  made  at  a  foreign  port 
upon  which  the  insured  has  been  obliged  to 
pay,  entitles  him  to  recover  from  his  insurer, 
tliough  the  principles  upon  which  it  was  ad- 
justed m.ay  have  been  different  from  those  of 
the  home  port.  Strong  v.  Firemen's  Ins.  Co.. 
11  Johns.,  323. 

i{.  When  a  general  average  is  fairly  settled 
at  a  foreign  port  and   the  insured  obliged  to 
44 


pay  his  portion  of  it,  he  may  recover  that 
from  his  insurer,  though  the  settlement  at  the 
home  port  would  have  been  difl'erent.  Depau 
V.  Ocean,  Ins.  Co.,  5  Cow.,  03. 

4.  General  average  was  adjusted  at  the  port 
of  destination  according  to  the  laws  and 
usages  of  that  port,  and  insured  paid  his  con- 
ti-ibutory  portion.  Held,  he  was  entitled  to 
recover  it  of  his  insurer,  although  the  adjust- 
ment was  made  upon  principles  dilTerent  from 
thos(!  which  prevailed  at  the  port  where  the 
policy  was  made.  Loriny  v.  Neptune  Ins.  Co., 
20  Pick.,  411. 

5.  Insurers  agreed  to  pay  the  mortgagee  of 
a  ship  a  sum  of  money  in  compromise  of  his 
claim  against  her,  and  delivered  to  him  their 
promissory  note  for  that  amount.  Held,  they 
could  not  defend  an  action  on  the  note,  on  the 
ground  that  tlie  owner's  fraud  caused  the  loss 
of  the  vessel,  and  that  they  did  not  discover 
the  fact  till  after  the  note  was  made.  Barlow 
V.  Ocean  Ins.  Co.,  4  Met.,  270. 

6.  The  bill  of  lading,  condemnation  of  the 
vessel,  and  other  papers,  were  laid  before  in- 
surer, and  the  policy  was  adjusted.  The  de- 
fendant  sought  to  open  this  adjustment  by 
showing  that  the  protest  afterwards  received 
varied  considerably  from  the  condemnation. 
Held,  the  adjustment  was  conclusive.  Chris- 
tian V.  Coombe,  2  Esp.,  489. 

7.  The  policy  was  indorsed:  "Adjusted  the 
general  and  particular  averages  at  £30  9s.  per 
cent."  Held,  evidence  of  an  adjustment,  but 
not  of  satisfaction ;  and  the  insured  was  not  al- 
lowed to  show  that  some  of  the  sums  were  too 
small.  Adams  v.  Saunders,  4  C.  &  P.,  25 ;  Moo. 
&  M.,  373. 


II.  Not  conclusive. 

1.  An  adjustment  of  loss  indorsed  on  the 
policy  and  signed  by  the  insurer  is  not  con- 
clusive. The  insurer  may  show  that  it  was 
made  on  the  misrepresentation  of  the  insured, 
and  whether  from  design  or  mistake,  is 
immaterial.  Faugier  v.  Hallet,  2  Johns.  C, 
233. 

2,  "  It  is  hereby  agreed  between  J.  L. 
Whipple,  owner  of  stock  and  supplies  in  stone 
woolen  mill,  situate  Cavendish,  Vt.,  and 
burned  November  11,  1873,  and  the  represent- 
atives of  the  various  companies  insuring  the 
same,  to  fix  the  loss  and  damage  on  the  same 


89 


ADJUSTMENT. 


90 


Rule  for  detemiiniiig  the  amount  of  loss. 


as  follows:  Card  room,  $1,241.07;  spiuning 
room,  $1.5.00;  weave  room,  $1,399.50;  finish- 
ing room,  $7,357.85;  subject  to  terms  and  con- 
ditions of  several  jjolicies."  Held,  not  an 
agreement  that  tliere  was  any  thing  due,  but 
the  companies  will  pay  the  loss  as  fixed,  if 
under  the  terms  and  conditions  of  the  policies 
the  plainlift"  is  entitled  to  payment.  (S.  C.  R. 
I.)  Whipple  V.  North  Britixh  <&  Mercantile  Ins. 
Co.,  5  Ins.  L.  J.,  71. 

3.  An  adjustment  made  in  ignorance  of 
frauds  practiced  by  insured,  which  would 
avoid  the  policy,  is  not  binding  upon  the  in- 
surer. Mathew)  v.  Oeneral  Uut.  Ins.  Co.,  9  La. 
An.,  590. 

4.  An  adjustment  is  an  admission  resting 
on  the  truth  of  certain  facts  stated ;  but  the 
insurer  is  at  liberty,  until  he  has  paid  the 
money,  to  avail  himself  of  any  defense  which 
the  facts  or  the  law  of  the  case  furnish.  Her- 
bert v.  Champion,  1  Camp.,  134;  Shepherd  v. 
Chewier,  id.,  274. 

5.  On  cargo;  she  was  captured,  and  an 
abandonment  made;  but  she  was  recaptured, 
and  all  the  insurers  except  one  settled  for  a 
salvage  loss.  That  one  indorsed  the  policy, 
"Adjusted  £33  per  cent,  until  account  of  pro- 
ceeds of  goods  can  be  made  up,  when  a  final 
loss  is  to  be  paid,  same  as  other  underwriters ; 
if  that  exceeds  £33  per  cent.,  insurer  to  pay 
the  excess,  and  if  less,  insured  is  to  return  the 
difference."  Held,  it  was  not  an  absolute  ad- 
justment, aud  the  plaintiff  could  not  recover 
without  showing  an  account  of  the  proceeds 
of  the  goods.  Gammon  v.  Beverely,  8  Taunt., 
119;  5.  C,  1  Moore,  5C3. 

6.  Policy  indorsed  :  "  Settled  a  particular  av- 
erage loss  by  plunder  £54  lis.  lOd.  per  cent." 
Held,  parol  evidence  was  admissible  to  show 
an  agreement  between  the  parties,  that  if  other 
insurers  paid  a  less  sum,  the  surplus  should 
be  refunded.  Russell  v.  Dunskey,  6  Moore, 
233. 

7.  She  was  represented  as  M  1.  After  the 
loss  insurers  asserted  that  she  was  not  as  rep- 
resented. They  subsequently  adjusted  the 
loss  at  £87  Ss.Gd.  per  cent.  The  brokers  claimed 
to  retain  the  money  in  satisfaction  of  a  debt 
due  to  them  by  the  person  in  whose  name  the 
policy  was  made,  and  this  action  was  brought 
by  the  undisclosed  priucipal  against  insurers. 
Held,  insurers  could  set  up  the  misrepresenta- 
tion as  a  defense  to  the  action.  Loahv.  Martin, 
19  C.  C.  S.,  101. 


III.      KULE      FOB      DETERMINING      TUB 
AMOUNT    OF   LOSS. 

1.  On  goat  skins  at  and  from  Coringa  to 
New  York,  each  skin  valued  at  fifty  cents  — 
$15,000.  It  contained  the  usual  printed  clause 
as  to  prior  insurance.  A  prior  insurance  of 
$22,000  was  made  by  an  open  policy.  She 
sailed  with  a  cargo  which,  including  the  goat 
skins,  amounted  to  $19,020,  which,  with  the 
ciiarges  and  premium  of  insurance,  made  an 
interest  of  $22,000  and  upwards.  Part  of  the 
cargo  consisted  of  58,629  goat  skins;  cost  at 
Coringa  lf5,331.  The  loss  was  by  capture. 
Held,  the  prior  insurance  of  $22,000  must  first 
be  deducted,  and  these  insurers  made  respon- 
sible for  the  residue  only.  The  prior  insur- 
ance  being  under  an  open  policy,  upon  cargo 
generally,  and  this  being  on  goat  skins  specifi- 
cally, at  fifty  cents  each ;  to  give  effect  to  both, 
the  first  ought  to  be  considered  as  attaching, 
in  the  first  instance,  upon  that  part  of  the 
cargo  not  covered  by  the  second,  in  order  to 
leave  ailment  for  the  latter.  In  estimating  the 
loss  under  the  open  polity,  the  goat  skins  were 
to  be  taken  at  their  prime  cost,  ten  cents  a 
piece,  and  under  this  policy,  it  being  valued,  at 
fifty  cents  each.  These  insurers  must  answer 
for  the  difference  between  the  sum  valued  on 
each  and  that  covered  by  the  open  policy  at 
forty  cents  each.  Kane  v.  Commercial  Ins.  Co., 
8  Johns.,  229;  Minium  v.  Columbian  Ins.  Co., 
10  id.,  75. 

2.  In  adjusting  a  partial  loss  on  a  ship  re- 
paired, the  value  of  the  old  materials  used  arc 
to  be  first  deducted  from  the  gross  repairs,  and 
one-third  new  for  old  taken  from  that  bnlance. 
Eager  v.  Atlas  Ins.  Co.,  14  Pick.,  141.  And  ;t 
usage  at  a  particular  place,  to  deduct  one-third 
new  for  old  from  the  gross  repairs,  cannot 
be  received  to  control  the  general  principle, 
the  policy  being  silent  as  to  any  such  general 
usage.    Ibid. 

ii.  "  On  stock."  There  were  two  other  pol- 
icies, "on  stock  manufactured  and  unmauu- 
fectured."  Held,  the  rule  of  adjustment  is,  to 
ascertain  the  amount  of  stock  manufactured 
and  unmanufactured  separately  covered  at  tha 
time  of  the  loss,  and  then  apportion  it;  ac  the 
value  of  the  entire  stock  is  to  the  sum  insured, 
so  would  be  the  amount  of  the  unmanufac- 
tured  to  the  amount  sought.  Say  $2,100  is 
the  stock:  manufactured,  $1,500;  unmanufac- 
tured,  $600.     The  amount   insured   ou   both, 

45 


01 


ADMINISTRATION. 


92 


Adiurmstrator  controls  policy. 


$700.  2,100: 700:: 600.  Blakev. Exchange Mut. 
Jns.  Co.,  12  Gray,  265. 

4.  Stipulated:  "When  property  is  insured 
by  this  comp-iny  solely,  three-fourths  of  the 
value  only  will  be  taken,  and  in  cases  of  loss, 
this  company  will  be  liable  to  pay  three, 
fourths  of  the  value  at  the  tirr.e  of  the  loss. 
In  case  of  loss  or  damage  to  property  on 
■which  double  insurance  subsists,  the  company 
shall  be  liable  to  pay  only  such  proportion 
thereof  as  the  sum  insured  by  this  company 
bears  to  the  whole  amount  insured,  such 
amount  not  to  exceed  thuee-fourths  of  the  ac- 
tual value  at  the  time  of  the  loss."  This  in- 
surer's policy  was  for  $3,000,  and  there  was 
other  insurance  for  .^3,000.  Held,  this  insurer 
was  liable  for  two-tifths  of  three-fourths  of  the 
value  of  the  property.  Haley  c.  Dorchester 
Mutual  Fire  Ins.' Co.,  13  Gray,  545. 

3.  The  application  stated:  "  .|9,000  already 
insured,  $8,000  wanted  in  other  companies." 
Held,  insurer's  liability  was  to  be  calculated 
by  the  insurance  actually  made,  not  that 
which  the  insured  intended  but  did  not  make. 
Richmoiidville  Seminary  v.  Hamilton,  Mut.  Ins. 
Co.,  14  Gray,  4.59. 

6.  On  freight  $12,500,  valued  at  $25,000.  A 
part  of  the  freight  was  earned,  and  a  part  lost, 
the  vessel  being  consumed  by  fire  before  the 
whole  cargo  was  delivered.  Held,  the  meas- 
ure of  damage  was  in  proportion  as  the 
amount  of  the  entire  valuation  named  in  the 
policy  bore  to  the  freight  actually  lost.  Fai/ 
V.  Alliance  Ins.  Co.,  16  Gray,  455. 

7.  She  was  insured  for  $4,000,  valued  at 
$18,000.  She  grounded,  and  a  large  amount 
of  money,  exceeding  if  10,000,  was  expended  in 
getting  her  ofl".  Held,  insurer  was  bound  to 
pay  in  proportion  as  the  sum  insured  bore  to 
the  whole  value.  Firemen''s  Ins.  Co.  v.  Powell, 
13  B.  Mou.,  311. 

8.  Stipulated :  "  In  all  cases  of  plurality  of 
insurances  on  the  same  subject,  this  company 
shall  be  liable  for  such  ratable  proportion  of 
the  loss,  as  the  sum  insured  by  this  company 
shall  bear  to  the  whole  amount  insured."  In- 
sured had  another  policy  on  the  same,  and  on 
goods  on  storage.  Held,  the  other  policy  was 
to  be  applied  first  to  the  goods  on  storage, 
and  anything  that  remained  after  covering 
them  fully  was  to  be  treated  as  other  insur- 
ance,  to  be  added  to  the  policy  in  suit,  when 
the  whole  amount  in<iured  on  tlie  goods  de- 
scribed in  this  policy  would  appear;  and  upon 

48 


that  sum  this  company  was  liable  in  proiioi-- 
tion  as  the  amount  insured  by  it  should  bear 
to  the  sum  ascertained.  Angelrodt  v.  Delaieare 
Ins.  Co.,  31  Mo.,  593. 

9.  Stipulated:  "In  case  of  total  loss,  not 
liable  to  pay  more  than  two-thirds  the  actu.il 
value  of  the  building,  nor  more  than  one-half 
the  value  of  personal  property.  Partial  losse.s 
are  paid  in  full,  not  exceeding  the  amount  iji- 
sured,  provided  the  insured  has  on  hand  tla- 
lowest  amount  stated  in  the  application.'' 
Held,  the  liability  of  insurer  was  to  be  gov. 
erned  by  the  actual  value  at  the  time  of  the 
loss,  whether  the  subject  was  personal  proj)- 
erty  or  buildings;  the  ordinary  import  of  the 
words  total  loss,  and  partial  loss,  were  subject 
to  such  modifications  as  might  be  necessary 
to  the  ascertainment  of  the  actual  understand- 
ing and  intention  of  the  parties,  and  were  not 
to  receive  a  construction  which  would  in  case 
of  partial  loss  give  insured  a  sum  larger  in 
proportion  than  he  would  have  if  the  loss 
wei-e  total.  Singleton  v.  Boone  County  Mut. 
Ins.  Co.,  45  Mo.,  250. 

IC.  Time  policy  for  twelve  months  "on 
goods,"  on  board  thirty  boats  named,  between 
L.  and  M.,  backwards  and  forwards,  with  l.b- 
erty  to  discharge  at  all  places,  limited  to  £3,000 
on  each  boat.  Held,  it  continued  throughout 
the  j'ear  upon  all  goods  afloat  ,it  any  one  time 
up  to  the  amount  limited ;  and  insured  was 
entitled  to  recover  in  proportion  as  the  sum 
insured  bore  to  the  whole  value  of  goods  afloat 
at  the  time  of  the  loss.  Crotcley  v.  Cohen,  3  B. 
&  Ad.,  478;  1  L.  J.  (N.  S.),  K.  B.,  158. 


ADMINISTRATION. 

1.  Stipulated:  "If  this  policy  or  any  inter 
est  therein  shall  be  assigned  without  the  writ, 
ten  consent  of  this  company  it  shall  be  void." 
It  was  sent  by  insured  to  his  uncle  in  Massa. 
chusetts,  and  pledged  for  a  loan  of  $700.  In- 
sured  instructed  his  parents  that  they  as  his 
heirs  could  draw  the  money  and  pay  the  debt, 
"  which  will  leave  you  $1,800."  Insured  died 
in  Chicago,  111.,  October,  1868,  and  D.  was 
there  appointed  administrator  of  the  estate. 
The  plaintiff  was  appointed  in  January,  1869, 
administrator  in  JIassachusetts.  Held,  the  ad- 
ministrator  in  Massachusetts  was  entitled  to 
control  the    policy   and   collect   the  money 


93 


ADMIRALTY  — AGREEMENTS  OF  COUNSEL. 


94- 


Miscellaneous. 


Merrill  v.  New  England  Life  Ins.  Co.,  103  Mass., 
245. 


ADMIRALTY. 

(See  Jurisdiction.) 


ADMISSIONS. 


(See  Evidence  ;  Pleading,  V  and  VI  i  Pkinoipal  and 
Agent;  Pnoara  of  Leas.) 


I.  What  amount  to. 
II.  What  are  conclusive. 

I.  "What  amount  to. 

1.  Policy  to  A.,  loss,  if  au5',  payable  to  B. 
Held,  an  admission  that  B.  had  an  interest  in 
the  contract  and  was  to  receive  the  benefit  of 
It.    Franklin  v.  National  Ins.  Co.,  43  Mo.,  491. 

2.  The  printed  portion  of  the  policy  provided 
that  no  risks  would  be  taken  on  distilleries 
and  steam  saw  mills;  but  this  policy  was  on 
a  frame  distillery  building,  and  a  saw  mill 
attached,  which  had  never  been  used  or  occu- 
pied as  a  distillery  nor  as  a  saw  mill.  The  gen- 
eral agent,  after  it  was  reported  to  him  in  the 
following  month,  directed  the  local  agent  to 
cancel  it.  Held,  an  attempt  to  cancel  was  an 
admission  that  it  was  a  policy  capable  of  being 
cancelled,  an  acknowledgment  that  it  was  a 
subsisting  risk.  .JEtna  Ins.  Co.  v.  Maguire, 
61  111.,  343. 

3.  No  stamped  policy  had  been  delivered. 
A  notice  of  the  loss  was  given,  the  claim  ad- 
mitted, the  amount  ordered  to  be  drawn,  and 
an  entry  to  that  effect  made  in  the  minute 
book  of  the  association,  but  the  money  had 
not  been  taken  by  the  assured  at  the  time  the 
order  to  wind  up  was  made.  The  official 
liquidater  now  rejected  the  claim,  because 
there  had  been  no  stamped  policy.  Held,  the 
acknowledgment  of  the  claim  on  the  books  of 
the  association  was  sufficient  to  establish  the 
relation  of  debtor  and  creditor.  Teignmouth 
<6  General  Mutual  S?iip  Assoi)iation  v.  Martinis 
claim,  14  L.  K.  Eq.,  148;  41  L.  J.  Ch.,  679;  2G 
L.  T.  (N.  8.),  684. 


II.  "What  aee  conclusivk. 

A  person  who  has  effected  insurance  with  a 
company  in  its  corporate  capacity,  and  has 
received  from  the  corporation  the  amount  of 
his  loss,  cannot  be  permitted  to  deny  the  cor- 
porate existence  of  the  company  when  suit  is 
brought  against  the  insured  for  restitution. 
Liverpool  Ins.  Co.  v.  Hunt,  11  La.  An.,  623. 


ADVANCED  FREIGHT. 

(Sec  Fbeioht.) 


AGREED  CASE. 

(See  CocRT  and  Jdiiy,  I.) 

1.  Case  submitted  upon  an  agreed  state  of 
facts.  Held,  the  court  could  only  determine 
the  question  of  law  upon  the  facts  agreed ;  that 
it  had  no  power  to  send  the  cause  to  a  jury 
for  them  to  determine  facts  that  were  doubt- 
ful upon  the  face  of  the  submission.  Neilson 
V.  Commercial  Ins.  Co.,  3  Duer,  4.55. 

2.  A  judgment  not  warranted  by  the  agreed 
facts  must  be  set  aside.  Louisville  Marine  & 
Fire  Ins.  Co.  v.  Bland,  9  Dana,  143. 

3.  In  a  case  presented  for  decision  upon 
facts  agreed,  no  facts  pertinent  to  the  issue  are 
presumed  to  exist,  which  do  not  appear  in  the 
statement.  Gardiner  ».  Piscaiaquix  Mutual 
Fire  Ins.  Co.,  38  Me.,  439. 


AGREEMENTS  OF  COUNSEL. 

1.  The  cause  was  tried  below  without  a  jury, 
but  in  the  court's  opinion  or  reasons  for  judg- 
ment, the  judge  below  quoted  some  portions 
of  the  evidence,  and  the  counsel  in  the  su- 
preme court  agreed  tliat  as  to  certain  parts  of 
the  opinion  so  given,  it  presented  a  correct 
statement  of  the  case.  Held,  the  court  would 
act  upon  the  agreement  so  made  by  counsel, 
and  give  to  it  the  effect  that  it  would  have 
been  entitled  to  receive  if  it  had  been  made  in 
the  court  below.  Insurance  Co.  v.  Tweed,  T 
Wall.,  44. 

47 


95 


AGENT  -  ALIENATION. 


yc 


What  is. 


2.  The  attorneys  agreed  tliat  tlie  insurer 
might  witlidraw  the  answer  and  file  a  demurrer 
to  the  petition,  on  condition  that  if  the  de- 
murrer should  be  overruled  final  judgment 
should  be  entered,  lleld,  the  court  properly 
refused  an  application  to  withdraw  the  de- 
murrer and  stipulations,  and  to  file  an  answer 
to  the  merits,  for  a  parly  caunot  be  allowed  to 
uialie  an  express  agreement  and  refuse  to  be 
bound  by  it  when  it  proves  disadvantageous. 
Franklin  v.  National  Ins.  Co.,  43  Mo.,  491. 


AGENT. 

(See  Pbincipai,  and  Agent.) 


ALCOHOLIC  DRINKS. 

(See  Intemperance.) 


ALIEN. 

(See  Citizens.) 


ALIENATION. 

(See  Concealment;  Estoppel;  Incdmbeaxces;  In- 
BUBABLE  Interest;  Principal  and  Aqbnt;  Pol- 
ict;  Title.) 


I.  What  is. 

II.  NOT. 

(a)  Of  Levy. 

(b)  Of  sale  of  part,  incumbrances,  agree- 

ments to  sell  and  death  of  insured. 

I.    What  is. 

1.  Stipulated:  "  To  be  void  incase  of  any 
transfer  or  termination  of  the  interest  of  the 
insured  by  sale  or  otherwise."  Insured 
mortgaged  the  property  to  0.  and  assigned  the 
policy  to  mortgagee.  Subsequently  insured 
conveyed  his  equity  of  redemption  to  the 
mortgagee.  Insurer  had  notice  of  the  assign- 
ment of  the  policy,  but  did  not  know  of  the  con- 
48 


veyance.  Ileld,  an  approval  of  the  assignment 
of  the  policy  to  the  mortg.igce  did  not  dispense 
with  any  condition  of  the  contract  as  to 
change  of  ownership  of  the  subject  insured, 
hence  there  could  he  no  recovery  either  at  the 
suit  of  the  mortgagee  or  of  the  insured.  Bil- 
son  V.  Manufacturers'  Ins.  Co.,  7  Am.  Law 
Reg.,  661. 

2.  The  premises  were  sold  by  a  master  in 
chancery  under  a  decree  of  foreclosure,  and 
payment  of  part  of  the  purchase  money 
was  made.  Held,  the  mortgagor  ceased  to 
have  an  insurable  interest,  though  the  decree 
was  not  enrolled  and  no  deed  executed.  Mo- 
Laren  v.  Hartford  Fire  Ins.  Co.,  5  N.  Y.,  151; 
S.  C,  Edm.  S.  C,  210. 

3.  Stipulated :  "  If  the  property  shall  be  sold 
or  transferred,  or  any  change  takes  place  in  the 
title  or  possession,  either  by  legal  process  or 
judicial  decree,  or  voluntary  transfer  or  con- 
veyance,  then,  and  in  every  such  case  this 
policy  shall  be  void."  Insured  was  subse- 
quently, and  within  the  term  insured  declared 
a  bankrupt,  by  which  all  his  property  passed 
by  the  usual  assignment  to  the  assignee. 
Held,  insurers  were  released.  Perry  v.  Loril- 
lard  Fire  Ins.  Co.,  6  Lans.,  201. 

4.  Stipulated:  "If  the  property  bo  sold  or 
transferred,  or  any  change  takes  place  in  the 
title  or  possession,  whether  by  legal  process 
or  judicial  decree,  voluntary  transfer  or  con- 
veyance, without  consent  of  this  company 
indorsed  hereon,  the  policy  shall  be  void." 
Tlie  executrix  conveyed  the  property,  and 
took  back  a  mortgage  for  a  large  portion 
of  the  purchase  money.  Held,  insurers  were 
released.  Savage  v.  Howard  Ins.  Co.,  53  N. 
Y.,  502;  S.  C,  43  How.  Pr.,  463;  44  id.,  40. 

5.  The  insured  assigned  all  their  property, 
including  the  subject  insured,  to  trustees  to 
sell  it,  and  pay  debts  secured  by  the  assign- 
ment. The  property  insured  was  sold  uudor 
an  interlocutory  decree,  and  the  assignees 
afterwards  executed  a  deed  to  the  purchasers. 
Held,  insured  retaiiied  neither  a  legal  uor 
equitable  estate;  that  they  h.id  nothing  at 
risk.  Dadmun  Manufacturing  Co.  v.  H'ora's- 
ter  Mutual  Fire  Ins.  Co.,  11  Met.,  429. 

6.  A.  made  insurance  upon  a  mill.  Stipu- 
lated: "  It  shall  be  void  in  case  insured  sh:iU 
convey  either  in  whole  or  in  part;  but  it  might 
be  continued  for  the  benefit  of  purchaser  with 
the  company's  assent,  to  be  evidenced  by  a 
certificate  of  the  fact,  or  by  indorsement  on 


97 


ALIENATIOX. 


98 


What  is. 


the  policy."  About  a  month  thereafler  in- 
suretl  indorsed  upon  llie  policy:  "  In  case  of 
loss,  pay  the  within  to  L.,  to  sccui-e  his  mort- 
gage;" to  which  the  company  assented.  In- 
surers subsequently  granted  insured  another 
policy  on  the  same  property,  "  Being  three- 
tenths  of  the  wooden  steam  saw-mill,  etc. ;  in 
case  of  loss,  i)ay  $1,000  to  Sawyer  to  cover 
uiortgag:e."  Insured  then  indorsed:  "Hav- 
ing sold  the  within  named  property  to  H., 
I  hereby  assign  and  transfer  to  him  the  with- 
in policy,"  and  insured  then  conveyed  to  H. 
by  quitclaim  all  his  interest  in  the  property, 
to  which  insurer  assented.  Held,  this  assent 
did  not  protect  the  first  policy,  and  no  re- 
covery could  be  had  upon  it.  Loring  v.  Man- 
vfadtirers'  Ins.  Co.,  8  Gray,  28. 

7.  Stipulated :  When  any  property  insured 
by  this  company  shall  be  taken  possession  of 
by  a  mortgagee  or  in  any  way  alienated,  the 
policy  shall  be  void.  Proceedings  wore  com- 
menced in  bankruptcy  by  the  debtor,  and  an 
assignment  made  in  pursuance  thereof.  Held, 
an,alienation.  Toung  v.  Enrjle  Fire  Ins.  Co., 
14  Gray,  150. 

8.  Stipulated:  The  by-laws  shall  be  a 
part  of  the  contract.  They  provided  that  the 
application  should  be  a  part  of  it,  and  that 
the  policy  should  be  void  "  Unless  the  true 
title  and  interest  of  the  insured  and  all  incum- 
brances on  the  property  are  st;ited  in  the  ap- 
plication, and  unless  the  applicant  has  made 
a  true  statement  of  all  facts  inquired  for  in 
the  application."  In  answer  to  inquiries,  he 
said :  "  It  is  owned  by  me,  and  incumbered 
to  several  persons  about  $6,000."  He  had  in 
fact  mortgaged  it  to  several  persons  to  the 
amount  of  $13,000,  and  had  conveyed  all  his 
legal  interest  to  his  brother,  by  deed  absolute, 
all  of  which  were  upon  record.  The  mort- 
gages beyond  $6,000  and  the  deed  were  made 
without  consideration  for  the  purpose  of  de- 
frauding his  creditors.  Held,  the  convey- 
ances were  good  as  between  the  parties,  that 
lie  had  no  title  or  insurable  interest,  and  the 
fact  that  the  deed  to  his  brother  was  placed  on 
record  without  the  knowledge  or  consent  of 
il.t  brother  was  immaterial.  Treadway  «. 
Hamilton  Mut.  Ins.  Co.,  29  Conn.,  68. 

9.  The  company's  charter  provided,  that  if 
Insured  should  alienate  the  property  the  poli- 
cy would  be  void.  Held,  when  insured,  upon 
his  own  application,  was  decreed  a  bankrupt, 
&od  his  assignee  in  bankruptcy  was  appoint- 


ed, the  property  was  alienated.  Held,  also, 
when  insured,  by  deed  absolute,  conveyed  the 
property,  although  his  grantee  gave  him  an 
unsealed  agreement  to  reconvey  upon  payment 
of  a  sum  specified,  the  property  was  alienated. 
Adams  v.  Rockingham  Mutual  Fire  Ins.  Co.,  29 
Me.,  293. 

(0.  Insured  had  erected  a  house  on  Innd  of 
his  wife  and  her  son.  She  h.'id  a  one-third 
life  estate  in  the  hand,  and  her  son  had  the 
residue;  she  joined  with  her  husband  in  a 
conveyance,  conditioned  that  the  grantee 
should  pay  her  during  her  life  $50  annually, 
and  a  failure  to  make  the  payment  should 
vitiate  the  deed.  To  secure  payment  of  $500, 
the  grantee  reconveyed  by  mortgage  to  her 
husband;  but  tlie  grantee  took  pos.session,  and 
afterwards  a  loss  occurred.  Held,  a  freehold 
estate  vested  in  the  grantee,  which  could  not 
fail  for  a  breach  of  condition,  unless  reentry 
were  made  by  the  person  to  be  benefited  by 
the  breach;  that  the  mortgage  did  not  restore 
the  insured  to  his  former  estate ;  that  his  es- 
tate in  the  house  was  essentially  changed: 
that  the  house  became  part  of  the  realty  and 
was  subjected  to  the  principles  applicable  to 
that  species  of  property,  and  the  policy  was 
void.  Abbott  v.  Hampden  Fire  Ins.  Co.,  30 
Me.,  414. 

11.  The  policy  prohibited  any  alienation 
of  the  property  insured.  Insured  made  a 
mortgage  which  was  recorded,  and  in  which 
the  premises  insured  were  included.  The 
record  of  a  deed  from  insured  was  produced 
by  insurer.  The  insured  then  put  in  evidence 
a  bond  of  defeasance,  from  the  grantee  in  the 
deed  to  insured,  but  this  had  not  been  re- 
corded. Held,  the  deed  of  insured  constituted 
an  alienation,  because  the  deed  of  defeasance 
was  not  recorded,  hence  the  policy  was  void. 
Tomlinsonv.  Monmouth  Mutual  Fire  Ins.  Co., 
47  Me.,  232. 

1 2.  Policy  to  F.  &  S.  as  partners  stipulated : 
"  If  property  insured  by  this  corporation  shall 
be  alienated  by  sale  or  otherwise,  the  policy 
shall  thenceforth  be  void,  and  be  surrendered 
to  the  directors  to  be  cancelled."  F.  sold  all 
his  interest  in  it  to  S.,  of  which  insurer  had 
not  any  notice.  Held,  the  policy  was  void. 
Finley  v.  Lycoming  Ins.  Co.,  30  Penn.  St.,  311. 

13.  Insured  sold  the  property,  and  pur- 
chaser gave  a  judgment  bond  for  purchase 
money,  upon  which  judgment  was  entered. 
Held,  insured  had  no   interest  in    the    loss. 

4!? 


99 


ALIENATION. 


lOO 


What  is. 


Grevemeyer  v.  Southei-n  Mutual  Fire  Ins.  Co., 
62  Pcnn.  St.,  340. 

14.  The  act  of  incorporation  provided: 
"  When  any  property  insured  by  this  company 
shall  be  alienated  by  sale  or  otherwise,  the 
policy  shall  therefrom  be  void  and  shall  be 
surrendered  to  the  directors  to  be  cancelled." 
Insured  conveyed  the  premises  and  assigned 
the  policy.  Held,  it  was  void;  that  evidence 
tending  to  show  a  custom  on  the  part  of  the 
insurers  to  permit  such  transfers  to  be  made 
was  immaterial.  Burger  v.  Farmers'  Mut,  Ins. 
Co.,  71  Penn.  St.,  423. 

15.  A  mortgagor  procured  insurance  and 
assigned  the  policy  to  the  mortgagee,  to  which 
the  company  assented.  The  charter  provided : 
"  An  alienation  of  the  property  insured,  1)3' 
sale  or  otherwise,  shall  render  the  policy,  ipso 
facto,  void,  unless  ratified  and  confirmed  to 
the  alienee."  The  mortgagor  quitclaimed  all 
his  interest  to  the  mortgagee,  but  this  was 
never  ratified  by  the  insurer.  Held,  the  policy 
was  void.  Hoxsie  v.  Providence  Mut.  Ins.  Co.,  6 
R.  I.,  517;  Hazard  <o.  Franklin  Mut.  Ins.  Co., 
7  id.,  429. 

16.  Insured,  in  a  mutual  companj',  gave  a 
premium  note  for  the  policj',  was  afterwards, 
upon  his  own  application,  declared  a  bank- 
rupt and  obtained  his  discharge.  Held,  lie 
was  released  from  all  liability  upon  the  pre- 
mium note:  the  contract  thereupon  ceased  to 
be  mutual,  and  insurer  became  released,  not- 
withstanding interest  was  paid  upon  the  pre- 
mium note  after  the  maker  became  bankrupt. 
Reynolds  v.  Mutual  Fire  Ins.  Co.,  34  Md.,  280. 

17.  On  fixed  and  movable  machinery.  A 
decree  of  court  was  made  directing  a  master 
to  sell  it,  which  was  obeyed,  and,  subsequently, 
the  sale  was  set  aside,  but  before  it  was  set 
aside  the  loss  occurred.  Held,  the  rights  of 
insured  under  the  policj'  were  suspended  dur- 
ring  the  interval  of  sale  and  revocation,  hence 
no  recovery  could  be  had  against  insurers. 
Mount  Vernon  Mamif.  Co.  v.  Summit  County 
Mutual  Fire  Ins.  Co.,  10  Ohio  St.,  347. 

IS.  The  policy  stipulated  it  should  be  void 
if  the  property  should  be  conveyed  or  sold 
without  the  consent  of  the  insurer  indorsed 
upon  the  policy.  It  was  sold,  and  the  pur- 
chaser asked  the  insurer's  agent  if  he  would 
consent  to  the  sale  and  indorse  it  upon  the 
policy.  The  agent  told  purchaser  to  bring  the 
policy  and  he  would  make  the  necessary  in- 
dorsement on  it.  The  purchaser  neglected  to 
50 


do  so,  and  the  indorsement  was  not  made  at 
the  time  of  the  fire.  Held,  insurer  was  not 
liable.  This  case  is  to  be  distinguished  from 
that  of  the  Illinois  Ins.  Co.  v.  Stanton,  .57  111., 
354.  In  that  case  no  purchase  was  made-  at 
the  time  the  agent  promised  to  indorse  conseut 
to  the  sale;  and,  relying  upon  his  promise, 
the  purchasers  completed  the  purchase  and 
took  possession  of  the  propert3-.  Fquiiable 
Ins.  Co.  V.  Cooper,  60  111.,  509. 

19.  The  policy  required  all  assignments  to 
be  made  within  ten  days  after  the  sale  of  the 
property-,  and  the  policy  to  be  sent  to  the  com- 
pany's office  with  fifty  cents  as  a  recording 
fee,  and  a  new  inslallment  note  signed  by  the 
assignee.  The  charter  provided  that  the 
grantee  having  the  policy  assigned  to  him 
may  have  the  same  ratified  for  liis  use  upon 
application  to  the  directors  and  with  their 
consent,  within  thirty  days  after  alienation. 
Insured  conveyed  the  property  March  25, 
1872,  and  indorsed  the  policy  to  the  plainlifl", 
in  the  presence  of  the  company's  agent,  June 
26th,  following.  The  plaintiff  alleged  thatjhe 
assignee  agreed,  in  the  presence  of  the  com- 
pany's agent,  to  pay  the  installment  notes,  and 
that  the  policy  was  delivered  to  the  company's 
agent  for  the  necessary  indorsements  to  be 
made.  Held,  the  facts  alleged  do  not  show  a 
complete  assignment  of  the  policy  approved 
by  the  company,  as  provided  by  the  charter 
and  conditions  of  the  contract.  The  assign- 
ment was  not  made  within  thirty  days  after 
alienation ;  hence  a  demurrer  to  the  complaint 
was  sustained.  (S.  C.  Ind.)  American  Ins.  Co, 
V.  Oallagher,  5  Ins.  L.  J.,  200. 

20.  Defendant  pleaded  that  before  the  hajv 
pening  of  the  loss,  insured  sold  and  alienated 
the  property  insured,  without  the  knowledge 
and  consent  of  the  insurer,  and  that  the  grantee 
or  alienee  thereof  did  not,  within  thirty  days 
thereafter  or  at  any  time  thereafter,  have  the 
policy  ratified  and  confirmed  to  the  grantee 
by  the  directors,  nor  give  security  to  insurer, 
as  required  by  the  provisions  of  the  insurers' 
act  of  incorporation,  etc.  Held,  a  good  plea. 
Simeral  v.  Dubuque  Mutual  Fire  Ins.  Co.,  18- 
Iowa,  319. 

21.  On  steamboat,  on  account  of  whom  it 
may  concern,  valued  at  $20,000.  The  day 
after  it  was  made,  the  plaintiff,  by  a  notarial 
act,  transferred  all  his  right,  title  and  interest 
in  the  boat  for  $18,000,  payment  by  indorsed 
notes,  at  six,   twelve  and  eighteen   months. 


101 


ALIENATION. 


102 


What  is  not. 


Tlie  policy  did  not  proliibit  an  assignment  of 
it  nor  a  sale  of  the  boat.  Held,  before  the 
plaint!  ft"  ciuld  recover,  he  must  show  that  the 
defendants  knew  that  there  was  an  agreement 
to  sell  the  boat,  and  that  a  contingent  interest 
was  really  intended  to  be  insured.  Bell  v. 
Firemen's  Ins.  Co.,  3  Rob.  (La.),  433;  Same  v. 
Western  Marine  &  Fire  Ins.  Go.,  id.  428. 

II.  "What  is  not. 

(a)    Of  levy. 

1.  The  sheriff  levied  an  execution,  put  up 
the  window  shutters  and  closed  the  doors,  but 
the  goods  remained  in  the  store.  Held,  no 
alienation.  Franklin  Fire  Ins.  Co.  v.  Findlay, 
6  Whart.,  483. 

2.  Any  sale  or  alienation  was  prohibited. 
Stipulated:  "The  commencement  of  foreclose- 
ure  proceedings,  or  the  le\'y  of  an  execution, 
shall  be  deemed  an.alienation."  A  mechanic's 
lien  was  filed  and  perfected  on  the  building, 
followed  by  judgment  and  execution,  under 
which  the  sherilf  advertised  and  adjourned 
sale  to  April  10th;  but  a  (ire  occurred  on  the 
8lh.  Held,  not  an  alienation.  Colt  v.  Phmnix 
Fire  Ins.  Co.,  54  N.  Y.,  595. 

3.  Tlie  policy  prohibited  i-ale  or  conveyance 
of  the  property  insured,  in  whole  or  in  part. 
Held,  a  sale  )nade  by  the  slierifT,  after  levy  of 
an  execution,  was  not  within  the  prohibition, 
for  that  referred  to  voluntary  sale.  Strong  v. 
Mamifdcturers'  Ins.  Co.,  10  Pick.,  40. 

4.  Neither  a  mortgage  upon  personal  prop- 
erty nor  the  levy  of  an  execution,  without 
change  of  possession,  is  an  alienation.  Bice 
V.  Tower,  1  Gray,  426. 

5.  Ou  store  and  goods  therein.  Stipulated: 
"When  the  property  shall  be  alienated  by  sale 
or  otherwise,  the  policy  shall  be  thereupon 
void."  D.  hired  the  store  of  plaintiff,  pur- 
chased the  goods,  put  his  son  in  possession, 
and  held  it  for  six  c)r  seven  months.  Insured 
made  another  agrement  with  D.,  namely :  to 
pay  the  debts  and  receive  the  dues  of  the  store, 
and  to  allow  D.  a  certain  sum  for  his  services. 
Insured  continued  to  hold  exclusive  posses- 
sion of  the  property  until  the  fire  occurred, 
which  happened  within  the  term  insured. 
Held,  no  alienation  of  the  store.  Lane  v. 
Maine  Mutual  Fire  Ins.  Co.,  19  Me.,  44. 

6.  Policy  to  L.  &  Co.;  $200  on  frame  store- 
house, and  $1,200  on  stock  of  goods  therein. 


The  storehouse  belonged  to  L.,  not  to  L.  &  Co. 
L.  &  Co.  made  a  conveyance  of  the  goods  to 
C.  &  Y.,  in  trust,  to  pay  the  debts  of  L.  &  Co. 
There  was  an  execution  against  L.  &  Co., 
levied  upcm  the  goods,  but  they  were  in  pos- 
session of  L.  &  Co.  at  the  time  the  fire  oc- 
curred. Held,  the  fact  that  the  storeliouse  be- 
longed to  L.,  and  not  to  L.  &  Co.,  did  not 
avoid  the  policy  on  the  goods;  the  levy  of 
the  execution  did  not  affect  the  plaintiff's 
right  to  recover,  for  the  actual  possession  was 
still  in  L.  &  Co.,  and  they  had  the  same  inter, 
est  and  the  same  power  to  preserve  the  goods 
that  they  would  have  had  if  no  execution  had 
been  levied.  Phwnix  Ins.  Co.  v.  Lawrence,  4 
Met.  (Ky.),  9. 

7.  Stipulated :  The  levy  of  an  execution  shall 
be  deemed  an  alienation  of  the  property.  Held, 
a  levy  which  did  not  divest  the  title  was  not 
within  the  exception.  Pennebaker  v.  Tomlin- 
son,  1  Tenn.  Ch.,  598. 

(b)  Of  sale  of  part.,  incitmbrances, 
agreements  to  sell,  and  death  of 
insv,red. 

8.  Stipulated:  "If  the  said  property  shall 
be  sold  or  conveyed,  or  if  this  policy  shall 
be  assigned  without  the  consent  of  the  com- 
pany obtained  in  writing  hereon,  then,  and  in 
every  such  case,  this  policy  shall  be  null  and 
void."  Held,  in  order  to  avoid  the  policj',  the 
insured  must  sell  the  whole  of  his  interest  in 
the  property;  so  long  as  he  held  any  interest 
in  it.  the  policy  was  l)inding.  Scanlon  v. 
Union  Fire  Ins.  Co.,  4  Bissell,  511. 

9.  A  conveyance  of  property  by  way  of  se- 
curity for  debt  is  treated  as  a  mortgage,  what- 
ever form  the  parties  may  have  adopted  to 
effect  that  object.  A  conditional  sale,  with 
right  of  repurchase,  the  sole  consideration  be- 
ing  a  debt  due  from  the  grantor  to  the  grantees, 
the  parties  intending  to  give  and  take  security 
for  tlie  debt,  is  not  an  alienation.  Holhrook  v. 
American  Ins.  Co.,  1  Curtis  C.  C,  193. 

10.  Insured  made  a  deed  conveying  the  fee 
to  N.,  which  was  recorded;  but  it  was  placed 
in  the  hands  of  H.,  to  remain  until  certain 
controversies  should  be  settled.  Held,  record- 
ing the  deed  was  only  prima  facie  evidence  of 
delivery;  but  this  was  rebutted,  hence  there 
was  no  alienation.  Gilbert  v.  North  American 
Ins.  Co.,  23  Wend.,  43. 

11.  Insured  made  a  mortgage  to  secure  a 

51 


103 


ALIENATION. 


104 


What  is  not. 


debt.  Held,  not  an  alienation.  Conover  v. 
Mut.  Ins.  Co.,  1  N.  T.,  290;  S.  C,  How.  App. 
Cas.,  604 ;  3  Denio,  354. 

1 2.  Policy  to  H.  P.  &  Co.  "  On  stock  of  mer- 
cliandise,  their  own  or  held  by  them  in  trust, 
on  commission,  or  sold  but  not  delivered,  to 
be  void  if  the  said  property  shall  b6  sold  or 
conveyed."  S.,  one  of  the  partners  retired 
from  the  business,  selling  out  his  interest  to 
H.  &  P.  Held,  not  such  a  sale  or  conveyance 
as  was  prohibited.  Hoffman  v.  JEtna  Ins.  Co., 
33  N.  y.,"  405 ;  5.  C,  1  Rob.,  501 ;  19  Abb. 
Prac.  335. 

13.  On  ship,  for  account  of  whom  it  may 
concern.  The  plaintifls  were  owners  at  the 
time  the  policy  attached,  April  1st,  and  on  the 
16th  and  18th  of  the  same  month,  she  encoun- 
tered storms  and  suffered  injury.  The  master 
and  crew,  bj'  great  exertion,  kept  her  afloat  till 
May  5th ;  when  she  was  about  to  sink,  they 
abandoned  her.  One  fourth  interest  in  the 
ship  w-as  sold  April  24th.  Held,  the  loss  oc- 
curred prior  to  the  sale,  hence  insurers  were 
liable  for  tlvc  whole  sum  insured.  Duncan  v. 
Great  Western  Ins.  Co.,  43  N.  Y.  (3  Keyes),  394; 
/S.  C,  1  Abb.  Dec,  562;  5  Bos.,  378,  note;  19 
How.  Pr.,  313. 

14.  Stipulated:  "To be  void  if  the  proper- 
ty insured  shall  be  sold  or  assigned."  The 
guardian  of  the  infant  heirs  contracted  to  sell 
some  of  the  property,  so  soon  as  requisite  au- 
thorit}-  could  be  obtained,  and  gave  the  vendee 
possession  as  tenant.  The  fire  occurred  be- 
fore the  contract  of  sale  was  consummated. 
Held,  no  sale  vrithin  the  meaning  of  the 
policy.  Clinton  v.  Hope  Ins.  Co.,  45  N.  Y., 
454;  8.  C,  51  Barb.,  647. 

1 5.  An  agreement  to  sell  and  convej'  is  not 
an  al  ieuation  Musters  i\  Madison  County  Mut. 
Ins.  Co,  11  Barb.,  624. 

16.  Insured  had  agreed  to  sell  the  property 
(wool)  insured,  and  to  apply  the  price  of  it 
against  a  debt  held  by  the  purchaser  against 
the  seller.  Held,  that  until  the  wool  was 
■weighed  and  something  done  to  pass  the 
property,  the  interest  of  the  insured  was  not 
divested.  Pitney  r>.  Olens  Falls  Ins.  Co.,  61 
Barb.,  .335. 

17.  Tlie  owners  of  certain  machinery  made 
a  chattel  mortgage  upon  it,  and  afterwards 
procured  this  policy  without  giving  any 
notice  of  it  to  insurers.  Held,  no  defense  to 
action.  Allen  v.  Franklin  Fire  Ins.  Co,  9 
How.  Pr.  501. 


18.  The  parties  insured  the  properly  and 
applied  for  partition  which  was  ordered.  A 
sale  was  made,  but  before  it  was  confirmed, 
and  before  the  conveyances  were  made,  the 
buildings  were  consumed.  Held,  not  an  aliena- 
tion.    Gates  V.  Smith,  4  Edw.  Ch.,  702. 

19.  "To  be  void,  if  the  property  shall  be 
sold  or  transferred."  Insured  conveyed  an 
undivided  one-half  of  his  interest  in  his  con- 
tract of  purchase,  to  which  the  company  was 
not  asked  to  assent.  Held,  he  could  recover  to 
tlic  extent  of  his  undivided  one-half  interest. 
Manley  v.  Insurance  Co.  of  Isorth  America,  1 
Lans.,  30. 

20.  Insured  conveyed  an  undivided  half  of 
the  premises,  reserving  a  term  of  seven  years. 
The  grantee  reconvej'ed  his  interest  by  mort. 
gage  to  the  grantor,  who  demised  for  the  term 
reserved.  Held,  not  an  alienation  within  the 
meaning  of  the  policy.  Stetson  v.  Massachusetts 
Mutual  Fire  Ins.  Co.,  4  JIass.,  330. 

21.  She  was  owned  by  C,  the  master,  A. 
and  B.,  one  quarter  each.  C.  effected  insur- 
ance in  his  own  nami  for  account  of  whom  it 
might  concern.  He  gave  authority  to  P.  to 
sell  his  interest,  and  subsequently  lie  and  A. 
authorized  P.  and  the  master  to  sell  their 
respective  shares  after  the  outward  cargo 
should  be  delivered.  A  bill  of  sale  of  tlie 
two  quarters  of  C.  and  B.  was  made  by  P. 
alone  to  the  master,  for  himself  and  A.,  and 
bills  were  drawn  by  the  master  upon  A.  in 
f'ivor  of  C.  and  B.  for  the  purchase  money, 
which  were  protested  for  nonacceptance.  She 
was  lost  after  the  sale  and  within  the  term 
insured.  Held,  the  subsequent  instructions 
revoked  the  former  authority  which  was  given 
to  P.  alone;  that  the  sale,  being  in  tlie  name  of 
P.  only,  was  insufficient ;  that  the  master,  being 
one  of  the  parties  authorized  to  sell,  could  not 
be  purchaser;  therefore,  nothing  passed  bj'  the 
sale;  that  as  A.  never  ratified  the  sale,  it  was 
entirely  invalid;  hence,  the  ownership  of  the 
vessel  at  the  time  of  the  loss  was  the  same  as 
at  tlie  date  of  the  policy.  Copeland  v.  Mercan- 
tile Ins.  Co.,  6  Pick.,  198. 

22.  Stipulated  :  "  Where  any  mansion, 
house,  or  other  building,  shall  be  alienated 
by  sale  or  otlierwise,  the  policy  shall  there- 
upon be  ipso  facto,  void."  Held,  not  to  in- 
clude a  ccmveyance  by  mortgage.  And  that 
this  limitation  is  necessary  to  give  effect  to 
the  20lh  rule  of  the  by-law,  which  provides: 
"Where  any  estate  mortgaged  shall  lie  takeu 


105 


ALIENATION. 


IOC 


What  is  not. 


possession  of  by  the  mortagee,  for  breach  of 
the  condilion  expressed  in  the  mortgage  deed, 
or  ou  any  bond  of  defeasance,  tlie  policy 
shall  thereupon  be  absolutely  void,  unless  the 
policy  shall  be  transferred  to  the  mortgagee 
with  the  consent  of  the  president."  Jiiekson 
V.  Maasachuselts  Mutual  Firo  Ins.  Co.,  23  Pick., 
418. 

23.  A  by-law  of  a  mutual  company  re- 
quired the  assent  of  its  directors  to  an  aliena- 
tion of  the  property  insured.  The  insured 
made  an  agreement  to  convey,  assigned  the 
policy,  and  gave  possession  of  the  premises 
to  his  covenantee.  Held,  tlie  consent  of  the 
directors  was  not  necessary.  Phillips  v.  Mer- 
rimack Mutual  Five  Ins.  Co.,  10  Cush.,  350. 

24.  On  a  mortgagee's  interest,  stipulated: 
"  In  case  of  payment  of  any  loss  to  a  mort- 
gagee whose  interest  only  is  insured,  the 
party  so  paid  shall  at  the  time  of  payment 
assign  to  the  company  so  much  of  his  interest 
in  the  mortgage  as  may  not  be  necessary  to 
extinguish  the  balance  of  the  debt  due  there- 
on." Insured  agreed  to  quitclaim  to  S.  on 
request,  if  made  within  three  years,  all  his 
riglits  against  the  property,  and  the  benefit 
of  the  insurance  to  her,  for  the  sum  of  $150, 
payable  in  one  year;  but  this  agreement  wos 
not  ra.ade  known  to  tlie  insurer.  Held,  not  .an 
agreement  on  the  part  of  S;  she  had  the  right 
to  pay  or  neglect  to  pay  the  $150,  and  take 
the  conveyance;  it  was  a  mere  executory  con- 
tract, and  until  she  tendered  the  money,  she 
had  neither  a  legal  nor  an  equitable  right  to 
the  property;  hence,  it  was  no  alienation. 
Davis  V.  Quincy  Mutual  Fire  Ins.  Co.,  10  Allen, 
113. 

25.  The  mortgagor  of  a  vessel  sold  his 
interest,  and  stipulated  to  pay  off  the  mort- 
gage. He  failed  to  comply  with  the  stipula- 
tion, and  the  title  was  reconveyed  to  him. 
Held,  no  defense  to  an  action  upon  the  policy. 
Worthinyton  v.  Bearse,  12  Allen,  383. 

26.  On  frame  building  and  merchandise  — 
prohibited  any  sale  or  transfer  of  the  property. 
Insured  sold  all  the  goods  which  were  on  the 
lower  floor,  and  admitted  the  purchaser  to  pos- 
session,  keeping  possession  of  those  on  the 
upper  floor.  Held,  he  could  recover  for  loss 
of  the  building  and  the  goods  not  sold.  West 
Branch  Ins.  Co.  r.  Helfenstein,  40  Pcnn.  St.,  289. 

27.  Stip\ilatcd:  "If  insured  property  sh.al! 
be  alienated  by  sale  or  otherwise,  or  be  trans- 
ferred by  any  change  of  partnership  or  owner- 


ship, the  policy  shall  be  void."  Insured  con- 
tracted to  sell,  and  received  part  of  the  pur- 
chase  money,  but  no  conveyance  was  made. 
Held,  not  a  violation  of  the  condition.  Hill 
V.  Cumberland  Valley  Mutual  Protection  Co., 
59  Penn.  St.,  474. 

28.  Polity  to  G.  B.  Forney.  Action  by  his 
administrator.  The  premises  were  sold  by 
order  of  the  orphan's  court,  .Janu.ary  8,  1870; 
the  order  of  sale  was  relurn.able  February  14th, 
but  the  premises  were  destroyed  February  7th. 
The  sale  was  confirmed  and  deed  made  April 
1st.  Held,  no  alienation,  for  the  loss  occurred 
between  the  sale  and  the  confirmation,  and 
the  legal  title  was  then  in  the  heirs  of  the 
deceased.  Farmers'  Mutual  Ins.  Co.  v.  Graybill, 
74  Penn.  St.,  17. 

29.  The  .assignment  of  a  portion  of  the  mort. 
gage  debt  does  not  defeat  a  policy  in  favor  of 
mortgagee.    Iie.v  v  Ins.  Cos.,  2  Phila.,  .357. 

30.  On  vessel  in  the  name  of  S.,  for  account 
of  whom  it  might  concern.  T.  was  owner  at 
the  time  the  policy  was  made,  but  F.  had 
agreed  to  purchase.  T.  afterwards  conveyed 
to  F.,  and  took  a  mortgage  to  secure  the  un- 
paid purchase  money.  Held,  the  legal  title 
was  in  the  vendor;  that  the  formal  change  of 
title  did  not  afl'ect  the  insurable  interest  of  T. 
(citing  Stetson  v.  Msissachusetts  Mutual  Fire 
Ins.  Co,  4  Mass.,  330;  Howard  Ins.  Co.  v. 
Burner,  23  Penn.  St.,  50).  Stetson  v.  Ins.  Co.,  4 
Phila.,  8. 

31.  Policy  made  November  15,  1848.  In- 
sured mortgaged  the  premises  December  27th 
following,  and  assigned  the  polic)'  to  the  mort- 
gagee.  In  March,  1850,  he  conveyed  an  undi- 
vided half  to  G.,  subject  to  the  mortgage ;  to  all 
of  which  insurers  assented,  and  in  February, 
1853,  insured  and  G.  quitclaimed  their  interest 
in  the  premises  to  the  mortgagee  who  con- 
tracted by  bond  to  convey  the  premises  to 
W.  and  S.,  in  c.ise  they  should  perform  certain 
conditions,  and  then  the  mortgagee  also  con- 
tracted to  reconvey  to  insured  and  G.  in  case 
W.  and  S.  should  fail  to  perform  the  conditions. 
W.  and  S.  entered  into  possession,  failed  to  ful- 
fill  the  conditions,  and  forfeited  all  claim  to  a 
conveyance  from  the  mortgagee ;  but  they  re- 
mained as  tenants  of  insured  and  G.,  to  whom 
thej'  paid  rent.  Insurers  were  notified  of  the 
occupancy,  and  assented.  The  property  was 
consumed  by  fire  February  5,  1853,  and  the 
mortgagee  in  fulfillment  of  his  agreement  to 
insured  and   G.,  reconveyed  the  premises  to 


107 


ALIENATION. 


108 


What  is  not. 


them  February  28,  1853.  Held,  not  an  aliena- 
tion ;  tlie  rights  of  the  mortgagee  were  equallj- 
entitled  to  protection,  whether  tlie  action  was 
in  his  own  name  or  that  of  his  assignor  after 
notice  of  and  assent  to  the  assignment.  Pol- 
lard n.  Somerset  Mutual  Fire  Ins.  Co.,  42  Maine, 
221. 

32.  Insured  gave  a  deed  of  the  property  to 
P.,  who  gave  back  a  defeasance.  Held,  the 
two  instruments  together  made  a  mortgage, 
and  that  a  mortgage  was  not  an  alienation, 
although  the  defeasance  was  not  recorded  at 
the  time  it  was  made;  but  the  evidence  showed 
that  it  was  recorded  before  the  rights  of  any 
third  party  attached.  Smith  v.  Monmouth  Mu- 
tual Fire  Ins.  Co.,  50  Maine,  96. 

33.  The  contract  provided  that  it  should  be 
binding  if  the  insured  had  title  in  fee  simple 
unincumbered  to  the  land  upon  which  the 
buildings  insured  stood ;  that  it  should  be  void 
if  he  had  not  such  title,  unless  the  title  that  he 
did  have,  and  incumbrances,  were  expressed 
upon  the  policy,  and  in  the  application  made 
for  it ;  also,  when  any  house  or  building  insured 
shall  be  alienated  by  sale  or  otherwise,  the 
policy  .shall  be  void;  but  that  the  alienee 
might  have  it  transferred  to  him  with  the  con- 
sent of  the  company.  The  plaintilf  conveyed 
•  o  P.  by  deed  of  warranty,  and  P.  conveyed  to 
the  plaintiff  at  the  same  date  by  deed  of  war- 
ranty, conditioned  to  be  void  if  P.  or  his  rep- 
resentatives should  pay  plaintiff  $2,000  within 
three  years  and  allow  plaintiff  to  hold  peace- 
able possession  until  paj-ment  should  be  made. 
P.  never  made  any  payment  up  to  the  time  the 
fire  occurred,  which  was  more  than  four  years 
after  the  date  of  the  transaction.  Held,  both 
deeds  were  to  be  regarded  as  one  transaction, 
hence  there  was  no  alienation.  Tittemore  n. 
Vermont  Mutual  Fire  Ins.  Co.,  20  Vt.,  SIO. 

34.  The  policy  prohibited  any  sale  or  as- 
signment of  the  property  insured,  but  pro- 
vided: "The  grantee,  if  the  policy  shall  be 
assigned  to  him,  may  have  the  same  ratified 
and  confirmed,  upon  application  to  the  direct- 
ors, with  their  consent,  within  thirty  days  next 
after  alienation."  The  property  was  sold,  and 
the  policy  assigned  to  the  grantee,  November 
11,  1865.  On  the  19th  the  premises  were  con- 
sumed by  fire,  and  on  the  20th  the  grantee  and 
assignee  notified  insurers  of  the  sale  and  as- 
signment, and  asked  for  a  ratification  and  con- 
firmation of  the  policy  to  him,  which  was 
refused.    Held,  the  sale  and  assignment  did  not 

lA 


render  the  policy  void,  for  the  parties  to  the 
conveyance  and  assignment  had  the  right  to 
assume  that  the  company  would  ratify  and 
confirm  the  assignment  to  the  grantee  upou 
the  conditions  specified,  provided  he  was  a 
proper  person  to  be  admitted  as  a  member  of 
the  companj',  and  the  company  could  not  ar- 
bitrarily refuse  to  ratify  the  sale  and  confirm 
the  policy;  that  in  order  to  justify  a  refusal  to 
ratify  and  confirm,  the  insurers  must  give  evi- 
dence that  the  grantee  was  not  a  fit  and  proper 
person  to  be  admitted  as  a  member.  Boynton 
V.  Farmers'  Mutual  Fire  Ins.  Co.,  43  Vt.,  256. 

35.  Stipulated:  "  If  said  property  shall  be 
sold  or  conveyed,  this  policy  shall  be  null  and 
roid."  The  policy  was  to  a  mortgagee,  and 
subsequently  one  of  the  part  owners  of  the 
property  released  his  equitj-  of  redemption  in 
favor  of  the  mortgagee.  Held,  the  stipulation 
did  not  embrace  a  conveyance  made  to  insured 
increasing  his  interest.  Heaton  v.  Manhattan 
Ins.  Co.,  7  R.  I.,  502. 

36.  Policy  provided,  if  the  property  insured 
should  be  alienated,  by  sale  or  otherwise,  it, 
should  be  void.  Held,  the  death  of  the  in- 
sured  was  not  alienation.  Burbank  v.  Rock- 
ingham Mutual  Fire  Ins.  Co.,  24  N.  H.,  550. 

37.  Act  of  incorporation  prohiluted  an 
alienation  of  the  subject  insured,  unless  the 
policy  was  assigned  to  the  alienee  with  the 
assent  of  the  insurer.  Held,  a  mortgage  was 
not  an  alienation  within  the  meaning  of  the 
prohibition.  Rollins  v.  Columbian  Mutual  Fire 
Ins.  Co.,  25  N.  H.,  200. 

38.  The  insurer,  by  memorandum  upon  the 
policy,  agreed  to  pay  it  to  the  mortgagee  in 
case  of  loss.  Tlie  mortgage  was  afterwards 
foreclosed.  Held,  the  foreclosure  was  not  an 
alienation,  and  an  action  could  be  maintained 
in  the  name  of  insured  for  the  loss.  Bragg  v. 
New  England  Fire  Ins.  Co.,  25  N.  H.,  289. 

39.  The  charter  prohibited  any  alienation 
of  the  property.  A  mortgage  was  made  by 
the  insured  upon  it,  to  which  the  company 
was  never  required  to  assent.  Held,  no  alien- 
ation. Shepherd  v.  Union  Mutual  Fire  Ins. 
Co.,  38  N.  H.,  233. 

40.  Stipulated:  "If  the  property  shall  be 
sold  or  conveyed,  or  this  policy  assigned 
without  the  consent  of  the  company  obtained 
in  writing  thereon,  then  it  shall  be  void." 
Also,  "If  the  interest  in  the  property  insured 
be  a  leasehold,  or  other  interest  not  absolute, 
it  must  be  so  represented  to  the  company  and 


lU9 


ALIENATION. 


110 


What  is  not. 


expressed  in  the  jiolicy."  Insured  had  mort- 
gaged the  property,  and  had  agreed  to  soli 
their  equity,  the  purcliaser  to  assume  the 
mortgage.  A  part  of  tlie  consideration  was 
paid,  but  the  deed  was  not  made,  nor  was  pos- 
'session  delivered  when  the  fire  occurred.  Af- 
ter the  tire,  the  grantors  agreed  to  collect  the 
insurance  money  for  the  benefit  of  the  pur- 
chaser. The  deed  was  e-xecuted  and  deliv- 
ered. Held,  insurers  were  liable  for  the  loss, 
for  the  stipulations  were  to  be  construed 
strictly,  and  nothing  but  an  absolute  sale  or 
conveyance  would  avoid  the  policy.  Wash- 
ingtun  Fire  Ins.  Co.  v.  Kelly,  33  Md.,  421. 

41.  Insured  made  a  contract  to  convey,  but 
the  property  was  burned  before  the  deeds 
were  e.xecuted.  Held,  not  an  alienation.  Trum- 
bull V.  Portage  County  Mvt.  Ins.  Co.,  12  Ohio, 
303. 

42.  Stipulated:  "  If  the  property  shall  be 
sold  or  conveyed,  the  policy  shall  be  void." 
The  insured  mortgaged  and  then  insured  the 
goods  and  assigned  the  poHcj'  to  the  mort- 
gagee, to  which  insurers  assented.  The  mort- 
gagor then  delivered  possession  to  the  mort- 
gagee, who  removed  them,  and  obtained  in- 
surer's consent  to  their  removal.  Held,  not  a 
sale  and  conveyance.  Washington  Ins.  Co.  v. 
Hayes,  17  Ohio  St.,  432. 

43.  S.  erected  a  building,  and  procured  in- 
surance  upon  it.  He  subsequently  agreed  to 
exchange  with  F.,  for  certain  lands,  each  to 
give  an  unincumbered  title.  Deeds  were  made 
and  delivered  in  escrow,  until  F.  could  dis- 
charge a  mortgage  then  outstanding  against 
his  lands;  but  S.  got  possession  of  the  deed 
of  F.,  had  it  recorded,  and  returned  it  to 
the  custodian.  The  property  was  burned 
before  the  exchange  could  be  perfected.  Held, 
the  recording  of  the  deed  of  F.  did  not  make 
it  a  conveyance  to  S.,  for  F.  had  the  right  to 
compel  the  record  of  it  to  be  cancelled;  that 
the  only  efl'ect  of  recording  the  deed  was  to 
prevent  F.  from  further  incumbering  the 
lauds;  that  the  transactions  did  not  amount 
to  a  sale  of  tlie  interest  of  S.  People's  Ins.  Co. 
■e.  Straehle,  2  Gin.  Sup.  Ct.,  186. 

44.  Insured  made  a  deed  of  the  goods  in- 
sured to  C.  and  T.,  for  them  to  sell  and  pay 
debts  of  insured.  The  evidence  conflicted  as 
to  whether  the  deed  was  delivered;  but  there 
■was  no  transfer  of  possession.  The  policy 
prohibited  "  anj'  transfer  of  the  interest  of  the 
insured    by    sale    or    otherwise."    Held,  the 


making  and  delivery  of  the  deed,  without 
change  of  possession,  did  not  transfer  the  in- 
terest which  insured  had  in  the  goods.  Phce 
nix  Ins.  Co.  v.  Lawrence,  4  Met.  (Ky.).  9. 

45.  H.  &  H.  purchased  from  insured,  40,000 
shoulders,  in  bulk,  to  be  paid  for,  cash  on 
delivery.  The  vendors  ascertained  that  they 
had  not  that  number  in  the  condition  required 
by  contract,  but  they  had  shoulders  that  were 
being  smoked.  The  vendor  and  vendee  agreed 
that  the  deficiency  should  be  made  up  from 
the  smoked  shoulders.  The  vendees  employed 
an  inspector  to  inspect  them,  and  the  should- 
ers were  weighed  and  inspected  ten  or  fifteen 
days  before  tliey  were  consumed  by  the  fire  in 
question.  The  vendees  had  advanced,  by  way 
of  accommodation,  and  not  of  obligation,  to 
the  vendors,  $17,000,  about  one-half  of  tha 
cost  of  the  whole.  Held,  evidence  was  admis- 
sible to  show  that  it  was  the  understanding  and 
intention  of  the  parties  that  the  ownership  and 
risk  sliould  remain  with  the  vendors  and  un- 
der the  protection  of  their  insurance,  until 
payment  and  delivery,  for  when  the  insurers 
set  up  the  contract  ot  sale  as  a  defense  to  the 
policy,  they  must  abide  by  the  nature  and 
ett'ect  of  the  contract  of  sale  as  it  existed  be- 
tween the  parties  who  made  it.  Jackson  v. 
^ina  Ins.  Co.,  16  B.  Mon.,  243. 

46.  On  steam  boiler  and  connections,  vats, 
tubs,  etc.,  and  on  building,  separate  sums  ou 
each,  prohibited  any  sale,  alienation,  transfer, 
convej'ance  or  change  of  title  in  the  property 
insured.  The  husband  of  insured  sold  and 
delivered  the  boiler.  Held,  the  prohibition 
referred  to  the  really,  and  not  to  the  personal 
property;  the  sale  or  transfer  of  the  boiler 
did  not  aflect  the  right  of  the  insured  to  re- 
cover for  the  property  not  sold.  Commercial 
Ins.  Co.  V.  Spankneble,  53  111.,  53.  And  a  sale 
made  by  the  husband,  without  the  consent  or 
procurement  of  the  wife,  could  not  affect  her 
rights.    Ibid. 

47.  Policy  on  bar  room  furniture,  etc.,  for 
one  year  from  December  2,  1837.  Insured 
sold  to  F.,  who  kept  possession  about  six 
months,  and  then  F.  failing  to  pay  for  the 
property,  insured  took  possession  of  the 
goods  and  premises  and  retained  it  to  the 
time  of  the  loss,  which  was  within  the  term 
insured.  Held,  insurers  were  liable.  Power 
V.  Ocean  Ins.  Co.,  19  La.  (O.  S.),  28. 

48.  The  members  of  a  mutual  society  en- 
gaged to  contribute  to  the  losses  of  ear-h ;  but 

55 


Ill 


ALLEGATA  ET  PROBATA. 


112 


Variance. 


they  were  required  to  prove  property  of  £500 
in  a  ship,  and  jjive  six  months  notice  of  in- 
tention to  withdr.aw  from  membership.  The 
plaintitr  showed  that  ho  liad  tlie  requisite 
pioperly,  and  the  loss;  that  he  had  disposed 
of  the  ship  before  the  loss,  but  had  agreed  to 
pay  the  puichaser  £500  if  she  was  lost  wiOua 
three  months.  Held,  he  could  recover.  Recti 
n.  Cole,  3  Burr.,  1512. 

49.  One  of  the  rules  of  the  company  pro- 
vided that,  "  Ships  sold  shall  be  oflf  risk  from 
the  date  of  transfer,  provided  notice  in  wri- 
ting shall  be  given  ten  days  after  such  trans- 
fer, neglecting  to  do  so,  only  to  be  off  risk 
when  such  notice  is  given  to  the  secretary." 
The  owner  transferred  iier  absolutely  in  form, 
but  he  was  still  liable  for  the  debt  which  the 
transfer  was  intended  to  secure.  Held,  the  in- 
sured was  entitled  to  recover.  Hutchinson  v. 
Wright,  25  Beav.,  444;  4  Jur.  (N.  S.),  749;  27 
L.  J.  Ch.,  834. 


ALLEGATA  ET  PROBATA. 

^See  Evidence  ;  Limitation  op  Actions,  Pleaimsp; 

KEPOKlLiTION  OT  WKITINQ.) 

I.  Variance. 

II.   No  VARIANCE. 


Yaeiance. 

1.  If  the  insured  declares  for  a  loss  by  cap- 
ture, he  cannot  recover  upon  proof  that  it  was 
caused  by  barratry,  for  insurer  is  presumed 
not  prepared  to  answer  barratiy.  Crousillat 
V.  Ball  3  Yeates,  375;  4  Dall.,  294. 

2.  Under  a  general  averment  of  interest  in 
the  entire  thing,  the  insured  shall  recover  in 
proportion  to  the  quantum  of  interest  proved 
upon  the  trial.  Murray  v.  Columbian  Ins.  Co., 
11  .Johns.,  302. 

3.  Tlie  plaintiff  cannot,  upon  the  trial,  sus- 
tain a  recovery  upon  an  account  stated,  if  liis 
cause  of  action  is  founded  upon  what  is 
known  as  a  temporary  policy  under  the  Mas- 
sachusetts statute.  Greenfield  v.  Massachunetts 
Mutual  Life  Ins.  Co.,  47  N.  Y.,  430. 

4.  The  plaintiff  averred  that  he  was  inter- 
56 


ested  in  the  property,  but  it  appeared  that  the 
policy  had  been  assigned.  Held,  he  could  not 
maintain  the  action  without  averring  that  he 
purchased  the  propertj- before  the  loss.  Gran 
ger  v.IIownrd  Ins.  Co.,  5  Wend.,  200. 

5.  Plaintiff  averred  a  joint  loss  on  a  joint 
interest,  but  tlie  proof  was  a  separate  insur- 
ancc.  Held,  the  variance  was  fatal.  Burgher 
1}.  Columbian  Ins.  Co.,  17  Barb.,  274. 

6.  The  averment  of  interest  must  be  truly 
stHtfd  in  the  declaration  according  to  the  fact, 
vi'..,  that  the  policy  was  made  for  the  use  of 
tiie  olaintiff  and  two  others,  and  that  they 
weie  jointly  hiterested  at  the  time  it  was  made 
and  at  the  t'me  the  loss  occurred.  Rider  v. 
Ocean  Ins.  Co.,  go  Pick.,  359. 

v.  insured  offered  to  show  that  she  was  in- 
duced to  accept  the  policy  (one  of  the  condi- 
tions of  wtiicu  defeated  her  right  to  recover), 
by  the  iraud  of  the  defendants  and  their 
otBcers.  Held,  if  she  was  induced  to  take  the 
couti-act  by  fraud,  she  might  repudiate  it,  and 
have  her  remedy  against  the  party  by  whon> 
she  was  defrauded ;  but  she  could  not  sue  upoa 
the  contract  and  recover  by  proving  fraud. 
Tebbetts  v.  Hamilton  Mut.  Ins.  Co.,  3  Allen 
509. 

8.  lusu'-er  pleaded  that  insured  had  alterea 
the  buildings,  and  insured  traversed  the  plea 
Held,  evidence  of  waiver  was  inadmissible 
Diehl  V.  Adams  Covnty  Mut.  Ins.  Co.,  58  Penn 
St.,  443. 

9.  A  policy  to  two  ners'ins  jointly  cannot 
be  given  in  evidence  under  ".  count  setting  uo 
a  sole  interest  in  one.  Stetson  v.  Insvrance  Co.. 
3  Phila.,  380. 

10.  Unless  the  pleadings  disclose  the  phiiu 
tiff's  intention  to  recover  for  an  interest  othei 
than  his  own,  he  cannot  do  so,  notwithstand- 
ing that  the  policy  is  for  account  of  wliom  it 
may  concern.  Charleston  Insurance  d  Tn,tt 
Co.  V.  Corner,  2  Gill.,  410. 

11.  The  plaintiffs  averred  in  their  declara- 
tion that  the  defendant,  "  In  consideration  that 
the  said  company  had  accepted  the  assign- 
ment of  a  certain  policj'  to  the  defendants,  had 
there  and  then  promised  to  pay  all  assessments, 
etc."  But  the  contract  introduced  to  sustain 
this  allegation,  stated, "that  the  polic\-  having 
been  assigned  to  us  in  consideration  thereof, 
we  hereby  promise  to  pay  to  said  company 
all  assessments,"  etc.  Held,  the  consideratioa 
set  forth  in  the  declaration  was  an  acceptance 
of  the  assignment,  while  the  proof  was  an  as- 


113 


ALLEGATA  ET  PROBATA. 


114 


Vaiiance. 


Bignmcut  itself,  and  not  the  acceptance  of  it, 
■vvhicli  was  a  material  variance.  New  Ilamp- 
iliire  Mutual  Fire  Ins.  Co.  v.  JTunt,  30  N.  H., 
219. 

12.  If  tlie  action  is  for  a  total  loss  founded 
upon  an  abandonment,  it  must  be  based  upon 
the  cause  assigned  in  the  notice  of  aband- 
onment. Maryland  Ins.  Co.  v.  Bathursl,  5  G. 
&  J.,  159. 

IH.  The  insured  may  recover  for  a  partial 
loss,  though  he  declares  for  a  total.  Barney  v. 
Maryland  Tns.  Co.,  5  H.  &  J.,  139. 

14.  Tlie  petition  set  forth  an  absolute  agree- 
ment to  insure,  independent  of  any  policy  or 
other  prior  transaction.  But  insured  oQ'ered 
parol  proof  to  show  that  the  ■written  policy 
■was  modified  by  consent  and  agreement  of  the 
parties.  Held,  under  the  pleadings,  it  was 
not  competent  to  graft  the  verbal  on  the  writ- 
ten  agreement.  Ilcnning  v.  United  States  Ins. 
Co.,  47  Mo.,  425. 

15.  The  indictment  charged  A.  and  B.  with 
burning  the  premises.  The  evidence  was 
clear  that  if  they  were  guilty  at  all,  it  was  by 
way  of  procurement.  Held,  a  fatal  variance ; 
the  accused  could  not  be  convicted  unless  they 
were  present  at  the  burning.  Meister  v.  The 
People,  31  Mich.,  99. 

16.  The  policy  ■svas  to  Nicholas  Staaden, 
but  the  magistrate's  certificate  described  in 
the  declaration  was  made  to  C.  Staaden.  There 
was  no  averment  that  C.  Staaden  and  Nicho- 
la.s  Staaden  were  one  and  the  same  person. 
neld,  the  declaration  did  not  agree  with  the 
proof,  and  therefore  the  judgment  must  be  re- 
versed with  leave  to  amend.  Great  Western, 
Ins.  Co.  V.  Staaden,  26  111.,  360. 

17.  The  policy  was  made  subject  to  certain 
conditions  annexed,  some  of  ■nhich  were  con- 
ditions precedent.  Held,  the  policy  and  the 
conditions  constituted  an  entire  contract,  and 
the  legal  effect  of  the  whole  should  have  been 
set  out  in  the  declaration,  and  failing  so  to  do, 
the  contract  was  not  admissible  in  evidence 
against  the  insurer.  Rockford  Ins.  Co.  v.  Nel- 
ton,  65  111.,  415. 

18.  At  and  from  Gottcnberg,  to  her  first 
port  of  discharge  in  the  Baltic  not  higher  than 
Riga,  beginning  the  adventure  from  the  load- 
ing thereof.  Insurances  had  been  made  upon 
the  same  from  London  to  Gottenberg  only,  by 
the  same  insurer,  who  knew  that  he  was  insur- 
ing the  same  goods  in  the  second  policy  that 
■were  mentioned   in   the    first.    The    insured 


alleged  in  his  declaration  that  the  goods  were 
laden  at  Gottenberg.  They  were  not  dis- 
charged from  the  ship  at  Gottenberg,  but 
continued  on  board  from  the  lading  there- 
of at  London  until  they  were  captured  after 
slie  left  Gottenberg.  Held,  the  plaintitf  must 
be  nonsuited.  Spitta  v.  Woodman,  2  Taunt., 
416. 

19.  The  interest  averred  in  the  declaration 
must  be  truly  stated,  and  if  there  be  two 
counts,  one  averring  an  interest  in  A.  and  the 
other  an  interest  in  B.,  and  the  proof  is  that 
A.  and  B.  are  jointly  interested,  the  variance 
is  fatal.     Cohen  v.  Hannam,  5  Taunt.,  101. 

20.  The  plaintiff  averred  that  after  the 
loading  of  the  cargo  the  ship  was  lost.  But, 
the  proof  was  that,  before  she  had  one  half 
her  cargo  on,  she  was  driven  from  her  moor- 
ings and  lost.  Held,  the  variance  was  fatal. 
Abitbol  V.  Bristow,  6  Taunt.,  464;  S.  C,  2 
Marsh.,  157. 

2 1 .  Where  one  has  separate  demands 
against  several  persons  for  unequal  sums,  an 
oS'er  of  one  sum  for  the  debts  of  all  does  not 
support  a  plea  which  states  that  a  certain 
portion  of  the  sum  was  tendered  for  the  debt 
of  one.  Strong  v.  Harvey,  3  Bing.,  304 ;  4  L. 
J.  C.  P.,  57;  11  Moore,  73. 

22.  Certain  regulations  of  the  association 
were  indorsed  on  the  back  of  the  policy  and 
were  declared  to  be  a  part  of  it.  Held,  the 
regulations  as  ■well  as  the  polic}-  must  be  set 
out  in  the  declaration.  Strong  v.  Mule,  3  Bing., 
315:  4  L.  J.  C.  P.,  73;  11  Mooro,  86. 

23.  The  declaration  averred:  "That  the 
goods  were  seized  in  a  forcible  and  hostile 
manner  by  certain  persons,  enemies  of  our 
lord  the  king,  to  the  plaintiff  unknown."  She 
arrived  at  a  port  near  Campeachy,  put  the 
goods  into  a  launch  with  a  view  to  running 
them  ashore  in  the  night  at  Campeachj'.  They 
■svere  seized  by  two  Spanish  brigs — the  land- 
ing being  illegal  by  the  laws  of  Spain.  Held, 
the  proof  did  not  support  the  averment.  Mat- 
thie  V.  Potts,  3  B.  &  P.,  23. 

24.  Loss  alleged  by  the  barratry  of  the 
mariners  and  hy  the  perils  of  the  seas.  The 
acts  of  barratry  ■n'cre  taking  on  board  smug- 
gled goods,  for  which  she  was  seized  but  re- 
stored upon  the  ownei's'  petition.  While  she 
was  under  seizure  she  suffered  damage  by  col- 
lision. Held,  when  the  ship  was  under  seizure, 
the  owner  ceased  to  have  any  property  in  her, 
for,   if  the  seizure  ■n-as  pro  jiista  causa,  the- 

57 


115 


ALLEGATA  ET  TROBATA. 


116 


No  variance. 


property  immediately  vested   in  the  crown. 
Pipon  V.  Cope,  1  Camp.,  434. 

25.  If  the  plaintitf  declare  for  a  loss  by 
"perils  of  the  seas,"  he  cannot  recover  if  the 
proof  shows  a  loss  merely  barratrous,  as  a 
fraudulent  sale  or  the  like;  but,  if  the  barra- 
trous conduct  be  the  cause  of  a  loss  by  perils 
of  the  seas,  the  declaration  is  supported.  Hay. 
man  v.  Parish,  2  Camp.,  149. 

26.  Th";  ship  insured,  mistaken  for  a 
French  privateer,  was  fired  into  and  immedi- 
ately sank,  and  it  was  alleged  in  the  declara- 
tion a  loss  by  perils  of  the  sea.  Held,  a  vari- 
ance. CulUn  V.  Butler,  4  Camp.,  289 ;  5  Mau. 
&  Sel.,  461;  1  Stark.,  110. 

2".  The  loss  was  alleged  to  be  "with  force 
and  in  a  violent  and  piratical  manner  attack- 
ed, boarded,  seized  and  taken  by  certain  pi- 
rates, to  the  plaintiff  unknown."  She  was 
forced  by  stress  of  weather  into  EUy  harbor, 
Ireland,  and  there  h.appening  to  be  a  great 
scarcity  of  corn  there,  she  was  boarded  by  a 
great  number  of  persons  who  took  control  of 
her  and  weighed  anchor,  by  which  she  drifted 
upon  a  reef  where  she  was  stranded.  Some 
of  the  corn  was  thrown  overboard  and  other 
part  damaged.  Held,  the  proof  did  not  sup- 
port the  declaration.  Nesbiltv.  Lushington,  4 
Term,  783. 

28.  The  declaration  averred  the  interest  in 
John  Bell,  and  that  the  policy  was  made  for 
the  benefit  and  on  account  of  John  Bell.  The 
persons  really  interested  were  John  Bell  and 
his  brother  William.  Hild,  a  substantial  va- 
riance.   Bell  «.  Ansley,  16  East,  141. 

29.  The  plaintiffs  averred  that  they  were 
the  persons  residing  in  great  Britain,  who 
received  the  orders  for  and  executed  the  in- 
surance. Held,  although  without  such  an 
averment  the  court  might  have  been  bound 
only  to  see  that  they  answered  to  any  one  of 
the  descriptions  specified  in  the  act,  the 
plaintiffs  had  now  limited  themselves  to  that 
precise  description  and  were  bound  to  prove 
it.    Bell  V.  Janson.  1  Mau.  &  Sel.,  201. 

30.  The  declaration  alleged  that  the  affida- 
vits of  three  persons  who  were  present  at  the 
fire  were  delivered  to  insurers  as  required  by 
the  terms  of  the  policy.  The  plaintiff  proved 
delivery  of  one  affidavit  onlj'.  Held,  insured 
must  submit  to  a  nonsuit.  Alderman  v'.  West 
of  Scotland  Ins.  Co.,  5  U.  C,  37. 

31.  The  plaintiff  averred  performance  of 
condition  requiring  proof  of  loss  to  be  made 

58 


within  certain  time  and  in  a  particular  man- 
ner.  Held,  evidence  of  waiver  could  not  be 
received;  compliance,  not  waiver,  must  be 
proved.  McFaul  v.  Montreal  Inland  Ins,  Co.. 
2  U.  C.  Q,  B.,  59. 

II.   No  VAEIANCE. 

1.  It  is  not  necessary  to  aver  an  abandon, 
ment  and  notice  thereof,  for  these  are  mere 
pieces  of  evidence  to  establish  a  total  loss 
and  are  admissible  as  such  under  an  aver- 
ment of  "  total  loss."  Columbian  Ins.  Co.  v. 
Catlett,  12  Wheat.,  383. 

2.  The  declaration  stated  the  consideration 
to  be  the  payment  of  certain  premiums  quar- 
terly. The  policy  stated  the  consideration: 
"  Of  said  premiums  and  of  the  statements  and 
declarations  made  in  the  application  for  the 
policy.  The  application  was  not  set  out  iu 
the  declaration.  Held,  no  variance  (citing- 
Pillman  v.  Fuller,  13  Mich.,  113;  Forbes  v 
Insurance  Co.,  15  Gray,  219 ;  Campbell  v.  New 
England  Ins.  Co.,  98  Mass.,  381;  1  Chitty  PI. 
299;  Life  and  Fire  Ins.  Co.  v.  Johnson,  24  N. 
J.,  576 ;  New  York  Life  Ins.  Co.  ■».  Graham,  2 
Duvall,  506).  Jacobs  s.  National  Life  Ins.  Co., 
1  McArthur,  633. 

3.  The  declaration  alleged :  "  Defendant,  in 
consideration  of  having  received  the  policy, 
agreed  to  pay  his  proportion  of  any  losses 
and  expenses,  not  exceeding  a  certain  sum, 
while  the  defendant  was  a  member  of  the 
company."  Held,  the  plaintiff  was  entitled 
to  recover  any  sum  duly  assessed  within  the 
sura  named,  and  that  the  policy  was  evidence 
under  the  allegation.  People's  Mutual  Fire 
Ins.  Co.  V.  Clark,  13  Gray,  165. 

4.  It  is  not  necessary  to  allege  or  prove  a 
special  demand  when  the  suit  is  an  action  of 
account.    Sturges  v.  Bush,  5  Dny,  453. 

5.  The  declaration  averred  performance  of 
all  conditions  precedent,  but  the  proof  showed 
a  waiver  of  performance.  Held,  an  amend- 
ment could  be  allowed  after  verdict.  Lycom- 
ing County  Ins.  Co.  v.  Shollenberger,  44  Pena. 
St.,  259. 

6.  The  contract  was  in  the  name  of  O'Con- 
nor,  but  the  evidence  showed  that  plaintiff 
was  known  by  the  name  of  Connor  as  well  as 
that  of  O'Connor.  Held,  no  variance.  Hi- 
bernia  Ins.  Co.  n.  O'Connor,  39  Mich.,  241. 

7.  The  pleader  alleged  the  making  of  the 
policy  at,  to  wit.  Bay  City,  Michigan.    The 


117 


ALLEGATA  ET  PROBATA. 


118 


No  variance. 


instnimeat  proiluccil  appeared  to  have  betn 
executed  iu  the  state  of  Illinois.  Ileld,  the 
variance  was  immaterial.  Clay  Fire  and  Ma- 
ritie  Ins.  Co.  v.  Huron  Salt  and  Lumber  Co.,  31 
Mich.,  346. 

8.  Policy  to  mortgagee  on  his  interest  in 
two  wooden  dwelliugs,  owned  by  D.  W. 
Young,  situated  on  lots  1  and  3  of  the  original 
town  of  Aurora.  The  mortgage  proved  the 
situation  to  be  lots  1,  2  and  3,  instead  of  1  and 
3.  Held,  the  declaration  did  not  profess  to  de- 
scribe the  mortgage,  but  intended  only  to 
identify  the  loss,  and  therefore  there  was  no 
variance.  Hartford  Ins.  Co.  v.  Hadden,  28 
111.,  260. 

9.  The  defendant  was  declared  against  as 
the  Insurance  Company  of  North  America. 
The  policy  read:  "The  president  and  direct- 
ors of  the  Ins.  Co.  of  North  America."  Held, 
the  averment  was  the  legal  effect  of  the  words 
of  the  contract  and  therefore  no  variance.  In- 
surance Co.  of  Nortli  America  v.  McDowell,  50 
111.,  120. 

10.  Action  upon  a  parol  contract  to  insure. 
Upon  the  trial  defendant  gave  evidence  that  it 
was  made  subject  to  the  conditions  of  the 
usual  printed  policy,  and  the  plaintiff  was 
allowed  to  give  evidence  to  show  that  it  was 
agreed  between  the  parties  that  the  property 
should  be  shipped  on  deck,  notwithstanding 
the  printed  conditions  of  the  policies  required 
a  special  indorsement  for  that  purpose.  Held, 
no  variance.  Northwestern  Iron  Co.  v.  jStna 
Ins.  Co.,  26  Wis..  78. 

1 1.  The  complaint  alleged  an  unconditional 
contract  on  the  part  of  the  defeudaut  for  a  con- 
sideration specitied  to  insure  property  named 
against  loss  by  fire  for  a  time  stated,  and  a  loss 
by  fire  within  that  time,  and  a  failure  to  pay 
notwithstanding  plaintill''s  request.  Held, 
good  cause  of  action.  Clark  v.  Phmnix  Ins. 
Co.,  36  Cal.,  168.  But  upon  producing  the 
contract,  it  appeared  that  loss  by  theft  at  or 
after  a  fire,  and  damage  by  fire,  caused  by 
means  of  or  during  an  invasion,  insurrection, 
riot,  civil  commotion,  or  military  or  usurped 
power  were  excepted.  Held,  the  contract  was 
cot  admissible  under  the  cause  of  action 
alleged,  but  that  the  plaintiff  had  the  right,  by 
leave  of  court,  to  amend  the  complaint  at  the 
trial.    Ibid. 

12.  Under  a  general  averment  of  perform- 
ance, the  insured  may  give  evidence  tending 
to  establish  a  waiver  of  formal  defects  in  pre- 


liminary proofs.    St.  Louis  Ins.  Co.  v.  Kyle, 
11  Mo.,  278. 

13.  Stipulated:  "A  particular  account  of 
the  loss  must  be  delivered  to  the  company 
within  thirty  days  thereafter,"  which  was  not 
done.  Held,  the  insured  might,  without  .alleg- 
ing  the  fact  in  the  petition,  prove  th.-it  defend- 
ant had  treated  the  stipulation  as  of  no  im- 
portance, and  h.ad  waived  a  performance  of  it. 
This  would  be  equiv.alent  to  proof  of  actual 
performance  without  any  special  averment. 
Bmsell  V.  State  Ins.  Co.,  55  Mo.,  585. 

14.  The  plaintiff  insured  in  his  own  name, 
in  trust  for  another,  and  he  brought  his  action 
upon  the  policy  generally,  without  setting 
forth  the  capacity  in  which  he  sued.  The  evi- 
dence showed  that  three  persons  had  a  joint 
interest  in  the  subject  insured,  and  that  one  of 
them  authorized  the  plaintiff  to  insure  his  in- 
terest. Held,  the  evidence  supported  the  de- 
claration.    Peron  v.  Frone,  1  Barn.  K.  B.,  304. 

1 5.  The  plaintiffs  were  denominated  in  the 
jiolicy  the  trustees  of  K.,  F.  &  Co.  Held,  suf- 
ficient, for  it  might  be  considered  their  usual 
stjde  and  firm  name.  Hibbert  v.  Martin,  1 
Camp.,  538. 

1 6.  The  declaration  averred  the  loss  by  the 
perils  of  the  seas.  The  defense  was  that  the 
captain  sailed  in  a  foul  wind  contrary  to  the 
pilot's  directions ;  that  he  disobeyed  the  pilot's 
instructions,  though  informed  of  the  conse- 
quences ;  that  an  anchor  was  put  out  to  stop 
her  going  ashore,  and  that  the  captain  cut  the 
cable,  and  allowed  her  to  drift  on  the  rocks. 
Held,  barratrous,  but  not  merely  so,  and  the 
loss  was  well  averred  by  perils  of  the  seas. 
Hayman  v.  Parish,  2  Camp.,  149. 

17.  The  subject  insured  was  captured  by 
naval  and  army  forces  acting  conjointly,  and 
the  interest  was  averred  in  the  flag  and  gen- 
eral officers,  commanders,  and  other  oflicers, 
seamen,  marines,  and  soldiers.  Held,  the  in- 
terest was  well  averred.  Sterling  v.Vaughan, 
3  Camp.,  225;  S.  C,  11  East,  619. 

18.  Ship  was  captured  and  condemned,  and 
the  loss  was  averred  by  capture;  but  it  ap- 
peared that  the  capture  was  the  result  of  an 
agreement  between  her  master  and  the  captain 
of  the  privateer.  Held,  the  averment  of  loss 
was  sutlicient,  notwithstanding  the  barratrous 
conduct  of  the  master.  Arcangelo  v.  llwmpson, 
2  Camp.,  620. 

19.  It  was  averred  that  the  ship  was  arrest- 
ed b}-  persons  exercising  the  powers  of  gov- 

59 


119 


ALTERATION  OF  INSTRUMENTS. 


\2i} 


Material. 


ernment,  and  that  the  cargo  was  then  and  there 
by  said  persons  seized,  detained  and  confis- 
cated. Held,  it  was  sustained  by  proof  that 
they  were  forcibly  taken  possession  of  by  offi- 
cers of  the  government.  Cari'uthers  v.  Gray, 
3  Camp.,  142;  15  East,  35. 

20.  The  declaration  averred  that  P.  and  N. 
were  interested,  and  that  the  insurance  was 
made  for  P.  and  N.  The  evidence  showed 
that  N.  had  become  a  partner  after  tlie  insur- 
ance was  made,  and  as  such  was  interested  iu 
the  goods  at  the  time  of  the  loss.  Held,  the 
interest  was  well  averred.  Perchard  v.  Whit- 
more,  3  B.  i&  P.,  155  n. 

21.  The  declaration  avei-red  that  Messrs.  H., 
at  the  time  of  effecting  the  policy,  and  at  the 
time  of  the  loss,  were  interested  in  the  subject 
insured;  but,  it  appeared  that  Messrs.  H.,  be- 
fore the  policy  was  made,  had  admitted  an- 
other mercantile  house  to  an  interest  in  the 
subject  insured.  Held,  no  variance.  Page  v. 
Fry,  2  B.  &  P.,  240;  3  Esp.,  185. 

22.  It  was  alleged  in  the  declaration  that  at 
the  respective  times  of  effecting  the  policy, 
and  of  the  loss,  the  plaintiff  was  interested  in 
the  ship  and  freight  respectively.  Held,  the 
allegation  of  interest  at  the  time  of  making  the 
policy  was  immaterial,  and  not  to  be  proved. 
jihind  V.  Wilkinson,  2  Taunt.,  237. 

23.  It  was  averred  in  the  declaration  that 
the  plaintiff,  together  with  E.  M.,  was  inter- 
ested in  the  ship.  Insured  executed  a  bill  of 
sale  to  E.  M.,  Dec.  7,  but  prior  to  that  time  he 
was  the  sole  owner.  Registration  was  not 
completed  till  the  19th.  Held,  the  averment 
was  good.    Ritchie  v.  St.  Barbe,  4  Taunt.,  768. 

24.  If  the  ship  insured  was  foreign  when 
the  policy  was  underwritten,  and  the  loss  hap- 
pened, no  interest  need  be  averred  in  the 
declaration ;  it  is  sufficient  to  state  the  fact  that 
she  was  foreign.  Kellner  v.  Le  Mesuirer,  4 
Eist,  396;  1  Smith,  72. 

25.  It  was  alleged  in  the  declaration  that 
she  sailed  after  the  making  of  the  policy.  '  The 
proof  was  that  she  sailed  before  it  was  made. 
Held,  the  averment  did  not  arise  out  of  the 
contract,  and  that  omitting  it,  the  declaration 
would  be  perfect.  Peppin  v.  Solomons,  5  Term, 
496. 

26.  Declaration  alleged  delivery  of  a  partic- 
ular account  of  the  loss,  which  was  traversed 
specially.  Upon  the  trial,  to  support  the 
plaintiff's  case,  he  was  allowed  to  put  in  a 
correspondence    between    Ihe    parties    from 

60 


which  the  jury  mitrht  infer  that  the  insurer 
had  waived  the  condition.  Pirn  v.  lieid,  6  M. 
&  G.,  1 ;  6  Scott,  K.  R.,982;  12  L.  J.  C.  P.,  209. 
27.  "Barratry  of  the  master  and  all  other 
perils  and  misfortunes  which  shall  happen  to 
the  prejudice  of  the  ship."  The  breach  alleged 
was  that  by  the  fraud  and  negligence  of  the 
master  she  was  totally  lost.  Held,  the  aver- 
ment supported  a  loss  by  barratry.  Knight  v. 
Cambridge,  2  Ld.  Ray.,  1349 ;  1  Strange,  581 ; 
8  Mood.,  230. 


.ALTERATION  OF  INSTRUMENTS. 

I.  Material. 
II.  Immatekiai,. 


I.     Material. 

1.  The  defendant  subscribed  the  usual 
printed  form  of  policy,  upon  ship  and  cargo, 
(but  the  ship  was  not  named)  at  and  from  Lon- 
don to  any  port  or  ports  in  the  Baltic.  Words 
descriptive  of  the  specific  subject  of  insurance 
were  not  inserted,  nor  any  value  declared,  nor 
any  sum  mentioned;  100  hhds.  of  fine  sugar, 
60  hhds.  molasses  and  20  tons  of  fustic,  were 
afterwards  inserted,  and  the  policy  was  sub- 
scribed by  several  underwriters.  The  defend, 
ant  had  never  consented  to  the  alteration. 
Held,  the  defendant  was  not  liable  on  the  pol- 
icy.    Langhorn  v.  Cologan,  4  Taunt.,  330. 

2.  After  subscription,  insured  struck  out  the 
date  when  the  ships  were  warranted  to  sail, 
and  inserted  in  the  memorandum  a  later  date, 
intending  to  get  the  time  enlarged,  to  which  all 
the  insurers  did  not  assent.  Held,  the  policy 
was  destroyed,  and  that  for  a  ship  which 
sailed  prior  to  the  date  stricken  out  and  lost, 
there  could  be  no  recovery.  Fairlie  s. 
Christie,  7  Taunt.,  416;  S.  C,  Holt,  N.  P.,  331 ; 
1  Moore,  117. 

3.  The  policy  was  altered  by  inserting  the 
words,  "  or  Weymouth,"  after  "  Portsmouth," 
to  which  some  of  the  insurers  consented. 
Held,  no  recovery  could  be  had  against  an  in- 
surer who  had  not  consented  to  the  alteration, 
although  upon  being  informed  of  the  altera- 
tion after  the  loss,  he  said  he  would  not  take  ad- 
vantage of  it.  Campbell  v.  Christie,  3  Stark.,  57 

4.  A  policy  was  altered,  as  to  the  subject 


121 


ALTER ATIOMS  AND  REPAIRS. 


122 


Miscellaneous. 


matter,  after  it  had  attached,  but  wa.s  not  re- 
stumped.  Held,  it  was  not  a  valid  instrument. 
French  v.  Patten,  1  Camp.,  73,  180  b ;  S.  C,  9 
East,  351. 

5.  Policy  from  Cuba  to  Liverpool,  with 
liberty  on  that  voyage  to  proceed  to,  touch  and 
stay  at  any  port  or  places  whatever,  and  with 
leave  to  discharge  or  take  in  cargo  at  any 
ports  or  places  she  might  touch.  After  sub- 
scription, the  words,  "  with  leave  to  call  ofl" 
Jamaica,"  were  interpolated,  to  which  all  as- 
sented except  the  defendant,  who  was  absent 
and  therefore  not  applied  to.  iShe  sailed  with 
ten  men,  eight  to  navigate  to  Liverpool,  and 
two  to  Jamaica,  being  unable  to  procure  a  full 
crew  for  Liverpool.  She  touched  at  Jamaica 
to  land  the  two  and  get  others  in  their  stead, 
and  was  lost  on  the  waj'  home.  Held,  the  al- 
teration was  material  and  the  policy  avoided. 
Foreihaw  v.  Chawbert,  3  B.  &  B.,  IDS ;  6  Moore, 
309.    . 

6.  She  was  insured  for  a  voyage  from  Vir- 
ginia to  Rotterdam,  with  leave  to  call  at  a 
port  in  ilngland,  but  after  some  of  the  under- 
writers had  signed,  a  memorandum  was  in- 
dorsed changing  the  point  of  destination  to 
Hull.  Hull  was  not  a  place  in  the  course  be- 
tween Virginia  and  Rotterdam.  Held,  all  the 
insurers  were  released  except  those  who  signed 
the  indorsement.  Reversing  interlocutors  of 
Scotch  court.  Laird  v.  Hobertson,  4  Bro.  P. 
C,  488. 

II.     Immaterial. 

1.  On  ship  at  and  from  L.,  to  her  port  or 
ports  of  discharge,  and  loading  in  Africa  and 
African  islands,  and  during  her  stay  there  to 
sell,  barter,  exchange,  load  and  unload,  and  at 
and  from  thence  to  L.,  or  linal  port  of  dis- 
charge  in  United  Kingdom,  with  liberty  to 
sail  and  touch  at  any  ports,  etc.  He  inserted 
the  words  "  to  trade,"  immediately  after  the 
words,  "  during  her  staj-,"  to  which  some  of 
the  insurers  assented,  but  one  of  them  refused 
to  pay  a  loss  under  the  policy.  Held,  as  the 
policy  originally  stood,  she  had  aright  to  sell, 
barter  and  exchange,  load  and  unload,  etc., 
which  words  were  descriptive  of  trading, 
hence,  the  words  introduced  by  insured  were 
imtnatcrial,  and  did  not  affect  its  validity. 
Sanderson  v.  Synwnds,  1  B.  &  B.,  42G ;  4  Moore 
42. 

2.  "  On  the  Three  Sisters  from  Cadiz  and 


Seville  to  Liverpool."  After  it  was  signed  the 
insured  inserted,  "  Tres  Hermanas,"  after  the 
word,  "  Sisters,"  and,  "both  or  eithei,"  after 
the  word,  "  Seville."  Held,  it  did  not  aflect  the 
policy,  for  the  legal  operation  of  the  instru- 
ment was  not  aflected  by  the  insertions.  Clap- 
ham  V.  Cologan,  3  Camp.,  383. 

3.  On  ship,  Liverpool  to  Africa,  and  during 
stay  there,  with  liberty  to  sell,  barter  and  ex- 
change  goods  at  all  or  any  of  tbe  ports  she 
might  call  at  and  proceed  to.  After  the  words, 
"  stay  there,"  insured  inserted,  "  sell,  barter 
and  exchange  goods  and  trade."  Held,  the  al 
tei'ation  was  not  material.  Sanderson  v.  Mo 
Oullom,  4  Moore,  5. 


ALTERATIONS  AND  REPAIRS. 

(See  Representations;  Use  and  Occupation.) 

1.  Stipulated:  "Not  to  be  used  or  appro- 
priated for  carrying  on  any  trade,  business  or 
vocation  specified  in  the  memorandum,"  in 
which  was  mentioned,  "  houses,  building  or  re- 
pairing." Held,  insured  had  the  right  to  make 
ordinary  or  necessary  repairs,  unless  they 
increased  the  risk,  of  which  the  jury  were  the 
judges.     0-rant  v.  Howard  Ins.  Go.,  5  Hill,  10. 

2.  "  To  be  void  if  the  building  shall  be  used 
for  any  trade  or  purpose  denominated  haz- 
ardous or  extra  hazardous,  or  for  storing  any 
articles  denominated  hazardsus  or  extra  haz- 
ardous." The  application  described  the 
premises  "  Occupied  by  G.  as  a  private  dwel- 
ling." The  conditions  annexed  declared, 
houses,  building  or  repairing  are  insurable 
only  at  special  rates;  and  oils  and  tiu'penline, 
were  by  the  same  conditions  denominated 
hazardous  and  extra  hazardous.  The  buila- 
ing  was  consumed  by  fire  while  being  re- 
paired and  painted;  oils  and  turpentine  being 
in  it  for  that  purpose.  Held,  the  risk  of  ordi- 
nary repairs  was  covered  by  the  policy;  that 
introducing  oil  and  turpentine  for  the  purpose 
mentioned  was  not  storing  them,  within  the 
intention  of  the  parties.  O'Neil  v.  Buffalo 
Fire  Ins.  Co.,  3  N.  Y.,  122. 

3.  In  the  application,  insured  stated :  "  The 
works  are  in  good  condition,  and  there  is  a 
forcing  pump  designed  expressly  for  protec- 
tion against  fire,  at  all  times  in  good  condi- 
tion for  use."     Insured  interrui)ted  the  sup. 

61 


123 


AMENDMENTS. 


124 


At  and  alter  triid. 


ply  of  water  for  several  days,  while  a  new 
stone  bulk  head  was  being  substituted  in 
place  of  a  wooden  one  which  was  badly  de- 
cayed. A  wooden  bulk  head  might  have  been 
put  in  in  one  day.  The  fire  occurred  while  the 
repairs  were  being  made,  and  at  the  time  the 
forcing  pump  could  not  be  used  for  want  of 
water.  Held,  diverting  the  water  and  dis- 
abling the  pump  did  not  avoid  the  policy  if  the 
repairs  were  made  without  unnecessary  delay. 
Townsend  v.  Northwestern  Ins.  Co.,  18  N.  T., 
168. 

4.  Stipulated:  "The  working  of  carpen- 
ters, roofers,  tinsmiths,  etc.,  in  building,  alter- 
ing or  repairing  the  premises,  will  vitiate  the 
policy  unless  permission  be  given  in  writing, 
except  in  dwelling  houses  only,  where  five 
daj'S  in  ever}'  one  year  are  allowed  for  inci- 
dental repairs."  Insured  procured  a  carpen- 
ter's and  mechanic's  risk  for  two  months,  and 
made  extensive  repairs.  The  work  was  dis- 
continued and  after  the  two  months  had  ex- 
pired, insured  commenced  further  repairs, 
taking  ofi"  decayed  and  putting  on  new  siding. 
This  had  progressed  about  three  days  when 
the  house  was  destroyed  by  an  incendiarj'. 
Held,  incidental  repairs,  and  as  it  had  not  ex- 
ceeded five  days,  insurers  were  liable.  Rann 
v.  Some  Ins.  Co.,  59  N.  T.,  387. 

5.  Stipulated :  "  To  be  void  in  case  repairs 
or  additions  shall  be  made  without  insurer's 
consent  indorsed  on  the  policy."  The  agent 
who  accepted  the  risk,  made  and  delivered 
the  policy,  knew  that  additions  and  altera- 
tions were  being  made  some  time  after  he  de- 
livered the  policy,  but  he  made  no  objec- 
tion to  their  continuance.  Held,  evidence  to 
show  that  the  condition  was  waived.  Hatch- 
kiss  V.  Oermania  Fire  Ins.  Co.,  5  Hun.  (N.  Y.), 
90. 

6.  The  insurer  defended  on  the  ground  that 
the  building  had  been  altered.  Held,  insured 
might  prove  that  the  alteration  was  contem- 
plated and  insurer  informed  of  it  at  the  time 
the  policy  was  made;  and  if  the  alteration 
did  not  conform  to  the  intention,  that  would 
not  affect  the  policy,  unless  the  risk  was 
thereby  increased.  Perry  County  Ins.  Co.  v. 
Steicart,  19  Penn.  St.,  45. 

7.  Tenant  told  the  owner  he  desired  to 
make  some  alterations,  in  order  to  adapt  the 
house  to  his  business.  Policy  prohibited  al- 
terations by  the  insured.  Held,  it  was  proper 
to  leave  to  the  jury  the  question,  whether  raa- 

62 


tcrial  alterations  were  contemplated  by  both 
parties.  Padelford  v.  Providence  Mutual  Fire 
Ins.  Co.,  3  R.  I.,  102. 

8.  "On  a  stone  building  with  a  stone  addi- 
tion  on  one  side  and  a  frame  addition  on  the 
other  side."  Insured  took  out  eighteen  feet  of 
the  frame  addition  and  carried  it  to  the  other 
end  of  the  frame  addition,  thereby  separating 
the  stone  building  from  the  frame  addition. 
The  policy  did  not  prohibit  alterations  or  re- 
pairs. Held,  the  right  to  repair  and  alter 
buildings  is  incident  to  the  ownership,  and 
such  repairs  and  alterations  which  do  not 
change  the  risk  or  increase  it  may  be  made 
without  affecting  the  validity  of  the  policy 
(Welker,  J.,  N.  D.  Ohio).  Dorn  v.  Oermania 
Ins.  Co.,  8  Chi.  Leg.  News,  1.56. 

9.  Stipulated:  "The  working  of  carpen- 
ters, roofers,  tinsmiths,  gas  fitters,  plumbers 
or  other  mechanics,  in  building,  altering  or 
repairing  the  premises  without  permission  in 
writing  shall  vitiate  the  policy."  Insured  kept 
a  carpenter  or  two  around  the  building  the  year 
through,  constantly  making  repairs  to  keep 
the  building  in  a  thorough  condition.  Held,  it 
did  not  affect  the  right  of  insured  to  recover, 
for  it  could  not  be  understood  as  prohibiting 
the  casual  patching  up  of  the  building. 
Franklin  Fire  Ins.  Co.  v.  Chicago  Ice  Co.,  36 
Md.,  103. 


AMBIGUITY. 

(See  Evidence,  III,  c.) 


AMENDMENTS. 

I.  At  and  after  tkial. 
II.  After  judgment. 

III.  New  p.\rties. 

IV.  Generally. 

I.  At  and  after  tkial. 

1.  Under  the  act  of  1806,  the  declaration 
may  be  amended  after  Oie  counsel  have  ar- 
gued the  case.  Franklin  Fire  Ins.  Co.  c.  Firt- 
lay,  6  Whart.,  483. 

2.  The  plaintiff  omitted  to  set  forth  in  her 


125 


AMENDMENTS. 


12tf 


After  judgment  —  Generally. 


pleadings  one  of  the  conditions  of  the  con- 
tract. Held,  proper  for  the  court  to  allow  an 
amendment  on  the  trial  by  inserting  the  omit- 
ted condition.  New  York  Life  Jus.  Co.  v. 
Hendren,  24  Grat,  536. 

3.  The  plaintiff  was  permitted  to  amend  on 
the  trial.  Meld,  it  could  not  be  reviewed  in 
this  court.  Farmers  and  Mechanics  Ins.  Co. 
V.  Simmons,  30  Penn.  St.,  299. 

4.  Defendant  introduced  the  application, 
proved  its  execution  by  plaintiff  and  moved 
that  "  plaintiff  be  called."  Tlie  court  permit- 
ted plaintiff  to  amend  by  setting  out  the  ap- 
plication and  making  it  a  part  of  the  com- 
plaint. ITeld,  the  amendmennt  put  the  case 
in  the  same  plight  and  condition  it  would 
have  been  in  h.ad  the  matter  introduced  by 
the  amendment  been  set  out  in  the  complaint 
•when  it  was  originally  filed.  Wynne  v.  Lie- 
erpool,  London  and  Qlobe  Ins.  Co.,  71  N.  C, 
121. 

.5.  The  sheriff's  return  showed  service  Sept. 
22,  1873,  on  the  president  by  reading  and  deliv- 
ering a  copy  thereof  to  liim  on  that  day.  Judg- 
ment was  rendered  November  19,  by  default. 
The  court  allowed  the  sheriff  to  amend  the 
return  by  whicli  it  appeared  that  the  ofHcer 
delivered  to  and  left  with  the  president  a  copy 
of  the  writ.  The  record  showed  that  de- 
fendant's counsel  was  present  when  the 
amendment  was  made.  Held,  no  error 
(citing  O 'Conner  v.  Wilson,  57  111.,  226). 
National  Ins.  Co.  v.  Chamber  of  Commerce,  69 
111.,  23. 

6.  Any  variance  between  the  pleading  and 
the  instrument  filed,  whether  it  be  matter  of 
description  or  legal  effect  may  be  amended  at 
any  time,  as  of  course,  before  judgment,  and 
is  no  ground  for  a  continuance  (citing  2  G. 
&  H.,  104,  sec.  78 ;  Maxwell  t>.  Day,  45  Ind., 
509).  Mutual  Benefit  Life  Ins.  Co.  v.  Gannon, 
48  Ind.,  264. 

7.  The  conditions  of  the  policy  were  not 
set  up  in  the  complaint,  and  the  policy  was 
objected  to  for  that  cause.  IIeld,the  court  did 
not  err  in  allowing  the  insured  to  amend  up- 
on the  trial,  and  to  make  the  policy  atid  its 
conditions  a  part  of  the  complaint.  Bonner 
V.  Home  Ins.  Co.,  13  Wis.,  677. 

8.  There  was  a  material  variance  between 
the  allegations  and  the  proof  of  fact  at  the 
trial.  Held,  tlie  court  had  the  power  to  allow 
plaintiff  to  amend  at  tlie  trial.  Clark  v.  Phm- 
niz  Ins.  Co.,  36  Cal.,  168. 


II.  After  judgmeni. 

1 .  The  defendant  pleaded  four  pleas  in  bar. 
Tiie  plaintiff  took  issue  on  three,  and  demurred 
to  tlie  fourth,  and  there  was  judgment  upon 
the  demurrer  for  the  defendant.  The  plaintiff 
went  to  trial  on  tlie  three  pleas,  taking  no  no- 
tice of  the  judgment.  Held,  the  judgment  up- 
on the  demurrer  covered  the  wliole  case,  ami 
the  plaintiffs  were  compelled  to  submit  to  a. 
judgment  against  them.  But  after  three  terms 
had  elapsed,  the  plaintiff  asked  to  be  allowed 
to  reply  to  tlie  fourth  plea  on  the  ground  that 
the  omission  was  caused  by  mistake  of  coun- 
sel. Granted  upon  p.aymenl  of  costs.  Rogers 
13.  Niagara  Ins.  Co.,  2  H.all  (N.  Y.),  559. 

2.  The  circuit  court  has  power  to  amend 
the  record  nunc  pro  tunc,  after  the  cause  has 
been  appealed  to  the  supreme  court  (citing 
De  Kalb  Co.  v.  Hixon,  44  Mo.,  341).  Jones  v. 
St.  Joseph  Fire  &  Marine  Ins.  Co.,  55  Mo.,  342. 

III.    New   PABTIE8. 

1.  Where  several  plaintiffs  joined  in  an  ac- 
tion on  a  contract  made  to  one,  and  a  verdict 
was  rendered  for  the  defendant,  the  court  will 
grant  leave  upon  a  motion  for  a  new  trial  to 
amend  by  striking  out  the  names  of  all  the 
plaintiffs  except  his  in  whose  name  the  con- 
tract was  made,  and  allow  the  action  to  pro- 
ceed in  the  name  of  one.  Finney  v.  Bedford 
Commercial  Ins.  Co.,  8  Met.,  348. 

2.  The  action  was  commenced  in  the  name 
of  the  administrator.  A  demurrer  was  sus- 
tained for  want  of  proper  parties,  and  the  court 
gave  leave  to  dismiss  as  to  the  administrator, 
and  to  substitute  widow  and  heirs.  Held,  au- 
thorized (see.  1,  ch.  1,  R.  S.,  1874).  Teutonin 
Life  Ins.  Co.  v.  Mueller,-!!  111.,  23. 

IV.  Genekailt. 

1.  After  the  auditor  made  his  report,  an 
amended  declaration  was  filed.  Held,  the 
court  would  infer  that  leave  had  been  given  ti> 
file  it.    Looney  v.  Looyiey,  116  Mass.,  283. 

2.  Insured  obtained  leave  to  amend  the  de- 
claration by  making  additional  counts,  de- 
scribing the  same  contr.act,  except  as  to  the 
date.  Held,  amendments  are  allowed  if  con- 
sistent with  the  original  declaration,  and  this 
was  within  tlie  rule.  Warren  v.  Ocean  Ins.  Co., 
16  Me.,  439. 

63 


127 


ANIMALS— APPEALS. 


128 


Miscellaneous. 


3.  The  complaint  was  originally  ez  delicto. 
The  plaintiff  moved  to  amend  and  add  a  count 
ex  contractu.  Held,  no  amendment  setting 
forth  a  new  and  separate  cause  of  action  can 
be  allowed  under  the  code  (sec.  3480).  C'roghan 
«.  Underwriters'  Agency,  53  Ga.,  109. 

4.  The  obligee's  names  were  by  mistake 
omitted  in  the  attachment  bond.  Held,  it  was 
competent  to  insert  their  names  in  the  blank 
left  for  that  purpose.  Sutherlin  v.  Underwrit- 
■ers'  Agency,  53  Ga.,  442. 

5.  After  judgment  by  default,  the  defendant 
obtained  an  order  to  set  it  aside,  and  leave  to 
answer.  The  plaintiff  appealed  from  the 
order,  and  it  was  reversed  with  leave  to  make 
application  to  amend.  Schmtzel  v.  Oennantuwn 
Farmers  Mut.  Ins.  Co.,  22  "Wis.,  412. 

6.  The  court  refused  to  permit  the  defend- 
ant to  amend  the  answer,  but  the  amendment 
tendered  no  new  issues;  all  the  matter  of  de- 
fense set  forth  in  it  was  admissible  under  the 
other  pleadings.  Held,  no  error.  Ferrer  v. 
Some  Mutual  Ins.  Co.,  47  C'al.,  416. 

7.  Policies  of  .insurance  were  effected  on 
goods  alleged  to  have  been  purchased  and 
shipped,  and  actions  had  been  brought  on  the 
policies  for  an  alleged  loss.  The  insurers 
filed  this  bill  of  discovery,  charging  that  the 
goods  had  not  been  purchased;  afterwards 
obtained  leave  to  amend  the  bill  upon  a  sug- 
gestion that  the  firm  had  not  sufficient  capital 
to  make  the  purchase.  Held,  the  permission 
to  amend  in  that  respect  did  not  authorize 
insurers  to  raise  inquiries  as  to  the  general 
solvency  of  insured,  nor  as  to  their  dealings 
and  transactions  from  the  commencement 
of  their  partnership.  Janson  v.  Solarte,  2 
Ton.  &  Coll.,  127 ;  6  L.  J.  (N.  S.),  Ex.  in  Eq., 
T5. 

8.  The  defendant  pleaded  an  opening  made 
between  the  premises  insured  and  the  build- 
ing adjoining.  At  the  trial,  it  appeared  that 
defendant  had  misdescribed  the  opening,  but 
it  also  appeared  that  the  alteration  did  not 
contribute  to  the  loss.  Held,  it  was  not  error 
to  refuse  an  amendment  to  the  plea.  McKen- 
eie  V.  Times  &  Beacon  Ins.  Co.,  17  U.  C.  (Q.  B ), 
226. 


ANNUITANT  AND  ANNUITEE. 

The  grantee  of  an  annuity  effected  a  policy 
on  the  grantor's  life,  at  his  own  expense.  The 
grantor  had  the  right  to  redeem  on  payment  of 
£3,.500.  The  grantee  covenanted  to  assign  any 
policy  which  might  be  effected  in  respect  of 
the  annuity,  but  the  grantor  did  not  covenant 
to  keep  the  policy  in  force.  The  policy  be- 
came valuable.  The  grantor  gave  notice  and 
declared  his  election  to  take  it,  and  a  surren- 
der of  the  policy  was  threatened.  This  bill 
was  filed  to  compel  an  assignment  of  the  pol- 
icj\  Held,  the  grantee  had  the  right  to  de- 
cline to  keep  the  policy  In  force,  but  had  no 
right  to  surrender  it  for  his  own  profit.  Hawk- 
ins V.  Woodgate,  7  Beav.,  565. 


ANSWERS. 

(See  ArPLicATioN;   Incttmbrancbs  ;   Sickness,  Di9 
E-ASE  OR  Employment  of  Physician;  Title;  Re> 

RESENTATIONS;   WARRANTIES.) 


ANIMALS. 

(See  Construction.  V;  Policy.  VIII  and  IX.) 
64 


APPEALS. 

1.  Plaintiffs  brought  this  suit  to  recover 
$4,000  for  the  loss  of  certain  property  insured 
by  defendants.  It  was  stated  in  the  complaint 
that  a  certain  clause  in  the  policy  descriptive 
of  the  subject  insured  was  inserttd  by  mistake, 
that  the  defendants,  taking  advantage  of  that 
clause,  had  refused  to  pay  the  loss.  The 
plaintiffs  prayed  a  recovery  of  the  $4,000,  and, 
if  necessary,  to  reform  the  policy  by  striking 
out  the  clause  in  question.  The  court  dis- 
missed the  complaint.  Plaintiffs  then  discov. 
ered  that  a  new  s\iit  would  be  barred  by  one 
of  the  provisions  of  the  policy,  more  than 
twelve  months  having  elapsed  since  the  loss 
occurred.  Plaintiffs  then  moved  to  amend 
the  order  of  dismissal  by  inserting  leave  to 
file  a  complaint  at  law  in  the  same  action, 
which  motion  was  granted.  This  order  was 
appealed  to  the  general  term,  where  it  was  re 
versed,  and  the  plaintiffs  appealed  from  that 
reversal  to  this  court.  Held,  there  was  no  pro- 
vision in  the  law  authorizing  such  an  appeal. 


129 


APPEARANCE  —  APPLICATIOlS . 


130 


What  matters  stated  are  wan-anties. 


JVcia  York  lee  Co.  v.  Northwestern  Ins.  Co.,  23 
N.  Y.,  357;  8.  c,  33  Buib.,  r,34;  11  Abb.  Pr., 
419;  20  How.  Pr.,  424;  12  Abb.  Pr.,  414. 

2.  Au  order  was  m;ule  iit  speciiil  term,  de- 
uyiugamotiou  to  strike  from  the  complaint 
certain  allegatious  not  relevant.  Udd,  no  ap- 
peal would  lie  from  it  (citing  Crucible  Co. 
*•.  Steelworks,  0  Abb.  Pr.  (N.  S ).  185.  See 
Tanton  t.  Groli,  8  id.,  385,  and  note  where  the 
authorities  on  this  subject  arc  collated).  Ilnrjhes 
«.  Mercantile  Mat.  las.  Co.,  10  id.,  37;  41  How. 
Pr.,  253. 


APPEARANCE. 

"What  it  waives. 

1.  If  the  corporation  appears  specially  and 
moves  to  dismiss  on  the  ground  that  service 
cannot  be  made  on  a  foreign  corporation,  and 
then  demurs,  the  validity  of  the  notice  upon 
the  agent  is  waived.  Franklin  Ins.  Co.  v. 
McCren,  4  Greene,  229. 

2.  The  citation  was  addressed  to  W.  B. 
Morris  &  Co..  Agents.  They  appeared  by  at- 
torney and  filed  a  denial.  Held,  the  defect 
was  cured  by  the  answer.  La  Societe,  etc.,  v. 
Mm-ris,  24  La.  An.,  347. 


APPLICATION. 

I.  What  matters  stated  are  warranties. 

II.  ARE  NOT  WARRANTIES. 

I.  What  matters  stated  are  war- 
ranties. 

1.  The  application,  being  part  of  the  policy, 
stated:  "There  is  one  stove  in  the  building; 
pipe  passes  through  the  window  at  the  side  of 
the  building;  there  will  however  be  a  stone 
chimney  built,  and  the  pipe  will  pass  into  it 
at  the  side."  Held,  a  warranty  that  the  chim- 
ney should  be  built  within  a  reasonable  time, 
and  a  violation  of  it  avoided  the  policy.  And 
though  the  secretary  indorsed,  "  Consent  is 
given  that  the  within  policy  remains  good, 
notwithstanding  the  stove  has  been  removed,"' 
5 


that  was  no  waiver  of  the  warranty.  Mur- 
doch V.  Clieiiamjo  County  Mutual  Fire  Ins.  Co., 
2  N.  y.,  210. 

2.  Policy  made  the  application  and  descrip- 
tion therein  part  of  the  contract.  Held,  the 
statements  in  the  application  were  warranties, 
and  anything  therein  not  literally  accurate 
avoided  the  policj-.  Held,  also,  as  the  appli- 
cation described  the  mill  as  a  grist  mill,  the 
use  of  a  turning  lathe  and  work  bench  in  it 
for  purposes  other  than  necessary  repairs 
avoided  the  policy.  Held,  also,  the  descrip- 
tion of  the  location  of  the  mill  with  reference 
to  other  buildings  was  also  incorrect,  and  that 
it  avoided  the  policy.  Jenningi  v.  Chenango 
County  Mut.  Ins.  Co.,  2  Denio,  75. 

3.  The  policy  was  founded  upon  a  printed 
and  written  application.  The  representations 
contained  in  the  latter  were  warranted  as  true. 
Held,  the  policy  was  admissible  in  evidence 
without  the  application.  Edington  v.  Mutual 
Life  Ins.  Co.,  5  Hun.  (N.  Y.),  1. 

4.  Statements  in  an  application  "upon  the 
faith  of  which  "  the  policy  is  made,  stipu- 
lated :  "  If  they  shall  he  found  untrue  in  any 
respect,  the  policy  shall  be  void,"  Held,  the 
statements  in  the  application  were  warranties, 
and  if  untrue,  although  upon  a  point  imma- 
terial, the  policy  was  void.  Sliles  v.  Connecti- 
cut Mut.  Ins.  Co.,  3  Graj',  580. 

5.  The  application  required  an  answer  to 
the  following  interrogatory:  "How  are  the 
several  stores  occupied?  State  fully,  giving 
the  tenants  and  the  nature  of  the  business 
done  by  each."  Answer.  "  See  plan."  C. 
and  S.  occupied  a  part  of  the  buildings  as  a 
machine  shop  and  another  part  with  wood 
work,  connected  with  their  business.  The 
plan  did  not  disclose  these  facts.  Held,  in- 
surer was  not  liable,  because  the  policy  re- 
quired a  full  and  correct  description  as  to  all 
matters  inquired  about.  Abbott  v.  Shawmut 
Mutual  Fire  Ins.  Co.,  3  Allen,  213. 

6.  Stipulated:  "The  statements  in  the  ap- 
plication for  this  policy,  and  on  the  faith  of 
which  it  is  issued,  are  in  all  respects  true  and 
without  the  suppression  of  any  fact  relating 
to  the  health  and  circumstances  of  the  in- 
sured  affecting  the  interests  of  this  company." 
Held,  the  statements  and  declarations  made  in 
the  application  were  warranties  of  the  facts 
stated,  and  must  be  proved  true  in  all  particu- 
lars. Kehey  v.  Universal  Life  Ins.  Co.,  35 
Conn.,  225. 

63 


131 


APPLICATION. 


132 


Wliat  are  not  warrantieg. 


II.  What  are  not  wakkanties. 

1.  Insurer's  agent  made  an  examination  of 
the  buildings,  and  reported  to  the  company. 
The  policy  referred  to  that  report.  Held,  it 
was  to  be  regarded  as  a  description  of  the 
premises,  and  not  a  warranty.  Delenguemere 
I'.  Tradesmen's  Ins.  Co.,  3  Hall,  589. 

2.  An  application  for  insurance  by  letter, 
with  a  diagram  of  the  situation  of  buildings 
surrounding  that  to  be  insured,  was  referred  to 
generally  in  the  policy,  but  not  expressly  made 
a  part  of  it.  Held,  not  a  warranty.  Stebbins 
V.  Globe  Ins.  Co.,  2  Hall,  633. 

3.  The  application  was  not  referred  to  in 
the  policy.  Held,  the  statements  in  it  were 
not  warranties.  Jtffeison  Ins.  Co.  v.  Cotheal, 
7  Wend.,  73. 

4.  The  policy  required  the  insured  to  set 
forth  in  the  application  whether  the  properly 
was  incumbered,  and  to  what  amount;  also 
whether  insured  had  an  estate  less  than  fee, 
and  its  nature.  The  application  was  silent  as 
to  these  points.  Held,  no  defense  to  the  action. 
DoJm  V.  Farmers  Joint  Stock  Ins.  Co.,  5  Lans., 
275. 

5.  Neither  the  policy  nor  the  application 
warranted  the  truth  of  the  answers  made  to 
the  several  interrogatories  set  forth  in  it.  Held, 
the  statements  in  the  application  were  not  war- 
ranties, they  were  nothing  but  representations. 
Cushman  v.  United  States  Life  I?is.  Co.,  4  Hun. 
(N.  Y.),  783. 

6.  Policy  made  subject  to  tsrms  and  condi- 
tions annexed,  but  no  reference  was  made  to 
the  application.  Held,  the  answers  in  the  ap- 
plication were  not  warranties,  and  that  the 
answer  in  it,  "  There  are  in  each  room  casks 
kept  full  of  water  constantly,"  was  a  represen- 
tation merely,  and  neglect  of  insured's  servants 
to  keep  them  constantly  full  of  water  did  not 
avoid  the  policy.  Daniels  v.  Hudson  River 
Fire  Ins.  Co.,  13  Cush.,  416. 

7.  Insurance  on  goods.  Insured  in  their 
application,  which  was  made  part  of  the  pol- 
icy, answered,  as  to  how  the  buildings  were 
warmed  and  how  the  stovepipes  were  secured : 
"  Counting-room  warmed  with  coal  stove,  one 
stove;  funnel  and  pipe  well  secured.  No 
lights  used  in  the  building  evenings."  Held, 
it  did  not  bind  the  insured  to  keep  the  funnel 
and  stove  secure  while  in  use.  Held,  aho, 
the  insurer  was  liable  for  a  fire  made  in  a 
stove  which  was  in  an  unsafe  condition  at  the 

66 


time,  contrary  to  the  expressed  directions  of 
the  insured.  Loud  v.  Citizens  Mut.  Ins.  Co.,  2 
Gray,  231. 

8.  Policy  upon  the  life  of  C,  payable  to 
him,  his  executors,  administrators  and  assign* 
for  the  benefit  of  the  plaintiff,  his  brother's- 
wife,  upon  condition  that:  "If  any  of  the 
statements  made  by,  or  in  behalf  of,  or  with 
the  knowledge  of  the  insured,  to  the  company 
as  the  basis  of  or  the  negotiations  for  the  con- 
tract, shall  be  found  in  any  respect  untrue, 
then  it  shall  be  void."  The  application  asked 
whether  he  then  or  ever  had  bronchitis,  con- 
sumption, coughs  prolonged,  disease  of  the 
lungs,  spitting  of  blood?  To  which  he  an- 
swered, "  No."  He  was  then  a.sked  whether 
he  ever  had  any  serious  illness,  local  disease 
or  personal  injury;  if  so,  of  what  nature  and 
when?  To  which  he  answered,  "No."  There 
was  the  following  question  in  the  application: 
"Are  you  aware  that  any  fraudulent  or  untrue 
answers  or  any  concealment  of  facts  or  non- 
compliance  with  the  terras  and  conditions  of 
the  policy  will  vitiate  the  insurance?"  An- 
swer:  "Tes."  Held,  the  statements  in  the  aji- 
plication  were  not  warranties,  for  there  were 
no  words  to  indicate  that  such  was  the  inten- 
tion  of  the  parties ;  they  were  representations ; 
and  it  was  a  question  for  the  jury  to  determine 
whether  the  facts  in  proof  were  so  far  iucon- 
sistent  with  the  answers  in  the  application 
as  to  establish  a  material  misrepresentation. 
Campbell  v.  NeiD  England  Life  Ins.  Co.,  98 
!Mass.,  381 ;  Southern  Life  Ins.  Co.  v.  Wilkinson, 
53  Ga,,  535. 

9.  Stipulated:  " Reference  being  had  to  the 
application  of  the  said  II.  &  B.,  which  forms 
a  part  of  t^e  policy,  for  a  more  particular  de- 
scription of  the  property  insured."  Held, 
matters  stated  in  the  application  were  descrip- 
tion merely  and  not  warranties.  Cumberland 
Valley  Mutual  Protection  Co.  ■o.  Mitchell,  48 
Penn.  St.,  374. 

10.  The  application  must  represent  truly, 
whatever  is  material  to  the  risk;  but  if  it  was 
written  by  an  agent  of  insurer,  and  he  was- 
aware  of  facts  material  to  the  risk  and  did 
not  set  them  forth  in  it,  his  knowledge  will 
estop  insurer  from  insisting  upon  the  conceal- 
ment. Marshall  v.  Columbian  Mutual  Fir» 
Ins.  Co.,  37  N.  H.,  157. 

11.  The  application  stated  that  neither  cot- 
ton, nor  woolen  waste,  nor  rags,  were  kept  in- 
or  near  the  property  insured.    At  the  time  of 


133 


ARBITRATION  AND  AWARD. 


134 


When  the  agreement  to  arbitrate  is  not  binding'. 


the  fire  there  was  about  1,500  lbs.  rags  in  the 
store,  taken  in  from  time  to  time.  Held,  no 
breach  of  tlie  contract,  because  it  did  not  ap- 
pear affirmatively  that  they  were  in  the  prem- 
ises at  the  time  the  policy  was  made.  Gould 
■».  York  County  Mutual  Fire  Ins.  Co.,  47  Me.,  403. 

1 2.  Insured  agreed  in  the  application  that 
"  The  matters  stated  therein  are  a  just  and 
true  exposition  of  all  the  facts  and  circum- 
stances in  regard  to  the  condition,  situation 
and  value  of  the  property  to  be  insured,  so  far 
as  the  same  are  known  to  the  applicant  and 
material  to  the  risk."  The  policy  stipulated: 
"  If  it  were  made  upon  a  survey  and  descrip- 
tion of  the  property  insured,  such  survey  and 
description  shall  be  taken  and  deemed  to  be  a 
part  of  such  policy,  and  a  warranty  on  the 
part  of  the  insured."  The  application  signed 
by  insured  contained  a  survey  and  description 
of  the  property.  Held,  the  statements  con- 
tained in  the  application  were  not  absolute 
warranties;  the  variances  in  the  value  and  de- 
scriptions were  questions  for  the  jury,  and  the 
burden  was  upon  insurers  to  establish  the 
materiality  of  tlie  statements.  JEtna  Ins.  Co. 
11.  Qrube,  6  Minn.,  82. 

13.  The  policy  was  "issued  and  accepted 
upon  condition  that  if  any  of  the  statements  or 
declarations  made  in  the  application,  upon  the 
faith  of  wliich  the  policy  is  issued,  shall  be 
found  in  any  respect  untrue,  then  the  policy 
shall  be  void."  The  application  directed  the 
applicant  to  answer  each  of  the  questions  "  to 
the  best  of  your  knowledge  and  belief,  briefly 
but  explicitly,"  and  immediately  precedmg 
the  applicant's  signature  the  application 
slated : "  The  answers  to  the  foregoing  questions 
shall  form  the  basis  of  the  contract,  and  any 
willfully  untrue  or  fraudulent  answers  shall 
render  the  policy  void."  The  policy  stipulated 
that  all  answers  were  true.  Held,  insurers 
could  not  be  allowed  to  require  one  degree  of 
truthfulness  in  the  application  and  another  in 
the  policy,  for  that  were  to  impute  to  Ihein 
dishonesty,  which  the  law  would  not  presume, 
and  if  proven,  would  not  uphold  ;  therefore,  an 
instruction  which  required  the  plaintiff  to 
show  that  the  statements  mentioned  in  the  ap- 
plication, whether  warranties  or  representa- 
tions, were  substantially  true,  and  that  a  mis- 
statement, unless  willful  and  fraudulent, 
would  not  avoid  the  policj',  correctly  stated 
the  law.  Washington  Life  Ins.  Co.  v.  Haney, 
10  Kan.,  535. 


14.  The  policy  was  founded  upon  a  decla- 
ration which  stated,  that  the  party  had  no 
disease  or  symptoms  of  disease,  was  then  in 
good  health  and  ordinarily  enjoyed  good 
health,  that  no  material  circumstances  or  in- 
formation t'^uching  the  health  or  habits  of 
the  life  proposed,  with  which  insurers  ought 
to  be  made  acquainted,  were  withheld.  Held, 
it  imported  a  warranty  only  to  the  effect,  that 
tlie  declarant,  according  to  her  own  knowl- 
edge  and  reasonable  belief,  had  been  free  from 
disease  or  sj'mptoms  of  disease  material  to 
the  risk.  It  did  not  import  a  warranty  against 
latent  disease  discoverable  only  by  a  post 
mortem  examination,  or  symptoms  disclosed 
subsequently  to  the  making  of  the  declara- 
tion. Hutchinson  v.  National  Loan  Ass.  Soc, 
7  C.  C.  S.,  4G7;  17  Scott  Jur.,  353. 


ARBITRATION  AND  AWARD. 

I.  When  the  agreement  to  abbitratb 

IS  NOT  BINDING. 

II.  When  it  is  a  condition  precedent. 

III.  What  is  a  waiver  op  the  agreement. 

IV.  When  the  award  is  conclusive. 

"V.  NOT  CONCLUSIVB. 

I.  "When  the  agreement  to  aebitkatb 

IS  NOT  BINDING. 

1.  One  of  the  by-laws  provided:  "Any  dif- 
ference  or  dispute  in  reference  to  any  loss 
sustained  or  alleged  to  be  sustained  shall  be 
referred  to,  and  be  determined  by,  referees 
mutually  chosen  by  the  insured  and  the  di- 
rectors, and  no  policy  holder  shall  be  entitled 
to  maintain  the  action  until  he  shall  have 
made  the  offer  to  refer."  Held,  the  stipula- 
tion was  void,  because  it  goes  to  the  root  of 
the  action,  and  was  not  confined  to  the  mode 
of  settling  the  amount  of  the  damage;  it  was 
an  attempt  to  oust  the  courts  of  their  jurisdic 
tion,  by  preventing  the  suffering  party  from 
appealing  to  them.  Trott  v.  City  Ins.  Co.,  1 
Cliff.,  439. 

2.  Stipulated:  "That  no  holder  of  any  pulicy 
shall  be  entitled  to  maintain  any  .action  there- 
on until  he  shall  first  have  oflered  to  submit 
his  claim  to  said  referees,  mutually  to  be 
chosen  by  the  iusuretl  and  the  directors  of 

67 


135 


ARBITRATIOK  AND  AWARD. 


136 


When  the  agreement  to  arbitrate  is  not  binding. 


said  company."  Held,  void,  as  against  public 
policy;  but  even  if  that  were  not  so,  insurers 
waived  their  right  to  arbitration,  because  they 
had  proceeded  to  talie  possession  of  the  vessel 
for  the  purpose  of  making  repairs.  Cohh  v. 
New  England  Mutual  Marine  Ins.  Co.,  6  Gray, 
193. 

3.  Stipulated :  "  In  case  any  di.«pute  shall 
arise  in  relation  to  any  alleged  loss,  it  shall 
be  referred  to  referees,  to  be  mutually  chosen 
bj'  the  parties,  and  no  policj-  holder  shall 
maintain  any  action  thereon  until  he  shall 
have  offered  to  submit  his  claim  to  arbitra- 
tion." Held,  the  stipulation  was  void,  for  the 
parties. cannot  entirely  close  access  to  the 
courts  of  law.  The  law,  and  not  the  contract, 
prescribes  the  remedy;  and  parties  have  no 
more  right  to  enter  into  stipulations  against 
a  resort  to  the  courts  than  they  have  to  pro- 
vide a  remedy  prohibited  b}'  law.  Such  stip- 
ulations are  repugnant  to  the  rest  of  the  con- 
tract, because  they  assume  to  divest  the  courts 
of  their  jurisdiction  (citing  Livingston  v. 
Ralli,  5  El.  &  Bl.,  132;  Scott  v.  Avery,  L.  & 
Eq.,  536;  36  Eng.  L.  &  Eq.,  336).  Steplienson 
v.  Pismtaqua  Fire  <b  Marine  Ins.  Co.,  .54  Me.,  .5.5. 

4.  The  agreement  in  the  policy  to  arbitrate 
does  not  oust  the  courts  of  their  jurisdiction. 
Allegre  v.  Maryland  Ins.  Co.,  6  H.  &  J.,  408 ; 
affirmed,  2  G.  &  J.,  136. 

5.  Stipulated :  "  In  case  of  any  differencie  of 
opinion  as  to  the  amount  of  loss  or  damage, 
such  difference  shall  be  submitted  to  the  judg- 
ment of  two  disinterested  and  competent 
men  mutually  chosen,  who  may  select  a  third, 
whose  award  shall  be  conclusive  and  binding 
upon  both  parlies.  The  plaiutifS  refused  to 
submit  to  arbitrators.  Held,  it  was  not  a  con- 
dition precedent,  and  plaintiff  was  entitled  to 
maintain  the  action.  Liverpool,  London  & 
Globe  Ins.  Co.  v.  Creighton,  51  Ga.,  95. 

6.  An  agreement  to  arbitrate,  whei-e  no  ref- 
erence has  been  made,  cannot  6ust  the  courts 
of  their  jurisdiction.  Killv.  Hollister,!  Wils., 
129. 

7.  Policy  provided :  "  If  any  difference  shall 
arise  on  any  claim,  it  shall  be  immediately 
submitted  to  arbitration,  and  no  comjjensation 
shall  be  payable  till  after  an  award  determin- 
ing the  amount."  The  company  denied  all 
liability.  Held,  the  acti(m  could  be  main- 
tained though  there  had  been  no  submission. 
Ooldstone  v.  Osborne,  2  C.  &  P.,  550. 

8.  Stipulated:   "In  case  any  difference  or 
.68 


dispute  shall  arise  between  the  insured  and 
the  company,  touching  any  loss  or  damage,  or 
otherwise  in  respect  of  any  insurance,  stcU 
difference  shall  be  submitted  to  the  judgment 
and  determination  of  two  indifferent  persons 
as  arbitrators,  one  to  be  chosen  by  the  com- 
pany and  the  other  bj'  the  insured,  and  these 
shall  nominate  a  third  person  to  be  an  arbi- 
trator with  them,  and  the  award  in  writing  of 
any  two  of  the  three  so  chosen  shall  be  con- 
clusive and  binding  on  all  parties."  Held, 
this  condition  was  collateral  to  tlic  .agreement 
to  pay,  hence  insured  was  not  bound  to  await 
a  reference;  that  there  was  a  distinction  be- 
tween this  and  the  case  of  Scott  v.  Atery,  5  H. 
L.  Cas.,  811.  Roper  v.  Lendon,  1  El.  &  El.,  825; 
s.  c,  5  Jur.  (N.  S.),  491 ;  28  L.  J.  Q.  B.,  260;  7 
W.  R.,  441. 

9.  Plaintiff  brought  suit  as  administratoi 
upon  a  policy  upon  the  life  of  the  intestate 
The  rules,  made  part  of  the  policy,  provided 
that  every  matter  in  dispute  between  insurer 
and  any  member  thereof,  or  person  claiming- 
on  account  of  any  such  member,  shall  be  re- 
ferrjd  to  and  decided  by  arbitrators,  appointed 
in  pursuance  of  a  certain  rule.  Held,  the 
claim  on  the  policy  was  not  a  dispute  "be- 
tween  the  company  and  any  member  thereof, 
or  person  claiming  on  account  of  any  such 
member,"  for,  an  executor  does  uot  claim  on 
account  of  a  member,  but  on  his  own  account. 
Kelsall  V.  I'yler,  11  Exchr.,  513;  25  L.  J.  Ex., 
1.53. 

10.  One  of  the  rules  of  a  mutual  company 
provided  that  disputes  should  be  referred  to 
arbitrators,  and  that  obtaining  the  decision  of 
such  arbitrators  should  be  a  condition  prece- 
dent  to  the  right  of  any  member  to  maintain 
an  action.  Held,  where  the  question  between 
the  parties  was  one  of  law,  the  plaintiff  was 
not  bound  to  submit  to  arbitration  before  com- 
mencing his  suit.  Alexander  v.  Campbell,  41 
L.  J.  Ch.  478;  27  L.  T.  (N.  S.),  417. 

11.  Condition  in  policy  that  in  case  there 
be  any  dispute  between  the  parties,  it  may  be 
referred  to  arbitrators  indifferently  chosen, 
whose  award  in  writing  shall  be  conclusive  and 
binding  on  all  parties.  Held,  the  word  "  may  " 
is  distinct  from  "shall;  "  the  one  imperative, 
the  other  permissive.  Words  of  common  par- 
lance are  not  to  be  construed  as  legal  phrase- 
ology; submission  must  be  always  volun- 
t.ary;  nobody  Init  the  parlies  can  name  the  ar- 
biters; and  it  is  the  duty  of  the  courts  to  re- 


137 


ARBITRATION  AND  AWARD. 


138 


When  it  is  a  condition  precedent. 


tain  the  administiatiou   of  justice.    Scott  v. 
Fhoeinx  Ins.  Co.,  Stuart,  152. 

II.     "When  it  is  a  condition  peece- 

DENT. 

1.  On  ship,  stipulated:  "All  rules  and  regu- 
lations of  the  association  shall  be  binding  on 
botli  parties  as  fully  as  if  they  were  inserted 
in  the  policy."  The  rules  provided  th.it  loss 
or  damage  should  be  ascertained  and  settled 
by  a  committee;  that  the  claimant,  if  he 
agreed  to  accept  that  settlement  in  satisfaction 
of  his  claim,  should  be  entitled  to  demand 
and  sue  for  it,  but  not  before;  that  if  any 
difference  should  arise  between  the  committee 
and  a  claimant,  relating  to  any  claim,  arbitra- 
tors should  be  selected,  from  certain  persons 
named  in  the  rules,  who  should  settle  the  mat- 
ters  in  dispute  according  to  the  rules,  and  no 
suit  should  be  maintained,  at  law  or  in  equity, 
until  the  matters  in  dispute  should  have  been 
referred  to  and  decided  by  the  arbitrators,  and 
then  only  for  such  sum  as  the  arbitrators 
should  aw.ird  ;  and  that  obtaining  the  decision 
of  the  arbitrators,  on  the  matters  and  claim 
in  dispute,  should  be  condition  precedent  to 
the  right  of  any  member  to  maintain  an  ac- 
tion. Plea,  that  before  action  brought,  the 
committee  ascertained  and  settled  tlie  sum 
which  should  be  paid  for  the  loss;  that  in- 
sured was  not  satisfied  with  the  settlement; 
that  the  defendant  and  the  committee  had  al- 
ways been  ready  and  willing  to  refer  the  mat- 
ters in  difference  to  arbitration,  and  to  have 
the  loss  ascertained  and  settled  by  arbitrators 
according  to  the  intention  of  said  rule,  but 
that  the  insured  was  not  re.idy  and  willing  to 
do  so,  and  that  the  loss  had  not  been  settled. 
Held,  the  arbitration  clause  was  legal,  and  that 
a  settlement  by  arbitrators  was  a  condition 
l)recedent  to  any  right  of  action.  Scott  v. 
Avery,  8  Exch.,  487;  affirmed,  5  H.  L.  Cas., 
811;  2  Jur.  (N.  S.),  815;  25  L.  J.  Ex.,  308;  22 
id.,  157,  287. 

2.  Stipulated :  "  In  case  of  difference  of 
opinion  as  to  the  amount  of  compensation 
payable  in  any  case,  the  question  shall  be  re- 
ferred to  the  arbitration  of  a  person  to  be 
named  by  the  secretary,  for  the  time  being,  of 
tlie  master  of  the  rolls.  Held,  a  plea,  stating 
that  the  amouut  of  compensation  was  the 
matter  in  dispute  and  difl'erence  between  the 
parties;  that  the  defendants  had  always  been 


ready  and  willing  to  refer  the  claim  to  arbitra- 
tion  in  the  manner  mentioned;  that  it  had 
never  been  settled  and  arbitrated,  was  good. 
Braunstein  v.  Accidental  Death  Ins.  Co.,  1  B. 
&  S.,  783;  s.  c,  8  Jur.  (N.  S.),  506;  31  L,  J.  Q. 
B.,17;  5  L.  T.  (N.  S.),  550. 

3.  Stipulated:  "Insured  shall,  within  fif- 
teen days  after  a  loss,  send  in  particulars  of  it, 
which  loss  or  damage,  after  the  same  shall  be 
adjusted,  shall  immediately  be  paid  in  money, 
or  the  insurers  shall  have  the  right  to  reinstate 
the  premises.  In  case  any  difference  shall 
arise  touching  anj'  loss  or  damage,  it  shall  be 
submitted  to  arbitrators,  whose  award  in  writ. 
ing  shall  be  binding  upon  all  parties.  Held, 
no  action  could  be  maintained  until  the  loss 
had  been  .adjusted  in  the  manner  pointed  out 
by  the  contract.  Elliott  v.  Royal  Ex.  Ass.  Co., 
3  L.  R.  Ex.,  337;  16  L.  T.  (N.  8.),  399;  15  W. 
R.,  907;  36  L.  J.  Ex.,  139. 

4.  Stipulated :  "  All  average  claims  and 
claims  of  abandonment  shall  be  settled  con- 
formably to  the  custom  of  Lloyd's  or  the 
IV)yal  Exchange,  by  a  professional  average 
stater.  But  should  the  committee  or  the 
assured  be  dissatisfied  with  the  adjustment, 
they  may  refer  the  same  to  two  professional 
average  staters,  or  to  two  other  competent 
persons,  with  power  to  such  to  appoint  an 
umpire,  and  the  award  of  any  two  of  such 
persons  shall  be  final,  and  all  other  cases  of 
dispute,  of  whatever  nature,  shall  be  referred 
in  like  manner,  *  *  *  and  no  action  at 
law  shall  be  brought  until  the  arbitrators  have 
given  their  decision."  Held,  an  action  for  a 
total  loss  could  not  be  sustained  until  the 
claim  had  been  adjusted  by  arbitration  in  pur- 
suance  of  the  stipulation.  Tredwen  v.  Holman, 
1  H.  &  C,  73-,  8  Jur.  (N.  S.),  1080;  31  L.  J. 
Ex.,  398;  10  W.  R.,  653;  7  L.  T.  (N.  S.),  127. 

.5.  Action  on  a  policy  made  by  a  mutual  as- 
sociation. Stipulated:  " In  case  of  its  becom- 
ing  necessary  to  make  any  payment  in  respect 
of  any  loss  or  damage  happening  to  any  ship 
insured,  the  amount  to  be  borne  and  paid  by 
each  member  of  the  association  shall,  upon 
each  and  every  such  occasion,  be  assessed  and 
proportioned  by  the  committee  upon  and 
amongst  the  mem.bers  of  the  association  liable 
to  contribute  thereto."  The  defendant  pleaded 
that  by  the  regulations  annexed  to  the  policy 
a  committee  was  to  be  appointed  to  audit  the 
accounts,  settle  claims,  and  order  payment  by 
the  manager's  draft;  that  the  manager  should 

«9 


139 


ARBITRATION  AND  AWARD. 


140 


What  is  a  waiver  of  the  agi-eement  —  When  the  award  is  conclusive. 


have  full  power  to  settle  all  claims;  that  the 
claim  in  question  had  not  been  settled  in  the 
manner  provided  ;  also,  tlial  all  average  claims 
should  be  adjusted  by  a  professional  average 
stater,  according  to  the  usage  at  Lloj-d's;  that 
the  plaintiff's  claim  was  an  average  claim; 
that  it  had  never  been  adjusted  as  provided 
for,  and  that  theplaintiif  had  never  been  ready 
nor  willing  to  have  it  adjusted.  Held,  a  good 
plea.     Wriffht  t.  Ward,  24  L.  T.  (N.  S.),  439. 

Ill,  "What  is  a  waivek  of  the  agree- 
ment. 

1.  The  policy  provided  for  a  reference  to 
arbitrators  in  case  of  disputes  arising  under  it. 
There  was  no  ofler  to  refer  to  arbitrators. 
Held,  the  action  could  be  maintained.  Robin- 
ton  u.  Georges  Ins.  Co.,  17  Me.,  131. 

2.  Insurers  refused  to  pay  the  claim,  and 
made  no  offer  to  arbitrate.  Held,  a  waiver  of 
the  condition  requiring  a  submission  to  arbi- 
trators. Millaudoa  v.  Atlantic  Ins.  Co.,  8  La. 
(O.  S.),  558. 


TV.  "When  the  awaed  is  conclusite. 

1.  Insurance  on  freight  from  Teneriffe  to 
Jamaica.  She  was  captured  by  a  French  pri- 
vateer and  recaptured  by  a  British  ship,  and 
carried  into  Antigua ;  but  on  her  way  there, 
was  damaged  by  getting  on  rocks.  She  was 
libelled  for  salvage;  one-half  the  proceeds 
decreed  to  salvors  and  the  other  half,  less 
costs  and  expenses,  to  the  master,  "  for  the  use 
of  owners  and  all  concerned."  He  retained 
freight  pro  rata  itineris.  Insured,  having 
abandoned,  claimed  as  for  a  total  loss,  which 
was  denied,  and  the  right  to  abandon  was  sub- 
mitted to  arbitrators,  who  made  their  award 
as  for  a  total  loss.  Held,  it  was  not  necessary 
to  disclose  to  the  arbitrators  that  a  part  of  the 
freight  money  had  been  received  by  the  mas- 
ter. Newlruryport  Marine  Ins.  Co.  v.  Oliver,  8 
Mass.,  402. 

2.  The  case  was  submitted  to  arbitration 
under  the  direction  of  the  ship's  husband,  who 
had  insured  her  for  whom  it  might  concern. 
He  owned  a  little  more  than  one-half.  Held, 
as  he  could  have  maintained  the  action  in  his 
own  name,  and  it  appeared  that  he  had  kept 
her  insured  for  himself  and  the  others  jointly 

70 


for  five  or  six  years,  without  interference  by 
the  other  owners,  that  was  sufficient  to  autlior- 
ize  a  settlement  by  arbitration  or  otherwise, 
and  therefore  the  arbitration  was  a  bar  to  this 
suit.  Hamilton  v.  Phcenix  Ins.  Co..  106  Mass., 
3'J5. 

3.  The  parties  agreed  in  writing  to  refer  the 
matter  in  dispute  to  three  persons  named, 
whose  decision  sliould  be  final,  and  these  in- 
dorsed  on  the  submission  as  follows:  "Havin" 
examined  all  the  evidence  offered  by  the  par- 
ties, we  are  of  opinion  that  proof  has  not  been 
produced  sufficient  to  establish  a  claim  against 
the  U.  S.  Ins.  Co.,"  etc.  Held,  final  and  con- 
elusive.  McDermott  v.  United  States  Ins.  Co., 
3  S.  &  R.,  604. 

4.  The  charter  provided  that  the  damages 
should  be  determined  by  the  award  of  impar- 
tial  men,  and  the  policy  stipulated:  "The 
damages  shall  be  ascertained  by  the  examina- 
tion and  appraisal  by  disinterested  appraisers 
mutually  agreed  upon,  whose  detailed  report 
in  writing  shall  form  a  part  of  the  proof  to  be 
furnished  by  the  claimants."  Appraisers  were 
appointed  who  assessed  tlie  damages.  Held, 
it  was  not  a  submission  to  arbitration,  and 
therefore  it  was  not  necessary  tliat  tlie  persons 
who  assessed  the  damages  should  be  sworn; 
that  their  report  without  oath  was  binding 
upon  both  parties.  Zallee  v.  Laclede  Mutual 
Fire  and  Marine  Ins.  Co.,  44  Mo.,  530. 

5.  The  action  was  referred  to  an  arbitrator 
who  made  his  award  without  stating  the  proof 
or  the  ground  upon  which  he  proceeded.  Held, 
the  court  could  not  say  that  he  had  mistaken 
the  law.    Belter  v.  Barnes,  1  Taunt.,  48. 

6.  A  verdict  was  found  for  plaintiff  subject 
to  the  further  finding  of  an  arbitrator  as  to  the 
amount  of  the  loss,  who  awarded  £41  los.  lOd. 
per  cent.  It  afterwards  appeared  that  the 
property,  on  its  arrival  at  the  port  of  delivery, 
brought  nearly  as  much  as  it  would  have 
brought  had  it  received  no  injury.  Held,  if 
the  sale  were  fair  and  bona  fide,  the  award 
must  stand.  (It  was  bought  at  the  point  of 
distress  on  speculation.)  Hardy  v.  Innes,  C 
Moore,  507! 

7.  An  arbitrator  under  a  consolidation  rule 
awarded  the  aggregate  sura  due  the  insured 
from  the  insurers  jointly.  Held,  the  court 
would  not  refer  it  again,  for  the  arbitrator  to 
state  what  sum  each  insurer  should  pay,  witli- 
out  the  consent  of  all  the  parties.  Kynaston 
V.  Liddel,  8  Moore,  223. 


141 


ARRESTS,  RESTRAINTS  AND  DETAINMENTS. 


142 


What  is  a  loss  by. 


V.  When  the  award  is  not  conclu- 
sive. 

1.  An  award  of  the  commissioners  under 
the  French  treaty  of  1831  was  made,  where 
both  parties  appeared  and  litigated  their 
claims.  Held,  not  conclusive.  liadcliffe  v. 
■Coster  Hoft".  C'li.  OH. 

2.  B.  mortgaged  his  stock  of  goods  to  A., 
and  a  policy  was  made,  "  Loss,  if  any,  pay- 
able to  A."  The  defendant  pleaded  that  B. 
and  the  insurers  submitted  themselves  to  the 
arbitration  of  certain  persons  named,  who 
made  an  award,  //.if?,  making  the  loss  pay- 
able to  A.  was  in  legal  eftect  an  assignment  of 
the  policy  to  him;  tliat  his  rights  could  not 
be  affected  by  an  award  made  under  a  sub- 
mission to  which  he  was  not  a  party.  Brown 
«.  Rorjer  Williams  Ins.  Co.,  5  R.  I.,  394. 

3.  Insured  agreed  with  insurer's  adjuster  to 
submit  the  question  of  damages  to  a  third  per- 
son, the  adjuster  promising  to  pa}'  the  cash  so 
soon  as  a  letter  could  go  from  Saco,  Maine,  to 
Cincinnati,  and  return.  The  referee  awarded 
$4,000.  neld,  not  such  a  submission  and 
award  as  was  binding  upon  the  parties,  hence 
the  action  was  well  brought  upon  the  policy. 
Patterson  v.  Triumph  Ins.  Co.,  64  Maine,  500. 

4.  Stipulated:  "If  a  difference  of  opinion 
shall  arise  between  the  parlies  hereto  as  to  the 
amount  of  loss  or  damage,  the  subject  shall  be 
referred  to  two  disinterested  and  competent 
men,  each  party  to  select  one,  and  in  case  of 
disagreement,  they  shall  elect  a  third,  who 
shall  ascertain,  estimate  and  appraise  the  loss 
or  damage,  and  their  award,  in  writing,  shall 
be  binding  on  the  parties."  Insurer's  agent 
requested  a  third  person  to  select  persons  to 
make  the  necessary  appraisals  for  each  party. 
R.  and  P.  were  selected,  and  they,  with  in- 
surer's agent,  made  an  appraisal  of  the  dam- 
age,  and  it  was  signed  by  insurer's  agent  and 
R.  Held,  It  was  not  binding  upon  the  in- 
eured.    u^tna  Ins.  Co.  v.  Stevens,  48  III.,  31. 

5.  The  submission  to  arbitrators  gave  them 
power  "  to  award  and  determine  what  was  the 
total  sum  of  money  which  ought  to  be  paid  to 
the  plaintiff,  under  or  by  virtue  of  the  said 
policies  or  any  of  them,  in  respect  of  loss  or 
damage  occasioned  hy  the  said  fire,  to  or  in 
the  said  chattels  or  things  particularized  in 
■certain  scliedules."  The  arbitrators  found  the 
loss  or  damage  sustained,  and  then  declared 
that  the  whole  salvage  or  proceeds  of  the  sal- 


vage belonged  absolutely  to  the  plaintiff. 
Held,  tlie  arbitrators  exceeded  their  jurisdic- 
tion.   Skipper  «.  Grant,  10  C.  B.  (N.  S.),  237. 

6.  The  claim  was  submitted  to  arbitrators, 
who  found  for  the  insured.  Insurers  brought 
a  writ  of  suspension,  alleging  that  they  had 
discovered  fraud  on  the  part  of  the  insured. 
Held,  if  tliere  were  fraud,  the  contract  must 
fall,  and  the  arbitration  must  go  with  it.  Her- 
cules Ins.  Co.  V.  Hunter,  14  C.  C.  S.,  147. 


ARGUMENTS  OF  COUNSEL. 

1 .  It  was  proved  that  defendant  issued  a  cer- 
tain  pamphlet,  but  it  was  not  offered  in  evi- 
dence.  Held,  plaintiff's  counsel  should  not 
have  been  permitted  to  read  from  it  while 
making  his  argument  to  the  jury.  Koelgers  v. 
Guardian  Life  Ins.  Co.,  57  N.  Y.,  638;  s.  c,  10 
Abb.  Pr.  (N.  S.),  176. 

2.  Insured  offered  the  master's  protest  as 
evidence  in  the  case,  and  it  was  excluded ;  but 
the  counsel  for  insured  in  his  address  to  the 
jury  .attempted  to  state  some  of  its  c<-«ntents,  to 
which  insurer  objected,  and  the  court  allowed 
him  to  proceed,  on  the  ground  that  protests 
usually  set  forth  the  particulars  of  the  casual- 
ty; tliat  insured  was  entitled  to  any  fair  infer- 
ence from  the  general  character  of  the  paper 
and  the  refusal  of  the  insurers  to  have  it  read, 
and  the  counsel  was  permitted  to  say  "  If  that 
document  could  have  been  offered  in  evidence, 
it  would  have  explained  the  particulars  of  the 
casualty,  and  would  have  furnished  a  satis- 
factory explanation  of  the  fact  that  when  the 
vessel  was  examined  at  Bermuda  she  had  six 
broken  knees."  Held,  error  sufficient  to  re- 
quire a  new  trial.  Hoxie  v.  Home,  Ins.  Co.,  33 
Conn.,  471. 


ARRESTS,  RESTRAINTS  AND  DE- 
TAINMENTS. 

(See  Capture  AND  Seizure;  Illicit  Trade ;  PoLicr.) 
I.  What  is  a  loss  by. 

II.  NOT  A  loss  by. 


|I.  "What  is  a  loss  by. 

1 ,  Against  unlawful  arrests,  restraints  and 

71 


Ii3 


ARRESTS,  RESTRAINTS  AND  DETAINMENTS. 


144 


What  is  a  loss  bv. 


detainments  of  kings,  etc.  She  was  neutral, 
•with  a  neutral  cargo  on  board,  laden  and 
Bailed  on  her  voyage  before  the  institution  of 
the  blockade.  She  made  an  attempt  to  get 
out  to  sea,  but  was  ordered  back  by  the  block- 
ading squadron,  and  an  abandonment  was 
oflered  immediately.  Held,  having  been  laden 
before  the  institution  of  the  blockade,  the  re- 
stiaint  was  unlawful,  and  therefore  a  loss 
within  tlie  terms  of  the  policy.  Olieera  c. 
Union  Ins.  Co.,  3  Wheat.,  183. 

2.  From  Philadelphia  to  Havana.  Slie 
cleared  December  21st,  and,  while  detained  by 
head  winds,  an  embargo  was  laid  December 
22d  and  promulgated  on  the  24th.  She  was 
arrested  and  prevented  from  proceeding.  She 
returned  to  port,  and  an  abandonment  was  of- 
fered. Held,  a  domestic  embargo  amounts  to 
an  arrest,  restraint  or  detainment  by  the  gov- 
ernment, and,  as  the  policy  was  general,  a  do- 
mestic embargo,  equally  with  a  foreign  one, 
was  a  peril  within  the  words  of  the  policy;  a 
contract  to  indemnify  against  loss  arising 
from  an  embargo  which  the  government  of 
the  parties  may  at  any  future  time  impose,  is 
not  against  the  policy  of  the  law,  therefore 
the  insured  was  entitled  to  recover  for  a  total 
loss.  Odlin  v.  Insurance  Co.  of  Pennsylvania,  2 
Wash.  C.  C,  312. 

3.  Stipulated :  "  Free  from  sei7.ure  for  or  on 
account  of  any  prohibited  or  illicit  trade." 
An  English  cruiser  compelled  her  to  go  into 
the  outer  road  of  Plymouth,  detaining  her  sis 
hours.  She  arrived  at  the  port  of  destination, 
was  seized  under  the  Berlin  decree  and  con- 
demned, because  the  master  had  made  a  false 
declaration  before  an  officer  of  the  port,  stat- 
ing he  liad  not  been  in  England.  Held,  the 
loss  did  not  fall  within  the  exception;  that  it 
was  within  "arrests  and  detainments  of 
princes."  Mumford  v.  Phmnix  Ins.  Co.,  7 
Johns.,  449. 

4.  "  On  cargo,  warranted  not  to  aband<m  for 
capture  until  condemnation,  or  until  six 
months  detention  after  advice  received." 
Sailed  May  10,  1807.  She  was  boarded  by 
an  English  privateer  June  10,  carried  to 
Portsmouth  and  released.  She  arrived  in 
Flushing  roads,  where  an  armed  force  came 
on  board,  who  ascertained  that  she  had  been 
captured  and  carried  into  England.  She 
reached  Antwerp,  the  armed  force  being  kept 
on  board,  and,  by  permission,  cargo  was 
landed  August  25,  and   sold   in  June,  1810. 

72 


Insured  abandoned  July  13, 1810,  immediately 
after  receiving  information  of  the  sale.  Held, 
the  loss  was  tot'^.l  by  arrest,  restraint,  or  de- 
tainment. Grade  v.  New  Tork  Ins.  Co.,  IS 
Johns.,  161. 

5.  On  cargo  of  American  brig  from  Sandy 
Hook  to  a  port  of  discharge  in  Sweden  or 
Russia:  "With  liberty  to  call  and  wait  at 
Gothenburgh  for  orders."  She  had  t.iken  her 
cargo  at  the  Spanish  Main  and  arrived  off 
Sandy  Hook,  but  detained  there  to  avoid  the 
operation  of  an  embargo.  She  commenced 
the  voyage,  and,  on  July  24th,  being  at  anchor 
in  Wingo  Sound,  the  master  heard  of  the  de- 
claration of  war  between  England  and  the 
United  States,  and,  to  avoid  capture,  he  took  a 
pilot  for  Gothenburg,  where  he  arrived  July 
26th.  Having  grounded,  it  was  necessary 
to  take  her  cargo  out  and  repair;  she  was 
ready  for  sea  in  September,  but  the  certainty 
of  capture  made  it  impossible  to  pursue  the 
voyage,  which  was  abandoned.  She  was  sold 
and  the  cargo  stored  in  April,  1813,  and  an 
abandonment  made  March  followmg.  Held,. 
tlie  loss  was  total,  within  the  risk  of  restraint 
of  princes  or  men  of  war.  Saltus  v.  United 
l7is.  Co.,  15  Johns.,  523. 

6.  Upon  ship,  warranted  free  from  any 
charge,  damage  or  loss  which  may  arise  from 
having  been  engaged  in  any  illicit  or  prohib- 
ited trade  at  any  time  whatsoever.  She  had 
goods  contraband,  the  goods  themselves,  ac- 
cording to  the  law  of  the  port  of  destination, 
became  forfeited,  but  no  penalty  was  to  be  in- 
flicted on  the  vessel  which  carried  them.  The 
government,  however,  seized  and  confiscated 
her.  Held,  her  arrest  and  detention  were  un- 
lawful, as  much  so  as  if  she  had  entered  the 
port  with  goods  that  might  have  been  legally 
carried  there.  Thompson  v.  Mississippi  JIaiiiie 
and  Fire  Im.  Co,  2  La.  (O.  S.),  228. 

7.  On  cargo.  New  Orleans  to  Tampico, 
against  perils  of  the  sea,  arrests,  restraints  and 
detainments  of  all  kings,  princes  or  people 
of  whatever  nation.  She  was  boarded  off  the 
bar  at  Tampico,  ami  ordered  away  bj-  the 
French  blockading  squadron.  Held,  a  restraint 
within  the  meaning  of  the  policy,  and  insured 
had  a  right  to  abandon  and  recover  (citing- 
Olivera  «.  Union  Ins.  Co.,  3  Wheat.,  183).  Ft- 
gers  c.  Ocean  Ins.  Co.,  12  La.  (O.  S.),  362. 

8.  On  slaves,  against  certain  perils  enumer- 
ated, including  arrests,  restraints  and  detain- 
ments of  all  kings,  princes  or  people,  of  what 


US 


ARRESTS,  RESTRAINTS  AND  DETAINMENTS. 


144 


What  is  not  a  loss  by. 


nation,  condition  or  quality  soevor.  She  was 
driven  out  of  her  course,  sprung  a  leak,  and 
was  unable  to  reach  any  port  in  the  United 
States.  Running  sliort  of  provisions,  she 
bore  away  for  Bermuda,  and  came  to  anrhor 
in  Port  Hamilton,  where  she  was  seized  by 
tlie  ollicers  of  customs.  While  so  detained,  a 
■writ  of  habeas  corpus  was  served  upon  the 
master,  who  was  compelled  to  deliver  the 
slaves  to  the  officer,  and  they  were  liberated 
by  order  of  court.  HeM,  a  loss  within  the 
policy.  Simpson  v.  Charleston  Fire  and  Ma- 
rine  Ins.  Co.,  Dud.  Ap.  (So.  Car.),  239. 

9.  Against  perils  of  the  seas,  arrests,  re 
straiuts  and  detainments  at  and  from  Charles- 
ton. The  cargo  was  laden  April  4th,  the  date 
of  the  policy.  Held,  arrests,  restraints  and 
<letainmeuts  included  a  domestic  embargo. 
Lnrent  e.  Ho'ith  Carolina  Ins.  Co.,  1  N.  &  McC, 
505. 

10.  On  cargo,  including  risk  of  restraints, 
detainments,  etc.  She  put  iuto  New  York  for 
repairs,  was  unable  to  procure  money  to  make 
them,  and  the  cargo  was  sold  for  that  purpose. 
An  abandonment  was  offered  and  refused,  but 
an  embargo  was  laid  about  that  time  upon  all 
vessels  in  port.  Held,  they  were  entitled  to 
recover  for  a  total  loss.  McFee  v.  South  Caro- 
lina Ins.  Co.,  2  McCord,  503. 

11.  "Against  arrests,  restraints,  detain- 
ments, etc."  The  plaintiffs  were  Spaniards 
domiciled  in  Spain.  She  arrived  at  Corunna, 
where  an  embargo  was  laid  upon  all  ships, 
and  she  was  taken  possession  of  by  the  gov- 
ernment  and  employed  for  the  purpose  of 
taking  troops  to  Malaga,  the  cargo  having 
been  previously  taken  out  by  the  authorities 
and  stored  at  Malaga.  Held,  a  loss  within 
the  policy;  that  there  is  a  marked  distinction 
between  an  embargo  in  a  time  when  there  is 
peace  between  the  countries  of  insured  and 
insurer,  and  an  embargo  caused  by  hostilities 
existing  or  exjiected.  Aubert  v.  Orny,  3  B.  & 
S.,  163 ;  s.  c,  9  Jur.  (N.  S.),  714 :  32  L.  J.  Q.  B., 
50;  11  W.  R.,  27;  7  L.  T.  (N.  S.),  4G9. 

II.  "What  is  not  a  loss  by. 

1,  The  policy  was  against  the  usual  risks, 
except  that  the  word  "  unlawful  "  was  printed 
before  arrests,  so  that  it  read,  "  unlawful  .ar- 
rests, restraints  and  detainments  of  all  kings, 
princes,  etc."  Held,  the  word  "  unlawful  "  qual- 
ified restraints  and  detainments  as  well  as  ar- 


rests; hence,  a  detainment  by  a  force  lawfully- 
blockading  a  port  was  exempted  by  the  terms 
of  the  policy.  McC  all  v.  Marine  Ins.  Co.,  8 
Cranch,  59. 

2.  On  cargo  consisting  chiefly  of  nuinilions 
of  war.  Insured  abandoned  and  declared  in 
the  action  for  a  total  loss  of  the  voyage  by  a 
restraint  of  Spanish  authorities.  She  was 
proceeding  to  Talacuta,  where  a  boat  was  sent 
ashore  for  information;  the  crew  of  it  were 
made  prisoners.  She  put  to  sea  and  fell  in  with 
a  Beet  of  six  sail,  under  command  of  Gen.  Mina, 
with  troops  for  the  bar  of  St.  Auder.  She- 
kept  company  with  the  fleet,  expecting  to  sell 
her  cargo  to  the  gencriil,  and  arrived  off  tlie 
bar  April  28th.  The  cargo  was  sold,  to  be  deliv- 
ered  as  it  should  be  wanted,  from  time  to  time, 
by  July  1st.  While  the  master  was  on  shore, 
a  Spanish  frigate  and  two  armed  schooners 
were  discovered,  and  slie  immediately  got 
under  way  to  escape  Ihem,  which  w  as  accom- 
plished after  a  four  hours'  chase.  She  subse- 
quently returned  to  St.  Ander  and  took  the 
master  on  board.  Needing  repairs,  she  pro- 
ceeded to  the  Balize,  made  them,  and  sailed 
again  for  St.  Ander,  where  she  arrived  June 
22d,  but  found  the  place  in  the  possession  of 
the  royalists;  in  consequence  of  this,  she  did 
not  approach  the  shore,  but  returned  to  New 
York  with  her  original  cargo,  arriving  there 
July  22d.  Held,  the  insurers  did  not  under- 
take that  the  voyage  should  be  performed 
without  delay,  or  that  the  perils  insured 
against  should  not  occur;  they  undertook 
only  for  losses  caused  by  the  perils  insured 
against;  and  if  a  peril  acted  upon  the  subject, 
yet  if  it  were  removed  before  any  loss  took 
place,  insured  could  not  abandon  for  a  total 
loss;  that  she  resumed  her  voyage  after  the 
restraint  ceased,  and  there  was  nothing  to 
show  that  the  object  of  the  voyage  was  de- 
feated by  the  temporary  restraint  and  delay 
caused  by  the  effort  which  was  made  to  avoid' 
capture;  the  real  cause  of  the  loss  of  the  vay. 
age  was  that  St.  Ander  was  again  occupied 
by  the  royalists,  who  would  have  seized  the 
vessel  and  confiscated  the  property',  had  she 
attempted  to  trade  there,  therefore  the  voyage 
was  broken  up  from  fear  of  loss  by  seizure, 
and  not  because  of  a  restraint  within  the 
meaning  of  the  policy  (citing  Hadkinson  v. 
Robinson,  3  B.  &  P.,  388;  Lubbock  ji.  Row- 
croft,  5  Esp.,  5t».)  Smith  -c.  Vnicersal  Ins.  Co., 
G  Wheat.,  170. 

73 


U7 


ARSON  AND  INCENDIARISM. 


148 


Character  of  proof  required. 


3.  The  expenses  of  the  crew  while  the  ship 
is  embargoed  are  not  charges  against  ship, 
nor  are  the}'  allowable  in  general  average,  but 
are  speci.il  charges  against  the  freight,  itc- 
Bride  v.  Marine  Ins.  Co.,  7  Johns.,  431. 

4.  "Warranted  free  from  British  and  Amer- 
ican capture  and  detention,  but  the  usual  sea 
risks,  to  continue  during  capture  and  after 
liberation."  She  was  stopped  at  the  mouth 
of  the  Chesapeake  and  warned  back.  She 
returned  to  the  port  of  lading,  Norfolk,  and 
abandoned  the  voyage.  Held,  the  loss  was 
within  the  exception.  Wilson  v.  United  Ins. 
Co.,  14  Johns.,  227. 

5.  On  goods  "  against  all  unlawful  arrests, 
restraints  and  detainments,  etc."  She  was  de- 
tained and  driven  away  from  an  intermediate 
port  by  a  British  frigate,  which  with  other 
-vessels  was  blockading  the  intermediate  port. 
But  the  blockade  was  lawful,  hence  the  re- 
straint was  lawful,  and  the  loss  not  within  the 
policy.     Thompson  v.  Read,  12  S.  and  R.,  440. 

6.  On  ship  and  on  cargo,  two  policies,  in- 
cluding unlawful  arrests,  restraints  and  de- 
tainments, etc.,  but  the  word  "unlawful"  was 
omitted  in  policy  on  cargo.  She  was  boarded 
by  boats  from  a  British  squadron,  the  master 
was  ordered  with  his  papers  to  the  ship  of  the 
commodore,  which  order  he  obeyedL,  and  was 
then  ordered  to  proceed  to  the  port  from 
whence  he  came,  upon  penalty  of  being  seized 
and  condemned,  which  order  he  obeyed.  Held, 
not  an  arrest  and  detention  by  princes  nor  a 
capture  by  enemies.  Patterson  v.  Marine  Ins. 
Co.,  5  H.  &  J.,  417. 

7.  She  was  warranted  free  from  American 
condemnation.  She  slipped  away  in  the  night 
but  got  ashore,  was  seized  next  day  and  cou- 
<.lemned  for  breach  of  the  embargo.  Held 
the  ultimate  total  loss  was  by  a  peril  excepted ; 
that  the  insured  could  neither  recover  for  the 
total  loss  nor  for  the  previous  loss  caused  by 
stranding.    Lime  v.  Janson,  12  East,  648. 


ARSON  AND  INCENDIARISM. 

I.  Character  op  proof  required. 
II.  Wh.\t  most  be  proved. 

III.  Acts  and  declarations  op  accused. 

IV.  Employment  op  counsel  by  insurkks. 

.74 


I.   Chaeactee  of  PEOOF    EEQUIEET). 

1.  If  the  defense  is  that  the  insured  set  fire 
to  the  premises,  it  must  be  made  out  by  a  pre- 
pouderance  of  evidence;  if  the  evidence  is 
evenly  balanced,  or  the  jury  is  in  doubt  as  to 
what  the  truth  is  on  that  point,  there  is  not  a 
preponderance  of  evidence.  Huchberger  v. 
Merchants  Fire  Ins.  Co.,  4  Bissell,  265. 

2.  If  the  insurer  defends  on  the  ground  that 
the  property  was  burned  by  the  insured,  the 
insurer  is  not  bound  to  give  proof  of  the  fact 
sufficient  to  exclude  all  doubt,  but  the  evi- 
dence must  be  such  as  clearly  satisfies  tlie 
jury  of  the  truth  of  the  fact;  and  confessions 
extorted  from  the  insured  are  to  be  entirely 
disregarded;  nothing  but  free  and  voluntary 
confessions  should  be  relied  upon  by  the  jury. 
Scott  11.  Home  Ins.  Co.,  1  Dil.  C.  C,  105. 

3.  The  defense  relied  on  was  that  the  fire 
was  caused  by  the  willful  and  fraudulent  act 
of  the  insured.  .  The  court  refused  to  instruct 
that  the  jury  must  be  satisfied  of  the  truth  of 
this  defense  beyond  a  reasonable  doubt,  but 
did  instruct,  if  the  jury  as  reasonable  men, 
were  satisfied  of  the  truth  of  it,  that  would  be 
sufficient,  but  that  they  must  be  satisfied  of  it 
as  reasonable  men  before  they  could  find  in 
favor  of  insurer.  Schmidt  v.  New  York  Union 
3Iutual  Fire  Ins.  Co.,  1  Gray,  529. 

4.  After  the  policj'  was  made  and  delivered, 
several  attempts  were  made  by  incendiaries 
to  burn  the  property.  Held,  immaterial.  Clark 
V.  Hamilton  Mut.  Ins.  Co.,  9  Gray,  148. 

5.  The  defendant  pleaded:  "The  premises 
were  burned  either  through  the  gross  care- 
lessness of  the  person  insured,  or  fraudulently 
by  design  on  his  part.  The  court  instructed  the 
jury  that  the  defendant  was  bound  to  prove 
beyond  a  reasonable  doubt  the  allegation  stated 
in  the  plea,  and  defined  such  doubt  to  be: 
"That  if  felt  by  an  intelligent,  conscientious 
and  reasonable  man  would  occasion  mental 
distress  if  disregarded  b}'  him,  or  such  a  sub- 
stantial doubt  as  would  hold  in  suspense  the 
judgment  of  an  intelligent,  reasonable,  con- 
scientious man."  The  jury  returned  into 
court,  saying  that  there  was  some  doubt  in 
the  minds  of  the  jurors  whether  this  was  to 
be  treated  as  a  civil  or  criminal  matter; 
whereupon  the  court  instructed  them :  "  You 
must  be  satisfied  of  the  truth  of  the  matter 
alleged  in  the  plea,  beyond  any  reasonabld 
doubt."     Held,  the  instruction  was   correct 


149 


ARSON  AND  INCEXpIAKlSM. 


150 


What  must  be  jiroved. 


(citing  Thuit€ll  v.  Beaumout,  1  Bing.,  339; 
Thayer  v.  Boy\e,  30  Mc,  475).  Batman,  v. 
Ilobbs,  35  Me.,  227. 

6.  The  evidence  may  be  insufficient  to  cou- 
vict,  if  the  assured  were  on  trial  lor  arson,  and 
yet  strong  enough  to  prevent  recovery  on  tlie 
policy.  Regnier  v.  Louisiana  State  Fire  & 
Marine  Ins.  Co.,  13  La.  (O.  S.),  330. 

7.  The  defeudauts  introduced  evidence  tend- 
ing to  show  that  the  fire  was  caused  by  the 
fraud  of  the  insured.  Held,  it  was  not  neces- 
sary that  the  evidence  should  be  strong  enough 
to  sustain  a  case  of  arson.  Wight/nan  v.  West- 
ern Marine  &  Fire  Ins.  Co.,  8  Rob.  (La.),  442 ; 
Hoffman  v.  Western  Mo/rine  <S>  Fire  Ins.  Co.,  1 
La.  An.,  316. 

8.  About  the  time  the  fire  occurred  insured 
bad  a  cab  in  attendance  and  was  ready  to  de- 
part with  boxes  and  trunks  and  the  store  look- 
ing glass.  Held,  where  a  criminal  charge  is 
to  be  proved  by  circumstantial  evidence,  the 
proof  ought  not  only  to  be  consistent  with  the 
guilt  of  the  person  accused,  but  inconsistent 
■with  any  other  ration.al  conclusion,  and  al- 
though this  was  a  civil  and  not  a  criminal 
])roceeding,  the  rule  is  the  same.  Flynn  v. 
Merchants'  Ins.  Co.,  17  La.  An.,  135. 

9.  The  defendant  pleaded  that  the  insured 
fraudulently  caused  bis  boat  to  be  burned; 
and  the  court  instructed  the  jury  not  to  find  a 
verdict  for  the  insurer  on  that  plea,  unless  tJie 
evidence  satisfied  them  of  the  fact  beyond  a 
reasonable  doubt.  Held,  the  instruction  was 
substantially  this,  "  that  if  the  jury  after  hear- 
ing all  the  evidence  relative  to  that  plea,  re- 
mained doubtful  in  their  minds  whether  the 
insured  burned  the  boat,  it  would  be  their 
duty  to  acquit  him  of  the  charge,  and  this 
violated  no  rule  of  law.  Lexington  Ins.  Co.  v. 
Paver,  16  Ohio,  324. 

10.  The  defendant  asked  the  court  to  iu- 
Btruct:  "If  the  weight  of  testimony  shows 
that  the  fire  was  set  by  the  plaintilTs  or  one  of 
them,  the  defendant  is  entitled  to  a  verdict, 
which  the  court  refused,  but  instructed :  "  The 
defense  set  up  constitutes  a  criminal  offense, 
and  although  this  is  a  civil  action,  yet  from 
the  nature  of  the  defense,  it  being  what  would 
constitute  a  crime,  the  jury  must  be  satisfied 
from  the  evidence,  beyond  a  reasonable  doubt." 
Held,  error,  for  in  all  civil  cases,  a  mere  pre- 
ponderance of  evidence  on  either  side  is  suf- 
ficient. Washington  Union  Ins.  Co.  v.  Wilson, 
7  Wis.,  169. 


11.  Evidence  was  given  tending  to  show 
that  the  plaintiff  had  willfully  caused  the  tire. 
Held,  it  was  error  to  tell  the  jury,  before  they 
could  find  against  the  plaintiff,  they  must  be 
satisfied  beyond  a  reasonable  douljt  that  he 
fired  the  premises,  or  procured  them  to  be 
fired  and  burned.  It  was  sufficient  if  the  evi- 
dence preponderated  in  favor  of  the  defendaut. 
Blaeser  v.  Milwaukee  Mechanics  Mutual  Ins. 
Co.,  37  Wis.,  31. 

12.  Upon  an  indictment  charging  defend- 
ant with  arson  for  the  purpose  of  defrauding 
an  insurance  company,  no  proof  was  offered 
of  the  due  incorporation  of  the  insurance  com- 
pany, or  of  their  compliance  with  the  laws  of 
the  state.  Held,  the  issuance  of  the  policy  by  its 
agents  de  facto  was  sufficient.  The  People  v. 
Hughes,  29  Cal ,  257. 

1 3.  The  defendant  was  prosecuted  for  arson ; 
and  whether  he  was  over  insured  became  a 
material  question.  Held,  the  amount  and  place 
of  insurance  might  be  proved  without  pro- 
ducing  the  policies.  State  of  Nevada  v.  Cohn, 
9  Nev.,  179. 

14.  In  order  to  make  out  a  defense  that  in- 
sured caused  tlie  premises  to  be  burned,  the 
same  evidence  must  be  adduced  as  would  be 
required  to  ctmvict  upon  an  indictment  for 
arson;  and  the  jury  must  be  as  fully  satisfied 
that  the  crime  charged  is  made  out  as  would 
warrant  a  finding  of  guilt  on  a  criminal  in- 
dictment.  Thurtcll  v.  Beaumont,  8  Moore,  613; 
1  Ring.,  339;  3  L.  J.  C.  P.,  4. 

15.  Upon  an  indictment  on  43  Geo.  Ill,  cli. 
58,  sec.  1,  for  feloniously  burning  house,  with 
intent  to  defraud  the  insurers.  Held,  an  un- 
stamped memorandum  indorsed  on  a  stamped 
policj',  by  deed,  was  not  admissible  against 
the  prisoner.  Pex  v.  Oillson,  1  Taunt.,  95;  R. 
&  R.  C.  C,  138. 

II.  What  must  be  pkoved. 

1.  On  an  indictment  for  destroying  a  vessel 
with  an  intent  to  injure  the  insurers,  it  is  not 
necessary  to  prove  the  existence  of  a  legal  cor- 
poration authorized  to  insure,  or  a  compliance 
on  the  part  of  the  corporation  with  the  terms 
of  its  charter,  or  the  validity  of  the  policy.  It 
is  sufficient  to  show  that  the  business  of  in- 
surance was  conducted  by  officers  defacto,a.ni 
that  the  policy  was  executed.  United  States 
V.  Amedy,  11  Wheat.,  392. 

'i.  Tlie  prisoners  were  indicted  for  burning 

75 


151 


ASSESSMENTS. 


152 


VaUd. 


property  witli  iatent  to  defraud  certain  insur- 
ance companies.  It  appeared  tlje  policies 
were  sent  with  printed  signatures  to  an  agent 
at  Chicago,  who  countersigned  and  delivered 
them.  No  direct  evidence  of  his  agency  and 
authority  was  produced,  but  the  court  allowed 
evidence  tending  to  show  that  his  principals 
had  recognized  him  as  their  agent.  Held,  the 
evidence  was  insufBcient  to  carry  the  case  to 
the  jury,  for  the  statute  embraces  nothing  but 
property  actually  insured.  It  follows,  a  valid 
insurance  must  be  established  or  the  attempt 
to  convict  fails.  Meister  d.  The  People,  31 
Mich.,  99. 

III.  Acts  a:kd  declaeations  of  the 

ACCUSED. 

1.  The  person  charged  with  the  crime  of 
arson,  consulted  with  and  employed  a  lawyer 
immediately  after  the  fire  to  prepare  the  pa- 
pers necessar3'  to  perfect  the  claim,  and  the 
lawyer  stated  the  loss  and  gave  notice  in  the 
name  of  the  prisoner.  Held,  evidence  to  go 
to  the  jury,  leaving  to  them  the  question 
whether  the  lawj-er  had  authority  to  act.  The 
People  V.  Beigler,  Hill  &  D.,  133. 

2.  Indictment  for  burning  property  with 
intent  to  defraud  insurance  companies.  Held, 
conversations  among  the  accused  tending  to 
show  a  purpose  or  conspiracy  existing,  made 
a  long  time  prior  to  the  fire,  are  admissible. 
Meister  v.  The  People,  31  Mich.,  99. 

IV.  Employment  of  counsel  by  in- 

SUKEES. 

1.  It  is  not  proper  to  entrust  the  adminis- 
tration of  criminal  justice  to  anyone  who  will 
be  tempted  to  use  it  for  private  ends.  The 
employment  of  counsel  by  private  parties  to 
aid  in  the  prosecution  tends  to  this.  Hence 
the  employment  of  counsel  by  insurance  com- 
panies to  assist  in  the  pr9secution  of  persons 
charged  with  burning  property  to  defraud  the 
companies  is  unlawful.  Meister  v.  The  People, 
31  Mich.,  99. 


ASSESSMENTS. 

I.  Valid. 

II.  Is\-ALID. 


I.  Valid. 

1.  Though  it  be  true  that  the  insured  has 
forfeited  his  rights  under  the  contract  of  in- 
surance, it  does  not  follow  that  his  obligation 
to  contribute  according  to  the  rules  of  the  so- 
ciety has  ceased.  Korii  v.  Mutual  Ass.  Soc,  G 
Cranch,  19a. 

2.  A  mutual  insurance  company  need  not, 
after  every  loss,  compute  the  assessments  upon 
deposit  notes  requisite  to  meet  each  loss;  but 
a  rule  may  be  adopted,  that  will  approximate 
as  nearly  as  is  practicable  and  reasonable. 
New  England  Mutual  Fire  Ins.  Co.  v.  Belknnp, 
9  Cush.,  140. 

3.  The  assessment  was  based  upon  a  com- 
putation of  losses  from  month  to  month,  and 
included  losses  chargeable  upon  each  policy 
for  the  month  in  which  the  assessment  ex- 
pired, but  excluded  those  in  the  month  in 
which  it  began.  .fft'W,  valid  assessment.  Peo- 
ple's Mat.  Ins.  Co.  v.  Allen,  10  Gray,  297. 

4.  Stipulated  :  "  If  assured  shall  negleci 
for  the  term  of  thirty  days  to  pay  his  premi- 
um  note  or  any  assessment  thereon  when  re- 
quested to  do  so  by  mail  or  otherwise,  the  policy 
shall  be  void."  Held,  if  insurers  deposited  in 
the  postotBce  within  the  time  mentioned  a 
prepaid  notice  of  the  assessments,  with  a  re- 
quest for  payment  of  the  same,  addressed  to 
insured  at  the  place  where  insured  property 
was  situated,  that  was  all  they  were  bound  to 
do,  and  a  failure  to  pay  the  premium  released 
insurers.  Nor  could  he  avoid  his  part  of  the 
contract  by  change  of  residence  without  no. 
tice  to  the  insurers.  Lothrop  v.  GreenJUld 
Stock  and  Mut.  Ins.  Co.,  2  Allen,  82. 

5.  The  ratio  for  each  month  was  accurately 
obtained ;  the  computations  were  substantfally 
accurate;  the  sums  raised  were  necessary  and 
proper;  the  assessments  were  approximately 
just  and  equal  upon  all  the  members.  Held, 
valid  assessment,  notwithstanding  all  out- 
standing policies  had  been  canceled,  and  tlio 
meeting  at  which  the  assessment  was  laid  was 
called  by  the  president  only.  Fayette  Mutual 
Fire  Ins.  Co.  v.  Fuller,  8  Allen,  27. 

6.  Before  insurers  appointed  any  agent  in 
the  state,  they  issued  a  policy  of  insurance 
upon  properly  within  it;  but  subsequently 
they  appointed  an  agent  and  complied  with 
the  law.  Held,  insured  was  liable  for  the  as- 
sessment. National  Mut.  Ins.  Co.  d.  Pursell, 
10  Allen,  231. 


76 


153 


ASSESSMENTS. 


154 


Invalid. 


7.  Neither  the  insolvency  of  the  corpora- 
tion nor  the  cancellation  of  its  policies  will 
ixlease  the  mcmbeis  from  liability  for  all 
losses  that  occurred  while  they  were  members. 
Coinmoiiwealth  v.  Massachusetts  Mut.  Ins.  Co., 
113  Mass.,  116;  Same  v.  Mechanics'  Mut.  Ins. 
Co.,  id.,  193. 

8.  A  member  of  a  mutual  company  suffered 
a  total  loss,  received  the  amount  and  surrend- 
ered the  policj'.  But  the  company  retained 
the  premium  note.  Held,  insured  must  pay 
assessments  tor  losses  incurred  during  the  full 
term  of  the  policy.  Boot  and  Shoe  Manufac- 
turers' Ins.  Co.  V.  Melrose  Sue.,  117  Mass.,  199. 

9.  The  insured  is  liable  for  all  assessments 
lawfully  made  upon  his  premium  note  during 
the  entire  period  mentioned  in  the  policy,  as 
■well  after  as  before  the  loss.  Swamscot  Ma- 
chine  Co.  v.  Partridge,  35  N.  H.,  3C9. 

10.  Assessments  may  be  made  against  a 
policy  after  it  has  expired,  for  losses  which 
occurred  while  it  was  in  force;  and  the  com- 
pany is  entitled  to  retain  the  premium  note 
until  all  assessments  are  paid.  A  failure  to 
paj-,  within  the  time  required  by  the  cliarter, 
gives  a  right  to  recover  the  amount  of  the 
premium  note.  St.  Louis  Mutual  Fire  Ins.  Co. 
V.  Bxchier,  19  Mo.,  135. 

11.  The  forfeiture  of  a  policy  made  by  a 
mutual  insurance  company  does  not  -release 
the  insured  from  assessments  made  against 
his  premium  note.  loica  State  Ins.  Co.  v.  Pros- 
tee,  11  Iowa,  115. 

II.  Invalid. 

1.  Under  the  Insurance  Act  of  April,  18-19, 
a  mutual  insurance  company  could  not  divide 
its  risks  into  two  classes,  and  assess  for  losses 
only  the  premium  notes  in  the  cla.ss  to  whiclr 
the  particular  note  was  assigned.  Thomas  v. 
Achilles,  10  Barh.,  491. 

2.  In  making  assessments  upon  premium 
notes,  the  directors  of  a  mutual  insurance 
company  do  not  act  judicially.  And  where 
the  company  is  liable  for  a  claim  and  have 
not  the  money  to  pay  it,  the  directors  are  to 
ascertain  who  were  the  members,  at  the  time 
the  loss  occurred,  and  to  assess  upon  each  in 
proportion  as  the  amount  which  his  deposit 
note  bears  to  all  the  deposit  notes.  '  They  have 
no  right  to  consider  the  length  of  time  any 
person  has  been  a  member.  If  they  omit  to 
assess  any  persons  who  were  liable  for  their 


proportion  of  the  loss,  or  include  previous  as- 
sessments, from  which  the  parties  had  been 
released,  the  assessment  is  invalid.  Herkimer 
County  Mut.  Ins.  Co.  v.  Fuller,  U  Barb.,  373; 
7  How.  Pr.,  310. 

3.  In  an  action  brought  to  recover  assess- 
ments upon  a  deposit  note,  the  plaintiff  must 
prove  that  the  assessments  were  made  in  pursu- 
ance of  the  act  of  incorporation  and  by-laws. 
Atlantic  Mut.  Ins.  Co.  v.  Fitzpatrick,  3  Gray, 
379. 

4.  Some  of  llie  members  liable  to  assess- 
ment were  intentionally  omitted.  Held,  it  in- 
validated the  assessment.  Marblchead  Mutual 
Fire  Ins.  Co.  u.  Hayward,  8  Gray,  308. 

5.  An  assessment  against  members  of  a  mu- 
tual insurance  company  for  losses  and  ex- 
penses which  accrued  before  some  of  them 
were  members  is  void  as  to  those  who  were 
not  members.  Long  Pond  Mutual  Fire  Ins. 
Co.  ».  Houghton,  6  Gray,  77. 

6.  The  assessment  was  made  against  a  part 
of  the  members  onlj-,  in  proportion  to  their 
premiums  and  deposits.  Held,  an  illegal  as- 
sessment. People's  Equitable  Mutual  Fire 
Ins.  Co.  V.  Arthur,  7  Gray,  367. 

7.  An  assessment  not  made  according  to 
the  terms  prescribed  by  the  by-laws  is  invalid. 
Appleton  Mutual  Fire  Ins.  Co.  v.  Jcsser,  5  Al- 
len, 440. 

8.  An  assessment  for  an  amount  greater 
than  was  necessary  to  enable  the  company  to 
meet  existing  claims  is  invalid.  People's 
Equitable  Mutual  Fire  Ins.  Co.  v.  Babbitt, 
7  Allen,  335. 

9.  An  assessment  for  the  purpose  of  refund- 
ing unearned  premiums  is  void.  Common^ 
wealth  V.  Mechanics'  Mut.  Ins.  Co..  113  Mass., 
193. 

10.  A  member  of  a  mutual  company  sold 
his  insured  stock.  Held,  he  was  not  liable  to 
be  assessed  for  loss  that  occurred  after  the 
sale,  because  his  policy  ceased  when  the  sale 
was  perfected.  Wilson  ».  Trumbull  Mutual 
Fire  Ins.  Co.,  19  Penn.  St.,  372. 

11.  A  mutual  insurance  company  has  no 
right  to  assess  a  premium  note  for  losses  that 
occurred  after  the  policy  was  canceled,  nor 
for  losses  anticipated  upon  a  supposed  failure 
of  others  to  contribute  their  proportion  of 
losses.  York  County  Mutual  Fire  Ins.  Co.  v. 
Turner,  53  Me.,  335. 

1  2.  The  a.ssessment  was  made  to  cover  not 
o'l'.y  existing  losses,  but  an  estimate  for  bad 

77 


155 


ASSIGNEE  (RIGHTS  OF). 


loft 


When  rights  of  assignee  cannot  be  aftected  by  acts  of  assignor. 


debts.    Held,  It  was  illegal.    York  County  Mu- 
tual Fire  Ins.  Co.  v.  Bntcden,  57  Me.,  286. 

13.  The  charter  provided:  "The  directors 
shall  settle  and  determine  losses  and  damages 
to  be  paid  by  the  several  members  thereof, 
and  their  resijective  proportions  of  such  loss." 
A  majority  of  the  directors  assessed  asum  not 
exceeding  1 18,000  to  pay  losses,  and  appointed 
a  minority  committee  to  make  the  assessment, 
who  made  it  for  a  less  sum.  Held,  the  as- 
sessment was  illegal  because  it  was  not  fixed 
by  a  majority  of  the  directors.  Monmouth 
Mutual  Fire  Ins.  Co.  ■».  Lowell,  59  Me.,  504. 

14.  Refusal  to  pay  an  assessment  made  to 
cover  the  expenses  of  the  compan}',  as  well  as 
the  losses  sustained,  gives  no  right  of  action 
upon  the  premium  note;  for  the  power  to  as- 
sess is  limited  to  the  amount  of  losses  unpaid 
at  the  time  of  making  the  assessment.  Sin- 
nissippi  Ins.  Co.  v.  Toft,  26  Ind.,  240;  Same  v. 
Wheeler,  id.,  336 ;  Same  v.  Farris,  id.,  342. 

15.  The  complaint  showed  on  its  face  that 
neither  the  receiver  nor  the  court  to  which  he 
reported  had  examined  the  claims  against  the 
company,  nor  had  they"  determined  upon  the 
validity  of  the  claims.  Held,  the  amount  of 
claims  which  the  receiver  or  the  court  will 
allow  as  just  demands  against  the  company, 
together  with  any  indebtedness  previously  al- 
lowed by  the  directors,  must  be  ascertained 
before  an  assessment  is  made,  and  the  com- 
plaint must  show  the  time  covered  by  the 
policy,  and  that  the  losses  for  which  the  as- 
sessments were  made  occurred  during  that 
time.    Embree  v.  Shideler,  36  Ind.,  423. 

16.  Assessment  upon  a  premium  note. 
Seld,  recovery  could  not  be  h.ad  without 
proof  of  the  losses  and  expenses  which  au- 
thorized it.  Pacific  Mut.  Ins'.  Co.  v.  Guse,  49 
Mo.,  329. 


ASSIGNEE  (RIGHTS  OF). 

(See  Actios;  Assignment  op  Polict;  Subrogation.) 
I.  When  rights  of  assignee  caknot  be 

AFFECTED  BY  ACTS   OP  ASSIGNOR. 

II.  When   rights   op  assignee   are  af- 
fected BY  ACTS  OF  ASSIGNOR. 

III.  Generally. 
78 


I.  "When  rights  of  assignee  cannot 

BE  AFFECTED  BY  ACTS  OF  ASSIGNOE. 

1.  Copartners  insured  against  fire,  subject 
to  the  condition:  "When  property  shall  be 
alienated  by  sale  or  otherwise,  the  policy 
shall  be  void."  Held,  a  conveyance  by  one 
partner  of  his  interest  in  the  property  insured 
to  his  copartners  avoided  the  policy  unless  in- 
surers assented  to  it;  but  if  the  policy  was 
assigned  with  the  assent  of  tlie  insurers,  the 
assignee  could  recover  in  the  name  of  the  in- 
sured. (Overruled,  17  N.  Y.,  391.)  Tillou 
c.  Kingston  Mut.  Ins.  Co.,  5  N.  Y.,  405 ;  7  Barb., 
570. 

2.  Other  insurance  was  prohibited  unless 
made  with  the  company's  consent.  Insured 
assigned  the  policj-,  which  was  ratified  by  in- 
surer, and  subsequently  the  assignor  made 
other  insurance  to  which  insurers  never  con- 
sented. Held,  the  assignee  might  still  recover 
in  the  name  of  the  apsignor.  (Overruled,  17 
N.  Y.,  391.)  Traders'  Ins.  Co.  v.  Robert,  9 
Wend.,  404. 

H.  An  assignment  of  a  policy  protects  the 
assignee  to  the  extent  of  liis  interest,  provided 
the  insurer  consents  to  it;  and  the  assignor's 
alienation  cannot  affect  the  assignee's  rights  - 
Boynton  r.  Clinton  and  Essex  Mut.  Ins.  Co.,  16 
Barb.,  254. 

4.  The  assignors  of  the  policy  made  other 
insurance  upon  the  same  after  the  assitn. 
ment  of  the  polic_v,  of  which  the  insurer  had 
no  notice,  contrary  to  the  terms  of  the  policy; 
but  the  insurer  consented  to  the  assign, 
ment.  Held,  it  was  not  in  the  power  of  the 
assignors  to  do  anything  to  impair  the  va- 
lidity of  the  policy  in  the  hands  of  their  as- 
signees.  (Overruled,  17  N.  Y.,  391.)  Viallv. 
Genesee  Mut.  Ins.  Co.,  19  Barb.,  440. 

5.  An  assignment  by  the  mortg.agor  of  the 
policy  made  by  a  mutual  company,  assented 
to  by  the  insurer,  the  assignee  promising  to 
pay  all  future  assessments  on  the  policj-.  Held, 
it  constituted  a  new  contract  between  the  as- 
signee and  insurer,  and  an  alienation  of  the 
mortgagor's  equity  of  redemption  could  not 
atfect  the  rights  of  the  assignee,  nor  could  his 
right  be  affected  by  other  insurance  made 
upon  the  property  by  the  alienee.  Foster  v. 
Equitable  Mut.  Ins.  Co.,  2  Gray,  216. 

6.  The  by-laws  were  a  part  of  the  contract, 
which  was  to  be  suspended  if  insured  neglect, 
ed  to  pay  his  assessment  for  ten  days  after  de. 


157 


ASSIGNEE  (RIGHTS  OF). 


15S 


When  rights  of  assignee  cannot  be  affected  by  acts  of  assignor. 


mand.  He  neglected  to  pay  it  for  fourteen 
months,  and  then  sokl  the  property  and  as- 
signed the  policy,  to  which  insurers  assented, 
out  never  gave  any  notice  to  tlie  assignee  that 
previous  assessTucnts  were  overdue.  Held,  in- 
surers could  not  set  up  the  nonpayment  to  de- 
feat tlie  assignee's  rights.  Hale  v.  Union  JIu- 
txcal  Fire  Ins.  Co.,  33  N.  H.,  395 ;  Barnes  v. 
Union  Mutual  Fire  Ins.  Co.,  45  id.,  31. 

7.  Stipulated :  "  If  any  assessment  required 
by  the  directors  is  not  paid  within  thirty  days 
after  notice,  the  delinquent's  policy  shall  cease 
and  determine."  But  the  by-laws  provided, 
"Any  policy  payable  to  a  mortgagee  shall 
continue  so  payable,  notwithstanding  an  alien- 
ation by  the  mortgagor  made  subsequently  to 
the  insurance,  and  the  mortgagee  shall  pay 
any  and  all  assessments  on  the  property,  pro- 
vided the  original  insured  shall  not  pay  the 
same  on  demand."  Held,  a  failure  by  the 
mortgagor  to  pay  an  assessment  made  against 
him  did  not  allect  the  right  of  the  mortgagee 
to  whom  the  policy  was  made  payable  in  case 
of  loss.  Francis  v.  Butler  Mutual  Fire  Ins. 
Co.,  7  R.  I.,  159. 

8.  Stipulated:  "Any  member  of  this  com- 
pany who  shall  have  been  assessed  for  the 
payment  of  any  loss  or  damage  bj'  fire,  neg- 
lecting or  refusing  to  pay  such  assessment  for 
thirty  days  after  notice  of  the  same,  shall  for- 
feit the  policy,  provided  the  premium  note  or 
notes  deposited  with  the  company,  after  pay- 
ing any  losses  or  expenses  which  may  have 
accrued  thereon,  shall  be  given  up  on  de- 
mand." It  was  assigned  January  13,  1855,  to 
■which  insurers  consented  March  5th.  The 
premium  note  was  surrendered  to  the  makers 
and  a  new  note  taken  from  the  assignees.  But 
an  assessment  had  been  made  October  3d  pre- 
ceding, notice  of  which  was  given  the  as- 
signors May  17th,  but  it  was  not  paid.  The 
premises  were  consumed  January  4,  1856. 
Held,  the  assignees  were  not  subject  to  the 
penalties  or  forfeitures  caused  by  the  fault 
or  omission  of  their  assignors  who  ceased  to 
be  members  of  the  company  when  insurers 
ratified  the  assignment  and  accepted  the 
Becond  premium  note.  Brannin  v.  Mercer 
County  Ins.  Co.,  38  N.  J.,  92. 

9.  The  subject  insured  was  sold  and  the 
policy  assigned,  to  which  insui-ers  consented. 
Held,  no  act  of  the  .assignor  could  impair  the 
rights  of  the  assignee  (citing  Tillou  v.  King- 
ston  Mutual   Ins.  Co.,  5   N.  Y.,  405).    New 


England  Fire  and  Marine  Ins.  Co.  v.  Wetmore, 
32  111.,  321. 

10.  Insured  confessed  judgment  and  .as- 
signed the  policy  as  collateral,  to  which  in. 
surer  assented.  Insured  subsequently  olitaiii- 
ed  other  insurance  contr.ary  to  the  conditions 
of  the  policy.  Held,  the  assignment  m.ade  the 
policy  an  insurance  to  the  assignee,  whose 
rights  could  not  be  defeated  by  the  fraud  of 
the  insured  committed  subsequently  to  the  .as 
signment.  Charleston  Insurance  and  Trust  Co. 
v.  Neve,  2  McMuUen,  237. 

11.  "To  be  void  if  the  insured  shall  commit 
suicide,  except  the  policy  shall  have  been 
legally  assigned."  Held,  the  word  "legally" 
was  not  used  in  a  technical  sense  as  opposed 
to  the  word  equitable;  that  in  ordinary  par. 
lance  the  word  "legal  "  means  lawful;  hence, 
if  the  policy  was  validly  and  effectually  as- 
signed, the  insurer  was  liable  notwithstand- 
ing the  person  insured  destroyed  himself. 
Dufaur  v.  Professional  Life  Ins.  Co.,  35  Beav., 
599;  4  Jur.  (N.  S.),  841 ;  37  L.  J.  Ch.,  817. 

12.  "To  be  void,  if  the  insured  shall  die 
by  his  own  hand,  unless  it  shall  have  been 
assigned  for  a  valuable  consideration  six 
months  before  death."  II  wrote  a  letter 
authorizing  the  plaintiff  to  uuld  the  policy,  in 
case  of  death  or  otherwise,  "  For  any  notes  of 
hand  or  bills  of  exchange  you  may  have 
cashed  for  me."  Held,  a  good  assignment  of 
the  policy,  and  that  it  covered  all  notes  of 
hand  or  bills  which  the  plaintiff  had  cashed. 
Jones  V.  Consolidated  Investment  Ass.  Co.,  26 
Beav.,  35(5 ;  5  Jur.  (N.  S),  214 ;  28  L.  J.  Ch.,  66. 

13.  "  To  be  void,  in  case  insured  shall  die 
by  his  own  hand,  except  to  the  extent  of  any 
bona  fide  interest  therein,  which,  at  the  time 
of  such  death,  shall  be  vested  in  any  other 
person  or  persons  for  a  suflicient  pecuniary 
consideration."  Insurers  advanced  money  to 
insured  on  bond  and  mortgage,  and  took  the 
policy  (their  own)  as  collateral.  Held,  a  third 
party  would  have  been  within  the  exception; 
that  in  respect  of  the  money  advanced,  insurers 
occupied  the  place  of  third  parties,  hence,  it 
was  valid  to  the  amount  of  their  debt,  not- 
withstanding insured  killed  himself.  While 
V.  British  Empire  Mutual  Life  Ins.  Co.,  7  L.  K. 
Eq.  Cas.,  394. 

14.  Stipulated :  "  Insurer  shall  not  be  liable 
if  the  insured  shall  die  by  dueling  or  by  his 
own  hands,  or  by  the  hands  of  justice,  except 
the  policy  is  made  to  protect  the  bona  fidi 

7!l 


159 


ASSIGNEE  {RIGHTS  OF). 


160 


When  rights  of  assignee  axe  affected  by  acts  of  assignor. 


interest  of  another  i)erson  uutler.  an  actual 
assignment  Ibr  a  valuable  consideration  in 
money  or  by  way  of  security  or  indemnity,  or 
by  virtue  of  any  legal  or  equitable  lien  by 
way  of  security  for  money."  The  defendant 
pleaded,  that  the  insured  died  by  his  own 
hands,  and  the  plaintiff  replied,  that  before 
tUe  death  of  the  assured,  K.  acquired  a  hona 
fide  interest  in  the  policy  by  actual  assign. 
merrt,  as  security  for  money.  Held,  bad,  be- 
cause it  did  not  aver  an  assignment  by  deed. 
But  there  was  a  further  replication,  that  be- 
fore the  death,  K.  acquired  a  hona  fide  interest 
in  the  polic.v  by  virtue  of  an  equitable  lieu  as 
a  security  for  moue}',  upon  which  replication 
issue  was  taken ;  and  it  appeared  that  the  de- 
ceased, before  his  marriage,  had  made  a  bond 
conditioned  to  secure  £5,000  to  his  wife ;  that 
not  being  able  to  do  that,  an  agreement  was 
made  by  which,  inter  alia,  the  deceased  was  to 
insure  his  life  for  the  benefit  of  his  wife,  she  to 
pay  the  premiums  out  of  her  separate  income, 
in  pursuance  of  which  this  policy  was  made 
and  delivered  to  K.  for  the  benefit  of  the  wife 
with  an  intention  to  assign  it  regularly,  but 
which  was  never  in  fact  done;  that  the  policy 
remained  with  K.  as  trustee;  that  insurers  at 
the  proper  time  had  notice  of  all  the  forego- 
ing facts.  Held,  this  was  sufficient  ■  to  sup- 
port the  issue  on  the  part  of  the  plaintiff. 
Moore  v.  Woolsey,  4  El.  &  Bl.,  243;  s.  c,  24  L. 
J.  (Q.  B),  40;  1  Jur.  (N.  S.;,  468. 

15.  Insured  assigned  the  policy  to  the 
plaintiff,  and  it  was  confirmed  to  him  by  the 
company.  A  loss  occurred,  and  tiie  company 
pleaded  that  tlie  policy  was  made  upon  con- 
dition to  be  void  in  case  of  a  change  of  occu- 
pancy, unless  notice  of  the  change  should  be 
given  to  insurers  within  ten  days  after  it 
should  take  place,  and  their  consent  obtained  ; 
that  the  company  had  insured  the  premises  as 
a  tavern,  and  that  the  use  Iiad  been  changed 
to  a  store  without  insurers  consent.  Plaintiff 
replied,  that  the  cliange  of  occupancy  took 
place  before  he  accepted  the  assignment,  and 
that  he  never  had  any  knowledge  of  the 
change.  Held,  a  good  replication.  Kreutz  f. 
Niagara  Mutual  Fire  Ins.  Co.,  16  IT.  C.  C.  P., 
131. 

16.  Stipulated:  "In  case  of  subsequent  in- 
surance on  the  property  insured,  notice  must 
bo  given  to  tlie  company,  that  it  may  be  in- 
dorsed on  the  policy  or  otherwise  acknowl- 
edged in  writing,  and  on  default  thereof  such 

80 


policy  shall  be  void."  Insured  mortgaged  the 
property  and  assigned  the  policy,  to  which  the 
company  consented.  Subsequently  the  mort- 
gagor effected  other  insurance,  of  which  in- 
surers  never  had  notice  till  after  the  fire. 
Held,  the  mortgagor  could  not,  b}'  making 
other  insurance,  destroy  the  rights  of  the  mort- 
gagee.  Burton  v.  Gore  District  Mutual  .Fire 
Ins.  Co.,  12  Grant  Ch.,  158 

II.  Whex  eights  of  assignee  aee  af- 
fected BY  ACTS  OF  ASSIGJS'OE. 

1.  Policy  to  A.,  loss,  if  any,  payable  to  B., 
mortgagee.  Stipulated;  "  The  transfer  or  ter- 
mination of  the  interest  of  the  insured  in  the 
policy  or  property  by  sale  or  otherwise,  with- 
out the  company's  consent  in  writing,  shall 
render  it  void."  Insured  conveyed  the  prop- 
erty about  a  month  before  the  loss  occurred. 
Held,  insurers  were  released;  that  so  far  as 
Traders'  Ins.  Co.  v.  Robert,  9  Wend.,  404;  s.  C, 
17  id.,  631 ;  and  Tillou  d.  Kingston  Mut.  Ins. 
Co.,  5  N.  Y.,  406,  conflict  with  tliis,  they  are 
overruled.  Grosvenor  v.  Atlantic  Fire  Im.  Co., 
17  N.  Y.,  391;  reversing  s.  c,  5  Duer,  517;  1 
Bos.,  469 ;  Buffalo  Steam  Engine  Works  v.  Sun 
ilut.  Ins.   Co.,  17  X.  Y.,  401. 

2.  Polic}'  to  B.  stipulated  against  further 
insurance,  unless  notice  of  it  shall  be  given 
and  consented  to  by  the  company.  B  assigned 
to  M.,  to  which  insurer  consented.  Other  in- 
surance had  been  made  prior  to  the  assign- 
ment, of  which  insurer  had  no  notice.  Held, 
no  contract  when  the  fire  occurred.  Mellen  v. 
Hamilton  Fire  Ins.  Co.,  17  N.  Y.,  609;  s.  c,  5 
Duer,  101. 

3.  Policy  to  S.  and  C,  payable  in  case  of 
loss  to  J.  J.  assigned  to  plaintiff,  and  insurer 
assented.  Held,  plaintiff  could  recover  what- 
ever the  persons  originally  insured  might  have 
been  entitled  to  receive  in  case  of  loss;  the 
origin.il  contract  with  S.  and  C.  subsisted,  and 
their  interest  was  insured;  the  plaintiff  mnst 
claim  in  their  right  and  not  in  his  own;  and 
if,  by  any  act  of  S.  and  C.  the  policy  became 
void,  the  right  of  the  plaintiff  was  gone.  Hale 
I'.  Mechanics  Mut.  Ins.  Co.,  6  Gray,  169. 

4.  Insured  required  insurer  to  make  the 
policy  payable,  in  case  of  loss,  to  M.  It  pro- 
hibited an}-  alienation  of  the  property  insured. 
Insured  instituted  proceedings  in  insolven- 
cy, and,  in  pursuance  thereof,  made  an  as- 
signment of  all  his  property.    Held,  M.  could 


161 


ASSIGNEE  (RIGHTS  OV',. 


w: 


When  rights  of  assignee  are  affected  by  acts  of  assignor. 


not.  recover  anything,  fur  the  proijcrly  had 
been  alienated;  whatever  defeated  llie  rights 
of  the  insured,  was  equally  fatal  to  the  rights 
of  M.  Young  v.  Eagle  Fire  [ns.  Co.,  14  Gray, 
150. 

5.  Stipulated:  "When  any  property  shall 
be  alienated  by  sale  or  otherwise  the  policy 
shall  be  void."  Insured  mortgaged  it  and  as- 
signed the  policy,  to  wliicli  insurers  consented ; 
but  the  insured  subsequent!}'  conveyed  the 
property  lo  a  third  party.  Held,  the  rights  of 
the  assignee  must  he  controlled  by  the  acts  of 
the  insured,  hence  the  policy  was  void.  Law- 
rence V.  Holyoke  Tns.  Co.,  11  Allen,  3y7. 

6.  Insured  represented  his  buildings  free 
from  incumbrance,  and  gnarantii.'d  a  lien  on 
them  to  insurer,  who  issued  a  policy.  Subse- 
quently insured  trausferred  the  propert}-  and 
the  policy  to  the  plaiutift',  with  insurer's  con- 
sent, but  insured  did  not  have  title  at  the  time 
the  policy  was  issued.  Held,  the  policy  was 
void.  Insurer's  consent  to  the  transfer  did  not 
give  any  rights  to  the  assignee.  Enntmnn  v. 
C'nrroU  County  Mutual  Fire  Ins.  Co.,  45  Me., 
307;  Merrill  v.  Farmers  and  Mechanics  Mu- 
tual Fire  Ins.  6'«.,48  id.,  285. 

7.  A.  made  insurance  upon  certain  property, 
and  assigned  the  policj'  with  insurer's  consent, 
to  B. :  but  after  the  assignment,  A.  conveyed 
all  his  interest  in  llie  property  insured  to  Ives. 
Held,  if  insured  had  no  interest  in  the  prop- 
erty insured  at  the  time  tlie  loss  occurred,  no 
recovery  could  be  had  upon  it,  for  the  benefit 
of  the  assignee;  and  it  was  immaterial  that 
the  conveyance  made  Ijy  the  insured  was  as 
against  his  creditors  fraudulent.  Birdsey  v. 
City  Fire  Ins.  Co.,  26  Conn.,  165. 

8.  Stipulated:  "If  insured  or  his  assigns 
fcliall  make  any  other  insurance  on  the  prop- 
erty, and  shall  not,  with  reasonable  diligence 
give  notice  thereof  to  the  secretary,  and  have 
the  same  indorsed  on  the  policy,  it  shall  cease." 
The  policy  was  subsequently  assigned  to  B., 
to  which  insurers  assented,  and  insured  after- 
wards obtained  other  insurance  without  in- 
surer's consent.  Held,  if  insured,  or  any  other 
person  to  whom  he  assigned  the  contract,  vio- 
lated any  of  its  conditions,  no  recovery  could 
be  had.  The  contrary  would  strike  out  all  the 
conditions  of  the  contract,  and  make  the  lia- 
bility absolute.  State  Mutual  Fire  Ins.  Co.  v. 
Roberts,  31  Penn.  St.,  438. 

9.  The  policy  was  void  for  breach  of  one  of 
its  conditions,  of  which  insurers  were  ignorant 

6 


wlien  they  consented  to  its  assignment.  Held, 
the  assignee  acquired  no  rights  under  it.  Cit- 
izens  Fire  las.  Co.  v.  Doll,  35  Md.,  89. 

10.  F.  being  indebted  to  M.  executed  his 
promissory  notes  for  the  debt  and  a  mortgage 
upon  his  brewery  as  collateral  security,  and 
assigned  his  policy  on  it  to  M.,  to  which  in- 
surer assented.  Insurer  offered  to  prove  that 
F.  set  fire  to  the  premises.  Held,  there  is  a 
distinction  belween  acts  done  by  the  insured 
for  the  purpose  of  discharging  a  liability  and 
others,  which,  by  the  terms  of  the  contract, 
wtre  to  be  done  or  omitted,  in  order  to  coa- 
tinue  and  keep  in  force  the  contract;  there 
was  also  a  distinction  between  a  case  where 
there  is  an  absolute  sale  of  tlie  property  in- 
sured leaving  no  interest  in  the  insured,  and 
an  assignment  of  the  policy  to  the  purchaser 
with  the  company's  consent,  and  another  case, 
where  there  is  no  sale,  but  a  mere  incum- 
brance as  security  for  the  payment  of  the  debt ; 
for  in  the  former,  the  assignor  of  the  policy 
ceases  to  have  any  interest  in  the  subject  in- 
sured, and  therefore  ceases  to  be  a  substantial 
party  to  the  policy;  in  the  latter,  he  is  still  the 
owner,  and  is  interested  in  the  subject  insured ; 
lor  the  surplus,  if  any,  in  the  event  of  a  loss, 
is  paj'able  to  him,  and  therefore  the  evidence 
w'as  admissible.  Illinois  Mutual  Fire  Ins.  Co. 
V.  Fix,  53  111.,  151;  Hojne  Mutual  Fire  Ins.  Co. 
V.  Hauslein,  60  id.,  531. 

1 1.  The  policy  was  assigned  after  the  loss. 
Held,  the  assignee  could  have  no  greater  or 
superior  rights  than  the  assignor;  that  he  took 
the  assignment  subject  to  insurer's  right  to  set- 
off  and  all  other  equities.  Archer  v.  Mer- 
chants' and  Manufacturers'  Ins.  Co.,  43  Mo., 
434. 

12.  The  premium  was  not  paid,  but  it  was 
the  practice  to  give  thirty  days'  credit.  In- 
sured assigned  the  policy,  and  insurer  notified 
insured  that  the  policy  would  be  treated  as 
canceled  on  a  day  named,  unless  the  premium 
should  be  paid  before  that  time.  It  was  not 
paid  within  the  time  named ;  and  the  property 
was  burned  shortly  after.  Held,  the  rights  of 
the  assignee  were  no  better  than  those  of  his 
assignor  (but  the  case  did  not  show  that  the 
company  had  consented  to  the  assignment). 
Bergson  •».  Builders'  Ins.  Co.,  38  Cal.,  541. 

13.  Policy  to  W.  &  Co.,  stipulated:  "All 
fraud  or  false  swearing  shall  cause  a  forfeiture 
of  all  claims  on  the  insurers."  A  short  time 
after  the  policy  was  made,  W.  &  Co.  assigned 

81 


1C3 


ASSIGNEE  (RIGHTS  OF). 


164 


GeneraUv. 


it  to  the  plaintiff.  W.  &  Co.  made  prelimi- 
nary proofs  of  loss,  claiming  property  on 
hand  at  the  time  of  the  fire,  ?32,000.  The  de- 
fendant offered  to  prove  that  W.  &  Co.,  in  fur- 
nishing preliminary  proof  and  bills  of  pur- 
cliase,  were  guilty  of  fraud,  which  the  court 
refused  to  admit.  Held,  error;  for  if  the  vio- 
lation  was  such  as  to  defeat  the  party  origin- 
ally insured,  it  must  have  a  like  effect  against 
his  assignee.  Pupke  v.  Resolute  Fire  Ins.  Co., 
17  Wis.,  378. 

14.  Policy  to  A.  upon  his  own  life,  by  him 
assigned.  The  court  found,  as  matter  of  fact, 
a  fraudulent  concealment  on  the  part  of  A.  in 
effecting  the  policy.  Hdd,  the  assignees  could 
not  recover,  for  they  were  subject  to  all  the 
equities  which  could  be  invoked  against  the 
person  insured.  British  Eqnitalle  Ins.  Co. 
■c.  Great  Western  Railway  Co.,  38  L.  J.  Ch., 
314;  17  W.  R.  43;  19  L.  T.  (N.  S.),  476;  20 
id.,  4:3. 

1 5.  "  To  be  void  if  the  insured  shall  commit 
suicide;  but  if  any  third  party  shall  have  ac- 
quired a  bona  fide  interest,  by  assignment  or 
by  legal  or  equitable  lien  for  a  valuable  con- 
sideration, or  as  security  for  money,  the  in- 
surance shall  nevertheless,  to  the  extent  of 
such  interest,  be  valid  and  of  full  effect."  In- 
sured was  domiciled  at  Valparaiso;  he  de- 
clared  himself  a  bankrupt,  which  of  itself, 
according  to  the  law  of  that  place,  ceded  all 
his  property  to  the  court,  and  thereupon  it  be- 
came vested  by  operation  of  law  in  the  escri- 
bano  or  oflicial  notary  of  the  court.  After- 
wards insured  committed  suicide.  At  a  meet- 
ing of  his  creditors  after  his  death,  plaintiffs 
were  appointed  assignees  of  his  estate,  and  by 
operation  of  law,  all  the  rights  of  the  eseri- 
bano  passed  to  them.  Held,  the  plaintiffs  were 
uoi  third  parties  having  a  bona  fide  interest  by 
assignment,  nor  did  they  have  any  legal  or 
equitable  lien  for  a  valuable  consideration,  or 
as  security  for  money  within  the  meaning  of 
the  exception.  Jackson  v.  Forster,  1  El.  &  El., 
463;  s.  c,  5  Jur.  (N.  S.),  547;  28  L.  J.  Q.  B., 
166;  affirmed,  1  El.  &  El.,  468:  5  Jur.  (N.  S.), 
1247;  29  L.  J.  Q.  B.,  8;  7  W.  R.,  578. 

III.     Gent:eally. 

1.  B.  contracted  with  C.  to  make  a  deed  of 

the  premises,  and  C.  erected  a  house  and  made 

a  parol  agreement  to  E.,  promising  to  give 

title  so  soon  as  his  vendor  made  one  to  him. 

82 


E.  took  possession,  and  agreed  to  insure  to 
protect  his  vendor's  lien  for  the  unpaid  pur 
chase  money.  He  did  so,  and  a  fire  occurred. 
Insurers  were  notified  not  to  pay  the  claim  to 
the  insured,  but  they  disregarded  the  notice 
and  paid  him.  Held,  an  equitable  assignment 
with  notice  to  the  creditor,  and  they  must  p.iy 
it  again  to  the  equitable  assignee.  Crmnwelt 
V.  Brooklyn  Fire  Ins.  Co.,  44  N.  Y.,  42 ;  s.  c.^ 
39  Barb.,  227. 

a.  A  mortgagee  received  an  assignment  of 
the  policy  as  collateral,  with  the  consent  of 
insurer,  and  afterwards  insured  conveyed  a 
moiety  in  fee  to  a  third  person,  who  demised 
the  same  for  a  terni  of  five  years,  at  nominal 
rent,  with  covenant  to  repair.  Held,  the  mort- 
gagee was  entitled  to  recover  of  the  insurer 
his  mortgage  debt,  but  no  more.  Boynton  v. 
Clinton  and  Essex  Mut.  Ins.  Co.,  16  Barb.,  254. 

3.  The  insurers  had  the  right  to  rebuild. 
They  subsequentlj'  assented  to  an  assignment 
of  the  policy  to  secure  a  debt.  Held,  they  still 
had  the  right  to  rebuild.  Tohnan  v.  Manufac- 
turers' Ins.  Co.,  1  Cush.,  73. 

4.  Stipulated:  "All  sums  due  from  the  in- 
sured to  insurer  when  the  loss  becomes  due 
shall  be  deducted  from  it,  and  all  sums  com- 
ing due  shall  be  paid  or  satisfactorilj-  se- 
cured." Insured  gave  insurer  a  bottomry 
bond  on  the  vessel  with  sureties.  Subse- 
quently insurer  made  another  policy  on  an- 
other  vessel,  for  the  same  person,  with  like 
provisions,  prohibiting  an  assignment  without 
insurer's  consent,  which  was  assigned  to  the 
plaintiff'  with  insurer's  consent.  Held,  in  set- 
tling a  loss  on  the  first  policy,  insurer  must 
deduct  all  premium  notes  due,  whether  given 
before  or  after  the  assignments  of  the  second 
policy;  also  they  must  deduct  the  balance  of 
the  loss  from  the  sum  due  on  the  bottomry 
bond,  and  that  they  had  the  right  to  set  off 
the  remaining  balance  due  on  the  bond, 
against  the  assignee's  claim  made  under  the 
second  policy,  without  resorting  to  the  vessel 
bottomried  or  to  the  sureties  on  the  bond. 
Wiggin  v.  Suffolk  Ins.  Co.,  18  Pick,  145;  Wig 
gin  V.  American  Ins.  Co.,  id.,  158. 

5.  Where  the  assignment  is  merely  equiK 
able,  the  obligor  may  set  off  against  the  as- 
signee all  the  equities  to  which  he  was  en. 
titled  against  the  assignor;  subject  to  this 
limitation:  if  the  assignee  calls  upon  the  ob- 
ligor to  know  whether  the  whole  money  is 
due,  and  the  obligor  is  silent  as  to  any  claim 


1G5 


ASSIGNEE  (RIGHTS  OF). 


106 


Genei-aDy. 


lie  has  against  the  obligee,  he  shall  never  after 
open  his  mouth  against  the  demand  of  the 
assignee.  Oourdon  v.  Insurance  Co.  of  North 
America,  3  Teates,  327;  Rousset  v.  Insurance 
Co  of  North  America,  1  Binn.,  429. 

6.  On  ship:  "For  account  of  whom  it  may 
concern;  loss,  if  any,  payable  to  insured  or 
order."  Stipulated:  "  No  assignment  of  the 
policy  to  be  valid  unless  consent  of  the  insur- 
ers  be  first  obtained."  Insured  mortgaged  the 
ship  to  B.,  covenanted  to  keep  her  insured, 
and  assigned  the  policy  in  blank,  and  deliv- 
ered  it  to  B.  as  collateral.  Held,  B.  was  en- 
titled to  recover  in  preference  to  creditors  who 
attached  after  the  transfer  was  made,  for  the 
transaction  was  an  equitable  assignment  of 
any  demand  that  might  accrue  under  the 
policy.  Imurance  Co.  of  Pennsylvania  v. 
fhcenix  Ins.  Co.,  71  Penn.  St.,  31. 

7.  The  defendants  contracted  to  reinsure 
the  Enterprise  Ins.  Co.  Stipulated:  "Losses, 
if  any,  are  to  be  payable  pro  rata  to  the  En- 
terprise In.s.  Co.  at  such  times  and  in  such 
manner  as  the  latter  company  may  pay." 
Held,  the  stipulation  could  have  no  applica- 
tion where,  as  in  this  case,  the  reinsured  have 
made  a  general  assignment  for  the  benefit  of 
their  creditors.  The  language  must  be  con- 
strued to  mean  as  the  Enterprise  Co.  may  be 
liable  to  pay.  Philadelphia  Safe  Deposit  Co. 
V.  Fame  Ins.  Co.,  9  Phila ,  592. 

8.  Stipulated:  In  case  the  policy  shall  be 
assigned  or  transferred,  the'  assignee  shall  be 
responsible  for  the  amount  of  the  unpaid 
premium.  Held,  it  gave  no  right  of  action 
against  the  assignee  of  the  policy.  Washing- 
ion  Ins.  Co.  V.  Orant,  2  Penn.  L.  J.,  308. 

9.  Policy  upon  the  life  of  the  husband,  pay- 
able to  the  wife,  and  in  case  the  husband 
should  survive,  then  the  loss  to  be  paid  to  her 
children.  For  a  valuable  consideration,  she 
made  an  absolute  assignment  of  the  policy, 
and  died  during  her  husband's  lifetime,  leav- 
ing children  surviving.  Held,  her  interest  in 
the  policy  was  defeated  by  her  death  during 
the  lifetime  of  her  husband ;  the  interest  she 
l)ad  in  the  policy  was  contingent;  it  never  be- 
came absolute,  because  the  contingency  never 
happened  and  never  could  happen,  for  the 
money  was  payable  to  her  in  case  she  sur- 
vived her  husband;  and  in  case  her  husband 
survived,  the  money  became  payable,  by  the 
express  provisions  of  the  contract,  to  her  chil- 
dren; the  premium  paid  upon  the  policy  by 


the  assignee  should  be  paid  back  to  him,  and 
the  remainder  paid  to  the  guardians  of  the 
children  of  the  deceased.  Connecticut  Mutual 
Life  Ins.  Co.  v.  Burroughs,  34  Conn.,  305. 

10.  A.  procured  a  policy  on  his  own  life, 
and  surrendered  it  tor  one  in  all  respects  sinv 
ilar,  which  was  made  payable  to  B.,  to  whom 
A.  was  engaged  to  be  married.  It  was  depos- 
ited with  C.  for  B.'s  benefit.  A.  afterwards 
obtained  it  without  the  knowledge  or  consent 
of  B.,  and  surrendered  it  to  insurer  for  another 
policy  similar  in  all  respects,  except  it  was 
made  to  D.,  to  whom  A.  was  indebted,  and 
was  intended  as  security  for  that  indebted, 
ness.  D.  paid  one  premium  upon  it.  A.'s 
health  was  so  much  impaired  that  he  could 
not  have  passed  the  required  medical  examin- 
ation for  a  new  policy.  Held,  the  policy  de- 
posited for  B.  with  C.  was  an  executed  gift ; 
that  the  consideration  for  the  last  policy  was 
the  surrender  of  the  second,  and  B.  was  enti- 
tled to  the  benefits  of  the  third  policy,  and  to  a 
decree  ordering  the  avails  of  it  to  be  paid  to 
her,  minus  the  premium  paid  by  D.  Lemon  v. 
Phmni.t  Mutual  Life  Ins.  Co.,  38  Conn.,  294. 

1 1.  The  charter  required  the  assignee  of  a 
policy  to  give  satisfactory  security  for  so 
much  of  the  premium  as  should  be  unpaid. 
Held,  it  was  not  necessary  to  give  his  own 
note;  that  having  the  note  of  his  assignor 
w^as  sufBcieuf,  if  that  was  satisfactory  to  the 
company.  Durar  v.  Hudson  County  Ins.  Co., 
24  N.  J.,  171. 

12.  The  insurer  having  fixed  and  just  claim.s 
against  the  insured  may  set  them  oif  against 
the  demand  of  the  insured,  and  this,  notwith- 
standing the  policy  was  assigned.  Baltimore 
Ins.  Co.  V.  McFadon,  4  H.  &  J.,  31. 

13.  If  the  garnishee  has  notice  of  the  as- 
signment of  the  debt  and  fails  to  set  it  up  in 
his  answer,  he  cannot  resist  the  subsequent 
claim  of  the  assignee;  and  on  the  other  hand, 
having  shown  such  assignment,  he  cannot  be 
charged  as  garnishee.  Walters  v.  Washington 
Ins.  Co.,  1  Cole,  404. 

1 4.  When  there  is  no  transfer  of  the  prop- 
erty, an  assignment  of  the  policy  is  an  equita- 
ble assignment  of  a  contingent  right  to  the 
money,  which  becomes  vested  when  the  loss 
happens,  unless  prohibited  by  the  terms  of  the 
policy.  Bergson  v.  Builders  Ins.  Co.,  38  Cal., 
541.  But  the  assignee  takes  the  policy  sub- 
ject  to  all  rights,  equities  and  liabilities  exist 
iug  between  the  insurer  and  the  insured.  Ibid 

83 


167 


ASSIGNMENT  OF  POLICY. 


168 


What  is  an  assifniment. 


15.  When  deceased  was  in  extremis  he  as- 
signed two  policies,  amounting  to  £800,  to  his 
mother.  lie  was  then  in  embai-rassed  circum- 
stiinces.  Held,  tliey  were  within  I  &  II  Vict., 
ell.  110,  sec.  12,  and  the  assignment  was  void 
as  against  creditors.  Stokoe  v.  Cowan,  29  Beav., 
637;  7  Jur.  (N.  S.),  901;  30  L.  J.  Ch.,  882;  9 
W.  R.,  801 ;  4  L.  T.  (N.  S.),  695. 

16.  The  polic}'  was  made  and  assigned,  but 
it  was  agreed  between  tlie  assured  and  the 
company  that  one-third  of  the  annual  premi- 
ums should  be  deferred  uutil  de.ath,  and  that 
sum  should  be  a  charge  against  the  sum  in- 
sured.  Held,  the  assignor  was  bound  to  dis- 
charge the  policy  from  the  incumbrance. 
■Oatayes  v.  Flather,  34  Beav.,  387. 

17.  Policy  upon  life  of  A.,  who  deposited 
'.it  with  B.  as  security  for  a  debt.  Notice  of 
-the  deposit  was  not  given  to  the  insurers.     He 

falsely  represented  to  them  that  he  had  lost  it, 
and  procured  them  to  issue  to  him  a  dupli- 
cate, which  he  assigned  by  deed  to  his  wife, 
who  had  previously  procured  a  separation  de 
biens.  Held,  if  the  wife  took  the  assignment 
bona  fide,  for  a  valuable  consideration,  and 
without  notice  thai  the  policy  had  been  de- 
posited with  B.,  then  her  rights  were  superior 
to  those  of  B. ;  but  if  otherwise,  they  must  be 
postponed  and  take  under  the  rights  of  B. 
Le  Fcuvre  v.  Sullican,  10  Moore's  P.  C.  C-,  1. 

18.  A.  insured  his  life  and  assigned  the 
policy  to  B  for  a  nominal  consideration.  B.'s 
executor  sold  and  assigned  it  to  D.  for  a  valu- 
able consideration,  and  D.'s  executors  agreed 
to  sell  it  to  E.  Held,  the  executors  of  D.  had  a 
good  title  to  the  policy  and  E.  must  complete 
the  purchase.    Ashley  v.  AMey,  3  Sim.,  149. 

19.  A  bond  was  given  to  an  insurance  com- 
pany to  secure  the  repayment  of  a  loan.  The 
borrower  insured  his  life  as  furtlier  securitj', 
and  the  bond  provided  for  the  payment  of  the 
premium  and  for  keeping  tlie  policy  in  force. 
The  company  was  dissolved  and  its  eflfects, 
including  the  bond  and  policy,  were  trans- 
ferred to  another  company.  The  premiums 
were  not  paid  to  that  other  company  and  the 
policy  was  allowed  to  lapse.  The  surety  died 
and  the  assignee  of  the  company  claimed  as 
creditors  against  his  estate  for  the  amount  of 
premiums  unpaid.  Held,  they  could  not  en- 
force it  for  the  premiums  unpaid;  but  they 
had  a  good  claim  against  the  estate  of  the 
surety  quoad  the  amoiuit  secured  by  the  bond. 
Atkinson  v.  Gylby,  21  L.  J.  Ch.,  848. 

84 


ASSIGNMENT  OF  POLICY. 

(See  Action;   Assigneb,  Kight  of;   Consteuotioij; 
Insubable  Interest;  Policy.) 


I.  What  is  an  assignment. 

II.  NOT. 

III.  IT  carries. 

IV.  VITIATES  THE  POLICY. 

V.  When  insurers  cannot  urge  as  a  de- 
fense. 
VI.  Generally. 

I.  What  is  an   assignment. 

1 .  B.  held  a  policy  on  his  life ;  May  5,  1873, 
he  was  adjudged  insane  and  a  guardian  ap- 
pointed; October  11th  following  he  assigned 
it  to  L.,  of  which  insurers  had  notice;  Decern- 
ber  22d,  following,  he  was  declared  sane  and 
the  guardian  discharged.  Two  days  thereaf. 
ter  he  saw  L.,  asked  her  if  she  still  had  the 
policy  and  said  he  was  glad  he  liad  given  it 
to  her,  for  he  wanted  her  to  hiive  it.  He  died 
March  1st,  following.  The  company  paid  the 
claim  to  L.  Held,  in  contemplation  of  law 
every  man  is  sane  until  proved  otherwi.se; 
that  the  inquisition  of  lunacy  rebutted  that 
presumption,  and  prima  facie  established  the 
insanity  of  B.  and  his  incapacity  to  contract 
until  restored  liy.the  judgment  of  the  same 
court;  hence  an  assignment  made  before  he 
was  restored  by  judgment  of  court  and  while 
a  guardian  had  charge  of  the  lunatic's  affairs 
was  void;  that  after  he  was  restored  byjudg- 
mcnt  of  court,  he  was  again  capable  to  con- 
tract, and  if  while  he  was  so  capable,  he  said 
to  L.  that  he  had  given  the  policy  to  her  and 
that  he  then  intended  her  or  wanted  her  to 
have  it,  this  would  be  a  ratification  of  the  for- 
mer gift  and  a  gift  in  presenti,  and  she  would 
be  entitled  to  the  proceeds  thereof.  U.  S.  0. 
C.  Ohio.  Quigly  r.  Mutual  Life  Ins.  Co.,  4 
Amer.  Law  Record,  oo9. 

2.  Policy  to  H.,  payable,  in  case  of  loss,  to 
the  Cape  Ann  Savings  Bank.  P.,  an  attorney 
at  law,  held  claims  agamst  H.  amounting  to 
$500,  and  H.  gave  P.  an  order  on  the  insui'ers 
for  any  sura  which  should  be  left  after  satisfy- 
ing the  savings  bank,  of  which  the  insurers 
had  notice;  but  they  paid  the  balance  to  H., 
disregarding  the  order.  ffcW,  avalid  assign- 
ment ;  the  payment  to  H.  was  no  defense  to 


169 


ASSIGNMENT  OF  POLICY. 


170 


What  is  an  assignment. 


the  action     Hull  v.  Dorchester  Mut.  Ins.  Co., 
in  Mass.,  53. 

3.  The  policy  proliibited  any  assignment  of 
.t  It  was  indorsed  in  blanli  and  lianded  to 
Ij.,  and  insurers  adjusted  the  claim  with  him. 
Jleld,  an  attacliing  creditor  of  insured  liad  no 
rights  against  the  fund ;  tliat  no  one  but  the 
insurance  company  could  talie  advantage  of 
the  vie 'ation  of  the  condition.  Insurance  Co. 
V.  Trask.  8  Phila.,  33. 

4.  G.  conveyed  to  H.  100  acres  of  land  with 
buildings  thereon,  for  whicli  he  received  four 
notes,  $100  eacli,  payable  in  one,  two,  three 
and  four  years,  with  interest  from  December 
30,  1847,  signed  by  H.,  and  secured  by  mort- 
gage on  the  same  premises.  H.  procured  insu- 
rance September  31, 1819,  and  the  property  was 
consumed  by  lire  Novemlier  33d,  following. 
G.  notilied  insurer  that  he  held  the  mortgage, 
and  stated  the  amount,  which  he  claimed  was 
equitably  due,  and  H.  subsequently,  in  writing, 
requested  insurers  to  pay  G.  the  sum  of  $150 
on  account  of  his  claim  under  the  policy. 
Insurers  never  paid  the  amount  requested,  but 
without  tlic  consent  of  G.,  redelivered  the  order 
to  H.,  and  G.  subsequently  sold  and  trans- 
ferred all  his  right,  title  and  interest  in  the 
notes  to  Sarah,  who  subsequently  sold  and 
assigned  them  to  Chadwick,  who  notified 
insurer  that  the  mortgage  had  never  been 
paid,  and  that  he  held  a  lien  on  it  by  virtue  of 
the  statute.  Insurer  denied  all  liability,  and 
Chadwick  subsequently  assigned  all  his  rights 
to  H.  Held,  the  assignment  was  valid,  and  a 
payment  made  by  the  insurer  to  the  mort- 
gagee  was  no  defense  to  an  action  brought  bj' 
the  mortgagor.  Haskell  v.  Monmouth  Fire  Ins. 
Co.,  53  Me.,  138. 

5.  The  delivery  of  an  assignment  by  the 
assignor  to  the  representative  of  the  assignee, 
vests  the  title  in  the  assignee,  and  is  good 
against  all  persons  except  the  creditors  of  the 
assignor.  New  York  Life  Ins.  Go.  v.  Flack,  3 
Md.,  341. 

6.  Policy  to  A.  "Loss,  if  any,  payable  to 
B."  Held,  an  assignment  to  B.,  with  the  assent 
of  the  company.  National  Ins.  Co.  v.  Crane, 
IG  Md.,  2U0. 

7.  The  directors  of  a  company  had  knowl- 
edge that  an  agent  consented  to  an  assignment 
of  the  policy,  and  recorded  it  upon  their  reg- 
ister book.  Held,  the  assignment  was  valid. 
Dnrar  r.  //Kif.i«;t  Countt/  Ins.  Co.,  24  N.  J.,  171. 

8.  The  claim   Wiis  paid,  but  upon   subse- 


quent information,  it' appeared  that  insured 
liad  committed  a  fraud  upon  insurer,  who 
charged  him  with  procuring  the  premises  to 
be  fired,  and  with  secreting  the  goods  alleged 
to  have  been  lost;  and  under  threat  of  pros- 
ecution,  he  assigned  all  his  stock  in  trade  to 
an  agent  of  insurer,  to  take  charge  of,  sell,  and 
account  for  the  proceeds;  and  if  it  should  ap- 
pear that  the  alleged  fraud  was  not  verified, 
the  proceeds  were  to  be  paid  over  to  insured, 
less  expenses;  and  on  the  other  hand,  if  it 
should  appear  that  the  loss  and  payment  was 
procured  by  the  fraud  of  the  insured,  then  the 
proceeds  were  to  remain  the  property  of  in- 
surer. About  four  months  after,  a  creditor 
filed  this  bill  to  set  the  assignment  aside,  and 
for  an  account  of  the  goods  sold.  Held,  if 
insured,  by  false  and  fraudulent  representa- 
tions, procured  payment  of  the  loss,  he  could 
be  compelled  to  refund  the  money;  the  evi- 
dence sustained  the  allegations  in  the  bill; 
the  assignment  was  valid  and  could  not  be 
impeached  by  a  creditor.  McConnell  v.  Dela- 
ware  Mut.  Ins.  Co.,  18  111.,  238. 

9.  Policy  to  a  wife.  She  indorsed  her  name 
on  it  in  blank.  Her  husband  pledged  it  as- 
collateral  security.  The  pledgee  called  at  the 
office  of  the  agent  of  insurer,  and  inquired 
whether  the  premium,  to  become  due  in  a 
few  days,  had  been  provided  for  by  the 
pledgor.  He  was  told  by  the  bookkeeper  of 
insurer's  agent  that  a  part  of  the  premium  had 
been  paid,  and  that  the  husband  intended  ti> 
pay  the  residue  next  week.  Relying  upoa 
this  statement,  the  pledgee  failed  to  pay  the 
premium  on  the  day  it  was  due.  The  money 
to  which  the  clerk  referred  had  been  deposited 
by  the  husband  for  the  purpose  of  securing  a 
new  policy  in  case  the  pledgee  should  fail  to 
pay  the  premium ;  but  of  this  the  clerk  was 
ignorant.  Subsequently,  upon  the  husband's 
application,  insurer  issued  another  policy,  in- 
suriug  the  same  sum,  for  the  same  annual  pre- 
mium, in  favor  of  the  wife.  The  jjledgee,  upoa 
receiving  information  that  the  policy  had 
lapsed  for  noupa}ment  of  premium,  tendered 
it  to  insurer's  agent,  who  refused  it.  Held,  the 
pledgee  was  entitled  to  be  paid  the  amount  ot 
his  debt  from  the  money  accruing  to  the  wife 
under  the  new  policy ;  the  pledgee  was  entitled 
to  the  same  interest  in  it  that  he  had  in  the 
old  policy;  the  wife's  indorsement  and  sur- 
render of  possession  to  her  husband,  clothed 
him  with  all  necessary  evidence  of  a  power  ta 

83 


171 


ASSIGNMENT  OF  POLICY. 


172 


What  is  an  assi^iment. 


pledge  the  instrumeut  and  fill  up  her  blank 
assignment;  and  having  done  so,  she  could 
not  be  permitted  to  deny  her  husband's  right 
to  assign  it.    Norwood  v.  Guerdon,  60  111.,  253. 

10.  At  the  time  the  policy  was  executed, 
an  order,  written  on  the  back  of  it  by  the  in- 
sured, which  the  insurer  recognized,  to  pay 
whatever  might  become  due  on  it  to  D.,  who 
presented  the  claim  after  the  loss  occurred. 
Insurer's  president  said  the  papers  were  cor- 
rect, and  the  company  would  pay  the  claim. 
The  secretary  made  the  .same  agreement.  An 
attachment  was  levied  on  the  avails  of  the 
policy  the  same  day,  in  behalf  of  insurer's 
president.  Held,  the  order  indorsed  upon  the 
policy  to  pay  the  claim  to  D.,  and  the  recogni- 
tion of  It  by  the  company,  was  a  valid  assign- 
ment of  the  money  to  D. ;  the  company  was 
therefore  bound  by  its  promise  to  pay  the  money 
to  D. ;  the  attaching  creditor  could  not  avail 
himself  of  his  position  and  the  information  lie 
had  acquired  to  defeat  the  payment  by  seizing 
the  fund  for  his  own  benefit.  Lapeyre  v. 
Thompson,  7  La.  An.,  218. 

11.  Life  policy  to  H.,  payable  to  him,  his 
executors,  administrators  and  assigns,  within 
sixty  days  after  due  proof  of  death.  He  wrote 
upon  it:  "I  hereby  make  over  this  policy  of 
insurance  on  my  life  to  H.  E.  G.,  a  colored 
woman,"  and  signed  and  sealed  it.  The  ad- 
ministrator claimed  the  money.  Held,  the 
assignee  was  entitled  to  the  mouey.  Mutual 
Protection  Ins.  Co.  v.  Hamilton,  5  Sneed,  269. 

12.  Policy  on  the  life  of  T.,  payable  to  his 
executors,  administratoi-s,  or  assigns.  Three 
months  thereafter,  he  assigned  it  to  two  trus- 
tees, for  the  benefit  of  his  father,  mother  and 
sisters.  In  this  assignment  there  was  an 
irrevocable  power  of  attorney  to  the  trustees. 
Held,  the  trustees  were  entitled  to  the  fund. 
Pearson  v.  Amicable  Ass.  Co.,  27  Beav.,  229. 

13.  N.  elTected  a  policj'  on  his  life  for  £500, 
and  subsequently  transferred  it  to  trustees  for 
the  benefit  of  his  infant  son,  provided  he  should 
attain  the  age  of  twenty-five  years;  but  if  he 
should  die  under  that  age,  and  N.  should  think 
proper  to  pay  the  premiums  on  the  same,  then 
the  trustees  were  to  transfer  the  same  to  Eliza- 
beth, or  N.  might  if  he  pleased  sell  the  policy. 
Notice  of  the  transfer  was  given  to  insurers. 
Two  years  thereafter  N.  deposited  the  policy 
as  security  with  his  bankers  for  a  balance,  ac- 
companied with  a  memorandum  of  deposit. 
The  infant  died  in  his  eleventh  year,  and  after 

86 


his  decease,  N.  assigned  the  policy  to  the 
plaintiflfs  to  secure  a  large  balance.  Held,  the 
assignment  to  the  banker  was  a  sale  pro  tanto. 
hence  plaintiffs  were  not  entitled  to  the  pro- 
ceeds of  the  policy.  Pedder  v.  Mosely,  31 
Beav.,  159. 

14.  A  clerk  robbed  his  employers  of  money, 
and  upon  discovery,  assigned  certain  policies 
and  lands  for  the  amount.  He  was  afterwards 
prosecuted  by  his  employers,  convicted  and 
sentenced  to  penal  servitude  for  fourteen  years. 
He  gave  notice  to  the  company  of  this  as- 
signment, but  subsequently  made  one  to  an- 
other person,  and  delivered  possession  of  the 
policies  to  him.  Held,  the  debt  was  a  good 
consideration  for  the  first  assignment,  and  the 
first  assignee  became  entitled  to  the  money. 
Chowne  v.  Baylis,  31  Beav.,  351. 

15.  A  debtor  effected  insurance  on  his  life, 
and  stipulated:  "If  the  policy  shall  be  as- 
signed lona  fide,  the  assignee  shall  have  the 
benefit  of  it,  so  far  as  his  interest  extends, 
though  the  insured  shall  commit  suicide." 
The  debtor  deposited  the  policy  with  his  cred- 
itor, and  accompanied  it  with  a  letter  in  which 
he  promised  to  assign  it  to  the  creditor  when 
requested,  as  security  for  the  debt.  Insurer* 
had  no  notice  of  the  deposit  nor  of  any  inten 
tion  to  assign.  The  debtor  committed  suicide. 
Held,  the  effect  of  the  transaction  gave  the 
creditor  all  that  an  assignment  could  have 
given,  which  equity  would  enforce,  and  that 
notice  to  the  insurers  of  the  a.ssignment  was 
not  necessary.  Cook  v.  Black,  1  Hare,  390;  11 
L.  J.  Ch.,  2G8. 

16.  The  life  was  insured  by  a  mutual  insur- 
ance company,  and  the  policy  Tvas  deposited 
by  a  creditor  as  security  for  the  debt  of  the 
insured,  but  no  express  notice  of  the  deposit 
was  given  to  the  insurer,  and  the  insured  be- 
came a  bankrupt.  Held,  the  assignee  in  bank- 
ruptcy was  entitled  to  all  the  benefits  of  it. 
In  re  Bromley,  Ex  parte  Wilkinson,  13  Sim., 
475. 

17.  The  policies  were  deposited  with  cer- 
tain bankers,  but  notice  was  not  given  insur- 
ers. Held,  they  remained  in  the  bankrupt's 
order  and  disposition,  and  his  assignees  were 
entitled  to  the  proceeds,  notwithstanding  the 
secretaries  of  the  companies  had  been  casually 
made  aware  of  the  deposit.  Edwards  v.  Mar- 
tin, 1  L.  R.  Eq.,  121 ;  18  L.  T.  (N.  S.),  236. 

18.  The  policy  was  assigned  to  trustees  for 
the  benefit  of  the  wife,  and  notice  of  the  assign- 


173 


ASSIGNMENT  OF  POLICY. 


174 


What  is  not  an  assignment. 


luent  given  to  a  resident  director,  who  it  seems 
never  sent  any  report  of  the  assignment  to  the 
principal  office.  The  tiuster  became  banli- 
nipt.  Ueld,  the  trustees,  aud  not  the  assigns 
an  banliruptcy,  were  entitled  to  tlie  money. 
North  British  Ins.  Co.  ii.  Hallet,  7  Jur.  (N.  S.), 
1203;  9  W.  R,  880. 

19.  A.  effected  a  policy  on  his  life,  and 
mortgaged  it  to  B.  without  notice  to  insurers. 
A.  became  bankrupt,  and  after  he  died,  B.'s  so- 
licitor gave  notice  to  the  company  that  this 
and  other  policies  were  mortgaged.  Subse- 
quently notice  of  the  bankruptcy  was  given  to 
the  company.  Hdd.,  B.  was  entitled  to  prior- 
ity over  the  general  creditors  (citing  Stewart 
V.  Cockerell,  8  L.  R.  Eq.,  607;  In  re  Webb's 
Policy,  15  W.  R.,  529).  In  re  Russell's  Policy, 
15  L.  R  Eq.,  26 ;  27  L.  T.  (N.  S.;,  706. 

II.    "WnAT  IS  NOT  AN  ASSIGNMENT. 

1.  On  ship— stipulated:  "The  interest  of 
the  insured  in  this  policy  or  the  property 
hereby  insured  is  not  assignable  without  the 
i;onsent  of  this  corporation  in  writing."  In- 
sured executed  a  bill  of  sale  and  the  vendee 
■executed  to  him  another  bill  of  sale,  to  be  void 
■on  payment  of  $-1,000  at  a  certain  time  named. 
There  was  no  assignment  of  the  policy,  but  it 
■was  left  as  collateral  for  the  debt,  and  after  the 
loss,  it  was  assigned  to  the  vendees.  Posses- 
sion of  the  vessel  was  given  to  the  vendees,  and 
insurers  never  had  any  notice  of  the  transac- 
tion. Held,  no  breacli  of  the  condition.  Hitch- 
cock V.  Northwestern  Ins.  Co.,  26  N.  Y.,  68. 

2.  P.  was  indebted  to  D.  $3,500,  for  which 
lie  drew  drafts  on  C.  in  favor  of  D.,  to  secure 
the  payment  of  which  he  gave  security  upon 
the  schooner  "  Eliza  Jane  "  (of  which  he  was 
master  and  owner),  with  an  agreement  that  he 
■would  insure  her,  pay  the  premium  and  trans- 
mit the  policy  to  D.  She  was  insured  for  the 
jimount,  "  loss,  if  any,  payable  to  G.,"  of  -ivhich 
P.  advised  D.,  saying  that  G.  would  hold  the 
insurance,  if  collected,  subject  to  the  order  of 
D.  On  the  voyage,  she  jettisoned  a  part  of 
lier  cargo  and  put  into  Charleston  in  distress. 
The  cost  of  repairing  amounted  to  about 
.$4,000,  to  pay  which  a  part  of  the  cargo  was 
sold  aud  a  bottomry  bond  executed  for  the 
balance.  She  arrived  at  the  port  of  destina- 
tion with  a  small  part  of  the  cargo,  and  was 
sold  to  satisfy  the  bond.    P.  delivered  the  pol- 


icy  to  another  creditor  to  collect  of  the  insur-* 
ers,  pay  his  debt,  and  account  to  G.  lor  the 
balance,  if  any.  Held,  the  words,  "  loss,  if  any, 
payable  to  G.,"  gave  him  authority  which  was 
revocable ;  that  P.  had  the  right  to  transfer  his 
interest  in  the  policy  as  he  should  see  fit,  and 
that  there  was  not  an  equitable  assignment  to 
D.    Dickinson  v.  Phillips,  1  Barb.,  454. 

3.  The  policy  prohibited  an  assignment  of 
it.  Insured  caused  an  assignment  to  be  writ- 
ten on  the  back  of  it  and  sent  it  to  the  com- 
pany for  ratification,  with  instructions  to  de- 
liver it  to  the  assignee  named;  but  the  com- 
pany refused  to  ratify,  and  returned  it  to  in- 
sured. Held,  an  attempt  to  assign,  but  not  an 
assignment.  Smith  v.  Monmouth  Mutual  Fire 
Ins.  Co.,  50  Me.,  96. 

4.  The  policy  was  indorsed :  "  In  case  of 
loss  pay  to  Angier,"  signed  by  insured,  and  it 
was  left  with  Angier  for  collection'.  Held,  no 
assignment.  Muss  v.  Waldo  Mut.  Ins.  Co.,  52 
Me.,  187. 

5.  Action  on  a  life  policy.  Res  judicata 
was  pleaded.  Three  parties  claimed  the 
money.  Suit  was  instituted  by  one  against 
insurer  at  its  domicile  in  Hartford,  Conn., 
and  judgment  was  there  given  against  the 
company.  The  plaintiff  here  had  possession 
of  the  policy  and  sued  upon  it.  Held,  posses- 
sion was  not  conclusive  proof  of  a  right  to  re- 
cover the  insurance  money,  for  it  was  merely 
the  evidence  of  a  contract  not  negotiable;  the 
right  to  the  money  might  be  assigned  de  hors 
the  instrument.  Wood  v.  Phcenix  Mutual  Life 
Ins.  Co..  22  La.  An..,  617. 

6.  Risley  insured  his  life  for  one  year 
for  $5,000.  He  died  within  the  term.  On  the 
back  of  the  policy  he  indorsed,  at  different 
dates,  four  several  assignments  each  for 
$1,000:  One  in  favor  of  M.,  one  in  favor  of 
his  brother  H,  and  two  in  favor  of  Benjamin 
J.  Leedom.  One  of  the  assignments  in  favor 
of  Leedom  aud  one  of  the  others  in  favor  of 
H.  had  never  been  approved  by  insurer,  nor 
had  any  notice  been  given  to  insurer  in  re- 
spect of  them ;  but  as  to  the  other  two,  insurer 
had  approved  them.  The  policy  remained  in 
the  possession  of  insured  up  to  the  time  of  his 
death.  Held,  under  the  code,  the  assignment 
of  a  debt  vests  in  the  assignee  only  an  in- 
choate right;  that  in  respect  to  third  per- 
sons the  assignor  is  not  divested  until  notice 
is  given  to  the  debtor  (citing  Cox  v.  White,  2 
La.   (O.   S.)  422;   Carl  in   v.    Dumartrait,    17 

87 


1T5 


ASSIGNMENT  OF  POLICY. 


ITS 


What  it  carries. 


Martin  (La.),  21 ;   Bainbridge  v.  Clay,  16  id., 
56.)     Succession  of  Kisley,  11  Rob.  (La.),  298. 

7.  A.  procured  a  policy  on  his  own  life  and 
deposited  it  with  his  creditors  to  secure  a 
promissory  note  of  £1,000.  Insurers  never 
had  notice  of  the  deposit;  after  his  death  a 
creditor  arrested  the  fund  in  the  hands  of  in- 
surer. Held,  the  arrestment  was  diligence 
effectual  under  the  law  of  Scotland;  that  the 
uniutimated  assignation  in  competition  with 
the  arrestment  was  inetfectual,  therefore  the 
rights  of  the  arrester  were  superior  to  those 
of  the  assignee.  Strachan  v.  McDouffle,  lu 
S.  &  D.,  954. 

8.  EK  assigned  the  policy  on  his  life  to  a 
trustee,  to  secure  a  debt  due  to  W.  Soon  after, 
the  solicitor  of  W.  caused  a  memorandum  to 
be  made  in  the  insurance  office  directing  all 
letters  to  be  sent  to  the  solicitor.  The  premi- 
\ims  were  thereafter  paid  by  the  solicitor  for 
W. ;  but  the  company  had  not  any  notice  for 
whom  the  solicitor  acted.  D.  became  bank- 
rupt,  and  during  his  life  the  solicitor  ofW. 
paid  the  premiums,  and  after  Ws  death,  his 
executors  continued  to  pay  the  premium. 
Held,  the  policy  was  within  the  order  and  dis- 
Dositiou  of  the  bankrupt  but  tliat  the  executors 
of  W.  had  a  lien  upon  the  policy  forthe  premi- 
ums paid  by  W.  and  his  estate  with  interest. 
West  v.Beid,2  Hare,  349;  13  L.J.  Ch.,  345. 

0.  A  life  policy  assigned  as  security  for  a 
debt.  The  assignor  became  bankrupt,  but  no- 
tice of  the  assignment  had  not  been  given  to 
the  insurer.  The  company's  charter  made 
every  person  insured,  a  partner  in  the  com- 
pany. Held,  notice  to  one  partner  was  notice 
to  the  whole  partnership;  that  an  assignment 
of  a  policy  by  one  of  the  assured  was  a  fact  of 
which  the  partnership  or  company  was  bound 
to  take  notice.  Duncan  v.  Ckamberluyne,  11 
Sim.,  123 ;  reversed,  Thompson  v.  Speirs,  13 
id.,  469.)  In  which  case  it  was  lield,  "It 
would  be  idle  to  say  that  because  the  assured 
happens  to  be  a  member  of  the  company  in  a 
legal  sense  any  act  which  lie  does  with  refer- 
ence to  his  own  particular  policy  is  to  be  taken 
to  be  a  partnership  act,  so  as  to  affect  the  whole 
body  with  notice  of  it." 

10.  The  policy  was  assigned  but  notice 
thereof  was  not  given  to  insurers.  Held,  the 
assignment  was  void  as  against  his  assignees 
in  bankruptcy.   Williams  v.  Thorp,  3  Sim.,  257. 

11.  The  bankrupt  had  been  local  agent  of 
a  life   insurance   company   in   Cork,    whose 

88 


principal  place  of  business  was  in  Dublin. 
He  insured  his  life  in  the  company  and  as- 
signed the  policy  in  December,  1839,  to  the 
National  Bank,  in  which  assignment,  he  cov- 
enanted to  pay  the  premium  and  continued  to 
do  so  to  the  time  of  hi»  death.  Notice  of  the 
assignment  was  never  «ent  to  the  company; 
but  the  manager  of  the  haak  gave  a  profurma 
verbal  notice  to  the  agent,  tliat  is,  the  insured, 
who  afterwards  became  bankrupt,  and  died. 
Held,  the  insurance  inust  be  considered  a 
transaction  between  the  principal  office  in 
Dublin  and  the  insured;  that  while  the  notice 
of  an  assignment  to  an  agent  vrould  have 
been  sufficient  in  ordinary  cases,  it  was  not 
in  this  case  where  the  agent  to  whom  the  no- 
tice was  given  was  the  person  insured,  and 
therefore  the  assignee  in  bankruptcy  was  en- 
titled to  the  avails  of  the  policy.  Kx  par'e 
Hennessy,  1  Con.  &  Law,  559 ;  s.  c.  a  IrirN 
Eq.,  259 ;  3  Dr.  &  War.,  555. 

III.  "What  it  caeeies. 

1.  Prior  to  the  year  1803,  V.  was  an  under- 
writer on  various  vessels  and  cargoes,  th» 
property  of  citizens  of  the  United  States- 
which  were  captured  and  carried  into  the 
ports  of  Spain  and  her  dependencies;  aban- 
donments were  made  thereof  to  V.  by  the 
owners  and  he  had  paid  the  losses  arising 
therefrom  prior  to  the  year  1803.  S.  became 
assignee  in  bankruptcy  of  the  effects  of  V. 
The  certificate  of  the  discharge  of  V.  in  bank- 
ruptcy bore  date  May  28,  1803,  and  in  the 
year  1834,  the  assignee  received  from  the  treas- 
ury of  the  United  States  -$8,846.14,  as  an  award 
on  account  of  the  losses  and  capture  men- 
tioned. In  the  return  of  V.  to  the  commis- 
sioners in  bankruptcy,  his  claim  against  Spain 
for  spoliations  was  not  in  his  schedule,  but 
claims  against  Fr.ance  and  Great  Britain  were. 
Held,  the  award  of  the  commissioners  pre- 
sented  no  bar  to  the  action  of  V.,  for  by  the 
act  of  abiindonmcnt,  insured  renounced  and 
yielded  up  to  tlie  underwriter  all  his  right, 
title  and  claims  to  whatever  might  be  s.avcd,. 
leaving  to  the  underwriter  the  privilege  to- 
make  the  most  of -it  for  his  own  benefit;  that 
the  right  of  V.  in  the  award  vested  at  the  time 
of  his  bankruptcy,  thougli  the  award  was  not 
declared  till  long  after,  and  the  assignment  in 
bankruptcy  carried  the  interest  of  V.  in  the 
award  to  his  assignee,  therefore  V.  was  not 


177 


ASSIGNMENT  OF  POLICY. 


178. 


When  it  vitiates  the  pohcy. 


tntitled  to  any  part  of  the  award.    Comcgya  c. 
Vasse,  1  Pel.,  193. 

'i.  B.  made  insurance  ou  liis  life,  ami  sub- 
sequently promised  to  marry  K.,  to  whom  he 
assigned  the  policj',  and  notified  insurers,  but 
not  being  able  to  pay  the  premiums,  he  subse- 
quently procured  his  uncle  to  promise  to  pay 
them,  who  agreed  to  do  so,  provided  the  policy 
should  be  for  the  benefit  of  B.'s  mother  and 
sisters.  B.  applied  to  K.  for  the  policy,  telling 
her  it  liad  expired.  She  sent  it  to  him,  and 
he  sent  it  to  his  uncle.  The  company  de- 
clined to  transfer  it  except  by  a  reassignment. 
R.  thereupon  executed  an  assignment  to  B., 
without  asking  the  reason  why  he  wished  it. 
Ilcld,  R.  had  no  title  to  the  money  payable 
under  the  policy.  Washington  Life  Ins.  Co.  v. 
Lawrence,  53  Barb.,  307;  s.  c,  affirmed,  41  N. 
Y.  (2  Hand),  620. 

3.  An  assignment  of  the  policy  as  collater- 
al carries  nothing  but  a  defeasible  right  for  the 
time  being,  which  is  divested  whenever  the 
debt  is  i)aid.  Robert  v.  Traders  Ins.  Co.,  17 
Wend.,  G31;  s  c,  9  id.,  474. 

4.  An  assignment  of  the  policy  vests  an 
equitable  interest  in  the  assignee  without  no- 
tice to  [the  insurers,  and  a  creditor  cannot  at- 
tach it.     Wakejidd  v.  Martin,  3  Mass.,  558. 

5.  A  life  insurance  policy  in  favor  of  the 
life  insured  was  assigned  to  H.,  in  trust,  for 
the  benefit  of  assignor's  children.  It  was 
never  delivered  to  H.,  but  deposited  in  the 
safe  of  a  firm  of  which  assignor  was  a  mem- 
ber, where  it  was  found  after  his  death.  He 
was  solvent  when  he  made  the  assignment, 
but  insolvent  when  he  died.  Held,  his  cred- 
itors had  no  right  to  any  portion  of  the  fund 
(citing  Larkin  ■».  McMullin,  49  Penn.  St.,  29; 
Coates  v.  Gerlach,  44  id.,  43;  Mullen  r.  Wil- 
son, id.,  413).  But  the  court  directed  the 
amount  of  premium  paid  to  keep  the  policy 
alive,  after  the  assignor  became  insolvent,  to 
be  taken  from  the  sum  insured  and  given 
to  the  creditors.  Troufjh'a  Estate,  8  Phila., 
214. 

6.  An  assignment  of  a  policy,  upon  a  stock 
of  goods  effected  in  the  name  of  the  assignor, 
as  security  for  a  debt  due  by  assignor  to  as- 
signee with  an  agreement  that  in  case  of  loss 
the  assignee  shall  collect  the  money  and  ap- 
jily  it  on  the  debt,  confers  a  lien  upon  the 
amount  due,  to  the  extent  of  the  debt,  so  soon 
as  the  loss  occurs,  as  again.st  tlie  assignor  and 
all  persons  asserting   claim   thereto  through 


him;  such  an  assignment  need  not  bo  in 
writing,  provided  the  policy  be  delivered  to 
the  assignee  and  the  assignee  need  not  have 
any  interest  in  the  property  insured.  Bibend 
V.  London  and  Lioerpool  Fire  and  Life  Ins.  Co., 
30  C'al.,  78. 

7.  A  solicitor  and  his  client  agreed  that  to 
secure  costs,  a  certain  policy  should  be  depos- 
ited with  the  solicitor,  which  was  done,  and 
afterwards  he  made  advances,  and  took  an  as- 
signment to  secure  them.  The  assignment 
was  silent  as  to  costs.  Held,  the  possession 
under  tlie  deposit  was  merged  in  the  assign- 
ment and  that  the  policy  became  a  security 
for  advances  only.  Vaughan  v.  Vanderslegen, 
2  Drew.,  289. 

8.  J.  B.  assigned  a  policy  upon  his  life,  in 
trust,  for  the  benefit  of  his  sister  and  her  chil- 
dren, if  she  or  they  should  outlive  him.  He 
delivered  the  assignment  to  one  of  the  trustees, 
but  retained  possession  of  the  policy.  Notice 
of  the  assignment  was  not  given  to  the  in- 
surer, and  afterwards  J.  B.,  for  a  considcra- 
tion,  surrendered  the  policy  and  a  bonus  de- 
clared upon  it  to  the  company.  This  bill  was 
filed  by  the  surviving  trustee  to  have  the  value 
of  the  policy  replaced.  Held,  upon  delivery 
of  the  assignment  nothing  remained  to  be 
done  to  give  effect  to  it,  hence  J.  B.  must  give 
security  for  the  whole  value  of  the  policy. 
Fortescue  v.  Barnett,  3  Myl.  &  K.,  36. 

IV.  "When  it  vitiates  the  policy. 

1.  Assignment  of  the  policy  was  prohibited. 
It  was  assigned,  but  the  property  insured  was 
not  included  in  the  assignment.  Held,  insur- 
ers were  discharged.  Smith  v.  Saratoga  Mutual 
Fire  Ins.  Co.,  1  Hill,  497;  3  id.,  508. 

2.  Policy  to  G.  &  R.,  on  personal  property, 
stipulated:  "If  the  same  or  any  interest 
therein  shall  be  assigned  without  the  compiv- 
ny's  assent  in  writing  indorsed  hereon,  it  shall 
be  thenceforth  null,  and  the  assignment  of  the 
interest  of  the  insured  in  this  policy,  or  any 
claim  thereunder,  whether  subsequent  or  pri- 
or to  loss  or  damage,  without  the  company's 
consent,  shall  render  the  policy  void  and  of 
no  effect.  JIarch  17th,  G.  made  a  general  as- 
signment to  T.  and  R. ;  and  about  four  mouths 
after,  the  loss  occurred.  Held,  a  violation  of 
the  condition.  Dey  -o.  Poughkeepsie  Mvt.  Ini- 
Co.,23  Barb.,  623. 


179 


ASSIGNMENT  OF  POLICY. 


180 


When  insurers  cannot  urge  as  a  defense. 


3.  Stipulated:  "  It  shall  he  void  if  pledged 
■or  transferred  without  insurer's  consent." 
Held,  to  he  construed  strictlj%  and  nothing  but 
■an  cftectual  transfer  or  pledge  will  come  with- 
in it;  and  a  general  assignment,  "  including 
all  policies  of  insurance  "did  not  pass  one 
which  was  in  the  hands  of  the  insured's  agent 
who  had  a  lien  upon  it;  hut  where  the  insured 
assigned  his  effects,  including  his  insurance 
policies  in  trust,  to  pay  his  debts  and  the  sur- 
plus if  any  to  himself"  Held,  the  insured 
must  show,  that  there  was  a  surplus,  before 
lie  could  recover.  Lazarus  v.  Commonwealth 
Ins.  Co.,  5  Pick.,  76. 

4.  Stipulated :  "  Not  to  be  assigned  with- 
out the  consent  of  the  company  indorsed," 
"wliich  stipulation  was  violated.  Held,  in- 
surers were  released.  Ferree  v.  Oxford  Ins.  Co., 
67  Penn.  St.,  373;  s.  c,  8  Phila.,  513. 


T.  'When  insueees  cannot  uege  as 

A  DEFENSE. 

1.  Policy  to  A.  for  one  year.  Stipulated: 
"  To  he  void  in  case  of  a  total  or  partial  assign- 
ment of  the  policy,  unless  made  with  insurers' 
consent  in  writing  indorsed.  The  risk  not 
being  changed,  the  policy  may  be  continued 
for  such  further  time  as  might  be  agreed  upon, 
the  premium  for  its  renewal  being  paid,  and 
its  itayment  indorsed  or  a  receipt  given."  A 
blank  assignment  printed  upon  the  policj'  was 
filled  up  by  the  insured  September  13,  1856, 
by  which  he  assigned  all  his  title  and  interest 
in  the  policy  to  C,  the  mortgagee  of  the 
premises  insured.  March  14,  1857,  insurers' 
agent  received  the  premium  from  C.  and  re- 
newed the  policy  bj'  indorsing  a  receipt  for 
the  premium  immediately  under  the  assign- 
ment mentioned.  Held,  the  jury  had  the  right 
to  lind  that  when  the  agent  renewed  the  policy, 
he  knew  of  the  assignment,  and  that  was  a  suf- 
ticieut  consent  to  bind  the  defendant.  Bilson 
V.  Manufacturers  Ins.  Co.,  7  Am.  Law  Keg., 
,661. 

2.  Stipulated : "  To  be  void  if  assigned,  trans- 
ferred or  pledged  without  insurer's  previous 
written  consent."  The  policy  was  made  in  the 
name  of  H.,  or  account  of  whom  it  maycon- 
cern,  loss  payable  to  the  order  of  H.  The  in- 
surance was  made  by  the  express  wishes  and 
authority  of  the  plaintiff  to  cover  his  interest 
in  the  property  insured.  Held,  the  plaiutifl's 
lights  arose  under  the  original  insurance,  not 

m 


under  any  assignment,  and  therefore  the  con- 
ditions stipulating  against  an  assignment  did 
not  affect  the  rights  of  the  parties.  Aldrich  v. 
Equitable  Safety  Ins.  Co..  1  W.  &  M.,  273. 

3.  The  policy  prohibited  an  assignment  un 
less  made  with  the  insurers'  consent.  Held,  an 
assignment  under  the  bankrupt  law  to  the 
official  assignee  in  bankruptcy  di-d  not  affect 
the  validity  of  the  policy  (citing  Wilkinson  t. 
Wilkinson,  10  Eng.  C,  258).  Starkweather 
V.  Cleveland  Ins.  Co.,  2  Abb.  Cir.  C.  67. 

4.  An  assignment  of  the  policy  does  not 
affect  it  unless  prohibited  by  its  terms.  Earl 
V.  Shaw,  1  Johns.  C,  314. 

5.  Stipulated :  "  The  interest  of  the  insured 
in  this  policy  is  not  assignable."  Insured 
made  a  general  assignment  to  pay  creditors. 
Held,  no  breach  of  the  condition.  The  People 
V.  Beigler,  Hill  &  D.,  133. 

6.  All  assignment  of  the  policy,  or  any  in- 
terest  in  it,  was  forbidden,  whether  made  prior 
or  subsequent  to  the  loss.  The  plaintiff  as- 
signed his  claim  after  the  loss  occurred.  Held, 
no  defense  to  the  action.  Goit  v.  National 
Protection  Ins.  Co.,  25  Barb.,  189 ;  Courtney  v. 
New  York  City  Ins.  Co.,  28  id.,  116. 

7.  An  assignment  of  the  claim  after  loss 
does  not  affect  the  rights  of  the  parties. 
Brichta  v.  New  York  La  Fayette  Ins.  Co.,  3 
Hall,  372. 

8.  Stipulated:  "Not  to  be  assigned,  trans- 
ferred, or  sold,  either  before  or  after  a  loss, 
without  the  company's  consent  expressed  by 
indorsement."  Held,  an  assignment  of  a  claim 
against  the  company,  made  after  the  loss  had 
occurred,  was  not  prohibited,  and  if  it  were, 
the  prohibition  would  be  illegal  and  void. 
Carroll  v.  Charter  Oak  Ins.  Co.,  38  Barb.,  402 ; 
s.  c,  40  id.,  292;  1  Abb.  Dec,  316. 

9.  "  To  be  void  if  the  policy  shall  be  as- 
signed, either  before  or  after  a  loss,  without 
the  consent  of  the  compau}'."  The  policy  was 
assigned  generally,  and  presented  to  insurers' 
agent  for  approval,  who  refused  to  approve  an 
assignment,  except  as  to  that  portion  of  the 
property  not  consumed  by  the  fire.  Held,  no 
defense  to  the  action.  Manley  v.  Insurance 
Co.  nf  North  America,  1  Laus.,  20. 

1 0.  Policy  upon  steamboat,  valued  at  double 
the  sum  insured,  procured  by  an  agent  for  the 
plaintiff,  payable  in  case  of  loss  to  the  agent, 
—  stipulated:  "To  be  void  in  the  case  of  its 
being  assigned,  transferred,  or  pledged,  with- 
out the  consent,  in  writing,  of  the  insurer." 


181 


ASSURED  OR  INSURED -AT  AND  FROM. 


182 


Miscellaneous. 


The  agent,  at  tlie  time  tlie  policy  was  procured 
and  at  tlic  time  the  vessel  was  lost,  was  a  cred- 
itor of  the  plaiutiff;  and  tlie  policy  remained 
in  his  hands  until  after  the  loss.  Before  the 
loss  happened  the  insured  made  a  general 
assignment  of  all  his  property,  including  the 
steamboat,  other  vessels,  choses  in  action  and 
policies  of  insurance,  in  trust,  to  pay  some  of 
his  creditors  in  full,  and  oihcrs  pro  rata,  or  in 
full,  the  surplus,  if  any,  to  the  use  of  llie  in- 
sured. Insurers  never  assented  to  the  assign- 
ment;  but  after  payment  in  full  to  his  credit- 
ors there  was  a  surplus,  without  resorting  to 
the  amount  claimed  under  this  policy.  Held, 
the  assignment  included  only  such  policies  as 
tlie  insured  could  legally  assign,  and  this  was 
not  such  a  one.  Lazarus  v.  Commonwealth 
Ins.  Co.,  19  Pick.,  81. 

1 1.  Stipulated :  "  Neither  the  policy  nor  any 
claim  thereunder  shall  be  assigned,  either 
prior  or  subsequent  to  a  loss,  except  by  the 
<-onipany's  consent  manifested  in  writing. 
After  the  loss  occurred,  assured  assiguea  his 
-claim.  Held,  the  condition  was  void  and  null 
«o  far  as  it  attempted  to  prohibit  an  assign- 
aient  of  a  chose  in  action.  West  Branch  Ins. 
Jo.  V.  Helfenstein,  40  Penu.  St.,  289. 

12.  The  policy  by  its  terms  prohibited  an 
■nssignment,  unless  approved  and  indorsed 
thereon  by  the  seci'etary  or  otlier  authorized 
officer.  The  president  as.sented  to  the  asf.ign- 
nient,  which  was  written  on  a  separate  piece 
of  paper,  and  attached  to  tlie  policy  by  a  wafer. 
Held,  an  indorsement  within  tlie  meaning  of 
tlie  policy.  Pennsylvania  xns.  Co.  v.  Bowman, 
44  Penu.  St.,  89. 

13.  The  policy  may  be  assr^ned  after  loss. 
Carter  v.  HumlokU  Ins.  Co.,  Isi  Iowa,  287. 

14.  Stipulated:  "If  this  poift-y  shall  be 
assigned  either  before  or  after  a  loss  without 
the  consent  of  the  company  indorsed  nereon, 
it  shall  be  void."  An  assignment  vfaa  made 
shortly  after  the  fire  occurred.  UeU,  no  de- 
fense to  the  action.  Pennebaker  v.  Tumlinson, 
1  Tenn.  Ch.,  598. 

1.5.  The  policy  prohibited  aa\'  assignment 
of  it  before  or  after  the  loss,  but  it  was  made 
loss,  if  any,  payable  to  the  plaintiS".  ffeld,  he 
could  recover  on  it.  Mershon  v.  National  Ins. 
Co.,  34  Iowa,  87. 

16.  The  policy  stipulated  that  it  should  not 
be  assigned  witliout  the  consent  of  the  com- 
pany indorsed  upon  it.  Ileld,  it  did  not 
prevent    an    assignment    after   the    loss    oc- 


curred.    Walters  v.  Washington  Int.  Co.,  1 
Cole,  404. 

17.  "Payment  to  be  made  to  the  legal  re])- 
re.seutaiives  of  the  insui'ed,  but  if  assigned, 
notice  to  be  given  to  the  company."  Held, 
not  a  limitation  upon  the  power  to  assign; 
that  to  pay  to  the  legal  representatives  was 
designed  to  meet  a  case  where  the  insured 
should  die  without  having  made  an  assign- 
ment of  the  policy;  and  that  tlie  reasons  which 
require  the  assent  of  fire  insurers  to  asiiign- 
ments  of  fire  policies  have  no  force  in  policies 
upon  human  life.  New  York  Life  Ins.  Co.  v. 
Flack,  3  Md.,  341. 

1 8.  A  rule  of  the  company  provided  that  if 
the  vessel  should  be  mortgaged  or  assigned, 
the  mortgagee  must  become  personally  liable 
to  pay  premiums,  or  the  policy  would  be  void. 
Insured  assigned  the  policy.  Held,  no  breach 
of  the  rule,  for  the  assignment  of  the  policy 
was  not  an  assignment  of  the  vessel.  Alexan- 
der V.  Campbell,  41  L.  J.  Ch.,  478;  27  L.  T.  (N. 
S.),  417. 

VI.  Geneeai,lt. 

1.  A  written  promise  to  pay  a  sum  of  mon- 
ey upon  the  happening  of  a  contingency  is  a 
subject  of  ti'ansfer  for  value.  St.  John  v. 
American  Mutual  Life  Ins.  Co.,  13  N.  Y.  31 ; 
3  Duer,  419;  Ashley  v.  Ashley,  3  Sim.,  149. 

2.  All  contracts  for  the  payment  of  money, 
whether  expressed  or  implied,  are  assignable 
under  Ihe  Maryland  statute  of  1829,  ch.  51. 
New  York  Life  Ins.  Co.  v.  Flack,  3  Md.,  341. 


ASSURED  OR  INSURED. 

The  person  to  whom  the  insurance  money 
was  made  p.ayable  "in  case  of  loss,"  was  not 
the  person  insured.  Held,  he  comes  not  with- 
in the  terms,  assured  or  insured.  Sandford  v. 
Mechanics  Mutual  Fire  Ins.  Co.,  12  Gush.,  541. 


AT  AND  FROM. 

(See  PoLioT.) 

] .  "At  and  from."  Held,  if  the  vessel  be 
abroad  in  a  foreign  port  or  expected  to  arrive 
at  suth  port  in  the  course  of  her  voyage,  the 

91 


183 


AT  AND  FROM. 


184 


Miscellaneous. 


policy  attaches  from  the  time  she  arrives  at 
that  port;  if  she  has  been  a  long  time  at  that 
port,  the  policy  attaches  from  the  time  prepa- 
raliuDs  are  commenced  for  the  voyage  insured ; 
if  the  party  insured  acquired  ownership  sub- 
sequent to  that  time,  but  before  the  date  of  the 
polic}-,  then  the  policy  attaches  from  the  time 
ownership  was  acquired.  If  the  ship  is  at 
home  in  port,  the  policy  attaches  from  its  date 
(citing  Smith  v.  Sleinbach,  3  Caines  C,  158; 
Garrigues  v.  Cose,  1  Binn.,  593;  Chitty  v. 
Selwyn,  3  Atk.,  359;  Camden  v.  Conley,  1  W. 
Blk.,  417 ;  1  Marsh  Ins.,  362 ;  Bird  v.  Appleton, 
8  Term,  503;  Bell  v.  Bell,  3  Camp.,  475;  Hull 
V.  Cooper,  14  East,  479;  Horneyer  v.  Lushiug- 
ton,  15  id.,  46;  Annan  v.  Woodman,  3  Taunt., 
399;  Patrick  ».  Ludlow,  3  Johns.  C,  10; 
Kemble  ®.  Bowne,  1  Caines,  75 ;  Gladstone  v. 
Clay,  1  Man.  &  Sel.,  418;  Forbes  v.  Wilson,  1 
Marsh  Ins.,  155j.  Seamans  v.  Loring,  1  Mason, 
127. 

2.  At  and  from  Barbados,  and  at  and  from 
thence  to  Trinidad,  and  at  and  from  Trinidad 
back  to  New  York.  She  proceeded  to  Barba- 
dos, thence  to  port  of  Spain,  Trinidad,  the  only 
port  of  eutrj'  in  the  island,  took  in  a  part  of  her 
return  cargo,  and  sailed  thence  for  the  port  of 
Hyslop,  in  the  same  island,  for  the  residue. 
She  was  lost  before  she  reached  Hyslop.  Held, 
"  at  and  from  an  island  is  not  the  same  as  at 
and  from  a  port;  that  at  and  from  an  island 
must  be  intended  as  a  license  to  use  the  differ- 
ent ports  of  the  island,  for  the  pm'pose  of  ob- 
taining the  return  cargo,  therefore  she  had 
liberty  to  go  to  other  ports  in  the  island  for 
the  purpose  of  completing  the  cargo,  and  to 
return  to  port  of  Spain  for  her  clearance  (cit- 
ing Camden  «.  Conley,  1  W.  Black.,  417 ;  Bond 
V.  Nutf,  Cowp.,  601;  Thelluson  o.  Ferguson, 
1  Doug.,  860).  Dickey  v.  Baltimore  Ins.  Co., 
7  Cranch,  327. 

3.  "  Xt  and  from  "  means  from  the  moment 
the  ship  arrives  at  the  port  whence  the  policy 
is  to  attach ;  but  where  the  ship  has  been  in 
that  port  long  prior  to  effecting  the  insurance 
the  risk  does  not  commence  till  some  act  is 
done  towards  equipping  her  for  the  voyage,  or 
until  the  day  on  which  she  is  stated  to  have 
been  in  safety  in  that  port.  Kemble  v.  Bowne, 
1  Caines,  75, 

4.  A  policy  "  at  and  from  "  takes  effect  from 
the  time  the  goods  are  put  on  board.  Patrick 
s.  Ludlow,  3  .Johns.  C,  10. 

5.  Policy  on  cargo  at  and  from  Portsmouth. 
93 


It  had  been  previously  laden  at  Newburyport. 
Held,  no  representation  that  the  cargo  was 
laden  at  Portsmouth,  for  there  was  no  stipula- 
tion that  the  risk  was  to  begin  on  taking  in 
the  cargo,  nor  was  it  laden  subsequently  to  lier 
departure  from  the  designated  port.  Silloway 
V.  Neptune  Ins.  Co.,  12  Gray,  73. 

6.  Insurer  refused  to  write  the  policy  at  and 
from  Amsterdam ;  but  accepted  the  risk  and 
made  the  policy  "  from  Amsterdam  only." 
Vessels  of  her  tonnage  could  not  take  a  full 
cargo  at  Amsterdam.  She  took  in  part  there 
and  passed  over  the  shoals  into  the  Texel, 
where  she  took  the  renjainder  from  a  lighter. 
The  wind  being  adverse,  she  remained  about 
eight  days,  during  which  she  sustained  dam- 
age in  a  heavy  gale.  Held,  the  policy  attached 
so  soon  as  she  sailed  from  Amsterdam,  though 
she  was  to  take  the  balance  of  her  cargo  in  the 
Texel.  Mey  v.  South  Carolina  Ins.  Co.,  3  Brev., 
329. 

7.  On  schooner  at  and  from  New  Orleans 
to  Havana,  from  thence  to  Burita  and  back  to 
New  Orleans.  She  arrived  at  Havana  and 
was  there  lost  in  port.  Held,  the  word 
"thence"  is  not  a  term  of  exclusion  or  of  lim- 
itation, but  descriptive  of  the  voyage;  and  al- 
though the  word  "at"  is  used  to  fix  the  insur- 
ance in  port  at  commencement  of  the  voyage, 
still  the  word  "at"  is  not  necessary  to  cover 
the  risk  while  the  vessel  is  at  an  intermediate 
port  within  the  voyage  insured.  Bradley  v. 
Nashville  Ins.  Co.,  3  La.  An.,  708. 

8.  Defendant  was  instructed  to  insure  goods 
on  board  the  Pearl  from  Gibraltar  to  Dublin. 
He  knew  the  goods  were  laden  at  Malaga. 
Held,  the  real  neglect  of  the  broker  consisted 
in  his  failure  to  state  to  the  insurer  that  the 
goods  were  laden  at  Malaga,  because  a  policj- 
on  goods  to  commence  "from  the  loading 
thereof"  at  a  place  named  does  not  cover 
goods  laden  at  another  place.  Park  v.  Ham- 
mond, 6  Taunt.,  495;  s.  c,  4  Camp.,  344;  3 
Marsh.,  189;  1  Holt  N.  P.,  80. 

9.  The  policy  attaches  during  the  vessel's 
stay  at  the  home  port,  if  it  reads  "  at  and 
from."  Palmer  V.  Marshall,  9  Bing.,  79;  1  L. 
J.  (N.  S.),  C.  P.,  19;  8  Bing.,  317;  1  M.  &  S., 
161,  454. 

1 0.  On  freight  "  at  and  from  Algoa."  Held, 
it  attached  when  she  was  ready  to  begin  to 
take  in  the  home  cargo.  William-ton  v.  Iicna, 
8  Bing.,  83  n.;  1  M.  &  Rob.,  88. 

11.  Time    policy,  "At  and   from   St.   M-i- 


185 


ATLANTIC  CABLE  -  ATTACHMENT  AND  GARNISHMENT. 


1S6 


Miscellaneous. 


cliael's,  to  any  port  or  ports  wlialsoever  and 
wheresoever."  She  arrived  at  the  island  of 
Crraciosa,  came  to  anchor  in  au  open  road- 
stead and  remained  there  for  twelve  days 
talking  on  cargo.  A  storm  came  on,  she 
put  to  sea,  remained  at  sea  si.x  days,  re- 
turnol  and  took  on  cargo  for  six  days  longer, 
when  another  storm  came  on,  she  put  to 
sea  again  and  was  totallj'  lost.  The  open 
roadstead  was  the  usual  place  for  loading 
goods  at  that  island.  Hdcl,  a  loss  within  the 
policy,  for  llie  roadstead  was  a  port  within  the 
meaning  of  the  parlies.  Cockey  v.  Atkinson,  3 
B.  &  A.,  4f;0. 

12.  She  was  chartered  fnmi  Liverpool  to 
Lagos,  there  to  discharge  and  reload  for  the 
U.  K.  for  a  lump  sum  as  frei!;ht,  payable  half 
before  sailing  out  and  the  <*ther  half  on  deliv- 
ery of  tlie  cargo  at  home;  and  this  policy  was 
on  frciglit  at  and  from  Lagos  to  U.  K.,  to  com- 
mence from  the  loading  of  tlie  said  goods  or 
merchandise  on  board  the  said  vessel  as  above. 
She  discharged  the  greater  portion  of  her 
cargo  outside  the  bar,  and  was  taken  in  tow 
by  a  tug.  In  crossing  the  bar  she  struck, 
drifted  upon  the  beach,  and  was  abandoned. 
No  part  of  the  homeward  cargo  hud  been  put 
on  board.  Held,  the  contract  prohibited  any 
liability  against  insurers  until  the  goods  were 
actually  on  board.  Beckett  v.  West  of  England 
Marine  Ins.  Co.,  25  L.  T.  (N.  S.),  739. 


ATLANTIC  CABLE. 

1.  "At  and  from  Ireland  to  Newfoundland, 
to  commence  with  the  lading  of  the  cable  on 
board,  and  to  continue  till  it  be  laid  in  one 
couliiiuous  length  Ijetwecn  Ireland  and  New- 
foundland, and  until  one  hundred  words  shall 
have  been  transmitted  each  waj-.  Valued  at 
£200  on  the  Atlantic  cable,  value  say  on  twen- 
ty shares  at  £10  per  share."  Opposite  the 
peril  clause  was  written  in  the  margin :  "  It  is 
hereby  understood  and  agreed,  that  this  poli- 
cy, in  addition  to  all  perils  and  casualties 
liereby  specified,  shall  cover  every  risk  and 
contingency  attending  the  conve3'ance  and 
successful  layiug  of  the  cable."  The  attempt 
to  lay  the  cable  failed,  by  breaking,  whilst  it 
was  being  hauled  in  to  remedj'  defective  insu- 
lation. Held,  the  policy  was  not  on  the  cable 
mcrelj-,  but  on  the  adventure,  that  is,  the  suc- 
cessful laying  of  it  between  Ireland  and  New- 


foundland; that  the  loss  was  total,  notwith- 
standing  one-half  of  the  cable  was  saved. 
Wilson  V.  Jones,  1  L.  R.  Ex.,  193 ;  4  H.  &  C, 
221;  36  L.  J.  Ex.,  78;  14  W.  K.,  499;  14  L.  T. 
(N.  S.),  65;  afiirmed  in  Ex.  Cha.,  2  L.  R.  Ex., 
139;  15  W.  R.,  435;  15  L.  T.  (N.  S.),  669. 

2.  "  On  one  £1,000  share  in  the  Atlantic 
Telegraph  Co.,  valued  at  £1,100,  to  cover  and 
include  the  successful  working  of  the  cable 
when  laid,  and  all  and  every  danger,  accident 
and  risk  that  may  be  incurred  on  sea,  or  on 
land,  in  all  or  any  boat,  ship  and  craft  whatso- 
ever  and  wheresover,  until  the  final,  complete 
and  successful  laying  of  the  Atlantic  tele- 
graph cable,  from  shore  to  shore ;  but  not  liable 
unless  claim  amounts  to  three  per  cent."  The 
cable  was  laid  fron)  the  Irish  to  the  Kortli 
American  coast,  but  during  a  previous  inetfec 
tual  attempt  to  lay  it  a  portion  was  lost  by 
perils  of  the  sea,  and  on  the  second  attempt,  in 
which  more  cable  was  lost,  a  quantity  of  su- 
perfluous cable  was  carried  to  meet  contingen- 
cies. A  failure  to  sufficiently  protect  the 
copper  wire  from  the  chemical  action  of  the 
sea  water,  and  not  any  mechanical  action  of 
the  sea,  prevented  electrical  communication. 
Held,  the  loss  caused  by  the  chemical  action 
of  the  sea  was  not  a  charge  against  the  in- 
surer; that  the  portion  of  the  cable  lost  was 
to  he  estimated  at  the  cost  of  that  substituted ; 
that  as  to  the  portion  carried  to  provide 
against  accident,  the  value  of  it  was  to  be  as- 
certained by  determining  whether  coiling 
it  in  the  hold  of  the  vessel,  or  other  circum- 
stances,  had  depreciated  its  marketable  value; 
that  it  was  to  betaken  into  account  at  its  mar- 
ketable value;  that  the  whole  value  of  the 
cable  that  ever  was  exposed  to  peril,  includ- 
ing that  portion  lost,  must  be  ascertained  ac- 
cording to  its  cost  when  shipped  free  on 
board,  and  the  actual  loss  compared  with  it, 
for  the  purpose  of  ascertaining  whether  the 
loss  amounted  to  less  than  three  per  cent,  on 
the  whole  value.  If  it  did  not  amount  to 
three  per  cent,  the  insurer  was  not  liable. 
Patterson  v.  Harris,  1  B.  &  S.,  336 ;  s.  C,  7 
Jur.  (N.  S.),  1276;  30  L.  J.  Q.  B.,  354;  2  B.  & 
S.,  814;  9  Jur.  (N.  S.),  173. 


ATTACHMENT  AND  GARNISHiMENT. 


T.  When  the  action  will  lie. 

II.  IT    WILL   KOT   LIE. 


93 


187 


ATTACHMENT  AND  GARNISHMENT. 


18S 


When  the  action  will  lie  —  When  the  action  will  not  He. 


I.  "When  the  action  will  lie. 

1.  A  sum  fixed  by  arbitiators,  as  due  from 
the  insurer,  is  liable  to  attachment  at  a  suit  of 
the  creditor.  Boyle  v.  Franklin  Fire  Ins.  Co., 
7  W.  &  S.,  76. 

2.  An  insurance  company  is  liable  to  gar- 
nishment, though  the  claim  is  unliquidated. 
Qirardlns.  Co.  v.  Field,  45  Penn.  St.,  129. 

3.  Trustee  process  will  lie  where  a  loss  has 
been  sustainea,  and  a  vote  passed  by  the  in- 
surance company  to  pay  it.  Swamscot  Ma- 
chine Co.  «.  Partridge,  25  N.  H.,  3G9. 

4.  On  household  furniture  exempt  from  at- 
tachment; a  loss  occurred,  for  which  the  com- 
pany was  liable.  Held,  trustee  process  will 
lie  against  the  fund,  fo;-  when  the  property 
was  consumed,  it  ceased  to  be  household  furni- 
ture in  the  possession  of  the  debtor;  nor  was 
it  household  furniture  of  the  debtor  in  the 
hands  of  the  insurance  company.  Wooster  v. 
Page,  54  N.  H.,  125. 

5.  "For  whom  it  may  concern."  A  part  of 
the  claim  belonged  to  a  person  not  named  in 
the  policy.  Held,  it  was  subject  to  attach- 
ment in  a  suit  against  him.  City  Bank  v. 
Adams,  45  Me.,  455. 

6.  Process  of  garnishement  may  be  made 
upon  the  authorized  agent  of  a  foreign  insur- 
ance company,  he  being  a  chief  or  managing 
officer  within  the  meaning  of  sec.  26,  art.  I  of 
the  attachment  act.  McAllister  v.  Pennsyl- 
vania Ins.  Co.,  38  Mo.  214. 

II.  When  the  action  will  not  lie. 

1.  Insurers  were  summoned  as  trustees.  In 
their  answer  they  expressly  declared  that  they 
never  waived  nor  intended  to  waive  the  benefit 
of  the  conditions  requiring  a  particular  ac- 
count of  the  loss.  Held,  answers  of  the 
trustees  were  to  be  taken  as  true,  and,  there- 
fore, they  must  be  discharged.  Pettengill  ■». 
Einks,  9  Gray,  169. 

2.  Trustee  process  was  made  upon  the  in- 
surer's secretary  in  Boston,  in  the  A.  M.,  Jan- 
uary 18,  1861.  About  three  hours  thereafter 
the  vice  president  settled  the  claim  at  Wor- 
cester, forty-five  miles  from  Boston,  and  de- 
livered to  insured  a  sight  draft  negotiable. 
Held,  it  was  a  negotiable  promissory  note  of 
the  company  payable  at  sight,  and  was  a  dis- 
charge of  the  company's  liability.  Spooner  v. 
Rowland,  4  Allen,  485. 

94 


3.  Tlie  court  is  bound,  by  the  statute,  to 
take  the  statement  of  the  defendants  as  true 
in  a  case  where  the  proceedings  .ire  founded 
upon  trustee  process.  Bostwick  v.  Bass,  99 
Mass.,  469. 

4.  Neither  the  corporation  nor  the  receivers 
can  be  charged  by  trustee  process  after  re- 
ceivers are  appointed  and  an  injunction  issued 
under  Gen.  .Stats.,  ch.  58,  sec.  6.  Columbian 
Book  Co.  V.  BeGolyer,  115  Mass.,  67. 

5.  Mortgagor  procured  insurance;  the  mort- 
gagee assigned  the  mortgage  to  the  plaintiff. 
The  property  was  damaged  by  fire.  The  com- 
pany's agent  gave  insured  a  draft  on  the  com- 
pany  for  the  loss,  which  was  transferred  by 
insured  before  the  statutory  notice  of  a  claim 
of  lien  was  received  by  the  insurer.  Meld,  the 
trustee  must  be  discharged.  Bums  v.  Collins^ 
64  Me.,  315. 

6.  Garnishement  was  served  upon  defend- 
ants. They  answered,  den3-ing  that  they  had 
money  or  effects  of  the  principal  debtor.  A; 
subsequent  writ  was  issued,  but  before  service 
the  debt  on  which  the  money  was  to  become 
due  had  been  assigned  to  another  creditor  of 
the  principal  debtor.  The  defendant  answered 
the  first  writ  by  denying  all  indebtednss,  to 
wliich  there  was  neither  objection  nor  tra- 
verse. In  answer  to  the  second  writ  thej' 
brought  into  court  the  sum  of  $800.  Held,  the 
first  writ  was  functus  officio,  and  the  inter- 
mediate assignment  g.ave  to  the  assignee  a 
right  to  the  fund,  superior  to  that  of  the 
creditors,  whose  garnishments  were  sued  out 
subsequent  to  the  assignment.  Daniels  v.  Mein- 
hard,  53  Ga.,  359. 

7.  The  rights  of  a  garnishee  are  to  be  care- 
fully protected.  He  is  to  be  charged  upon  his 
contract  only  as  it  exists  between  himself  and 
his  creditor,  and  he  is  never  to  be  placed  in  a 
situation  where  he  can  be  compelled  to  pay 
the  debt  twice,  nor  be  unnecessarily  exposed 
to  litigation  and  expense.  The  assignee  of  an 
unnegotiable  debt  must  give  notice  to  the 
garnishee  of  the  assignment,  in  time  to  en- 
able  him  to  show  the  assignment  in  his  an- 
swer, or  at  least  before  judgment  is  rendered 
against  him.  Walters  v.  Washington  Ins.  Co., 
1  Cole,  404. 

8.  Stipulated:  "Insurer  shall  have  a  right 
to  replace  the  articles  damaged  or  lost,  or  to 
take  tlie  goods  at  their  appraised  value,  and 
be  at  liberty  to  repair  the  premises  insured." 
Held,  insurers  were  not  liable   to  garnishee 


ISO 


ATTORNEY- AT-LAW— AT  SEA. 


190 


At  sea  —  Not  at  sea. 


process,  so  long  as  their  right  to  election  re- 
mained open.  Martz  v.  Detroit  Fire  and  Ma- 
rine Ins.  Co..  28  Mich.,  201. 

9.  Garnishee  summons  served  May  26,  18C6. 
The  garnishee  had  made  a  contract  of  insur- 
ance with  the  debtor  upon  certain  property 
•which  had  b^en  consumed  before  service  of 
process,  but  neither  notice  nor  proofs  of  loss 
had  been  made.  An  adjustment  of  the  claim 
was  determined  between  the  parties  at  $2,500, 
a  part  of  which  was  paid  by  the  garnishee 
to  certain  mortgagees,  and  the  balance  as- 
signed by  insured  after  service  of  process. 
Eeld,  at  the  time  of  service  of  the  summons 
there  was  nothing  absolutely  due  from  the 
g.trnishee  to  the  debtor,  therefore,  the  gar- 
nishee was  discharged.  Oeis  v.  Bechtner,  12 
Minn.,  279. 


ATTORNEYS-AT-LAW. 

1.  An  attorney-at-law  appeared  before  a 
justice  of  the  peace,  and  made  defense  for  the 
defendant,  a  corporation,  and  took  an  appeal 
from  the  judgment  rendered.  Held,  error  to 
to  dismiss  the  appeal  on  the  ground  that  no 
authority  to  take  it  had  been  shown,  for  the 
court  will  ijresume  that  the  attorney  had 
authority.  Shroudenbeck  v.  Phmnix  Ins.  Co , 
15  Wis.,  632. 


AT  SEA. 

I.  At  sea. 
II.  Not  at  sea. 

I.  At  sea. 

1.  Policy  for  twelve  calendar  months  — 
stipulated :  "  That  should  the  vessel  be  at  sea 
at  the  expiration  of  the  term,  the  risk  to  be 
continued  under  the  policy  at  an  agreed  pre- 
mium until  arrival  at  port  of  discharge." 
The  vessel  was  in  a  British  port  at  the  time 
the  year  expired,  carried  there  against  the 
will  of  her  master;  a  loss  occurred  after- 
wards in  the  further  prosecution  of  the  voy- 
age. Held,  being  on  the  voj'age,  which  had 
been  commenced  within  the  time  of  the  origi- 


nal  risk,  the  policy  continued  to  protect  her 
after  the  expiration  of  the  year,  although  she 
was  not  then  literally  at  sea.  Wood  v.  Neio 
England  Marine  Ins.  Co.,  14  Mass.,  31. 

a.  On  ship  for  a  term,  but  stipulated:  "If 
at  sea  when  the  term  expires,  the  risk  to  con- 
tinue until  her  arrival  in  port."  Before  the 
year  expired  she  was  at  Bangor,  Wales,  ready 
for  sea.  She  dropped  down  seven  or  eight 
miles,  intending  to  proceed  to  Boston,  but 
head  winds  prevented  and  slie  came  to  anchor 
in  the  straits  and  remained  there  till  after  the 
term  expired.  Held,  she  was  "  at  sea  "  within 
the  meaning  of  the  term.  And  in  the  same 
case  where  another  policy  by  another  insurer 
provided  that  the  risk  should  continue  if  she 
was  "  on  a  passage  "  when  the  term  expired,  it 
was  held,  she  was  "  on  a  passage."  Bowen  v. 
Hope  Ins.  Co.,  20  Pick.,  275. 

3.  "  On  ship  at  and  from  October  7,  1837,  at 
noon,  one  year.     If  at  sea  at  the  expiration  of 
the  year,  the  risk  to  continue  at  the  same  rate 
of  premium  until  her  arrival  at  port  of  desti- 
nation in  the  U.  S."    She  sailed  for  Cowes  and 
a  market,  with  directions  to  wait  there  for  in- 
structions, at  which  place  she  arrived  and  re- 
ceived instructions  to  discharge  at  Rotterdam, 
where  she  arrived  September  20,  1838.    Dis- 
charged cargo  the  27th,  but  being  unable  to 
get  a  return  freight  for  the  U.  S.,  the  master 
determined  to  go    to    Newcastle-upon-Tyne. 
She  finished  taking  in  ballast  October  4th,  and 
had  all  her  papers  except  a  clearance,  which 
she  was  to  procure  at  Helvoetsluys.  She  drop- 
ped into  the  river  Maese  the  5th  at  4:30  P.  M., 
but  could  not  get  down  because  the  wind  was 
ahead.    Had  it  not  been  so,  she  would  have 
gone  to  sea  immediately;  nor  did  she  sail  till 
the  8th,  being  prevented  by  head  winds  and  a 
heavy  sea.    She  reached  Helvoetsluys  on  the 
10th,  took  her  clearance,  proceeded  to  New- 
castle  where  she  took  cargo,  sailed  December 
1st  for  New  York,  and  was  damaged  on  the 
voyage.  Held,  she  w,is  at  sea  within  the  mean- 
ing of  the  policy  at  the  expiration  of  the  year, 
(citing  Bowen  v.  Hope  Ins.  Co.,  20  Pick.,  275;, 
therefore  the  insurers  were  liable  for  the  loss. 
Union  Ins.  Co.  v.  Tysen,  3  Hill,  118. 

II.     Not  at  sea. 

1.  Teim  policy  one  year  commencing  Jau- 
uay21,1835.  Stipulated:  "  If  at  sea  at  the  ex. 
piraliouof  the  term,  the  risk  to  continue  at  the 


191 


AUTHORITY  —  BARRATRY. 


192 


Where  the  policy  includes. 


came  rate  of  premium  until  her  arrival  at  the 
port  of  destiuation."  Eight  months  after  it  com- 
menced she  sailed  from  New  Yorli  for  St.  Barts, 
Curacoa  and  JIaracaibo,  with  cargo  fur  both 
places,  to  return  to  New  Yorlt.  On  her  pass- 
age to  St.  Barts  slie  sustained  damage  and  put 
into  St.  Thomas  for  repairs;  completed  them 
and  sailed  December  4th;  arrived  at  Curacoa 
on  the  8tli ;  discharged  cargo  and  sailed  for  St. 
Thomas  in  ballast  December  20th,  intending 
to  take  cargo  of  coflee  engaged  conditionally 
at  that  place,  to  carry  it  to  Philadelphia.  She 
did  not  reach  St.  Thomas  in  time  for  the 
cargo,  and  it  was  sent  to  Philadelphia  by  an- 
other vessel.  January  9,  18P.6,  she  was  found 
leaking  badly  at  St.  Thomas,  and  it  became 
necessary  to  strip  her  bottom  and  copper  it; 
the  repairs  were  completed  January  13th,  at 
which  time  there  was  half  of  her  cargo  en- 
gaged. On  the  25th  she  commenced  taking  it 
in,  finished  it,  and  sailed  for  New  York  on  the 
31st,  on  which  passage  she  was  lost.  Held, 
she  was  not  at  sea  within  the  terms  or  intent 
of  tlie  parties  when  the  term  expired.  HutUm 
J).  American  Ins.  Co.,  7  Hill,  331 ;  affirming  s. 
c,  24  Wend.,  330. 

2.  "  On  vessel  for  twelve  months,  ending 
November  10,  1838,  with  liberty  of  the  globe; 
and,  if  at  sea  at  the  expiration  of  the  term  the 
risk  to  continue  at  the  same  rate  of  premium, 
until  her  arrival  at  port  of  destination  in  the 
United  States."  October  9,  1838,  she  sailed 
from  Rio  for  Jersey,  in  the  British  channel,  for 
orders.  November  10th  she  was  at  sea  on  the 
voyage  to  Jersey,  and  while  still  at  sea  in  De- 
cember following,  she  received  damage, 
■which  was  repaired  at  Falmouth,  whence  she 
sailed  for  Altona,  where  slie  took  a  cargo  and 
sailed  June  28,  1839,  for  New  Orleans.  Held, 
the  stipulation  made  the  owners  absolute  mas- 
ters of  all  the  movements  of  the  brig,  for  and 
during  the  term  of  one  year;  tliat  the  risk 
could  be  prolonged  only  on  her  being  at  sea 
on  her  voyage  to  her  port  of  final  destiuation. 
Hi/re  V.  Marine  Ins.  Co.,  6  Whart.,  247. 

3.  "  On  ship,  one  year  from  May  20,  1854.  at 
noon.  If  at  sea  at  the  end  of  the  year,  then  to 
continue  at  a.  pro  rata  premium  until  she  ar- 
rives at  her  port  of  destination."  She  arrived 
at  the  Chincha  Islands  April  7,  1855.  There 
was  no  harbor  there,  but  she  came  to  anchor 
between  two  of  the  islands  and  took  in  her 
cargo  by  boats,  as  sea  and  wind  would  permit. 
She  sailed  June  14th,  obtained  her  clearance 

oc 


at  Callao,  and  was  lost  on  the  voyage  Septem- 
ber 30,  18.55.  Held,  she  was  not  at  sea  at  the 
end  of  the  year,  and  therefore  the  policy  ex- 
pired at  the  end  of  the  year.  Cole  v.  Union 
Mut.  Ins.  Co.,  12  Gray,  501 ;  Gookin  v.  New 
England  Mut.  Ins.  Co.,  id.,  506;  Tilton  v. 
Tremont  Mut.  Ins.  Co.,  id.,  519,  note*;  Cole  v. 
Commercial  Mut.  Ins.  Co.,  id.,  notef. 

4.  Stipulated:  "  If  on  a  passage  at  the  end 
of  the  term,  the  risk  shall  continue  until  slie 
arrives  at  the  port  of  destination."  She  loaded 
at  and  sailed  from  the  Chincha  Islands  for  Eu. 
rope,  but  was  obliged  to  call  at  Callao  to  get 
her  clearance,  there  being  no  port  of  entry  at 
the  Islands.  While  at  Callao  the  term  expired, 
and  she  was  lost  on  the  voyage.  Held,  not  oa 
a  passage  when  the  term  expired.  Washington 
Ins.  Co.  V.  White,  103  Mass.,  238. 


AUTHORITY. 

(See  Principal  and  Agent.) 


AVERAGE. 

(See    Generai.    Average;    Pabticulab  AvBRAaa; 
Warranted  Free  from  Av&baoe.J 


AWARD. 

(See  Arbitration  and  Awaed.) 


BARRATRY. 

(Sec-  Capture  and  Seizure;  Deviation;  Illicit 
Trade;  Master  of  Ship;  Neutrai.itt;  Policy; 
Proximate  Cause  of  Loss  ;  Theft  and  Robdebt.) 

I.  Where  the  polict  includes. 

II.  DOES    KOT    INCLtJDB, 

III.  What  is. 

IV.  NOT. 

I.  Where  the  policy  Includes. 

1.  "  On  schooner,  to  be  insured  in  the  man- 
ner prescribed  in  the  by-laws,  subject  to  all 
the  restraints  and  liabilities  therein  set  forth." 


193 


BARRATRY. 


194 


Where  the  policy  does  not  include  —  AiVTiat  is. 


Stipulated:  "  Not  in  anj'  case,  to  be  held  to 
ptiy  for  any  loss  or  damage  in  consequence  of 
restraint,  seizure  or  detention  by  any  legal  or 
illegal  power  wliatsoever,  or  for  any  damage, 
accident  or  loss  wliich  may  happen  to  any 
vessel  while  she  may  be  under  such  restraint, 
detention  or  seizure.  Held,  it  included  a  loss 
by  barratry,  notwithstanding  insured  was 
owner  of  the  schooner.  Parkhurst  v.  Glouces- 
ter Fishiiif/  ln.1.  Co.,  100  Mass.,  301. 

2.  F.  was  owner.  He  mortgaged  her  to  one 
to  secure  certain  indebtedness  to  several  par- 
ties. Subsequently  he  made  a  bill  of  sale  ab- 
solute and  delivered  it  to  plaint itf,  the  mort- 
gagee, who  registered  her  in  his  own  name. 
It  was  agreed  between  the  parties  whose 
debts  she  secured,  that  the  plaintiff  should 
procure  insurance  upon  her  for  the  benetit  of 
the  creditors,  and  the  policy  stipulated  that 
insurer  "  shall  not  be  liable  for  a  loss  caused 
by  the  barratry  of  the  master,  if  the  master  is 
owner."  F.  retained  possession  and  control, 
victualed,  manned  and  sailed  her  at  his  own 
expense;  but  the  master  fraudulently  ran  her 
ashore  and  she  was  totally  lost.  Held,  F.  was 
the  owner  pro  hac  vice;  hence,  insurers  were 
liable  for  a  loss  by  barratry.  Clark  v.  Was/i- 
iiigton  Ins.  Co.,  100  Mass.,  509. 

3.  From  London  by  land  carriage  to  Har- 
wich, thence  by  packet  to  Goltenberg.  Held, 
it  included  every  species  of  fraud  committed 
by  the  wagoner  or  servants,  from  the  time 
they  were  put  into  the  charge  of  the  carrier. 
Boehm  v.  Combe,  2  Mau.  &  Sel.,  173. 

II.    WUEKE    THE    POLICY    DOES   NOT    IN- 
CLUDE. 

1.  A  policy  on  boat,  etc.,  does  not  include  a 
loss  by  fire,  caused  by  the  barratry  of  master 
and  crew  (the  policy  was  silent  as  to  barratry). 
Waters  v.  Merchants  Louisville  Ins.  Co.,  11  Pet., 
213. 

2.  Stipulated:  "The  perils  assumed  are  of 
the  seas,  pirates,  rovers,  assaulting  thieves, 
jettisons,  barratry  of  the  master  and  marines, 
unless  the  assured  be  owner  or  part  owner  of 
the  vessel."  The  plaintitf  declared  for  a  loss 
caused  by  the  barratrous  act  of  the  master  and 
crew.  Insurers  answered  that  the  insured 
were  part  owners  of  the  vessel  at  the  time  of 
the  alleged  loss.  Held,  a  good  answer.  Har- 
ris V.  Mercantile  Ins.  Co.,  17  How.  Pr.,  188. 

3.  The   master    for    the  voyage   was    part 


owner,  and  the  policy  was  made  for  the  benefit 
of  all  the  owners.  The  loss  was  caused  by  the 
master's  barratrous  conduct.  Held,  insurers 
were  discharged,  for  the  master  of  a  ship  who 
is  part  owner  cannot  commit  an  act  of  barra- 
try  against  the  other  part  owners.  Wilson  v. 
General  Mut.  Ins.  Co.,  12  Cush.,  360. 

4.  Policy  on  cargo,  loss  averred  by  the  bar 
ratry  of  the  master.  Held,  insurer  might  show 
that  the  master  wlis  owner,  contrary  to  tho 
terms  of  a  public  bill  of  sale;  if  he  was  owner 
in  fact,  loss  by  barratry  could  not  be  sustained. 
Barry  v.  Louisiana  Ins.  Co.,  11  Martin  (La.), 
630. 

5.  On  ship,  cargo  and  freight,  made  in  the 
name  of  "  A.,  B.  &  Co.,  for  account  of  whom  it 
might  concern,  loss  by  barratry  not  taken  if 
insured  be  an  owner  of  the  vessel."  Held, 
whether  the  master's  act  was  barratrous  or 
not  must  depend  on  whether  the  policy  was 
made  for  the  vessel's  owner,  and  that  must  be 
ascertained  by  determining  the  intentions  of 
the  parties;  if  the  intention  was  to  insure  for 
the  owners,  then  the  defense  of  barratry  would 
be  valid,  notwithstanding  the  policy  was  not 
in  the  name  of  the  owner ;  and,  if  it  was  intend, 
ed  to  cover  the  interest  of  the  owner  and  of  the 
persons  named  in  the  policy,  the  contract  be- 
ing indivisible,  the  defense  of  barratry  would 
he  valid.  Paradise  v.  Sun  Mut.  Ins.  Co.,  6 
La.  An.,  596. 

III.  What  is. 

1.  A  fire  caused  intentionally,  by  the  direct 
act  and  agency  of  the  master  and  crew,  for  a 
barratrous  purpose.  Held,  not  a  loss  by  fire, 
but  by  barratry.  Waters  v.  Merchants  Louis- 
ville Ins'.  Co.,  11  Pet.,  313 ;  s.  c,  1  McLean,  2'7r,. 

2.  Where  the  loss  is  alleged  to  be  by  barra- 
try, it  is  not  necessary  to  prove  affirmatively 
that  the  fraud  was  committed  for  the  benefit 
of  the  master.  If  the  master  commits  a  fraud- 
ulent act  in  his  character  as  master,  it  is  bar- 
ratry.    Kendrick  v.  Delafield,  3  Caines,  67. 

3.  Taking  on  board  a  trunk  of  merchandise 
and  ten  barrels  of  gunpowder,  without  tho 
knowledge  of  the  owner,  is  barratry  by  the 
master,  and  is  no  defense  where  the  policies 
include  barratry.  Buckley  v.  Delafield,  3 
Caines,  221. 

4.  Insured  sought  to  recover  for  loss  by  barra- 
try. Held,  he  need  not  prove  that  the  master 
was  not  a  part  owner.    If  that  be  relied  upou 

97 


195 


BARRATRY. 


195 


What  is. 


as  a  defense,  the  onus  is  upon  insurer.  The 
fraudulent  sale  of  the  vessel  by  the  master, 
and  a  purchase  by  him,  does  not  constitute 
such  an  ownership  so  as  to  make  his  barra- 
trous acts  the  acts  of  an  owner.  Steinbach  v. 
Ogden,  3  Caines,  1. 

5.  On  ship  from  New  York  to  Trinidad, 
thence  to  New  Y'ork,  with  liberty  to  stop  and 
trade  at  Curacoa.  Insured  was  owner.  He 
chartered  the  vessel  to  tw'o  others,  excepting  a 
portion  of  the  cabin,  etc.,  the  master  and  crew 
to  assist  in  handling  cargo,  ship  owner  to  pay 
them.  The  master  agreed  with  the  charterers 
to  deviate,  they  paying  him  $100  for  it.  There 
■was  a  deviation  and  a  loss  by  capture.  Held, 
the  charterers  were  not  owners  pro  hac  vice; 
that  the  act  of  the  master  was  barratrj',  and 
the  insurers  were  liable.  M'ltityre  v.  Boicne, 
1  Johns.,  229. 

6.  On  cargo,  from  St.  Jago  de  Cuba  to  New 
Orleans,  thence  to  New  Y'ork.  Vessel  and 
cargo  belonged  to  insured.  Master  was  con- 
signee. He  fraudulently  converted  some  of 
the  cargo  to  his  own  use  and  absconded.  Held, 
it  was  a  loss  by  barratry.  Nor  could  the  bar- 
ratrous act  be  referred  to  the  master  in  his 
character  as  consignee,  the  act  was  properly 
imputable  to  him  as  master.  Cook  v.  Commer- 
cial Ins.  Co.,  11  Johns.,  40. 

7.  One  policy  on  vessel,  another  on  freight, 
and  a  third  on  cargo.  The  whole  of  the  cargo 
consisted  of  lawful  goods  admissible  in  the 
port  of  destination:  "Warranted  free  from 
loss  in  consequence  of  seizure  or  detention 
for  or  on  account  of  any  illicit  or  prohibited 
trade,  or  any  trade  in  articles  contraband  of 
war."  At  the  port  of  destination  there  was 
found  a  quantity  of  tobacco,  cigars,  and  other 
articles,  the  property  of  the  master,  which  had 
been  clandestinely  taken  on  board  by  the  cook 
and  master,  and  of  which  the  owners  and 
supercargo  had  no  knowledge.  The  ship  and 
cargo  were  seized  for  this  breach  of  the  law, 
and  heavy  expenses  incurred  by  insured  to 
elfect  their  liberation.  Held,  the  warranty  did 
not  interfere  with  or  alter  the  clause  insuring 
against  the  barratry  of  the  master.  American 
Ins.  Co.  V.  Dunham,  12  Wend.,  463 ;  affirmed, 
15  id.,  9;  s.  c,  2  Hall,  455. 

8.  Barratry  covers  a  fraudulent  or  felonious 
embezzlement  or  stealing  of  the  cargo  by  tlie 
master  or  crew.  Ameriain  Ins.  Co.  v.  Bryan, 
26  Wend.,  .563;  8.  c,  1  Hill.,  25. 

9.  Stealing  of  the  cargo   by   the  mariners 
98 


(not  petty  thefts)  is  barratry ;  and  a  policy  up- 
on tlie  mate's  adventure  against  barratry  cov- 
ers a  loss  by  the  theft  of  the  mariners;  ancJ 
where  the  mate  took  a  bill  of  lading,  and  had 
the  proceeds  in  dollars  in  his  trunk,  kept  in 
the  cabin,  afterwards  removed  it  to  the  steer- 
age (there  being  no  negligence  proven),  the 
trunk  was  opened  and  the  dollars  stolen  by 
the  cook  and  steward.    Held,  the  insurer  was 
liable.    Stone  v.  National  Ins.  Co.,  19  Pick., 34. 
10.  The  acts  of  the  master  and  mariners  to 
constitute  barratry  must  be  willful,  not  acci- 
dental, nor  caused  by  negligence,  unless  the 
negligence  be  such  as  amounts  to  evidence  of 
fraud ;  they  must  be  doue  for  a  fraudulent  piir- 
pose,  contrary  to  the  duties  of  the  master  and 
mariners;  but  they  need  not  be  done  with  an 
intent  to  promote  the  interests  of  the  master 
or  mariners.    In  general  the  motive  for  such 
acts  is  immaterial.    If  the  master  sell  or  dis- 
pose  of  any  part  of  the  .ship's  tackle,  apparel, 
furniture,  outfits,  or  supplies,  to  obtain  money 
for  his  own  use,  or  fraudulently  converts  to  his 
own  use  money  furnished  by  the  owners  for 
the  purchase  of  supplies,  it  is  embezzlement, 
and,  so  far  as  they  interrupt  or  defeat  the  pur- 
pose of  the  voyage,  constitute  barratary ;  and 
if  the  acts  are  committed  while  the  master  i» 
in  a  state  of  intoxication,  it  is  barratry  not- 
withstanding.   Laicton  v.  Sun  Mut.  Ins.  Co.y 
2  Cush.,  500. 

11.  If  the  policy  warrants  the  property 
neutral,  but  at  the  same  time  insures  against 
loss  by  barratry,  the  insurer  is  liable  if  the 
barratrous  acts  of  the  master  destroyed  the 
neutral  character  of  the  property  insured. 
And  an  unlawful  rescue  is  an  act  of  barratry; 
and  if  an  insufficient  force  is  put  on  board  iu 
consequence  of  a  promise  made  by  the  neutral 
crew,  a  rescue  by  them  is  unlawful.  But  the 
captor  must  put  a  sufficient  force  on  board, 
and  a  failure  to  do  so  may  be  considered  as 
an  abandonment  of  the  captured  vessel,  unless 
the  neutral  has  promised  to  navigate  her  to 
the  port  of  destination.  Barratry  is  the  will- 
ful breach  of  law  to  the  prejudice  of  the  own- 
ers,  and  it  is  not  necessary  that  the  master 
acted  from  motives  of  self  interest.  Wilcocl<» 
V.  Union  Ins.  Co.,  2  Binn.,  574. 

12.  Policy  included  loss  by  barratry  of  the 
mariners.  First  m.ite  and  master  died  on  the 
voyage,  and  the  duties  of  master  devolved  up- 
on the  second  mate,  who  took  the  vessel  on  a 
slave  trading  voyage  to  the  coast  of  Africa,  for 


197 


BARRATRY. 


198 


What  is. 


which  she  was  not  insured.  He  subsequently 
converted  her  to  his  own  use.  Ileld,  tlie  sec- 
ond  mate  was  a  mariner,  tliough  he  had  addi- 
tional duties  cast  upon  him  in  consequence  of 
tlie  death  of  tlie  master  and  first  mate.  Tate 
V.  Protection  Ins.  Co.,  30  Conn.,  481. 

13.  Vessel  and  cargo  condemned  as  contra- 
band. Neither  insurer  nor  insured  knew  of 
any  contraband  article,  but  some  were  put  on 
board  secretly  by  the  captain.  Held,  barratry 
and  the  insurer  was  liable.  Baltimore  Ins.  Co. 
V.  Taylor,  3  H.  &  J.,  198. 

14.  The  owner  insured  her  freight,  and  as- 
siffncd  it  and  his  policy  thereon  to  the  com- 
plainant. He  then  sold  the  vessel  to  another 
person,  who  took  passage  on  lier  for  the  voy- 
age,  and  while  he  was  on  her,  the  master  and 
crew  ran  away  with  and  disposed  of  brig  and 
cargo  in  fraud  of  the  shippers  and  owners. 
Held,  the  presence  of  the  owner  did  not  change 
the  offense;  that  it  was  an  act  of  barratry,  for 
which  the  insurer  was  liable.  Millavdon  v. 
New  Orleai.s  Ins.  Co.,  11  Martin  (La.),  603. 

15.  On  goods  from  London  to  Seville,  loss 
by  barratry  included.  She  was  chartered  by 
the  owner  to  I),  for  that  particular  voyage ;  she 
called  at  Guernsey  with  owner's  consent  and 
knowledge,  and  took  brandy  in  evasion  of 
the  duties,  but  of  that  the  charterer  was  igno- 
rant. She  encountered  heavy  weather  and 
was  driven  back  to  Dartmouth,  where  she  was 
repaired,  and  proceeded  on  the  voyage,  but 
was  again  damaged  and  unable  to  continue  it, 
and  was  obliged  to  put  into  Helford;  in  con- 
sequence of  the  damage  to  the  ship,  the  cargo 
was  spoiled.  Held,  the  deviation  was  the  vol- 
untary, illegal,  fraudulent  act  of  the  master; 
thai  D.  was  owner  of  the  vessel  pro  hue  vice; 
and  the  deviation  being  without  his  knowl- 
edge or  consent,  the  master's  act  was  barratry, 
for  which  insurers  were  liable.  Vallezjo  v. 
Wkeeler,  Lofft,  631 ;  Cowp.,  143. 

1 C.  "  Liberty  to  chase,  capture,  and  man 
prizes."  She  had  on  board  some  Spanish 
prisoners  who,  by  means  unknown,  were  let 
loose.  They  murdered  the  mate,  confined  the 
master  and  all  the  sailors  except  one,  who  ap- 
peared to  be  a  confederate  of  the  mutineers, 
subsequently  put  master  and  sailors,  except 
the  one  man  mentioned,  on  shore,  and  ran 
away  with  the  vessel.  Held,  evidence  of  loss 
by  barratr}-.  Hucks  v.  Thornton,  Holt,  N.  P.,  30. 

1 7.  Insured  declared  for  a  loss  caused  by 
the  barratrous  and  fraudulent  conduct  of  the 


master,  who  carried  the  ship  and  cargo  to  a 
place  which  subjected  them  to  capture  and 
seizure,  where  they  were  condemned  as  ene- 
my's property.  Held,  the  sentence  did  not 
disprove  the  allegation  that  the  loss  was 
caused  by  the  master's  barratrous  conduct. 
Ooldschmidt  «.  Whitmore,  3  Taunt.,  508. 

18.  S.  agreed,  February  20,  1810,  with  F., 
the  master  of  the  brig  Josic,  that  he  should 
immediately  take  a  cargo  named  and  proceed 
to  Figueras  and  there  deliver  according  to 
bills  of  lading,  and  with  all  dispatch  sail  di- 
rect to  Pernau,  and  there  take  cargo  men- 
tioned and  sail  therewith  direct  to  Oporto, 
deliver  cargo  and  end  voyage.  After  she  took 
her  cargo  at  London,  she  proceeded  to  sea 
under  the  command  of  Gouvea.  F.  remained 
in  England.  She  arrived  at  Figueras  March 
26,  proceeded  in  ballast  to  Pernau,  took  her 
cargo,  sailed  for  Oporto  and  put  into  Deal  to 
repair  a  leak.  While  she  lay  at  Deal,  the 
owner  came  on  board  and  assumed  the  man- 
agement,  and  willfully  ran  her  ashore,  the 
master  Gouvea  being  privy  to  and  concurring 
in  it,  and  she  was  lost.  Held,  it  was  a  loss  by 
barratry,  notwithstanding  the  owner  of  the 
vessel  committed  the  wrong.  Soares  v.  Thorn- 
ton, 7  Taunt.,  637;  s.  c,  1  Moore,  373. 

1 9.  The  vessel  put  into  port  to  repair,  and 
while  there  the  master  procured  forged  papers 
giving  her  a  false  name.  He  was  absent  from 
her  for  a  time  much  longer  than  necessary  to 
complete  repairs,  and  ran  away  with  her  to 
the  Azores.  Held,  the  delay  at  the  port  of 
distress  was  not  deviation;  that  it  was  a  loss 
by  barratry,  and  the  act  of  barratry  com- 
menced witli  the  delay.  Moscow  v.  Corson,  3 
Taunt..  684. 

20.  The  loss  was  alleged  to  be  by  barratrj'. 
Three  Spanish  prisonei's  were  received  on 
board  and  allowed  free  use  of  the  ship;  but 
they  joined  the  seamen  in  a  mutiny,  and  ran 
away  with  and  put  her  ashore.  Held,  insurers 
were  liable.     Toulmin  v.  Inglis,  1  Camp.,  421. 

21.  The  master  unlawfully  traded  at  D'El- 
mira,  a  Dutch  settlement.  Holland  was  then 
at  war  with  Great  Britain.  She  was  captured 
by  an  English  frigate,  and  condemned  for 
trading  with  the  enemy.  She  had  no  instruc- 
tions to  go  there;  but  the  master  had  instruc- 
tion generally  to  make  the  best  purchases 
with  dispatch.  Held,  the  master's  conduct 
w.as  barratrous,  for  which  the  insurers  were 
liable;  and,  in  the  absence  of  express  orders 


199 


BARRATRY. 


200 


What  is  not. 


to  the  coutrao',  obedience  to  the  laws  of  the 
land  is  impliedly  diiectcd;and  an  act  done  by 
the  master,  in  violation  of  llie  laws  of  the 
land,  is  a  breach  of  the  implied  orders  of  his 
owners.  Earle  v.  Rowcroft,SEasi,  12S.  Fraud 
is  barratry,  though  negligence  might  not  be. 
Ibid,  note. 

22.  She  was  insured  "  in  any  lawful  trade," 
and  barratry  was  one  of  the  risks  assumed. 
The  master  smuggled  certain  goods,  for  which 
she  was  seized ;  and,  in  order  to  procure  res- 
titution, insured  expended  £408.  Held,  the 
words  "  lawful  trade  "  were  restricted  to  the 
trade  in  which  the  master  was  directed  by  the 
owners  to  employ  her,  and  the  insurers  were 
liable.    Havelock  «.  Eaneill,  'i  Term,  277. 

23.  On  goods  from  Jamaica  to  New  Or- 
leans. The  person  who  acted  as  master  navi- 
gated her  to  the  mouth  of  the  Mississippi, 
dropped  anchor,  went  up  the  river  to  New 
Orleans  in  the  ship's  boat,  returned  to  her, 
stood  away  and  she  was  never  afterwards  heard 
of.  Held,  prima  facie  evidence  to  establish  a 
claim  for  loss  by  barratry.  Ross  v.  Hunter,  4 
Term,  33. 

24.  In  order  to  quiet  the  apprehensions  of 
the  sailors  and  induce  them  to  enter,  the  mas- 
ter agreed  to  and  did  procure  letters  of  marque, 
but  with  no  intention  of  cruising  or  making 
reprisals.  There  was  no  certificate  of  clear- 
ance, without  which  the  letter  of  marque,  by 
38  Geo.  Ill,  ch.  66,  sec.  15,  was  declared 
void.  The  master  was  instructed  to  proceed 
with  all  expedition  and  deliver  his  cargo 
agreeably  to  the  charter  party;  but,  a  few 
days  after  she  sailed,  they  fell  in  with  an 
American  ship,  which  they  boarded,  plun- 
dered and  released.  Subsequently,  she  cap- 
tured a  vessel  of  the  enemy,  sent  lier  into  Ber- 
muda, followed  her  and  libeled  her  in  the 
name  of  the  master  and  owners.  The  ship 
insured  was  driven  ashore  at  Bermuda  and 
lost.  Held,  taking  void  letters  of  marque  did 
not  affect  the  policy;  the  conduct  of  the  mas- 
ter was  barratrous,  for  which  insurers  were 
liable,  and  the  loss  was  therefore  within  the 
policy.     Moss  v.  Byrom,  6  Term,  379. 

25.  The  master  was  part  owner.  He  fraud- 
ulently sold  ship  and  cargo,  and  fraudulentlj' 
applied  the  proceeds  to  his  own  u.se.  Held, 
though  the  act  was  done  by  the  master  who 
was  part  owner  of  the  ship,  that  did  not 
make  it  the  less  a  fraud ;  for,  if  the  master, 
who  is  part  owner,  commits  barratry,  that  is 

100 


fraud  on  the  other  part  owners.  If  he  were 
the  solo  owner,  his  act  would  not  be  barratry. 
Jones  v.  Nicholson,  10  Exchr.,  28;  23  L.  J.  Ex., 
330. 

26.  £800  on  ship  for  a  term,  in  the  name 
of  S.,  a  part  owner  and  master,  valued  at 
£1,200.  '■  As  well  in  his  own  name  as  ia 
the  name  of  every  other  person  to  whom 
the  same  doth,  may  or  shall  appertain,  in- 
cluding loss  caused  by  the  barratry  of  the 
master."  S.  owned  J  J  and  the  pursuer  owned 
H  of  the  vessel.  Defenders  answered  that 
the  loss  was  caused  by  the  criminal  act  of 
S.,  the  master  and  part  owner.  Held,  by  the 
law  of  Scotland,  the  pursuer  could  maintain 
the  action  for  her  proportion  of  the  loss.  Part 
owners  are  not  copartners.  This  case  was  re- 
ferred to  Sir  ^Yit.  FoLLETT,  who  gave  three 
different  opinions  on  it.  The  judgment  is 
founded  upon  his  last  opinion.  Crichton  v. 
Martin,  11  Scot.  Jur.,  603;  s.  c,  Strong  v. 
Martin,  1  C.  C.  S.,  1245. 


IV.  What  is  not. 

1.  The  master  fraudulently  broke  up  the 
voyage  and  sold  the  cargo,  which  was  con- 
ceded  to  be  Uarratrous  if  he  was  in  a  situation 
to  commit  that  offense.  He  was  the  general 
owner  of  ship,  but  had  let  her  to  the  insured 
on  freight  for  the  voyage,  who  loaded  her  with 
their  own  goods.  He  had  possession  and 
command  of  the  ship.  Held,  the  charter  par- 
ty was  a  mere  affreightment  sounding  in 
covenant;  the  freighter  was  not  clothed  with 
the  character  or  legal  responsibility  of  owner- 
ship, and  consequently  the  master  was  incapa- 
ble of  committing  barratry.  Marcardier  t: 
Chesapeake  Ins.  Co.,  8  Cranch,  39;  s.  c,  1 
Wheat.,  228  n. 

2.  At  and  from  New  York  to  Port  au 
Prince,  thence  back  to  New  York.  She  was 
chartered  to  Gillespie  for  the  voyage  and  on  her 
arrival  at  Port  au  Prince,  with  the  knowledge 
and  acquiescence  of  the  master,  she  was 
stripped  by  Gillespie  of  her  sails  and  a  consid- 
erable part  of  her  rigging.  On  her  return  '^oy. 
age  she  was  sunk  by  him ;  but  whether  it  was 
done  with  the  knowledge  of  the  master  did 
not  appear.  Held,  admitting  the  act  at  Port 
au  Prince  to  be  barratry,  the  insured  could 
not  recover  unless  it  produced  the  loss. 
Swan  V.  Union  Ins.  Co.,  3  AVheat.,  1C8. 


201 


BARRATRY. 


203 


What  is  not. 


3.  Ship  was  captured  by  the  British  on  the 
ground  that  war  had  been,  or  soon  would  be 
declared  between  G.  B.  and  the  U.  S.    The 
whole  of  llio  crew  except  master,  mate,  and  a 
boy  were  taken  out  and  slie  was  ordered  to  Hal- 
ifax.   An  attempt  to  rescue  her   before   she 
reached  Halifa.\  was  made,  and  after  a  hard 
contest,  the  effort  was  relinquished.     She  was 
libeled  and  condemned  at  Halifax  as  lawful 
prize  of  war.     An  abandonment  was  made. 
The  insured  declared  for  a  loss  by  barratry. 
Held,  to  make  the  act  of  the  master  barratrous 
it  must  be  fraudulent,  and  to  the  injury  of  the 
owners;  fraudulent  means  a  criminal  viola- 
tion of  the  duty  he  owes  to  the  owners;  It  was 
not  necessary  that  the  act  should  be  for  the 
master's  interest,  but  if  it  be  to  his  interest, 
that   is   evidence   of  fraud.     If  the   question 
turned  on  the  fraud,  it  is  necessary  to  look  at 
the  motives  and  intentions  which  influenced 
the  act;  if  his  motives  were    to   benefit  the 
owner,  it  was  not  fraud,  and  therefore  was  not 
barratrous,  e.  g.,  a  willful  deviation  for  the  ben- 
etit  of  the  owner  is  not  barratry;  but  if  it  is 
done  to  benefit  the  master  it  is  (citing  Phyn 
V.  Royal    Exchange    Ass.  Co.,  7  Term,  50.5). 
It  does  not  follow  that  every  illegal  act  is  a 
criminal  one,    e.  g.,  an   ignorant  breach    of 
blockade  or  an  ignorant  violation  of  a  foreign 
ordinance,  though  illegal,  are    not  criminal. 
The  illegal  act  may  be  prima  facie  evidence 
of  fraud,  yet  it  may  be  rebutted   by  evidence. 
Dederer  v.  Delaware  Ins.  Co.,  2  Wash.  C.  C,  61. 

4.  If  the  owner  of  ship  is  informed  that  the 
master  is  pursuing  a  voyage  other  than  that 
insured  and  makes  no  objection  to  it,  and  the 
master  ultimately  runs  away  with  the  ship, 
sells  her,  and  embezzles  the  money,  that  is  not 
barratry.  Thurston.  ».  Columbian  Ins.  Co.,  3 
Caines,  89  6. 

5.  The  owner  let  the  ship  by  charter  party 
to  the  master  for  a  period  of  four  mouths.  He 
covenanted  to  victual  and  man  her  at  his  own 
cost.  The  insured  shipped  goods  by  her  for 
St.  Thomas,  but  the  master  took  them  to  Porto 
Rico  and  sold  them.  Held,  the  master  was 
pro  hac  vice  owner  and  his  conduct  did  not 
amount  to  barratry;  that  the  rule  applies  as 
well  to  the  innocent  owner  of  cargo  as  to  the 
ship  owner,  Hallet  v.  Columbian  Ins.  Co.,  8 
Johns.,  373. 

6.  Plundering  British  vessels  of  their  car- 
goes instead  of  sending  them  into  port  for  ad- 
judication, it  appearing  that  the  master  was 


authorized  to  do  so  by  the  owners,  is  not  bar- 
ratry.    Ward  V.  Wood,  13  Mass.,  539. 

7.  On  steamboat  including  risk  of  barratry. 
Owner  was  master.  He  assigned  the  policy 
to  R.  Master  took  a  barrel  of  turpentine, 
placed  it  in  front  of  the  furnace,  and  used  it 
foi-  the  purpose  of  increasing  steam,  that  he 
might  race  her  against  another  boat.  Held, 
not  barratry,  for  that  can  never  bccur  when  the 
act  is  consented  to  by  the  owner.  Citizens 
Ins.  Co.  1).  Marsh,  41  Penn.  St.,  380. 

8.  On  steamboat  against  fire  only.  Stip- 
ulated: "Not  liable  for  losses  caused  by 
barratry."  A  fire  resulted  from  collision  with 
another  steamboat,  alleged  to  have  been 
caused  by  the  willful  misconduct  of  the  pilot. 
Held,  the  onus  was  upon  insurer  to  make  out 
the  defense  of  barratry.  Mere  error  on  the 
part  of  the  pilot  was  not  barratry.  Barratry 
consists  of  some  fraudulent  act  intended  to  in- 
jure the  ownerj  or  of  a  willful  violation  of 
known  positive  law  in  the  navigation  or  man- 
agement of  the  vessel.  Germania,  Ins.  Co.  v. 
Sherlock,  25  Ohio  St.,  33. 

9.  Tlie  crew  deserted  the  vessel.  Held,  not 
barratry.  Messonier  v.  Union  Ins.  Co.,  1  N. 
&  McC,  1.55. 

10.  Insurer  assumed  the  risk  of  barratry. 
Held,  a  loss  attributed  to  the  master's  failure 
to  repair  the  boat  or  re-ship  the  cargo,  was 
not  barratry.  Stewart  v.  Tennessee  Marine  and 
Fire  Ins.  Co.,  1  Humph.,  343. 

11.  After  the  vessel  had  left  Quebec  with 
her  home  cargo  on  board,  she  sprung  a  leak 
and  put  into  Gaspie ;  but  before  a  survey  was 
made  the  master  with  crowbars  broke  up  her 
ceiling  and  end  bows  to  procure  htr  con- 
demnation.  Held,  it  was  not  barratry.  Todd 
V.  Ritchie,  1  Starkie,  190. 

1 2.  The  charterer  sent  smuggled  goods  on 
board,  for  which  ship  was  seized  and  con- 
demned. Held,  the  acts  of  the  charterer 
were  the  acts  of  the  owner;  that  it  was  not  a 
case  of  barratry  but  a  loss  caused  by  the  own- 
er.   Hobbs  V.  Hannam,  3  Camp.,  93. 

13.  Ship  was  condemned  for  violating  the 
blockade  imposed  by  Sweden  upon  Norway. 
The  policy  was  from  Jutland  to  Leith.  The 
master  swore  she  was  bound  for  Leith,  but  she 
had  been  driven  by  a  current  nearer  to  the 
coast  of  Norway  than  he  intended  to  have 
gone,  and  that  he  did  not  intend  to  go  into 
any  port  of  Norway;  that  when  he  was  taken, 
he  was  steering  direct  for  Leith.    Held,  the 

101 


203 


BELLIGERENT—  BEQUESTS. 


204 


What  passes. 


evidence  w.is  insufficient  to  establish  a  loss  by 
barratry.  Everth  v.  Uannam,  6  Taunt.,  375 ;  2 
Marsli.,  72. 

14.  On  Roods.  The  master,  by  direction 
of  the  owners  of  the  ship,  deviated;  and  in- 
sured claimed  that  his  conduct  was  barratrous 
as  against  them.  Held,  not  b.irratry,  notwith- 
Btandiug  the  owner  miglit  be  liable  for  the 
misbehavior  of  the  master.  Nutt  v.  Bourdieu, 
1  Term,  323: 

15.  There  is  no  barratry  unless  the  conduct 
of  the  master  and  mariners  partake  of  a 
fraudulent  purpose.  Phyn  v.  Royal  Ex.  Ass. 
Co.,  7  Term,  505. 

16.  From  ralmouth  to  Marseilles;  but  be- 
fore she  sailed  was  advertised  to  take  goods 
for  Genoa,  Leghorn  and  Naples.  The  plaint- 
iff's agent  was  told  that  she  w^as  to  go  to  those 
ports  first,  and  then  come  back  to  Marseilles; 
but  he  insisted  that  she  was  bound  to  go  di- 
rectly to  Marseilles,  for  that  was  the  bargain; 
that  he  w'ould  not  alter  his  insurance.  She 
passed  Marseilles,  delivei'ed  her  cargo  at  the 
other  ports,  and  on  return  for  Marseilles  was 
lost.  Held,  this  was  not  barratry,  because  the 
master  was  acting  consistent  with  his  duty  to 
the  owners.   Stamma  v.  Brown,  3  Strange,  1173. 


BELLIGERENT. 

(See  Capture  akd  Seizube;  Citizens;  Illicit 
Trade;  Neutralitt  and  National  Cbabacteb; 
Sentence  of  Condemnation.) 


BEQUESTS. 

I.  What  passes. 

II.  DOBS  NOT  PASS. 

I.  "What  passes. 

1.  The  wife's  life  was  insured  for  the  bene- 
fit of  the  husband,  and  the  policy  provided 
that  if  she  survived  him,  the  money  should  be 
paid  to  their  children.  She  survived,  but  they 
had  no  children;  and  by  his  will  he  be- 
queatlied  to  her  all  the  residue  of  his  estate, 
both  real  and  personal,  without  restraint  abso- 
lutely. Held,  the  testator's  interest  iu  the 
103 


policy  passed  to  the  wife  in  her  lifetime  by 
the  residuary  clause  of  the  will,  and  after  her 
death  to  her  representatives;  that  the  will 
operated  upon  the  interest  of  the  testator,  and 
upon  the  death  of  the  widow,  the  insurance 
money  became  payable  to  the  executors  of 
the  testator  as  assets  of  the  estate.  Keller  v. 
Gaylor,  40  Conn.,  343. 

2.  The  testator  procured  a  policy  on  his 
own  life  for  the  benefit  of  himself,  to  be  paid 
to  his  personal  representatives;  and  he  be- 
queathed to  his  wife  all  his  "Stock  in  trade, 
and  any  money  that  I  ma}'  die  possessed  of, 
or  which  maj-  be  due  and  owing  to  me  at  the 
time  of  my  decease."  Held,  the  money  re- 
ceivable under  the  policy  passed  to  the  wife. 
Petty  V.  Willson,  4  L.  R.  Ch.,  574;  17  W.  R., 
778. 

3.  On  the  life  of  A.,  payable  to  his  execu- 
tors, administrators  and  assigns.  He  made  a 
valid  nuncupative  'svill,  by  which  he  be- 
queathed his  personalty  and  the  proceeds  of 
the  policy  to  his  widow,  having  previously 
transferred  a  part  of  the  policy  to  secure  cer- 
tain debts.  Held,  the  widow  was  entitled  to 
the  proceeds,  minus  the  amount  assigned 
Tenn.     Willimns  v.  Corson,  5  Ins.  L.  J.,  313. 

4.  The  testator  charged  his  real  estate  with 
an  annuity  to  his  widow,  devised  the  realty  in 
fee  to  A.,  and  appointed  her  his  executrix.  At 
the  death  of  the  testator,  there  was  a  policy  of 
insurance  upon  the  house,  which  was  renewed 
by  A.,  and  shortly  after,  the  house  burned. 
The  testator  had  no  other  real  estate  but  that 
upon  which  the  house  stood.  Held,  the  re- 
newal must  be  considered  as  made  by  A.  in 
her  character  as  executrix;  the  proceeds  of 
the  policy  could  not  be  considered  as  part  of 
the  testator's  general  personal  estate,  but  were 
subject  to  the  trust,  for  the  benefit  of  the  par- 
ties interested  in  the  realty,  for  they  were 
substituted  for  the  property  charged.  Parry 
■V.  Ashley,  3  Sim.,  97. 

5.  The  testator  bequeathed  a  house  and  £300 
lawful  money  to  his  daughter,  and  the  re- 
mainder of  all  his  moneys,  in  whatever  it  may 
be,  in  bonds,  consols,  or  anything  else,  to  his 
wife.  Held,  the  bequest  to  his  wife  included 
a  policy  upon  the  testator's  life.  Stooke  t 
Stooke,  35  Beav.,  396. 

6.  Policies  of  insurance  were  effected  as  se- 
curity for  an  annuity.  Either  party  had  the 
right  to  determine  the  annuity.  The  grautee 
bequeathed,  among  other  things,  "All  out- 


*205 


BILLS  — BILLS  OF  EXCEPTIONS. 


206 


Miscellaneous. 


standing  debt3  owing."  Held,  tlie  will  was 
sufficient  to  include  general  policies  of  insur- 
ance, and  that  they  would  pass  under  the 
words  debentures  or  debts.  PhiUips  v.  East- 
uood,  L.  &  G.,  temp.  Sugden,  270. 

II.  What  does  not  pass. 

1.  The  grantee  of  an  annuity  effected  an 
insurance  in  the  name  of  a  trustee,  upon  the 
life  of  the  grantor.  The  testatrix,  being  en- 
titled  to  the  annuity  and  policy,  bequeathed 
as  follows:  "I  give  likewise  to  the  said  Wil- 
liemena,  JIadame  T.'s  annuity  and  the  sum  of 
JE1,000."  The  testatri.x  died  in  1848,  and 
j\Iadame  T.  in  1849,  and  the  trustee  received 
£978  in  respect  of  the  policy.  Held,  the  policy 
•ilid  not  pass  under  the  words  of  the  bequest. 
Hamilton  v.  Baldwin,  15  Beav.,  232. 

2.  M.  E.  granted  a  redeemable  annuity  to  S. 
during  his  own  life.  S.  effected  an  insurance 
on  the  life  of  M.  E.,  but  S.  was  a  mere  trustee 
for  Susannah,  and  he  executed  a  declaration 
of  trust  accordingly.  Susannah  being  en- 
titled to  half  the  annuity  and  the  policy  be- 
•queathed  her  moiety  "£500  now  secured  ou 
the  estate  of  Marsham  Elwin,  and  by  a  policy 
of  insurance  on  his  life  in  the  Equitable." 
Held,  the  bonuses  which  had  been  added  to 
the  policy  did  not  pass  under  this  bequest. 
■Simpson  v.  Mountain,  4  L.  J.  (N.  S.)  Oh.,  221. 


BILLS. 

(See  Peomissort  Notss.) 


BILL  OF  EXCEPTIONS. 

1.  A  certain  instruction  given  was  assigned 
^s  error:  but  the  bill  of  exceptions  did  not 
show  that  evidence  had  not  been  given  suffi- 
cient to  warrant  the  submission  of  the  ques- 
tion. Held,  the  error  assigned  was  not  sup- 
ported.   Insurance  Co.  j).  Piaggo,  16  Wall.,  378. 

2.  Nothing  appeared  in  the  record,  except 
"the  pleadings,  the  verdict  and  judgment,  and 
:three  bills  of  exceptions  taken  to  the  rulings 


of  the  court,  for  refusing  to  give  certain  iji. 
structions;  none  of  the  evidence  was  in  the 
bill  of  exceptions,  nor  any  certificate  as  to 
what  the  evidence  tended  to  prove.  Held,  no 
error  could  be  supported  upon  the  instruc- 
tions refused.  Insurance  Co.  v.  Baring,  20 
Wall.,  159. 

3.  There  was  nothing  in  the  record  to  show 
what  was  excepted  to,  but  at  the  end  of  the 
bill  of  exceptions  immediately  preceding  the 
signature  of  the  judge,  these  words  were  writ- 
ten, "exceptions  allowed."  Held,  if  they 
amounted  to  anything,  they  covered  the  whole 
record ;  that  the  exceptions  should  have  pre- 
sented specifically  and  distinctly  the  ruling 
objected  to,  and  failing  to  do  so,  the  judgment 
would  be  affirmed.  Insurance  Co.  v.  Sea,  21 
Wall.,  158. 

4.  Exceptions  to  be  relied  on  must  be  taken 
and  notified  at  the  trial ;  if  not  then  taken  they 
cannot  be  settled  correctly  from  recollection, 
or  by  the  observations  and  oaths  of  bystand- 
ers; but  when  taken  at  the  trial,  the  court 
will  allow  them  to  be  reduced  to  form  after- 
wards. Nicoll  V.  American  Ins.  Co.,  3  W.  &M., 
529. 

5.  The  court  charged  the  jury:  "If  the 
condition  of  the  deceased  at  the  time  of  his 
death  was  such  that  he  could  not  distinguish 
right  from  wrong,  and  did  not  know  that  he 
was  doing  an  act  which  would  produce  death, 
then  he  was  an  involuntary  agent,  and  the  re- 
suit  of  an  involuntary  act,  which  produced 
death,  was  accidental  death.  Held,  no  excep- 
tion having  been  taken  to  the  charge,  the 
court  would  not  review  it.  Mallory  v.  Trav- 
elers Ins.  Co.,  47  N.  Y.,  52. 

6.  The  affidavits  to  support  a  motion  to  re- 
move a  cause  from  the  state  to  the  federal 
court  must  be  preserved  in  the  bill  of  excep- 
tions; if  that  is  not  done,  this  court  cannot  re- 
view the  action  of  the  court  below.  Hartfora 
Fire  Ins.  Co.  v.  Vanduzor,  49  l\\.,  489. 

7.  The  petition  and  affidavit  for  an  order  to 
remove  the  cause  from  the  state  to  the  federal 
court  must  be  inserted  in  the  bill  of  excep- 
tions, or  the  supreme  court  will  refuse  to  no- 
tice any  error  founded  upop  the  refusal  of  the 
court  to  transfer.  Home  Ins.  Co.  v.  Heck,  65 
111.,  111. 

8.  Affidavits  in  support  of  a  motion  are  not 
part  of  the  record,  unless  made  so  by  bill  of 
exceptions,  nor  will  the  court  regard  them  as 
a  part  of  the  record,  though  the  clerk  has  cop- 

103 


207 


BILLS  OF  LADING  — BLOCKADE. 


208 


What  is  a  breach  of. 


ied  them  into  it;  nor  will  the  court  regard  a 
paper  professing  to  be  a  bill  of  exceptions, 
unless  the  record  shows  that  the  judge  signed 
it  (citing  Tayler  ».  Fletcher,  15  Ind.,  80;  In- 
dianapolis R.  R.  Co.  B.  Wyatt,  16  id.,  204; 
Round  «.  The  State,  14  id.,  493 ;  Thompson  v. 
White,  18  id.,  373;  Whiteside  ».  Adams,  26 
id.,  250;  Haddon  v.  Haddon,  42  id.,  378;  Kes- 
ler  V.  Myers,  41  id.,  543).  Aurora  Fire  Ins.  Co. 
V.  Johnson,  46  Ind.,  315. 

9.  A  motion  to  strike  out  pleading  does  not 
become  a  jjart  of  the  record  unless  preserved 
by  bill  of  exceptions.  National  Banking  and 
Insurance  Co.  v.  Knaup,  55  Mo.,  154. 


BILLS  OF  LADING. 

1.  A  bill  of  lading  which  states  the  proper- 
ty to  belong  to  R.  and  another  does  not  pre- 
vent R.  from  showing  that  he  was  the  only 
person  interested  in  the  goods.  Maryland 
Ins.  Co.  n.  Ruden,  6  Cranch,  338. 

2. -The  bill  of  lading  contained  these  words: 
"  Contents  unknown."  Held,  it  was  not  evi- 
dence of  any  property  in  the  consignees. 
Haddow  v.  Parry,  3  Taunt.,  303. 

3.  The  bill  of  lading  was  tendered  in  evi- 
dence as  proof  that  the  goods  were  shipped. 
Held,  inadmissible,  because  it  was  only  the 
declaration  of  the  master.  Dickson  v.  Lodge, 
1  Stark.,  180. 


BILL  OF  PARTICULARS. 

The  defendant  pleaded  that  certain  ques- 
tions and  answers  propounded  bj'  the  defend- 
ant to  the  deceased  were  the  basis  of  the  con- 
tract among  which  was,  "Whether  the  de- 
ceased ever  had  been  afflicted  with,  or  had 
any  symptoms  of  any  complaint,"  to  which 
the  answer  was,  "Never;"  that  the  answer 
■was  untrue  in  this,  that  he  had  symptoms  of 
disease  of  the  stomach.  Held,  the  defendant 
must  deliver  to  the  plaintiff  particulars  of  the 
symptoms  of  the  disease  of  the  stomach. 
Marshall  v.  Emperor  Life  Ass.  Soc,  6  B.  &  S., 
886;  s.  c,  1  L.  R.  Q.  B.,  35;  12  Jur.  (N.  S.), 
203;  35  L.  J.  Q.  B.,  89;  13  L.  T.  (N.  S.),  281. 
104 


BLOCKADE. 

(See  Captdbb  axd  Seizure;  Illicit   Tp.adb;  Nbo- 

TKALITT  AKD  NATIONAL  CHAEACTER;    SESTENCB  OF 
CONDESINATIOH.) 

I.  What  is  a  breach  of. 

II.  NOT  A  BREACH   OP. 


I.  What  is  a  breach  of. 

1.  If  the  insurer  is  to  take  no  risk  arising 
from  blockade,  he  must  be  discharged  from 
every  risk  that  arises  in  consequence  of  it; 
and  whether  the  belligerent  was  strictly  justi- 
liable  in  condemning  the  property  for  viola- 
tion of  blockade  is  immaterial.  The  disper- 
sion of  a  blockading  fleet  by  storm  does  not 
suspend  the  blockade,  provided  the  fleet  uses 
due  diligence  to  resume  its  station.  Radcliffe 
V.  United  Ins.  Co.,  7  Johns.,  38.  But  if  a 
storm  drives  a  neutral,  in  spite  of  himself, 
within  the  confines  of  a  blockaded  port,  he  i» 
excusable,  and  is  not  subject  to  forfeiture.  Ibid. 

2.  Stipulated :  "  Insurers  take  no  risk  of 
blockaded  ports."  Held,  admitting  the  cap- 
ture and  condemnation  to  have  been  illegal, 
from  the  want  of  due  proof  of  notice,  yet  if 
the  loss  arose  by  reason  of  the  port  of  desti- 
nation  being  blockaded,  it  falls  nithiu  the 
exception.  Radcliffe  v.  United  Ins.  Co.,  9- 
Johns.,  277. 

3.  The  order  for  insurance  stated:  "She 
will  sail  under  Spanish  colors."  She  was  pro- 
vided  with  them  as  well  as  with  Spanish 
papers,  to  deceive  the  cruisers  of  Great  Brit- 
ain, with  whom  the  United  States  were  at  war. 
She  was  bound  for  St.  Bartholomew,  from 
New  Haven;  was  examined  by  Commodore 
Oliver,  to  whom  the  master  denied  liearing  of 
the  blockade  until  he  had  taken  in  his  whole 
cargo.  A  British  privateer  captured  her,  and 
she  was  condemned  for  breach  of  blockade. 
Held,  if  the  goods  were  purchased  and  depos- 
ited in  warehouse  before  notice  of  tlie  block- 
ade, that  conferred  no  right  to  ship  them.  The 
rule  is  this:  The  cargo  on  board  the  ship  or 
in  lighters  for  the  ship,  for  the  purpose  of 
being  conveyed  to  her,  may  be  exported, 
but  nothing  else.  Oldden  v.  McChesney,  5  S. 
&R.,  71. 

4.  Ship  sailed  from  Liverpool  February 
ISlli,  for  Buenos  Ayres,  but  put  into  Lockin- 
dale  in  distress  on  the  20th.    The  master  went 


209 


BOTTOMRY  AND  RESPONDENTIA. 


2ia 


When  bottomry  does  not  affect  insurer  of  ship. 


overland  to  Greenock,  for  a  carponter  aiul 
Bome  men,  being  absent  four  or  five  days. 
Two  or  tliree  days  after  his  relurn,  she  sailed 
for  the  port  of  dostiuation,  which  was  block- 
aded, notice  of  which  w-as  published  in  the 
London  Gazette,  February  18th.  Held,  wheth- 
er the  master  had  notice  of  the  blockade  ought 
to  have  been  submitted  to  the  jury.  Rkodesv. 
Hunter,  2  Hud.  &  B.,  581. 

II.  "What  is  not  a  breach  of. 

1.  A  vessel  may  sail  for  a  blockaded  port 
known  to  be  blockaded,  unti'  she  is  warned 
off  by  the  blockading  squadron,  and  is  not 
bimnd  to  inquire  elsewhere  than  of  the  block- 
ading force.  "  Warranted  neutral,  proof  of 
■which  to  be  made  in  the  United  States  only, 
from  Baltimore  to  LaGuira,  with  liberty  of 
one  other  neighboring  port,  and  at  and  from 
them  or  either  of  them  to  Baltimore."  Cura- 
coa  had  been  blockaded,  of  which  notice  had 
been  given  to  the  United  States,  before  she 
sailed.  She  arrived  at  LaGuira,  sailed,  and 
■was  captured  about  thirty  miles  from  Amster- 
dam in  Curacoa.  It  seems  the  master  omitted 
to  inquire  at  LaGuira  or  Bonaire,  respecting 
the  blockade  of  Amsterdam;  but  he  intended, 
in  case  he  should  find  Amsterdam  blockaded, 
to  sail  for  some  other  port.  Held,  the  omis- 
sion to  inquire  at  LaGuira  did  not  discharge 
the  insurer;  nor  was  the  intention  to  sail  for 
another  port,  if  Amsterdam  were  blockaded, 
to  be  deemed  a  deviation,  for  she  had  the 
right  to  go  to  Amsterdam.  Maryland  Ins. 
Co.  V.  Woods,  6  Cranch,  29. 

2.  Ship  and  cargo  insured  against  seizure 
and  condemnation,  sailed  for  a  port  under, 
stood  to  be  blockaded,  taken  while  the  inten- 
tion  to  break  the  blockade  existed,  and  con- 
demned as  lawful  prize.  Sdd,  the  insurers 
were  liable.  Vos  v.  Uniled  Ins.  Co.,  1  Caines 
Cas.,  7. 

3.  A  neutral  is  entitled  to  enter,  unless  there 
is  an  actual  existing  blockade.  There  must  be 
a  blockade  de  facto;  nor  is  he  bound  to  see 
whether  the  blockading  squadron  still  retains 
the  animus  revertendi;  nor  is  notice  given  by 
a  British  frigate  or  ship  of  the  line,  several 
leagues  from  the  port  and  several  days  before 
entry,  of  any  consequence.  Williams  v.  Smith, 
2  Caines,  13. 

4.  Sailing  for  a  port  blockaded  is  no  con- 
travention of  the  law-  of  nations,  for  she  may 


sail  for  the  purpose  of  ascertaining  whether 
the  blockade  is  continued.  Naylor  v.  Taylor, 
9B.  AC,  718;  4M.  &R.,  530. 

5.  Ship  sailed  for  a  port  blockaded  and  was 
captured.  Held,  the  question  for  the  jury  to 
determine  was,  whether,  when  she  came  in 
sight  of  the  blockading  squadron,  the  master 
ought  to  have  ascertained  if  it  were  such  or 
not,  and  ought  not  to  have  pursued  her  voyage 
without  gaining  that  information.  If  a  pru- 
dent man  would  not  have  inquired  whether 
that  were  the  blockading  squadron,  then  the 
insurer  was  liable.  Naylor  v.  Taxjlor,  1  M.  & 
M.,  205. 

6.  At  and  from  Liverpool  to  Buenos  Ayres. 
She  sailed  on  the  voyage  February  4th,  but 
put  in  to  Lochendale  for  repairs,  and  sailed 
thence  March  12th.  The  port  of  destination 
was  blockaded  and  notice  thereof  published 
February  18th.  This  policy  was  made  on  the- 
22d,  following.  Held,  the  voyage  was  not  il- 
legal ;  for  she  sailed  before  notice  of  the  block- 
ade was  published;  and  whether  the  master 
had  actual  notice  of  it  when  she  sailed  from 
Lochendale  was  a  question  of  fact  fur  the 
jury,  and  they  having  found  that  be  had  not 
such  notice,  the  insurers  were  liable  for  the 
loss.  Harratt  «.  Wise,  4  M.  &  R.,  531 ;  9  B.  & 
C,  713;  7  L.  J.  K.  B.,  309. 


BOTTOMRY  AND  RESPONDENTIA. 

1.  Must  be  insured  6o  nomine.  —  Shifv 
owned  by  a  British  subject,  bottomried  by  the 
master,  the  lender  made  insurance  without 
disclosing  that  the  interest  insured  was 
founded  upon  a  bottomry  bond.  Held,  it  was 
a  special  interest,  and  the  policy  being  in  gen- 
eral terms  did  not  cover  it.  Robertson  -o. 
Unitedlns.  Co.,  2  Johns.  C,  251.  And  the  fact 
that  the  bond  contained  the  words  "grants, 
bargains  and  sells,"  did  not  make  the  trans- 
action a  sale,  because  the  master,  in  his  c:i- 
pacity  as  such,  could  not  do  mote  than 
pledge  her.    Ibid. 

2.  When  bottomry  does  not  affect  insurer 
of  ship.  —  Master  made  a  bottomry  bond,  to 
secure  money  required  to  pay  for  repairs  to 
the  ship  to  enable  her  to  return  to  the  home 
port.  Held,  the  insurers  of  ship  were  not  lia- 
ble to  pay  the  bottomry  bond;  that  the  limit 

105 


21  i 


BONUS  — BROKER. 


219 


Miscellaneous. 


of  their  liabi'itj'  was  the  amount  of  repairs. 
Jieed  V.  Commercial    Ins.  Co.,   3  Johns.,   356. 

3.  'W\\nt  the  bond  must  state.  —  Tlie  con- 
tract of  bottomrj- must  be  in  writing,  specify 
the  sum  lent  with  the  stipulated  marine  inter- 
est, and  the  voyage  proposed,  with  the  dura- 
tion of  the  risk,  which  the  lender  is  to  run. 
Jemiings  v.  Insurance  Co.  of  Pennsyhania,  4 
Binu.,  244.  And  see  certain  papers  in  this 
case  which  do  not  constitute  a  contract  of  bot- 
tomry. 

4.  'WTien  not  insurable  at  all.  —  The 
plaintiflF's  interest  was  founded  on  a  bottomry 
bond,  given  to  him  and  one  Hilton  jointly. 
The  statute,  6  George  I,  ch.  18,  sec.  12,  pro- 
hibited the  lending  of  money  by  two  jointly' 
on  bottomry,  as  well  as  joint  insurances  by 
two.  Held,  an  insurance  made  upon  such  an 
interest  was  void,  although  the  lenders  were 
geueral  partners  in  trade.  Everth  v.  Black- 
burn, 3  Starkie,  58;  6  Mau.  &  Sel.,  152. 

5.  Who  may  make  the  bond.  —  The  master 
and  some  of  the  crew,  with  all  the  ship's  pa- 
pers, were  carried  off  by  the  enemy.  Held^ 
the  mate  had  the  right  to  hypothecate  the  ship 
or  sell  a  part  of  the  cargo  for  the  purpose  of 
raising  money  to  pay  salvage.  Parmeter  v. 
Todhunter,  1  Camp.,  511. 

6.  WTiat  is  a  good  description.  —  The  mas- 
ter bound  himself  and  the  vessel  for  the  re- 
payment of  a  sum  of  money  borrowed  to  re- 
pair her  in  a  foreign  port,  with  twelve  per 
cent,  bottomry  premium,  eight  days  after  mj' 
arrival  in  London.  Lender  made  insurance 
"on  bottomry,"  audit  was  so  described  in  the 
-policy.  Held,  "after  his  arrival"  must  be 
construed  "after  his  arrival  with  the  ship  in 
the  port  of  London";  that  it  did  not  mean 
whether  she  do  or  do  not  arrive  in  London; 
therefore  the  interest  insured  was  well  des- 
cribed (reversing  s.  c,  7  L.  J.  C.  P.,  239 ;  8  M. 
&  P.,  385 ;  0  Bing.,  114).  Simonds  v.  Hodgson, 
1  L.  .J.  (N.  S.),  K.  B.,  51 ;  3  B.  &  Ad.,  50. 

7.  There  must  be  total  destruction  of  the 
thing.  —  On  bottomry.  She  was  very  badly 
damaged  at  sea,  and  narrowly  escaped  found- 
•ering,  but  was  carried  into  I'almouth  by  a 
King's  ship.  It  would  have  cost  £3,300  to  re- 
pair her;  after  which  her  value  would  not 
have  exceeded  £2,000.  Held,  the  question  was 
not  whether,  had  the  policy  been  on  the  ship, 
the  insured  could  have  recovered  for  a  total 
loss.  An  insurance  on  bottomry  gave  no  right 
\to  the  insured  to  recover,  if  the  ship  continued 

106 


to  e.xist  as  a  ship;  nothing  short  of  a  tota 
destruction  of  her  as  a  ship  would  make  in 
surer  liable.  Thompson  v.  Royal  Ex.  Ais.  Co. 
1  Mau.  &  Sel.,  30. 

8.  Action.  —  On  a  bottomry  bond  condition 
ed  inter  alia,  "  or  in  case  of  the  loss  of  the  sale 
ship  or  vessel,  such  an  average  as  by  custom 
shall  have  become  due  on  the  salvage,  or  if  on 
the  said  voyage  the  said  ship  or  vessel  shall 
be  utterly  lost,  cast  away,  or  destroyed." 
There  was  a  constructive  total  loss,  and  the 
proceeds  of  the  ship  by  decree  in  admiralty, 
in  favor  of  the  bondholder,  were  paid  into 
court.  They  were  insufficient  to  satisfy  the 
bond.  In  an  action  by  the  bondholder  against 
insurers:  Held,  a.  constructive  total  loss  was 
not  a  loss  of  the  bond;  that  nothing  but  an 
absolute  total  loss  will  discharge  a  bottomry 
bond,  hence  the  insured  could  not  recover. 
Broomfield  v.  Southern  Ins.  Co.,  5  L.  R.  Ex., 
192;  39  L.  J.  Ex.,  186;  22  L.  T.  (JST.  S.),  371;  13 
W.  R.,  810. 


BONUS. 

(See  Bequests.) 

"W.  insured  his  life  in  1812,  and  the  policy 
lapsed  for  nonpayment  of  premium  in  1816. 
In  1817,  the  company  issued  to  him  another 
policj'  for  the  same  amount,  and  at  the  same 
rate  of  premium  as  the  first,  upon  which  pre- 
miums were  paid  until  his  death,  in  1854. 
This  bill  was  brought  to  compel  the  company 
to  make  good  all  bonuses  falling  due  from 
1812  to  1817.  Held,  there  was  a  total  absence 
of  proof  to  support  the  plaintiff's  case.  Win- 
dus  V.  Tredegar,  15  L.  T.  (N.  S.),  108. 


BOOKS  AND  BOOKS  OF  ACCOUNTS. 

(See  Evidence  and  Peoop  op  Loss.) 


BROKER. 

(See  PanjcrPAL  ai,-d  Agent.) 

I.  His  lien. 
II.  His  liabilitt. 
III.  Brokerage. 


213 


BROKER. 


214 


His  lien. 


I.  His  lien. 

1.  An  insurance  broker  is  entitled  to  a  lien 
upon  tlie  policy  for  the  premium  paid  Ijy  liim 
for  his  principal,  and  thougli  he  parts  with  the 
possession,  the  lien  revives  when  the  policy 
comes  again  into  his  hands,  unless  the  man- 
ner of  surrendering  possession  manifests  an 
intention  of  abandoning  the  lien;  but  in  the 
case  of  other  liens  upon  the  policy,  if  it  is  as- 
signed bona  fide  for  a  valuable  consideration 
while  out  of  possession  of  the  person  who  ac- 
quired the  lien,  it  does  not  revive  after  its  re- 
turn. Spring  v.  South  Carolina  Ins.  Co.,  8 
Wheat.,  368. 

2.  A  broker  who  receives  premiums  and 
pays  losses  has  a  lien  on  the  policies  and 
abandonments  in  his  hands,  for  a  general  bal- 
ance due  him  by  the  insurer.  Moody  v.  Web- 
ster, 'i  Pick.,  424.  And  where  the  insurer 
became  bankrupt,  and  the  broker  did  not  pre- 
sent his  claim  under  the  commission,  but 
retained  the  policies  and  abandonments,  and 
remuneration  was  afterwards  awarded  and 
paid  under  the  treaty  with  Spain  of  February, 
1819.  Held,  the  broker  had  a  lien  on  that 
money.    Ibid. 

3.  A.  employed  B.  to  effect  policies  of  in- 
surance; B.,  unknown  to  A.,  employed  C, 
■who  applied  to  defendant,  an  insurance  broker, 
for  insurance,  who  had  no  reason  to  suppose 
that  C.  was  not  the  principal ;  the  broker 
effected  policies  in  his  own  name  as  agent; 
but  C.  was  indebted  to  the  insurance  broker 
for  a  balance  in  account,  who  refused  to  de- 
liver the  policies  until  paid  the  balance.  Held, 
the  broker  had  a  lien  upon  the  policies  for  C.'s 
debt.     Wesivoood  v.  Bell,  Holt  N.  P.,  123. 

4.  W.  &  L.  directed  the  defendants  to  pro- 
cure a  policy  on  the  cargo,  without  mention- 
ing to  whom  it  belonged,  and  W.  &  L.  were 
debited  by  the  defendant  with  tlie  premiums. 
They  received  £680  from  the  insurers,  and 
were  creditors  of  W.  &  L.  to  the  amount  of 
£167.  Hel)l,  in  the  absence  of  notice  that  the 
policy  was  not  for  W.  &  L.,  the  defendants 
had  a  lien  upon  it  for  their  general  balance. 
Mann  v.  Forrester,  4  Camp.,  60. 

6.  £6,000  was  borrowed  in  the  name  of  B. 
to  build  certain  ships,  to  be  repaid  £1,000  per 
annum.  By  deed,  the  interest  of  B.  to  the  ex- 
tent of  three-fourths  the  shares  in  the  ships 
was  assigned  to  M.  &  W.  in  trust  as  securitj' 
for  the  loan.    B.  covenanted  to  keep  them  ia- 


sured  from  perils  of  the  seas,  war,  fire  or  oth. 
erwise,  and  to  assign  the  policies  to  M.  &  W. 
M.  &  W.  were  to  hold  any  money  whicli 
might  arise  from  any  sale  or  any  conlritct  of 
insurance  and  were  to  repay  tlie  loan  out  of  it 
as  far  as  it  would  go,  and  any  surplus  was  to 
be  paid  to  B.  A.,  the  broker,  who  had  notice 
of  the  assignment,  procured  the  ships  to  be 
insured  for  B.  He  was  told  by  B.  that  the 
trustees  had  effected  insurance  in  respect  of 
their  trust.  B.  was  indebted  to  the  broker  for 
premiums  on  all  the  policies  and  £100  casli 
advanced.  One  sliip,  insured  for  £1,000,  was 
lost,  and  tlie  broker  claimed  tlie  right  to  retain 
his  general  balance  from  the  moneys  recovered 
for  her  loss.  Held,  he  was  not  entitled  to  a 
lien  upon  the  policy  for  the  whole  balance 
due  him,  but  that  he  was  entitled  to  a  lien 
upon  each  policy  for  the  money  paid  by  him 
in  respect  of  each  premium.  Ladbroke  v.  Lee, 
4  DeG.  &  S.,  106. 

6.  >I.  employed  L.  &  I.  to  get  insurance  made 
for  him.  The  policy  was  made  in  their  names. 
A  loss  occurred,  and  the  underwriter  gave  his 
acceptance  in  favor  of  L.  &  I.  for  their  claim, 
but  transmitted  it  to  M.,  the  policy  having 
been  delivered  to  him.  L.  &  I.  indorsed  the 
acceptance  to  M.  Held,  L.  &  I.  had  a  lien  on 
the  policj'  for  the  balance  due  them  by  M. 
Leslie  V.  Linn,  Faculty  Dec,  1781  to  1787,  p.  173. 

7.  B.  effected  certain  policies  througli  D.  & 
Co.  It  was  alleged  that  D.  &  Co.  knew  that 
B.  was  acting  as  an  agent  merely.  Held,  D. 
&  Co.  had  a  lien  upon  the  policies  for  the  pre- 
miums; but  as  to  premiums  due  upon  other 
policies,  they  had  no  lien.  Losh  v.  Douglass, 
20  C.  C.  S.,  58. 

8.  A.  purchased  a  cargo  of  wheat  for  his 
principal,  shipped  it,  drew  for  the  money,  and 
employed  B.,  a  broker  to  insure  it.  B.  retained 
the  policy.  The  principal  became  bankrupt 
and  his  estate  was  sequestrated  before  the  draft 
became  due.  Held,  the  possession  of  the 
broker  was  the  possession  of  the  factor  A.,  who 
was  entitled  to  a  lien  on  the  policy  for  a  spe- 
cial and  general  balance  due  by  the  principal 
to  A.    Oairdner  v.  Milne,  20  C.  C.  S.,  565. 

9.  Policy  in  the  name  of  R.  D.  for  the  bene- 
fit of  J.  M.  The  broker  who  effected  it  re- 
tained it,  and  J.  M.  became  bankrupt.  He 
was  indeted  to  R.  D.  upon  a  general  balance. 
Held,  R.  D.  had  a  lien  upon  the  policy  for  his 
general  balance.  Wilmot  v.  Wilson,  3  C.  C.  S., 
815;  18  Scot,  jur.,  837. 

107 


215 


BUILDINGS  —  CAPTAIN. 


216 


Miscellaneous. 


II.  His  liability. 

1.  The  brokers  omitted  to  disclose  the  con- 
tents of  certain  letters  which  were  material, 
and  the  insurers  defended  successfully  against 
the  actions  brought  by  insured.  Udd,  insured 
could  recover  against  the  brokers.  Mtiydew  v. 
Forrester,  5  Taunt.,  615. 

2.  The  plaintiff  sued  defendant  for  a  failure 
to  effect  an  insurance  in  pursuance  of  his  re- 
tt.iner.  Defendant  had  contracted  with  an  in- 
surance company  for  the  insurance,  and  ob- 
tained what  purported  to  be  a  copy  of  the 
polio}'.  A  stamped  policy  was  afterward  sub- 
scribed, but  not  delivered.  The  company's 
practice  was  to  retain  the  policies  until  they 
were  wanted.  A  demand  was  made  by  the 
plaintiff,  after  the  loss,  for  the  policy,  to  which 
llie  defendant  gave  an  evasive  answer.  Held, 
it  was  for  the  jury  to  say  whether  the  broker 
had  procured  the  policy  to  be  e.xecuted  within 
a  reasonable  time.  Turpin  v.  Bilton,  5  M.  & 
G.,  4oo;  C  Scott,  N.  R.,  447;  7  Jur.,  950;  13  L. 
J.  C.  P.,  167. 

3.  Certain  persons  effected  insurance  for 
the  master  on  his  effects.  She  deviated,  and 
he  advised  them  of  the  fact,  and  said  in  his 
letter:  "You  will,  of  course,  make  the  neces- 
sary Insurance  in  consequence  of  tliis  altera- 
tion of  the  voyage."  Ship  and  crew  were  lost. 
Held,  it  was  the  duty  of  the  defenders  to 
have  had  the  insurance  renewed  as  soon  as 
tliey  were  advised  of  the  change.  Petries  v. 
Atchison,  3  C.  C.  S.,  511 ;  13  Scot.  Jur.,  326. 

4.  An  insurance  broker  was  employed  to 
procure  £1,000  insurance  on  ship  and  cargo. 
He  informed  his  principal  he  could  get 
but  £250  — £150  by  M.  and  £100  by  N.  They 
initiated  the  slip  or  application  for  those 
sums.  The  broker  sent  a  policy  to  each,  but, 
as  N.  was  out  of  town,  his  signature  was  not 
affi.\ed,  and  when  it  was  tendered  to  him  on 
his  return,  he  refused  to  execute  it  because  the 
vessel  was  reported  lost.  Held,  the  broker 
was  liable  for  the  sum  mentioned  in  that  poli- 
cy, for,  the  insurance  having  been  effected,  he 
was  bound  to  produce  a  policy  to  his  employ- 
er. Gilbert  v.  Oalloway,  Faculty  Dec,  1810  to 
1813,  p.  394. 

III.  Bkokerage. 

1.  The  essence  of  usage  is  uniformity;  and 
where  it  appeared  that  brokers'  commissions 
103 


were  not  uniformly  allowed:  i?eW,  brokerage 
could  not  be  claimed  of  insurers  as  a  matter 
of  right,  unless  there  w.^s  an  implied  contract 
between  the  parties.  Levi  v.  Barnes,  Ilolt  N. 
P.,  412. 

2.  The  action  was  by  insurance  br  )kers  to 
recover  premiums.  The  defendant  claimed 
that  as  to  £13  8s.  lOd.,  the  plaintiff  had  not  paid 
it,  for  the  insurer  had  allowed  it  to  him  as  a 
discount  on  the  premium.  Held,  evidence 
was  admissible  to  show  a  custom  in  such 
cases  for  the  broker  to  have  the  benefit  of  tlie 
discount.    Rucker  v.  Lunt,  3  F.  &  P.,  959. 

3.  The  discount  usually  allowed  by  insur- 
ance companies  on  punctual  payment  of  the 
premiums  is,  in  tlie  absence  of  an  agreement 
to  the  contrary,  tlie  property  of  the  principal, 
and  does  not  belong  to  the  broker.  Queen  of 
Spain  V.  Parr,  39  L.  J.  Ch.,  73. 


BUILDINGS. 

(See   Adjacent  BuiLorNGs;  ALTEBAtioKs   and   Rsr 

FAIBS.) 


BURDEN  OF  PROOF. 

(See  Onus  Peobanbi.) 


BURNING  BY  DESIGN. 

(See  Arson  asd  Incendiabism.) 


CA3IPHENE. 

(See  Keeping  and  Storing  Prohibited  Articles; 
KEPDiiNANT  Stipulations;  Use  and  Occupation.) 


CANCELLATION. 

(See  Rescission.) 


CAPTAIN. 

(See  Master  or  Ship.) 


217 


CAPTURE  AND  SEIZURE. 


213 


What  is  loss  by. 


CAPTURE  AND  SEIZURE. 

vScf  Arrests,  Restraints  and  Detainments; 
Blockade;  Illicit  Trade;  Neltbalitt  and  Na- 
tional Character;  Sentence  op  Condemnation.) 

I.  What  is  loss  bt. 

II.  NOT  LOSS  BT. 


1.  What  is  loss  by. 

1.  Free  from   loss  or  expense   by  capture, 
seizure  or  detention,  or  the  consequences  of 
any  attempt  thereat.    She  was  seized  by  the 
officers  and  crew  of  the  steamer  Music,  be- 
longing to  the  Confederate  Slates,  two  or  three 
miles   inside   the   bar  at  the    moutli   of   the 
Jlississippi,    on    lier  way   to    New   Orleans. 
Held,  capture  is  to  be  deemed  lawful  wlien 
made  by  a  declared  enemy,  lawfully  commis- 
sioned, and  according  to  the  laws  of   war; 
and  in  the  case  of  a  capture  under  a  com- 
mission from  an  organized  government,  it  is 
not  necessary   tliat   the    commission    should 
issue  from  a  perfectly  lawful  government;  it 
is  sufficient  if  tlie  government  was  one  in  fact : 
that  is,  one  exercising  the  supreme  power  of 
the  country  over  which  its  jurisdiction  ex- 
tended; while  the  eleven  states,  either  sever- 
ally or  in  conjunction,  had  no  authority  for 
these  proceedings,  still  it  could  not  be  denied 
that,  by  the  use  of  unla%vful  and  unconstitu- 
tional means,  a  government  in  fact  was  erected 
with  sufficient  resources  of  men  and  money 
to  carry  on  a  war  of  unexampled  dimensions, 
exercising  many  belligerent  rights   conceded 
or  acquiesced  in  Ijy  tlie  supreme  government; 
that  it  was  in  the  possession  of  many  of  the 
highest  attributes  of  government,  and  was  to 
be  regarded  as  the  ruling  or  supreme  power 
<if  tlie  country,  hence  captures  under  its  com- 
mission  were   among  those   excepted  by  the 
warranty  of  the  insured  (citing  Dole  «.  New 
Eng.  Mut.  Ins.  Co.,  6  Allen,  373;  Fifield  v. 
Insurance  Co.,  47  Penn.  St.,  1G6;  Dole  v.  Mer- 
chant's Marine  Ins.  Co.,  51  Me.,  4G5).  Mauran 
V.  Insurance  Companies,  6  Wall.,  1. 

2.  On  ship  (warranted  free  from  capture, 
seizure  or  detention),  against  perils  of  the  sea, 
fire,  enemies,  pirates,  assailing  thieves,  re- 
straints ami  detainments.  It  was  executed 
before  the  revolt  of  the  southern  states.  She 
was  taken  by  a  confederate  privateer  and 
burned.,    Held,  it  was  not  a  loss  by  pirates  or 


assailing  thieves;  that  it  was  a  loss  by 'capture 
within  the  meaning  of  the  law  of  insurance; 
therefore,  insurers  were  not  liable.  Dole  v. 
New  England  Mutual  Marine  Ins.  Co.,  3  Clifl'., 
394. 

3.  "  On  goods,  against  the  dangers  of  the  seas 
only,  from  New  York  to  Bremen.  In  case  of 
capture  or  detention,  the  risk  to  continue  dur- 
ing or  after  capture  or  detention."  The  vessel 
was  stranded,  the  goods  put  into  lighters,  and 
there  seized  by  order  of  the  government. 
Held,  the  loss  of  tlie  voyage  was  occasioned 
by  seizure,  which  prevented  tlie  cargo  from 
being  sent  to  its  destination  in  another  vessel. 
Schieffelin  v.  New  York  Ins.  Co.,  9  Johns.,  22. 

4.  Ship  was  boarded  by  an  armed  launch, 
and  a  prize  master  and  a  prize  crew  put  on 
board,  about  two  leagues  from  land,  and  about 
four  leagues  from  the  port  of  destination.  She 
was  taken  into  Port  Passage,  kept  at  quaran- 
tine for  eight  days,  when  her  hatches  were 
sealed  by  the  French  consul,  and  her  super- 
cargo and  master  were  ordered  to  the  port  of 
destination.  A  French  crew  were  put  on 
board,  who  navigated  her  to  Bayonue,  at 
which  place  the  cargo  was  sequestered  and 
landed.  The  policy  provided;  "No  risk  in 
port  taken,  but  sea  risk."  Held,  it  was  not  a 
seizure  in  port;  that  it  was  a  loss  by  capture. 
Duval  V.  Commercial  Ins.  Co.,  10  Johns.,  278. 

5.  Policy  excepted  claim  for  loss  "  by  the 
British  or  Americans,  the  usual  sea  risk  to 
continue  during  capture."  She  was  captured 
and  moored  in  a  dangerous  and  exposed  situ- 
ation in  the  Bay  of  Gibraltar,  and  while  iu 
that  situation  was  greatly  injured  by  collision. 
Held,  the  loss  was  occasioned  by  capture,  and 
not  within  the  polic}'.  Coolidge  o.  New  Torh 
Firemens  Ins.  Co.,  14  Jolins.,  308. 

6.  The  right  of  the  insured  to  recover  for  a 
total  loss  is  not  affected  by  the  neglect  of  the 
supercargo  to  put  in  a  claim  and  defend  the 
capture.    Ocean  Ins.  Co.  v.  Francis,  3  Wend.,  64. 

7.  Against  perils  of  the  seas,  men  of  war, 
pirates,  rovers,  arrest,  restraints,  detainments, 
etc,  "  Warranted  free  from  loss  or  expense 
arising  from  capture,  seizure  or  detention,  or 
the  consequences  of  any  attempt  thereat."  She 
was  lying  at  Norfolk  for  repairs,  was  there 
seized  by  a  large  body  of  men  professing  to 
act  by  authority  of  the  state  of  Virginia,  filled 
with  stone,  lowed  into  the  cliannel  and  sunk, 
to  prevent  ingress  or  egress  of  vessels  of  war. 
i/cM,  a  question  of  fact  for  the  jury  to  deter- 


219 


CAPTURE  AND  SEIZURE. 


220 


Wliat  is  loss  by. 


mine,  whether  the  seizure  was  an  act  of  war 
on  the  part  of  those  engaged  in  hostilities 
against  the  United  States,  or  whether  it  was 
the  act  of  a  mob  merely.  Swinnerton  o.  Colum- 
bian. Ins.  Co.,  37  N.  T.,  174;  s.  c,  9  Bos.,  361. 

8.  On  schooner,  against  absolute  or  techni- 
cal total  loss.  "  Warranted  free  from  loss  or 
claim  on  account  of  capture,  seizure,  detention 
or  destruction  by,  or  arising  from,  any  belliger- 
ent nation,  or  from  any  seceding  or  revolting 
States  of  the  Union,  or  from  any  guerrilla 
party,  or  by  or  from  any  officer,  civil  or  mili- 
tary, or  other  persons  claiming  to  act  in  their 
name,  or  under  their  aulhorit3',  or  in  their  be- 
half" The  usual  perils  were  assumed,  includ- 
ing loss  by  "  pirates,  rovers,  assailing  thieves, 
barratry  of  the  master  and  mariners,  and  all 
other  losses  and  perils,  etc."  She  sailed  from 
New  York  for  New  Orleans  and  arrived.  Tlie 
United  States  authorities  told  the  master  they 
wanted  bis  vessel  to  take  a  load  of  timber  to 
Santiago ;  that  he  should  have  what  tlie  Wash- 
ington rates  were.  The  quartermaster  depart- 
ment loaded  her  with  timber.  Slie  sailed 
May  37, 1865,  and  arrived  June  3d,  next.  She 
was  discharged  and  towed  alongside  another 
vessel ;  about  700  colored  troops  were  trans- 
ferred to  her  to  be  taken  over  tlie  bar.  She 
proceeded  across  the  bar,  entered  the  harbor, 
but  struck.  The  anchor  was  let  go ;  the  mas- 
ter remarked  to  the  mate:  "She's  all  right 
and  can  be  saved  at  daylight."  One  of  the 
army  officers  gave  orders  to  pay  out  ten  fath- 
oms of  chain  ;  the  captain  objected ;  tlie  officer 
told  him  that  unless  he  obeyed  orders,  they 
would  tie  him  and  throw  him  overboard. 
During  all  the  time  until  she  was  lost  the 
master  was  not  permitted  to  have  any  control. 
Insured  claimed  of  the  government  of  the 
United  States  payment  for  the  vessel,  and  re- 
ceived $16,000  or  117,000,  very  nearly  her 
whole  value.  Held,  the  forcible  taking  was 
not  witliin  the  exception,  but  that  it  ceased  to 
operate  as  a  total  loss;  hence,  there  w.as 
neither  an  absolute  nor  a  technical  total  loss, 
because  the  government  of  the  United  States 
had  made  good  nearly  the  whole  of  it.  Mur- 
ray V.  Harmony  Fire  and  Marine  Ins.  Co.,  58 
Barb.,  9. 

9.  The  risks  assumed  were  of  "the  sea,  fire, 
enemies,  pirates,  assailing  thieves,  restraints, 
and  detainments  of  all  kings,  princes,  or  peo- 
ple, etc.,  barratry  of  the  master  (unless  insured 
be  owner  of  the  vessel),  and  of  the  mariners, 

no 


and  all  other  losses  and  misfortunes  which 
have  or  shall  come,  etc.  Warranted  free  from 
capture,  seizure  or  detention,  or  the  conse- 
quences of  any  attempt  thereat,  any  stipula- 
tions  in  the  policy  to  the  contrary  notwith- 
standing." An  armed  steamer  claiming  to 
act  under  the  Confederate  States  difpla3-ed 
the  flag  of  the  United  States,  deceiving  the 
officers  of  the  ship.  Semmes,  a  citizen  of  the 
state  of  Maryland,  whicli  had  not  seceded,  was 
her  commander.  He  with  his  crew  boarded 
the  ship  insured,  after  plundering  her  of  some 
sails,  spars,  provisions  and  otlier  articles, 
burned  her.  Held,  not  a  loss  by  pirates,  but 
by  capture,  which  was  excepted  from  the  risks 
enumerated.  Dole  v.  New  England  Mutual 
Marine  Ins.  Co.,  6  Allen,  373. 

JO.  On  ship.  "Loss  by  capture,  seizure,  or 
detention,  or  the  consequences  of  an}'  attempt 
thereat  excepted."  She  was  captured  by  a  pri- 
vateer in  commission  under  the  government  of 
the  Confederate  States.  Held,  a  loss  by  capture. 
Fifield  V.  Ins.  Co.  of  Pennsylvania,  47  Penn. 
St.,  166. 

11.  "Against  perils  of  the  seas,  enemies, 
pirates,  assailing  thieves,  restraints,  detain, 
ments  of  all  princes,  kings,  or  people,  etc. 
Warranted  free  from  capture,  seizure,  or  de- 
tention,  or  the  consequences  of  any  attempt 
thereat,  any  stipulation  in  this  policy  to  the 
contrary  notwithstanding."  She  was  taken 
by  a  confederate  cruiser.  Held,  if  the  words 
capture  or  seizure  embrace  a  taking  by  piratesj 
and  the  taking  was  an  act  of  piracy,  then  the 
insurers  were  not  liable.  Held,  also,  the  words 
capture  and  seizure  in  their  general  significa- 
tiou  were  broad  enough  to  embrace  a  taking  by 
pirates  also ;  tiiough  the  taking  was  piratical,  i\ 
was  also  belligerent,  for  war  in  fact  existed  at 
the  time  of  the  loss,  and  each  of  the  hostile 
forces  represented  a  government  de  facto;  that 
though  it  was  a  civil  war,  the  capture  was  not 
less  a  capture  for  that  reason.  Ho/e  v.  Mer- 
chants Mutual  Marine  Ins.  Co.,  51  3[e.,  465. 

12.  Against  capture  only.  She  was  driven 
on  the  French  coast,  and  there  captured  by  tlie 
enemy.  Held,  a  loss  by  capture,  and  not  by 
perils  of  the  sea.  Green  v.  Ebnslie,  Peake's  N. 
P.  C,  278. 

13.  She  was  captured;  a  peril  insured 
against.  Insured  paid  captors  a  sum  of 
money  to  compromise  the  matter.  Held,  if 
the  compromise  was  bona  fide,  insurers  were 
liable  for  it.    Berens  v.  Rucker,  1  W.  Bl.,  Zl'i^ 


221 


CAPTURE  AND  SEIZURE. 


223" 


What  is  not  loss  by. 


1 4.  She  was  condemned  for  navigating  con- 
trary to  the  ordinance  of  the  belligerent  cap- 
tors to  which  ordinance  the  neutral  had  never 
assented  by  treaty  or  otherwise.  Held,  a  court 
of  admiralty  must  proceed  according  to  the 
law  of  nations,  and  such  treaties  as  particular 
states  have  agreed  shall  be  engrafted  on  that 
law;  that  an  ordinance  is  ea  parte  merely,  to 
which  no  other  state  is  a  party;  that  it  was 
not  competent  for  one  nation  to  add  to  the  law 
of  nations  by  its  own  arbitrary  ordinances 
without  the  concurrence  of  other  nations,  and 
that  the  ordinance  in  question  was  invalid; 
that  the  capture  founded  on  it  was  unlawful, 
and  did  not  release  the  insurer.  Pollard  v. 
Bell,  8  Teim,  434;  Bird  v.  Appleton,  id.,  *563; 
Price  V.  Bell,  1  East,  603. 

15.  "Warranted  free  from  confiscation  by 
the  government  in  the  ship's  port  or  ports  of 
discharge."  She  came  to  anchor  in  the  roads 
of  Pillau,  was  boarded  by  two  boats,  one  with 
Prussian  soldiers,  the  other  with  French  ma- 
rines, who  disputed  the  possession  of  each. 
They  took  her  into  Pillau  to  ascertain  their 
claims,  where  her  cargo  was  taken  out  and 
condemned  as  prize  to  the  French  captors. 
Seld,  not  a  confiscation  in  the  ship's  port  of 
discharge ;  that  it  was  a  capture  by  the  French. 
Levi  V.  Allnutt,  15  East,  267. 

16.  On  ship  for  a  year  ending  April  21, 
1852.  On  her  home  voyage,  she  was  captured 
by  pirates,  December,  1851,  and  was  recap- 
tured January,  1852,  by  an  Englisli  war  steam- 
cr,  and  carried  to  Valparaiso.  Information 
of  all  reached  owner,  at  one  time,  end  of 
April,  1852,  who  abandoned  on  the  30th,  stat- 
ing as  the  grounds  of  abandonment  condem- 
nation  as  prize  to  Her  Majesty's  steamer.  She 
was  sent  home  by  the  recaptors,  met  with  bad 
weather,  put  into  Fayal,  and  sold  by  the  prize 
master,  but  her  condition  did  not  authorize 
the  sale.  Held,  there  was  a  total  loss  by  the 
seizure.  Dean  v.  Hornby,  3  El.  &  B.,  180;  33 
L.  J.  Q.  B.,  129;  18  Jur.,  623. 

1 7.  "  On  cargo,  warranted  free  from  capture, 
seizure,  and  detention,  and  all  the  consequences 
thereof  or  any  attempt  thereat,  and  free  from 
all  consequences  of  hostilities,  riots,  or  com- 
motions." Slie  went  ashore  off  Cape  Hatteras. 
Confederate  oiiicers  came  out  to  her  and  took 
the  captain  and  his  papers  on  shore,  and  de- 
tained him  and  crew  as  prisoners;  150  bags 
of  coffee,  part  of  the  cargo,  were  saved,  and 
1,000  bags  more  might  have  been  taken  out 


before  she  broke  up,  if  the  confederate  author, 
ities  had  not  interfered.  Held,  insurers  were 
not  liable  for  tliat  which  was  and  might  liuve 
been  saved,  because  it  was  a  loss  within  the 
exception,  a  consequence  of  hostilities;  tliat 
as  to  the  cargo  which  could  have  been  saved, 
insurers  were  liable,  because  that  was  a  loss 
by  perils  of  the  sea.  lonides  v.  Universal  Mu- 
rine Ins.  Co.,  14  C.  B.  (N.  S.),  259 ;  s.  c,  33 
L.  J.  C.  P.,  170;  11  W.  K.,  858;  8  L.  T.  (N.  S.), 
705. 

1 8.  Against  such  risks  only  as  are  excluded 
by  the  clause,  "  Warranted  free  from  capture, 
seizure  or  detention,  or  the  consequences  of 
any  attempt  thereof."  Stipulated:  "Insurers 
shall  pay  a  total  loss  thirty  days  after  receipt 
of  official  news  of  capture  or  embargo,  with- 
out waiting  for  condemn.ation."  She  was  de- 
tained by  an  embargo  in  a  Danish  port,  after 
the  breaking  out  of  hostilities  between  Den- 
mark and  Germany.  Held,  insured's  right  to 
claim  for  a  total  loss  rested  on  the  expiration 
of  thirty  daysafter  receipt  of  official  iuforni!i^ 
tion,  notwithstanding  the  vessel  was  never 
actually  taken  out  of  the  possession  of  the 
master,  and  was,  after  action  brought,  restored, 
and  arrived  safely  at  the  port  of  destination. 
Fowler  v.  English  and  Scottish  Marine  Ins.  Co., 
18  C.  B.  (N.  S.),  818;  s.  c,  11  Jur.  (N.  S.),  411; 
34  L.  J.  C.  P.,  253;  13  W.  R.,  658;  13  L.  T.  (N. 
S.),  381. 

19.  On  goods  against  perils  "Of  the  seas, 
men  of  war,  fire,  enemies,  pirates,  rovers, 
thieves,  letters  of  mart  and  countermart,  sur- 
prisals,  takings  at  sea,  arrests,  restraints  and 
of  all  other  perils,  losses  and  misfortunes; 
warranted  free  from  seizure  and  the  conse- 
quences of  any  attempt  thereof."  She  was  in- 
tentionally fired  into  by  a  Russian  fort  on  the 
left  bank  of  the  Danube,  and  sunk  while  she 
had  a  British  flag  flying.  There  were  no  hos- 
tilities between  England  and  Russia;  there  was 
war  between  Turkey  and  Russia,  and  the  com- 
mander of  the  fort  declared  that  he  mistook 
the  British  for  the  Turkish  flag.  Held,  an 
illegal  seizure  or  attempt  to  seize,  for  which 
insurers  were  exempt  by  the  terms  of  the 
warranty.  Powell  t.  Hyde,  5  El.  &  Bl.,  607; 
s.  c,  2  Jur.  (N.  S.),  87;  35  L.  J.  Q.  B.,  65. 

II.  "What  is  not  loss  by. 

1.  "All  risk  of  a  blockaded  port  excepted, 
but  if  turned  away,  to  proceed  to  a  port  not 

111 


223 


CARGO— CHANGE  OF  VENUE. 


22i 


Miscellaneous. 


blockaded."  On  the  coast  of  Portugal,  off  the 
port  of  St.  Mary's,  about  two  leagues  from 
fihore,  while  bound  to  St.  Lucas,  she  was  cap- 
tured by  a  British  cruiser.  Held,  the  excep- 
tion relieved  the  insurer  from  loss  by  capture, 
■whether  legal  or  illegal.  Radeliffe  v.  United 
Ins.  Co.,  7  Johns.,  38. 

2.  On  ship  from  New  York  to  Bremen,  or 
a  port  of  discharge  in  the  North  Sea  or  Baltic, 
against  capture  only:  "Warranted  American 
property,  and  free  from  seizure  in  river,  port 
or  place,  under  jurisdiction  of  Napoleon  or  of 
any  power  under  his  control  or  in  alliance ' 
with  him."  She  was  taken  on  the  coast  of 
Holland  by  two  French  privateers,  carried 
to  Amsterdam  and  condemned.  The  cap- 
ture was  within  the  jurisdiction  of  Holland, 
and  Holland  was  in  alliance  with  Napoleon. 
Meld,  the  term  seizure  was  synonymous 
■with  capture,  that  although  the  insurer  as- 
sumed the  risk  of  capture  generally,  he  ex- 
empted himself  when  made  under  any  of 
the  circumstances  mentioned  in  the  warran- 
ty; and  the  capture  having  been  made  with- 
in  the  exception,  as  to  place,  insurer  was 
discharged.  Black  v.  Marine  Ins.  Co.,  11 
Johns.,  287. 

3.  Warranted  not  to  abandon  in  case  of 
capture,  until  condemned.  Held,  it  means  a 
capture  Jure  belli  and  a  judicial  condemnation 
in  a  prize  court  of  competent  jurisdiction. 
Barney  v.  Maryland  Ins.  Co.,  o  H.  &  J.,  139. 
The  vessel  was  captured  and  detained  by  her 
captors,  and  without  any  judicial  proceedings 
taken  into  the  service  of  the  French  govern- 
ment. Held,  the  insured  could  not  recover. 
Ibid. 

4.  "  Warranted  free  from  capture  and  seiz- 
ure, and  the  consequences  of  any  attempt 
thereat."  The  emigrants  assaulted  the  captain 
and  crew,  took  forcible  possession  of  the  vessel, 
and  carried  her  away.  Held,  a  loss  by  seizure, 
and,  therefore,  within  the  exception,  for  which 
the  insurer  was  not  liable.  Kleimcort  v.Shep- 
ard,  1  El.  &  EL,  447 ;  .5  Jur.  (N.  S.),  863;  28  L. 
J.Q.  B.,  147;7  W.  R.  227. 


CARRIERS. 

(See  CoKKOH  Cabbiebs.) 


CAUSA  PROXDIA. 

(Seo  Pboxihate  Cause  op  Loss.) 


CARGO. 

<8ee  CosBTBUcnoN ;  Deck  Loads;  Polict.) 


CHANGE  OF  RISK. 

(See  Deviation;  Iscbease  ob  Change  or  Risk.) 


CHANGE  OF  VENUE. 

1.  The  defendant  claimed  a  change  of  venue, 
predicating  the  right  upon  the  prejudice  of  the 
judge  before  whom  the  cause  was  pending. 
Held,  the  judge  had  tlie  power  to  fix  a  time  in 
vacation  for  the  trial  of  the  cause;  the  rule  in 
this  r&'.pect  is  not  the  same  in  civil  as  it  is  in 
criminal  cases  (citing  Ex  parte  Skeen,  41  Ind., 
418).  Aurora  Fire  Ins.  Co.  v.  Johnson,  46  Ind., 
315. 

2.  The  insurer,  a  body  corporate,  applied 
for  change  of  venue.  The  affidavit  was  sworn 
by  the  secretary.  Held,  sufficient,  for  the  word 
person  or  persons,  incluaes  bodies  corporate 
and  politic  as  well  as  natural  persons  (Scales 
Stat.,  722,  ch.  90,  sec.  29).  Cominercial  Ins.  Co., 
V.  Mehlman,  48  111.,  313. 

3.  Motion  for  a  change  of  venue.  The  affi- 
davit stated  the  cause  of  action  arose  in  Lon- 
don and  not  elsewhere;  but  the  declaratioa 
showed  that  the  statement  was  incorrect. 
Held,  the  court  would  test  the  affidavit  by 
the  declaration,  and  the  motion  was  refused. 
Butler  V.  Fox,  7  C.  B.,  970. 

4.  Affidavit  for  change  of  venue  stated  that 
a  view  of  the  premises  was  necessary.  Held, 
insufficient;  the  reason  why  a  view  was  neces- 
sary should  have  been  stated.  M  'Loughlin  o. 
Soyal  EicJiange  Ass.  Co.,  9  Irish  Law,  510. 

5.  An  affidavit  was  filed,  setting  forth,  that 
it  was  material  to  the  defense  that  a  view  of 
the  premises  should  be  had  by  the  jurors, 
who  should  be  summoned  to  try  the  action. 
Held,  cause  for  change  of  venue  (citing 
Hodinott  n.  Cox,  8  East,  268).  McDonald 
V.  Carr,  Hayes,  375. 


113 


225 


CITIZENS  —  COLLISION. 


226 


Who  are,  and  who  aie  not  —  When  insurers  are  liable  for. 


CITIZENS. 

I.  Who  are. 

II.  NOT. 

I.  "Who  ake. 

1.  Warranted  American  properly,  proof  of 
which  to  be  required  in  tlieUnited  States  only. 
She  was  captured ;  an  abandonment  offered 
and  refused.  The  record  of  plaintiff's  natu- 
ralization was  offered  to  prove  his  citizenship, 
but  failed  to  show  he  had  made  a  declaration 
of  his  intention  to  become  a  citizen,  nor  did 
it  show  that  he  resided  within  the  limits  and 
under  the  jurisdiction  of  the  United  States  at 
any  time  between  June  18, 1798,  and  April  14, 
1S02,  nor  did  it  show  that  he  continued  to  re- 
side therein,  so  as  to  be  entitled  to  the  benefit 
of  the  act  of  March  2G,  1804.  Held,  tlie  rec- 
ord of  citizenship  was  sufficient.  Stark  v. 
Chesapeake  Ins.  Co.,  7  Cranch,  420. 

2.  B.  emigrated  from  Spain  to  the  United 
Slates  in  time  of  peace.  Held,  if  he  was  bona 
fide  domiciled  with  the  intention  of  indefinite 
residence,  he  is  as  to  all  foreign  countries  a 
citizen  of  the  United  States,  and  when  the 
domicile  was  fixed  and  ascertained,  the  char- 
acter of  his  trade  was  immaterial.  Livingston 
«.  Maryland  Ins.  Co.,  7  Cranch,  506. 

3.  A  native  subject  of  Great  Britain  domi- 
ciled iu  America,  for  the  purposes  of  com- 
merce, acquires  the  rights  of  an  American 
citizen  so  far  as  they  relate  to  commerce. 
Dnguet  v.  Rhinelander,  1  Caines  Cas.,  2.5. 

4.  On  ship.  "  Warranted  American  prop- 
erty." The  plaintiff  had  married  an  English 
woman  three  years  before  the  policy  was 
made,  and  resided  in  Liverpool,  being  a  na-' 
five  American.  The  vessel  was  American 
built,  purchased  in  America,  of  an  American. 
The  plaintiflf  intended  to  go  with  his  family 
to  America  and  reside  there  in  the  future. 
Held,  persons  resident  in  a  country  carrying 
on  trade,  by  which  they  and  the  country  are 
benefited,  are  the  subjects  of  that  country  by 
the  law  of  nations,  hence  she  was  not  Ameri- 
can property,  aud  the  warranty  was  broken. 
Tahbs  V.  Bendelack,  4  Esp.,  108 ;  3  B.  &  P., 
207,  n. 

.1.  A  natural  born  subject  of  England  may 
be  a  citizen  of  America  for  the  purposes  of 
commerce,  and   as  such   entitled,   under  the 


treaty  then  existing,  to  all  the  advantages  of 
an  American  citizen,  and  a  tifmporary  resi- 
dence in  England  could  not  deprive  him  of 
any  of  tlie  rights  which  his  American  citizen- 
ship conferred.  Wilson  v.  Marryat,  8  Term, 
316;  1  B.  &  P.,  430. 

II.  "Who  are  not. 

A  corporate  body  is  not  a  cilizen  of  the 
United  States,  within  the  14th  amendment. 
Insurance  Co.  t.  City  of  New  Orleans,  1  Woods, 
85. 


COLLISION. 

I.  When  insukers  are  liable  fob. 

II.  NOT  liable  fob. 

I.  When  insurers  are  liable  foe. 

1.  On  ship  for  one  year  against  loss  by 
perils  of  the  sea.  She  sailed  from  Hamburg 
in  ballast,  intending  to  take  a  carso  of  iron  at 
Gottenburgh  for  the  United  States.  In  pro. 
ceeding  down  the  Elbe  she  collided  with  the 
galliot,  called  the  Frau  Anna,  and  sunk  her, 
for  which  she  was  libeled  at  Hamburg.  She 
lost  her  jib  boom,  bowsprit,  and  sustained 
other  damage  to  the  amount  of  $800,  includ- 
ing  expense  in  defending  the  libel.  The  gal- 
liot, her  cargo  and  freight,  amounted  to  |0,000, 
including  the  expense  of  prosecuting  the 
libel.  The  marine  court  at  Hamburg  decreed 
that  the  collision  was  not  the  result  of  care- 
lessness on  either  side,  and  that,  therefore,  ac- 
cording to  the  marine  law  of  Hamburg,  the 
loss  sustained  by  both  parties  was  to  be  con- 
sidered a  general  average,  to  be  borne  equally 
by  each  party,  the  result  of'which  was,  the 
insured  were  compelled  to  pay  $2,600  to  satis- 
fy the  decree.  Held,  a  loss  by  collision  with- 
out any  fault  on  either  side  is  a  loss  by  the 
perils  of  the  sea,  within  the  protection  of  the 
policy.  H'dd,  also,  insurers  were  liable  only 
for  losses  arismg,  not  from  causes  remotely 
connected  with  the  peril,  but  for  those  only 
which  were  the  proximate  cause;  that  the 
question  was.  What,  in  just  sense,  was  the 
proximate  cause  of  this  loss?  That  the  col- 
lision was  the  proximate  cause  of  the  lo.ss, 
and  the  contribution  a  consequence  of  the 

118 


227 


COLLISION. 


228 


When  insurers  are  liable  for. 


collision,  not  a  cause ;  that  the  maxim  causa 
prmcima  non  remota  spectatur  is  not  without 
limitations;  that  it  has  been  constantly  quali- 
fied and  constantly  applied  only  in  a  modified, 
practical  sense  to  the  perils  insured  against ; 
that  in  all  foreign  voyages  the  underwriters 
necessarily  contemplate  that  the  vessel  in- 
sured may  be  subjected  to  the  operation  of 
the  laws  of  foreign  ports,  which  may  in  some 
cases  impose  burdens  or  confer  benefils  differ- 
ent from  our  own  laws,  and  therefore  insurers 
were  liable  for  the  amount  paid  by  the  in- 
sured CafBrming  s.  c,  3  Sumn.,  389;  s.  c,  1 
Story,  463).  Peters  v.  Warren  Ins.  Go.,  14 
Pet.,  99. 

2.  Time  policy  on  ship.  Through  the 
fault  or  mistake  of  the  mate  and  crew  she 
came  in  collision  with  the  bark  Ritchie,  both 
vessels  were  damaged  seriously.  The  ship  in- 
sured was  libeled  by  the  Ritchie,  and  to  pre- 
vent prosecution  the  master  compromised  the 
damages,  £738,  by  payment  of  £283,  and  this 
was  a  proceeding  in  admiralty  to  recover  of  in- 
surers the  money  paid  and  cost  of  her  repairs. 
Held,  whether  tlie  money  paid  for  damage  to 
the  other  vessel  was  fixed  by  a  proceeding 
in  rem  or  paid  without  any  process  or  pro- 
ceedings was  of  no  importance,  for  the  loss 
paid  by  the  master  for  damages  to  the  bark 
was  a  loss  within  the  policy,  and  the  insurers 
were  liable  for  it.  Hale  v.  Washington  Ins. 
Co.,  2  Story,  176 ;  denied,  General  Mut.  Ins. 
Co.  V.  Sherwood,  14  How.,  351. 

3.  On  ship  for  a  term,  against  the  perils  of 
the  sea  and  other  customary  perils.  She  col- 
lided with  an  another  vessel  and  both  were 
greatly  damaged.  She  was  libeled  and  in- 
sured were  decreed  to  pay  £2,.500  to  the  own- 
ers of  the  other  vessel.  Insurers  paid  their 
proportion  of  the  expenses  of  repairing  ihe 
sliip  insured.  Held,  the  policy  sweeps  within 
its  inclosure  every  peril  incident  to  the  voyage 
however  strange  or  unexpected  unless  there 
be  special  exception ;  that  the  insurer  was  li- 
able for  damage  done  to  the  other  vessel  not- 
withstanding it  was  caused  by  the  negligence 
of  the  master  and  mariners.  Nelson  v.  Suf- 
folk Ins.  Co.,  8  Cush.,  477. 

4.  The  ship  insured  was  decreed  to  make 
£;ood  certain  damages  inflicted  by  her  upon 
another  vessel.  Held,  her  insurers  were  li- 
able for  them,  including  fees  of  counsel  and 
commissions  of  an  agent  if  fairly  and  proper- 
ly  incurred   in  defending  the    suit  brought 


against  her  (citing  Nelson  v.  SufiFolk  Ins.  Co., 
18  Cush.,  477;  Walker  r.  Boston  Ins.  Co.,  14 
Gray,  288).  Blnnchard  v.  Equitable  Safety 
Ins.  Co.,  12  Allen,  380. 

5.  On  steamer  taking  certain  risks  men- 
tioned, "  and  all  other  perils,  losses,  and  mis- 
fortunes which  shall  come  to  the  damage  of 
the  said  boat,  according  to  the  general  laws  of 
insurance."  In  consequence  of  the  negli- 
gence of  the  navigators  of  another  steamer, 
the  vessel  insured  ran  foul  of  the  other  and 
the  vessel  insured  was  greatly  damaged.  Held, 
a  loss  within  the  policy.  Caldwell  v.  St.  Loui» 
Perpetual  Ins.  Co.,  1  La.  An.,  85. 

6.  She  was  run  down  through  the  gros& 
negligence  of  the  ofiicers  and  crew  of  another 
vessel.  Held,  a  loss  by  perils  of  the  sea. 
Smith  V.  Scott,  4  Taunt.,  126. 

7.  Loss  by  collision  was  one  of  the  perils 
insured  against.  She  collided  with  another 
vessel,  and  was  arrested'  in  admiralty  for  the 
damages.  The  owners  and  managers  of  the 
company  agreed  that  she  should  be  released 
on  payment  of  the  amount  of  damage  which 
the  other  ship  had  received  b}'  the  collision, 
and  the  costs  of  the  proceedings  in  admiralty; 
and  in  case  of  dispute  as  to  the  amount  of 
damages,  it  should  be  settled  by  an  arbitrator. 
It  was  so  referred,  and  a  sum  was  allowed  for 
collision,  and  a  separate  sum  for  detention 
while  the  damages  were  being  repaired. 
Held,  insurers  were  liable  for  both  items. 
Heard  v.  Holman,  13  W.  R.,  745 ;  11  Jur.  (N.  S.), 
544;  12L.  T.  (N.  S.),  455. 

8.  "  On  ship  including  the  risk  of  running 
down  or  doing  damage  to  any  other  vessel  the 
same  as  the  Indem.  Co.'s  polic}'."  The  clause 
in  that  policj^  was  as  follows:  "If  the  ship 
by  negligence  shall  run  down  any  vessel  and 
the  insured  shall  thereby  become  liable  to  pay 
and  shall  pay  any  sum  not  exceeding  the  val 
ue  of  the  ship  or  vessel  insured  and  her  freight, 
by  or  in  pursuance  of  any  judgment  of  any 
court  of  law  or  equity,  insurers  shall  pay  such 
proportion  of  three-fourths  of  the  sum  paid  as 
the  sum  hereby  insured  shall  bear  to  the  val- 
ue of  the  ship  or  vessel  hereby  insured  and 
her  freight."  The  vessel  insured  ran  down 
another  vessel  and  she  was  sold  under  a 
decree  in  admiralty,  and  the  proceeds  paid 
over  to  satisfy  the  damages.  She  was  of 
greater  value  than  £3,000.  Held,  the  insurers- 
were  bound  to  make  good  three-fourths  of  tho 
amount  paid,  namely,  £2,110.     Thompson  xn. 


I 


229 


COMMON  CARRIERS. 


230 


Liability  of. 


Reynolds,  7  El.  &  Bl.,  172;  s.  c,  3  Jur.  (N.  S.), 
4G4;  26  L.J.  Q.  B,,  <J3. 

9.  She  was  lost  by  collision  with  a  schooner 
on  Lake  Michigan.  Plea;  she  ought  to  have 
kept  out  of  the  way  of  the  schooner;  that  the 
law  presumes  the  fault  hers.  Replication ;  the 
collision  was  not  caused  by  the  want  of  ordi- 
nary skill  and  care  in  navigating  her.  Re- 
joinder; she  was  sailing  in  American  waters 
at  the  time  of  the  loss,  under  American  colors; 
that  defendants  are  an  American  company; 
that  by  the  law  of  America  the  schooner  was 
justified  in  keeping  her  course;  and  the  steam- 
er, the  vessel  lost,  should  have  kept  away,  yet 
she  did  not  do  so,  as  she  might  easily  have 
done ;  that  by  reason  of  said  facts,  the  said 
collision  did  occur  from  want  of  ordinary 
care  and  skill  iu  navigating  said  steamer. 
Surrejoinder;  the  said  steamer  was  not  lost 
by  want  of  ordinary  care  and  skill  in  navigat- 
ing  said  steamer,  as  alleged  in  said  rejoinder. 
Held,  a  good  surrejoinder.  Patterson  v.  Con- 
tinental Ins.  Co.,  18  U.  C.  Q.  B.,  9. 


II.  "When  insurers  are  not  liable  foe. 

1.  On  ship  for  one  year,  to  expire  October 
17,  1844.  She  was  bound  for  New  York;  had 
skillful  and  experienced  master  and  mates, 
and  a  competent  crew.  In  the  afternoon  of 
March  19th  a  licensed  pilot  boarded  her  and 
took  command;  she  was  close  hauled.  In  at- 
tempting to  go  about,  she  missed  sta3's,  and  in 
the  act  of  wearing  ship  the  rigging  became 
entangled,  and  while  the  crew  were  attending 
to  it,  a  schooner  ran  close  up.  Confused  by 
her  sudden  appearance,  the  mate  erroneously 
ordered  the  helm  hard  down  and  luffed  her  up ; 
she  ran  into  and  sunk  llie  scliooner,  doing  dam- 
age to  herself  about  $300.  She  was  condemned 
in  admiralty  for  the  damage  to  the  schooner  and 
cargo.  The  owners  of  the  sliip  insured  sought 
to  recover  of  tlieir  insurers,  who  had  been 
seasonably  notified  of  the  proceedings  in  ad- 
miralty, and  had  been  requested  to  unite  in 
the  defense  or  take  sucli  other  steps  as  they 
might  deem  proper.  This  case  was  U-ied  be- 
fore Belts  and  Nelson,  JJ.,  who  gave  judg- 
ment against  the  insurance  company.  Held, 
the  damages  sustained  by  the  schooner  and  her 
cargo  were  not  within  the  meaning  of  the 
contiact,  and  the  judgment  below  (1  Blatch, 
251)  was  therefore  reversed.     General  Mai. 


Ins.  Co.  V.  Shenoood,  14  How.,  351 ;   1  Blatch, 
251. 

2.  A  vessel  insured  ran  foul  of  another,  and, 
without  doing  any  injury  to  herself,  greatly 
damaged  the  other.  The  policy  was  against 
loss  by  perils  of  the  sea;  and  the  insured  was 
compelled  to  pay  the  damage  on  the  ground 
that  it  was  caused  by  the  negligence  of  the 
ofiBcers  and  crew  of  the  ship  insured.  Held, 
the  loss  was  not  within  the  policy.  Mathewt 
V.  Howard  Ins.  Co.,  UN.  Y.,  9 ;  reversing  s.  c, 
13  Barb.,  234. 

3.  Insurers  of  ship  were  held  liable  for 
damage  to  the  vessel  insured,  by  collision  at 
sea,  notwithstanding  it  was  caused  by  the 
negligence  of  the  master  and  crew  of  the  ves- 
sel insured,  for  collision  is  a  peril  of  the  sea; 
but  for  damages  done  to  the  other  vessel  by 
the  vessel  insured,  no  recovery  was  allowed. 
Street  ®.  Augusta  Ins.  Co.,  12  Rich.,  13. 

4.  Ship  insured  came  into  collision  with 
another  vessel ;  damage  to  both.  The  question 
of  fault  was  referred  to  arbitrators,  who  de. 
cided  the  damages  to  both  should  be  ascer. 
tained  and  the  sum  divided,  each  paying  one- 
half.  While  the  ship  insured  was  detained, 
an  additional  expense  for  crew  and  provisions 
was  incurred.  Held,  the  insurer  was  not  liable 
for  the  additional  expense.  DeVemixv.  SaU 
mdor,  4  A.  &  E.,  420;  5  L.  J.  (N.  S.),  K.  B., 
134;  6  N.&M.,  713. 

5.  "  On  ship  and  freight  for  twelve  months, 
including  damages  caused  to  any  other  vessel, 
by  collision,  for  which  insured  might  be  held 
liable."  She  ran  down  the  Magyar,  which 
went  down  with  the  master  and  crew,  some  of 
whom  were  lost,  and  the  owners  were  com- 
pelled to  answer  in  damages  to  the  personal 
representatives.  Held,  not  a  loss  within  the 
policy.  Taylor  v.  Deunar,  5  B.  &  S.,  58 ;  s.  c, 
33  L.  J.  Q.  B.,  141 ;  12  "W.  R.,  579;  10  L.  T.  (N. 
S.),  2G7 ;  10  Jur.  (N.  S.),  361. 


COMMON  CARRIERS. 

Liability  of. 

1.  The  plaintiflF  sued  the  common  carrier 
for  the  use  of  certain  insurance  companies  to 
recover  the  value  of  goods  accidentally  burned 
while  they  were  being  transported.  Held,  as 
against  the  carrier,  no  defense  was  admissible 

115 


231 


COMPROMISE  OR  SEITLEMENT. 


232 


Conclusive. 


except  such  causes  of  loss  as  the  common  law 
recognized  or  those  causes  ■which  the  parties 
expressly  stipulate  against;  that  in  relation  toi 
loss  not  caused  by  any  excepted  perils,  the; 
law  raises  against  the  carrier,  liowever  inno-' 
cent  may  have  been  his  conduct,  a  conclusive! 
presumption  of  misconduct.  Hall  v.  Railroaw, 
Companies,  13  Wall.,  3'i7. 

2.  Insurers  of  a  cargo  of  wheat,  damaged' 
on  tlie  voyage,  took  possession  of  it  with  the: 
carrier's  consent,  "  For  account  of  whom  it 
might  concern."  By  consent  of  all  parties, 
insurers'  agent  took  entire  charge  of  the  cargo, 
separated  the  damaged  from  the  undamaged, 
and  sold  it  for  the  best  price  that  could  be  ob- 
tained, and  stored  the  residue.  In  the  spring, 
by  consent  of  all  parties,  the  carrier  took  the 
sound  wheat,  put  it  on  another  boat,  and  car- 
ried it  to  the  consignees.  Insurers  paid  in- 
sured the  amount  of  the  net  loss,  $1,846.75. 
Held,  acceptance  of  the  property  at  the  point 
of  distress  did  not  release  the  carrier  from  his 
liability,  and  there  being  no  evidence  to  show 
that  the  damage  resulted  from  any  cause  that 
would  excuse  the  carrier,  insurers  were  en- 
titled to  recover.  Home  Ins.  Co.  v.  Western 
Transp.  Co.,  51  N.  T.,  93 ;  s.  c,  4  Rob.,  257 ;  33 
How.  Pr.,  102. 

3.  The  defendant,  a  common  carrier,  took 
57  bales  of  cotlon  at  Osyka,  Miss.,  to  trans- 
port them  to  New  Orleans,  for  which  it  gave 
a  bill  of  lading  which  stipulated:  "But  it 
does  not  insure  against  risk  by  fire."  The 
cotton  was  entirelj'  consumed  by  fire,  on  the 
the  train,  acd  insurer  thereof  paid  the  insured 
and  brought  this  suit  to  recover,  on  the  ground 
that  tlie  loss  was  caused  by  tlie  negligence  of 
the  carrier.  Held,  before  the  carrier  could  be 
made  liable  it  must  appear  tliat  the  loss  was 
caused  by  the  carrier's  fault  or  negligence, 
and  the  carrier  must  be  held  liable  for  ordi- 
nary negligence.  Ifew  Orleans  Mut.  Ins.  Co. 
V.  New  Orleans  and  Jackson  R.  R.  Co.,  20  La. 
An.,  303. 


COMPROmSE  OE  SETTLEMENT. 

I.  Not  conclusive. 
II.  Conclusive. 

I.  Not  conclusive. 
1.  A.  owed  R.  |70,  and  he  took  a  policy  on 
116 


his  own  life  for  |3,000,  for  seven  years.  But 
B.  agreed  to  pay  the  premiums,  and  A.  died 
intestate  seven  months  after  the  policy  was 
issued,  leaving  a  widow  and  children.  B. 
produced  A.'s  note  to  him  for  |3,000,  con- 
fessed that  it  was  given  without  considera- 
tion, and  produced  A.'s  assignment  of  the 
policy  to  him.  Among  A.'s  papers  there  was 
one  in  which  B.  agreed  to  pay  to  the  wife 
of  A.,  his  heirs  and  assigns,  one-tliird  of  the 
full  amount  of  the  policy,  provided  he  should 
collect  it  from  the  insurance  company.  B. 
received  the  whole  sum  insiired,  and  paid  tlie 
wife  one-third,  less  some  small  deductions, 
which  she  accepted,  in  ignorance  of  the  full 
extent  of  her  riglits,  largely  influenced  by  the 
advice  of  her  late  husband's  friends,  and  af. 
terwards  she  took  out  letters  of  administr.a- 
tion  and  sued  B.  for  the  balance  of  the  amount 
received.  Held,  B.  was  bound  to  account  to 
A.'s  estate  for  the  whole  sum,  less  the  amount 
of  premiums  or  any  just  setoff;  that  she  was 
not  concluded  by  her  receipt  of  the  one-third. 
Cammack  v.  Lexcis,  15  Wall.,  6-13. 

2.  "1,500  —  say  .f.500  on  dwelling  house, 
$600  on  barn  and  $400  on  the  produce  there- 
in." The  barn  and  its  contents  were  destroyed. 
The  insurer  admitted  a  liability  for  the  pro- 
duce, but  denied  liability  for  the  barn,  on  the 
ground  that  insured's  interest  was  not  abso- 
lute. Insurer  paid  §400  on  the  loss  of  the 
produce,  and  took  a  receipt,  in  which  the  in- 
sured declared  Uiat  the  .f400  was  taken  in  full 
satisfaction  for  the  loss  sustained  on  the  poli- 
cy,  "canceling  $1,500  on  said  policy."  Held, 
the  plaintiff  was  entitled  to  recover,  for  there 
was  no  consideration  for  the  discharge  in  re- 
spect to  the  insurance  on  the  barn.  Redfield, 
^.Holland  Purchase  Ins.  Co.,  56  N.  Y.,  354. 

3.  Insurer  and  the  insured  agreed  upon  an 
amount  to  be  paid  for  the  loss,  and  insurer,  in 
writing,  admitted  that  the  proof  of  loss  had 
been  received  and  accepted,  and  the  loss 
would  he  paid  in  90  days  from  March  11, 
18G7.  Tlie  fire  occurred  in  Febru.ary,  1867. 
Held,  if  the  claim  was  disputed  and  insured 
and  insurer  agreed  upon  a  sum  less  than  that 
claimed,  and  insurer  promised  to  pay  it,  the 
promise  was  not  nudum  pactum,  for  it  was  a 
case  of  compromise.  Farmers  and  Merchants 
Ins.  Co.  V.  Chesnut,  50  111.,  111. 

4.  Appellant  sustained  a  loss  of  $4,568, 
.against  which  he  held  a  policy  of  the  Lamar 
Ins.  Co.  for  $3,500.    The  People's  Ins.  Co.  had 


233 


COMPROMISE  AND  SEITLEMENI'. 


234 


Not  conclusive. 


reinsured  the  Lamar  Co.  The  vice  president 
of  "The  People's"  induced  iusured  to  sell 
his  claim  against  the  Lamar  Co.  to  him  for 
$713,  the  compromise  being  procured  bj'  the 
ctmcurrence  of  the  officers  of  the  Lamar  and 
People's  Ins.  Cos.  Subsequently  it  appeared 
that  the  resources  of  the  Lamar  Co.  were 
much  larger  than  they  were  represented  to  be 
at  the  time  the  compromise  was  efl'ected. 
Held,  iusured  was  entitled  to  prove  his  claim 
against  the  Lamar  Co.,  making  the  vice  presi- 
deut  of  the  People's  Ins.  Co.  a  party  defend- 
ant. 111.  S.  C.  Derrick  v.  Lamar  Ins.  Co.,  7 
Chi.  Leg.  News,  198. 

5.  "  Warranted  free  of  capture  in  port." 
Insured  received  a  letter  announcing  her  cap- 
ture, stating  it  to  have  been  in  port.  Insurer 
and  insured  adjusted;  the  former  returned 
and  the  latter  received  the  premium  back. 
But  it  afterwards  appeared  that  the  capture 
was  -not  in  port.  Held,  the  adjustment  and 
repayment  of  the  premium  did  not  preclude 
the  insured  from  recovering  upon  the  policy. 
Meyner  v.  Hall,  4  Taunt.,  725. 

6.  On  cargo,  at  fifteen  guineas  per  cent., 
two  to  be  returned  on  arrival.  She  was  seized 
by  the  Dutch  government  and  liberated  upon 
bond  made  by  the  insured.  The  cargo  was 
condemned  and  the  insured  satisfied  his  bond ; 
but  before  sentence  of  condemnation,  the  bro- 
ker of  the  insured  applied  to  the  insurer  for 
the  return  premium,  the  ship  having  arrived 
home.  The  initials  of  the  insurer  were  put  to 
the  policy  in  the  usual  way,  to  signify  that  it 
had  been  adjusted.  Held,  it  was  a  question 
for  the  jury  to  determine  whether  the  whole 
adventure  was  closed  by  the  acceptance  of  the 
return  premium,  or  whether  it  was  received 
with  a  reservation  that  the  insured  should  be 
liable  if  the  bond  were  put  in  force.  Muy  v. 
Christie,  Holt  N.  P.,  67. 

7.  Policy  to  D.  on  goods  his  own,  in  trust, 
or  on  commission.  P.  deposited  wheat  in  the 
warehouse  of  D.,  in  which  D.  had  a  large 
quantity  of  goods.  D.  preferred  a  claim  for 
the  goods  of  P.  along  with  his  own,  which 
was  rejected.  He  then  made  an  amended 
claim,  limiting  it  to  his  own  goods,  and  was 
paid  for  them,  granting  a  receipt  as  follows: 
■•Being  their  proportion  of  a  claim  made  b}' 
me  for  loss  by  fire."  This  action  was  brought 
to  recover  the  value  of  P.'s  wheat.  Held,  the 
rights  of  the  parties  were  vested  when  the  fire 
occurred;  payment  to  D.  did  notdischarge  in- 


surers  of  their  liability  for  the  goods  of  P.; 
that  though  D.  had  the  right  to  receive  pay. 
ment  and  discharge  claims,  that  right  was 
confined  to  an  actual  payment,  and  he  had  not 
power  to  discharge  a  claim  for  which  no  pay- 
ment had  been  made.  Donaldson  v.  Manches- 
ter Ins.  Co.,  14  C.  C.  S.,  601. 

II.     Conclusive. 

1.  Policy  to  B.  &  C,  copartners.  After  a 
loss  occurred,  B.  surrendered  the  policy  to  de- 
fendant for  a  sum  of  money  to  him  paid  in 
satisfaction  and  compromise  of  all  claims 
under  it,  he  giving  a  receipt  and  discharge  in 
the  name  of  the  firm.  B.  divided  the  money 
with  his  copartner.  Held,  the  insured  could 
not  avail  themselves  of  the  fraud  of  defend- 
ant's agent  who  procured  the  compromise,  so 
long  as  they  retained  the  money  paid  for  it. 
Brown  V.  Hartford  Fire  Ins.  Co.,  117  Mass., 
479. 

2.  The  insured  settled  with  the  underwriter 
for  a  partial  loss,  and  surrendered  the  policy. 
A  claim  was  then  pending  against  her  in  ad- 
miralty  for  salvage,  which,  if  successful,  would 
increase  the  loss,  but  nothing  was  said  about 
it  in  the  settlement.  It  was  afterwards  ad- 
judged against  the  insured.  Held,  insured 
could  not  recover  it  from  insurer.  Batre  v. 
Louisiana  Ins.  Co.,  13  La.  (O.  S.),  577. 

3.  The  charter  provided  :  "  Each  member 
shall  have  his  premium  note  surrendered  at 
the  e-xpiration  of  the  term  insured,  upon  pay- 
ment of  his  share  of  losses  and  expenses,  or 
upon  alienation  of  the  property,  and  like  pay. 
ment  of  his  share  of  losses  and  expenses,  or 
upon  payment  of  the  whole  of  the  premium 
note  and  surrender  of  the  policy.  The  direct- 
ors were  authorized  to  superintend  the  con- 
cerns of  the  company.  Held,  they  had  author, 
ity  to  compromise  a  suit  brought  to  recover 
assessments.  Wadsworthv.  Davis,  13  Ohio  St., 
123. 

4.  Insurer's  adjuster  offered  the  sum  of  $500 
to  settle  the  claim  without  going  into  details. 
Insured  declined,  and  expostulated  with  the 
adjuster,  who  said  that  insured  would  have  to 
make  out  his  proofs  and  present  his  claims  at 
the  office  in  Cincinnati ;  that  they  would  be 
referred  to  him,  and  that  he  would  then  ad- 
here to  the  present  offer ;  that  if  insured  should 
be  finally  dissatisfied,  he  had  his  legal  remedy. 
Insured  accepted  the  ofl:er,  and   brought  this 

117 


235 


CONCEALMENT. 


236 


What  is. 


bill  to  set  the  compromise  aside.  Held,  how- 
ever unwise  this  hasty  settlement  might  be,  it 
it  was  not  the  result  of  abuse  of  confidence, 
nor  wa-s  it  an  actionable  fraud,  therefore  it 
could  not  be  set  aside.  Mayhew  v.  Phanix 
Ins.  09.,  23  Mich.,  105. 


II, 


III. 

IV. 

V. 


CONCEALMENT. 

(See  iNotrsiBRANCEs ;  Wakbantt.) 

I.  What  is. 

(a)  Of  the  interest  of  insured. 

(b)  Of  attempts  or  rumored  attempts  to 

destroy  the  property. 

(c)  As  to  time  of  sailing. 

(d)  As  to  information  of  loss,  damage, 

etc. 

(e)  Of  occupation. 
What  is  not. 

(a)  Of  the  interest  of  insured. 

(b)  Of  time  of  sailing. 

(c)  As  to  information  of  loss,  damage, 
or  danger  apprehended. 

(d)  As  to  matters  with  which  insurers 
are  presumed  to  he  acquainted. 

(e)  Of  express  or  implied  warranties. 

(f )  As  to  loading. 

(g)  Of  the  refusal  of  other  insurers  to 
accept  t!ie  risk. 

What  is  not  material. 
Questions  fob  thk  jury. 
Generally. 


I.  "What  is. 


(a)  Of  the  interest  of  insured. 

1.  If  the  nature  of  the  interest  of  insured 
might  influence  the  insurer  to  demand  a 
higher  rate  of  premium  or  not  to  insure  at  all, 
it  is  material  to  the  risk,  and  failure  to  dis- 
close it,  or  misrepresentation  in  respect  of  it, 
avoids  the  policy.  Columbian  Ins.  Go.  v.  Law- 
rence, 10  Pet.,  507. 

2.  G.,  R.  &  F.  were  authorized  by  the  defend- 
ant to  effect  binding  risks  at  Buffalo,  on  vessels, 
steamboats,  propellers,  and  their  cargoes,  the 
policies  to  be  forwarded  on  receipt  of  applica- 
tion, unless  insurers  elected  to  decline,  agents 
to  receive  a  commission  of  ten  per  cent,  on  tlie 

118 


premiums.  R.,  one  of  the  parties  above  named, 
was  part  owner  of  a  steamboat,  and  an  appli- 
cation was  made  and  forwarded  to  defendants 
for  a  policy  upon  her,  in  the  name  of  Francis 
Handel  in  behalf  of  himself  and  other  own- 
ers, but  it  nowhere  disclosed  that  one  of  their 
agents  was  a  part  owner  of  the  vessel.  Held, 
if  the  interest  of  R.  was  purposely  withheld 
from  the  knowledge  of  the  defendants,  the 
policy  was  void,  for  the  intended  and  willful 
concealment,  though  immaterial,  was  in  law  a 
fraudulent  concealment.  Ritt  v.  Washington 
Marine  and  Fire  Ins.  Co.,  41  Barb.,  353. 

3.  N.  was  the  owner  of  one  undivided  half 
of  the  premises  insured.  He  effected  a  policy 
in  his  own  name,  for  his  own  benefit,  to  the 
amount  of  ?;15,000.  He  did  not  disclose  his 
interest.  Held,  tlie  contract  was  void.  Catron 
V.  Tennessee  Marine  and  Fire  Ins.  Co.,  6 
Humph.,  176. 

4.  Whether  the  policj'  is  a  wagering 
policy  must  be  determined  by  the  policy 
itself.  Words  must  be  inserted  in  it  which 
will  enable  the  underwriter  to  know  that  it  is 
a  wagering  polic}-,  and  these  cannot  be  sup- 
plied by  the  plaintiffs  declaration  filed  in  the 
cause.    Cousins  v.  N'antes,  3  Taunt.,  513. 

(b)  Of  attempts,  or  rumored  attempts, 
to  destroy  the  property. 

.5.  The  plaintiffs  obtained  reinsurance,  but 
did  not  inform  reinsurers  that  the  character 
of  the  owner  of  the  property  was  bad;  that 
there  had  been  difficulties  in  respect  to  his 
losses,  and  that  he  was  in  bad  repute  among 
insurance  companies.  They  had  this  infor- 
mation, however,  at  the  time  the  reinsurance 
policy  was  effected.  Held,  a  fatal  conceal- 
ment. Bowery  Fire  Ins.  Co.  v.  New  York  Fire 
Ins.  Co.,  17  Wend.,  359. 

6.  The  insured  was  inquired  of  concerning 
attempts  at  incendiarism,  to  which  he  gave 
negative  answers.  But  the  proof  showed  that 
attempts  had  been  made,  of  which  he  had  no- 
tice, to  fire  the  premises.  Held,  it  was  error 
for  the  court  to  assume  that  an  attempt  to  fire 
the  building  might  be  a  circumstance  not  ma- 
terial to  the  risk;  for  a  fact  thus  specially  in- 
quired  about  of  such  vital  Importance  is  to  be 
considered  material  as  a  matter  of  law;  that  it 
was  the  duty  of  the  court  to  tell  the  jury,  "  If 
the  insured  knew  that  an  attempt  had  been 
made  to  burn  the  premises,  and  failed  to  dis- 


237 


CONCEALMENT. 


23S 


What  is. 


•close  the  fact  to  the  insurer's  agent,  tlien  the 
insured  is  not  entitled  to  recover.  North 
Aiiurican  Fire  Ins.  Co.  v.  Throop,  23  Mich.,  146. 

7.  If  the  insured  was  induced  to  procure 
■the  insurance  because  of  a  rumored  attempt  to 
fire  the  premises,  it  must  be  disclosed,  and  a 
failure  in  that  respect  renders  the  policy  void. 
Waldeii  t).  Lonniana  Ins.  Co.,  13  La.  (O.  S.),  134. 

8.  An  adjacent  boatbuildcr's  shop  took  fire, 
and  after  it  was  put  out,  the  plaintiff,  by  extra- 
ordinary  conveyance,  gave  instructions  to 
procure  insurance,  but  said  notliing  about  the 
fire  which  had  occurred.  "Within  a  few  days 
thereafter  another  fire  took  place  in  the  boat- 
l)uilder's  establishment,  and  the  premises  in 
sured  were  consumed.  The  jury  found  that 
the  fire  which  occurred  in  the  boatbuilder's 
-establishment  prior  to  the  making  of  the  pol- 
icy ought  to  have  been  communicated.  Tldd, 
insured  could  not  recover.  Bufe  v.  Turner,  6 
Taunt,  338;  2  Marsh.,  4G. 

(c)  As  to  time  of  sailing. 

9.  Ship  sailed  September  25th;  insured 
knew  October  3d  that  she  had  sailed.  Held,  as 
she  had  been  out  forty -five  days  between  Ja- 
maica and  New  York,  the  date  of  her  sailing 
•was  material,  and  should  have  been  disclosed. 
Livingston  v.  Delafield,  3  Caines,  49. 

1 0.  The  ti.ne  that  a  vessel  sailed  is  not  or- 
dinarily a  fact  material  to  be  made  known; 
but  where  there  has  been  a  severe  storm  im- 
mediately after  her  sailing,  known  to  the  in- 
sured and  unknown  to  the  insurer,  or  where 
she  is  a  missing  ship,  the  time  of  sailing  be- 
comes material,  and  a  failure  to  disclose  it 
avoids  the  policy.  Fiske  v.  New  England 
Ins.  Co.,  15  Pick.,  310. 

11.  Insured  was  asked,  when  she  was  ex- 
pected to  sail  ?  To  which  he  replied,  she  had 
sailed  from  Charleston  six  weeks  before.  He 
then  had  two  letters  written  by  the  master; 
both  of  them  informed  him  she  was  ready  to 
sail.  Held,  a  material  concealment.  Ilimely 
«.  South  Carolina  Ins.  Co.,  1  Mills  Const., 
153. 

12.  From  Bristol  to  Port  Mahon,  with  lib- 
•crty  to  touch  at  Gibraltar,  was  made  on  ship, 
but  ought  to  have  been  made  on  goods.  The 
insured  discovered  his  mistake  and  wrote  to 
the  broker,  requesting  him  to  hare  it  rec- 
tified, and  added:  "The  Sophia  you  allude 
to  is  the  ship  on  which  you  effected  the  insur- 


ance;  I  chartered  the  brig,  and  she  was  to 
have  gone  to  Falmouth,  as  I  understood,  to 
join  convoy;  but  I  suppose  the  wind  was  con- 
trary, and  she  could  not  fetch  the  port."  Held, 
the  facts  mentioned  in  the  letter  ought  to  have 
been  disclosed  to  the  insurer  before  the  altera- 
tion was  made.  Sawtell  v.  Loudon,  5  Taunt., 
359;  1  Marsh.,  99. 

13.  The  shippers  wrote  a  letter  dated  No- 
vember 30th,  received  December  13th.  which 
stated  that  she  would  sail  December  1st,  and 
if  she  should  not  arrive,  to  make  insurance  as 
low  as  possible.  Held,  the  contents  of  the  let- 
ter  ought  to  have  been  communicated  to  the 
insurers.     Willes  v.  Glover,  4  B.  &  P.,  14. 

14.  This  ship  and  another,  the  "  Fruiter," 
sailed  from  Mal.aga  October  10th.  Insurers 
knew  th.at  the  latter  had  arrived  at  London, 
but  the  insured  knew  that  the  master  of  the 
"Fruiter"  had  seen  the  ship  insured  oft 
Oporto  October  21st,  when  they  then  parted 
company  in  a  gale,  which  fact  was  not  com- 
municated to  the  insurers.  The  jury  found 
for  the  insured.  Held,  the  case  should  be  sub- 
mitted  to  a  second  jury.  Westbury  v.  Aberdein, 
2  Mee.  &  W.,  267;  6  L.  J.  (N.  S.)  Ex.,  83;  1 
Jur.,  201. 

15.  When  the  policy  was  effected,  insured 
had  two  letters  from  their  correspondents  at 
port  of  lading.  One,  October  11th,  stated,  we 
are  loading  the  wines  on  the  Stag,  "Wilson, 
master,  who  pretends  to  sail  after  to-morrow. 
The  other,  October  13th,  inclosed  the  bills  of 
lading,  which  were  signed  "with  convoy." 
Held,  a  failure  to  disclose  their  contents  was  a 
fatal  concealment.  Bridges  v.  Hunter,  1  Mau. 
&  Sel.,  15. 

16.  There  were  letters  to  insured,  in  which 
it  was  stated  she  would  sail  in  all  August. 
Held,  it  was  material,  and  should  have  been 
communicated  to  insurer,  if  it  appeared  that 
the  fleet  usually  sailed  by  August  1st.  Shir- 
ley V.  Wilkinson,  3  Doug.,  41 ;  1  id.,  306  n. 

17.  She  sailed  from  Elsineur  July  SOth, 
and  six  hours  thereafter  her  owner  left  in  an- 
other  vessel.  He  met  with  rough  weather  on 
his  passage,  and  on  his  arrival  procured  in- 
surance. He  stated  to  insurers  that  she  was  all 
well  at  Elsineur  July  26th.  Held,  the  fact  that 
she  hiid  sailed  before  the  owner  was  material, 
and  should  have  been  communicated.  Kirby 
V.  Smith,  1  B.  &  A„  672. 

18.  The  plaintiff  did  not  make  the  insur- 
ance till   after  the   arrival  of   another  ship 

119 


239 


CONCEALMENT. 


2iO 


What  is. 


•which  had  sailed  with  the  ship  insured.  Held, 
a  fatal  coucealment.  McAndrews  v.  Bell,  1 
Esp.,  373 ;  Wehster  v.  Forster,  id.,  407. 

19.  Goods  were  shipped  at  Sjdnej'  for 
Eugiand.  Tlie  shipper  sent  a  letter  by  another 
vessel,  which  sailed  afterwards,  requesting  the 
person  to  whom  it  was  addressed  to  wait  thirty 
days  after  its  arrival,  and  then  insure  them. 
After  that  time  had  elapsed,  the  letter  was 
given  to  a  broker  to  make  the  insurance.  He 
stated  when  she  sailed  and  when  the  letter  was 
written,  but  he  did  not  state  when  it  was  re- 
ceived in  England,  nor  the  instruction  to 
wait  thirty  days  after  its  receipt  before  making 
insurance.  Held,  the  concealment  was  fatal. 
Jtickards  v.  Murdoch,  10  B.  &  C,  537;  8  L.  J. 
K  B.,  210. 

20.  The  broker  who  procured  the  insurance 
represented  that  she  was  expected  to  load  be- 
tween the  13th  and  20th  of  September.  Tlie 
consignee  had  written,  she  was  completely 
laden  on  the  11th,  and  readj'  to  sail  on  the 
18th.  Held,  the  failure  to  state  that  she  was 
ready  to  sail  on  the  13th  was  a  fatal  conceal- 
ment, for,  if  that  had  been  stated,  the  insurer 
would  have  understood  that  she  was  a  missing. 
ship.  Stetoart  v.  Morrison,  Faculty  Dec,  1778 
to  1781,  p.  103. 

2 1 .  A.  was  directed  by  letter  to  procure  in- 
surance on  ship  and  cargo  from  Elsineur  to 
Leith.  The  order  stated  that  the  master  pro- 
posed to  sail  that  evening.  It  was  received 
by  A.  on  the  26th.  He  procured  the  policy  on 
the  27th,  mentioning  that  he  had  received  the 
order  the  day  before;  that  she  was  to  sail  im- 
mediately after  the  order  was  written;  but  he 
did  Biot  give  the  date  of  the  order.  Held,  in- 
surers^were  released,  for  the  date  was  a  mate- 
rial matter  which  ought  to  have  been  commu- 
nicated. Key  V.  Young,  Pacultj-  Dec,  1781  to 
1787,  p.  196. 

22.  Slie  sailed  from  Dundee  for  London, 
March  5,  1801.  Another  ship — "Duchess  of 
Athold"  —  sailed  two  days  later,  and  arrived. 
The  brokers  who  procured  this  policy  were 
informed  of  these  facts,  and  that  her  owners 
had  reason  to  believe  she  had  been  captured. 
Held,  a  failure  to  disclose  them  to  insurers  vi- 
tiated the  policy.  Allan  v.  Young,  Faculty 
Dec,  1801  to  1807,  p.  248. 

23.  The  Fanny  brought  information  that 
the  Ohio  would  sail  about  twelve  hours  after 
the  Fanny,  and  instructions  for  insurance,  "  if 
she  does  not  arrive  soon."     This  information 

130 


was  not  disclosed  to  insurers.  Held,  the  policy 
was  void.  Qillispie  c.  Douglass,  Faculty  Dec, 
1801  to  1807,  p.  351. 

(d)  As  to  information  of  loss,  dam' 
age,  etc. 

24.  The  insured  claimed  the  right  to  re- 
recover  upon  a  parol  agreement  to  insure, 
made  December  31st.  The  policy  was  not 
executed  and  delivered  until  January  loth. 
The  vessel  was  lost  .January  Sth.  Held,  it  was 
the  duty  (jf  insured  to  disclose  the  fact  of  the 
loss  before  the  policy  was  delivered,  for  then 
no  fraud  would  have  been  practiced,  and  no 
question  as  to  its  validity  could  have  been 
raised  had  it  been  delivered  after  a  disclosure  of 
the  loss;  and,  had  the  company  refused  to  de- 
liver the  policy,  insured  could  then  have  stood 
upon  their  parol  contract  if  they  had  one; 
there  was  no  necessity  to  procure  the  policy 
by  a  fraudulent  concealment  of  a  material 
fact,  and,  having  taken  the  polic}',  they  were 
bound  by  its  terms,  and  could  not  be  permit- 
ted to  show  by  parol  that  the  contract  was 
made  before  the  loss  occurred,  because  that 
would  vary  t!ie  terms  of  the  policy  in  a  mat- 
ter material.  Insurance  Company  v.  Lyman,  15- 
Wall.,  664. 

25.  On  cargo  from  Newport  to  Port  Pasis- 
age:  "Warranted  the  property  of  insured,  a 
citizen  of  the  United  States."  She  was  cap- 
tured and  condemned  on  the  ground  that  part 
of  the  cargo  —  cocoa,  tobacco,  indigo,  etc. — 
had  been  purchased  at  La  Guira  and  Porto- 
Cabello  and  carried  to  Charleston,  where  it 
remained  in  the  ship,  duties  bonded,  with 
which  she  cleared  for  Passage,  carrying  the 
original  Spanish  papers,  showing  the  origin 
of  that  part  of  the  cargo  condemned  for  non- 
landing  at  Charleston.  Held,  insured  ought 
to  have  informed  the  insurer  of  the  nonland- 
ing;  that  the  nature  of  the  cargo  did  not  make 
it  necessary  for  insurer  to  inquire  as  to  that 
fact.  Kohne  v.  Insurance  Co.  of  North  Amer- 
ica, 6  Biun.,  219;  s.  c,  1  Wash.  C.  C,  93,  158. 

2G.  If  a  party  who  has  secret  informatioik 
of  a  loss,  procures  insurance  without  disclos- 
ing it,  the  policy  is  void,  because  the  fraud  is 
manifest;  and  if  he  knows  that  his  agent  is 
about  to  procure  the  insurance,  and  withholds 
the  information,  it-is  no  less  a  fraud,  though 
the  insurance  be  procured  by  his  agent,  who 
was  ignorant  of  the  loss.    His  own  knowledge 


241 


CONCEALMENT. 


242 


What  is. 


iu  sucb  a  case  infects  the  act  of  his  agpnt  to 
the  same  extent  which  it  would  do  if  the  act 
■were  his  own,  for  llie  maxim  is,  qui  fucit  per 
alium  facil  per  se.  McLannhan  v.  Universal 
Ins.  Co.,  1  Pet.,  170.  And  wlierc  the  order  for 
insurance  is  given,  and  information  afterwards 
reaches  the  applicant,  material  to  the  risk  or 
of  the  loss,  it  must  be  communicated,  with 
,  reasonable  diligence,  to  the  person  who  lias 
the  order  to  insure,  so  as  to  prevent  comple- 
tion of  the  contract;  and  a  failure  to  do  so 
avoids  the  contract.    Ibid. 

27.  An  effort  was  made  to  make  insurance 
at  Newhurn,  but  on  account  of  apprehensions 
against  the  vessel's  safety  entertained  there, 
tlie  risk  was  refused.  The  owner  wrote  to  his 
agent  at  Philadelphia  to  get  insurance  there, 
but  stated  nothing  about  the  apprehensions 
which  prevailed  at  Newburn.  Ueld,  he  could 
not  recover.  Vale  v.  Phaiiix  Ins.  Co.,  1  Wash. 
CO.,  283. 

28.  If  the  insured  conceals  material  facts 
that  are  within  his  knowledge,  he  cannot  re- 
cover on  the  policy;  if  lie  knew  of,  or  heard 
of  the  loss  before  he  ordered  the  insurance, 
they  are  material  facts  which  should  have 
been  stated.  Johnson  v.  Phoenix,  Ins.  Co.,  1 
Wash.  0.  C,  378. 

29.  The  insured  had  received  information 
that  a  hurricane  had  occurred  at  Charleston 
after  the  vessel  sailed.  Insurers  knew  that 
severe  gales  had  prevailed  on  the  coast  of  Car- 
olina. Held,  the  plaintitf's  information  was 
particular  and  the  defendant's  general;  that 
if  there  was  any  difference  between  the  partic- 
ular and  general  information,  the  insured 
should  have  communicated  it  to  the  insurers. 
Moses  V.  Delaware  Ins.  Co.,  1  Wash.  C.  C,  385. 

30.  The  owner  having  sent  orders  from  a 
foreign  country  to  insure,  afterwards  arrived 
in  the  neighborhood  of  the  port  to  which  his 
orders  were  transmitted,  and  on  board  a  vessel 
which  carried  one  of  the  orders.  He  then  had 
reason  to  believe  that  the  insurance  had  not 
been  made,  and  knew  that  the  ship  had  been 
lost.  Held,  he  was  bound  to  give  notice  to 
his  agent  af  the  loss,  by  the  same  mail  which 
he  knew  would  carry  his  order  to  insui'C. 
Watson  V.  Delajield,  3  Cuines,  224;  affirmed,  2 
Johns.,  520. 

31.  Insured  received  information  that  all 
vessels  entering  the  Jade,  Elbe  or  Weser 
sliould  be  confiscated,  which  information  he 
failed  to  give  to  the  insurers.    Held,  the  policy 


was  void ;  withholding  that  information  was 
fraudulent;  iience,  plaintiff  was  not  entitled 
even  to  any  return  premium.  Iloyt  v.  Gilrnan, 
8  M;kss.,  33G. 

32.  A  person  directed  insurance  to  be  made 
at  a  distant  place  on  a  risk  commenced.  Held, 
he  was  bound  to  transmit  intelligence  of  the 
loss  by  the  earliest,  most  expeditious  and 
usual  route  of  mercantile  communication; 
but  the  omission  to  send  it  by  unusual  and 
extraordinary  means,  by  whicli  it  might  possi- 
bly arrive  before  the  policy  was  effected,  will 
not  vitiate  the  contract.  Green  v.  Merchants^ 
Ins.  Co.,  10  Pick.,  402. 

33.  Policy  in  the  name  of  B.  for  D.,  on 
cargo.  D.  wrote  a  letter  at  Savannah  Decem- 
ber 24,  1798,  to  B.,  at  Charleston,  directing 
him  to  insure.  The  letter  was  postmai-ked  the- 
25th.  The  mail  was  not  closed  till  6  o'clock 
on  that  evening,  nor  was  there  any  mail  stage 
thence  till  the  next  morning.  Intelligence  of 
the  loss  reached  Savannah  about  12  noon  on 
the  25th,  and  notice  of  it  was  given  at  the  ' 
oflice  of  D.  about  1- o'clock,  he  being  absent 
in  the  country.  His  clerks  were  in  the  city, 
and  the  loss  was  generally  known  in  Savannah 
at  1  o'clock  on  that  day.  Held,  a  finding  of 
the  jury  in  favor  of  the  plaintiff  was  contrary 
to  the  weight  of  evidence,  for  the  absence  of 
the  plaintiff  from  his  place  of  business  did 
not  make  it  less  the  duty  of  his  clerks  to 
countermand  the  order  for  insurance.  Byrnes 
V.  Alexander,  1  Brev.,  213. 

34.  The  master  had  an  affray  witli  Uie 
natives  on  the  coast  of  Africa  on  a  former 
voyage,  who  threatened  to  cut  him  off  if  he 
ever  came  to  the  coast  again.  This  was  not 
communicated  to  the  insurers,  and  a  verdict 
W.1S  rendered  for  them.  Held,  the  court  would 
not  set  it  aside.  Ingraham  v.  South  Carolina 
Ins.  Co.,  3  Brev.,  523. 

35.  It  was  rumored  that  the  vessel  had  been, 
lost.  Insured  heard  of  these  rumors,  but 
doubting  their  truth,  he  failed  to  communicate 
them  to  insurer  when  he  applied  for  the  policy. 
Held,  a  concealment  of  material  facts,  which 
avoided  the  policy.  Oraham  t.  General  Mat. 
Ins.  Co.,  0  La.  An.,  432. 

36.  On  bone  and  bone  ash  at  and  from 
Buenos  Ayres,  and  port  or  ports  of  lading  in 
that  province,  to  port  or  ports  of  call  and  dis- 
charge in  the  TJ.  K.  She  sailed  from  Buenos 
Ayres  to  Laguna,  in  the  province,  a  place 
where  a  trade  in  hides,  bone,  etc.,  was  carrieiJ 

121      ' 


243 


CONCEALMENT. 


244 


Wliatis. 


on,  but  clearances  were  never  issued  tbere. 
She  failed  to  get  a  cargo  at  Laguna,  aud  sailed 
again  for  Buenos  Ajres,  but  was  lost  before 
8be  reacbed  there.  Insurer  did  not  know  that 
Laguna  was  a  port  in  the  province  of  Buenos 
Ayres.  nor  did  lie  know  of  the  intenticju  to  send 
ber  there,  but  plaintiff  knew  that  the  master 
bad  decided  to  load  at  Laguua.  Held,  Laguna 
was  a  port  within  the  meaning  of  the  policy; 
that  the  failure  to  inform  insurer  of  the  mas- 
ter's intention  to  load  at  Laguna  was  a  con- 
■cealment  which  avoided  the  policy,  for  the 
words  of  the  policy  and  application  implied 
that  it  was  uncertain  whether  the  vessel  would 
proceed  to  one  or  several  ports,  whereas  in- 
sured had  certain  information  that  she  would 
proceed  to  Laguna  to  load  tbere.  It  also  ap- 
peared that  other  insurers  bad  refused  to  take 
the  risk  from  Buenos  Ayres  to  Laguna,  thence 
to  the  U.  K.  at  the  rate  of  premium  accepted 
'by  this  insurer,  narrower  ».  Hutchinson,  5  L. 
E.  Q.  B.,  584;  39  L.  J.  Q.  B.,  339;  23  L.  T. 
<N.  S.),  684;  reversing  s.  c,  4  L.  R.  Q.  B., 
523. 

37.  On  goods  and  merchandise  from  George- 
town, South  Carolina,  to  St.  Thomas,  with  lib- 
erty to  call  at  Charleston  aud  join  convoy. 
She  was  captured  and  condemned  on  the 
ground  that  she  sailed  from  Georgetown  with 
the  intention  to  land  part  of  the  cargo  at 
Charleston.  Held,  a  fatal  concealment  which 
released  insurers.  Cunningham  v.  Craigie, 
Bell's  Ses.  Cas.,  2G8. 

38.  A  merchant  of  St.  Petersburgh  requested 
his  correspondent  at  Leith  to  procure  insur- 
ance. She  sustained  injury  which  was  known 
by  the  merchaut  before  the  next  mail  left  St. 
Petersburgh,  but  be  did  not  communicate  the 
fact  to  his  correspondent  at  Leitb.  Had  be 
done  so,  that  information  would  have  reached 
bis  correspondent  as  soon  as  the  order  to  in- 
sure. Held,  a  fatal  concealment.  Scougall  v. 
Young,  Faculty  Dec,  1796  to  1801,  p.  166. 

39.  The  broker  was  informetl  that  she  was 
seen  five  or  six  hours  before  a  heavy  gale  came 
on  in  such  a  situation  that  she  must  have 
reached  a  port  in  that  time  or  have  been  lost 
in  the  storm,  of  which  nothing  was  disclosed 
when  application  was  made  for  the  policy. 
Held,  a  fatal  concealment.  Boicker  v.  Smith, 
Faculty  Dec,  1808  to  1810,  p.  571. 

40.  Two  vessels,  the  Margaret  and  the 
Hunter,  sailed  in  company  from  Arbroath. 
Captain  B.  arrived  there  aud  stated   he  bad 

123 


been  told  by  a  Norwegian  pilot  that  two  ships 
bad  been  taken  by  a  French  privateer  ofl  the 
coast  of  Norway,  one  of  which  had  been  burnt, 
but  he  doubted  the  truth  of  the  storj-.  If  it 
were  true,  he  supposed  they  were  the  Thomas 
and  the  Jupiter,  two  vessels  which  bad  sailed 
in  company  with  him.  The  pursuer  heard 
this  and  ordered  his  agents  at  Aberdeen  to 
procure  further  insurance  upon  the  Margaret. 
The  Margaret  and  the  Hunter  were  taken  two 
days  after  tbcy  sailed,  and  the  Margaret  was 
burnt,  but  not  exactly  in  the  situation  de- 
scribed by  Captain  B.  Held,  the  information 
given  by  Captain  B.  should  have' been  dis- 
closed, and  therefore  the  policy  was  void. 
Murrisonv.  Gibbon,  Faculty  Dec,  1810  to  1812, 
p.  148. 

41.  On  fruit.  She  was  a  prize  going  home 
for  condemnation,  but  of  this  nothing  was 
said  to  insurers.  Held,  a  fatal  concealment. 
Reid  i\  McMillan,  Faculty  Dec,  1812  to  1814, 
p.  407. 

42.  She  sailed  from  London  for  Dundee, 
February  25,  1810.  Another  sailed  the  same 
da}-,  and  arrived  March  6th.  Another  sailed 
March  2d,  and  arrived  March  7tb.  The  Edin- 
burgh and  Leith  Telegraph  News  of  March 
7th,  published  the  capture  of  a  schooner  off 
the  mouth  of  the  Tees,  on  the  2d,  by  a  French 
lugger-rigged  privateer.  Insured  procured 
this  policy  March  10th,  which  was  written 
•'  lost  or  not  lost."  Held,  insured  should  have 
disclosed  what  be  bad  seen  published,  because 
it  was  a  circumstance  which  induced  him  to 
procure  the  policy;  therefore  the  policy  was 
void.  Kinloch  v.  Campbell,  Facull}'  Dec,  1814 
to  1815,  p.  421. 

43.  An  anonymous  letter  reacbed  Llnyds, 
in  which  it  was  stated  that  the  owners  of  the 
Candida  intended  to  lose  her  on  the  next 
voyage.  This  letter  was  openly  aflSxed  to  a 
board  at  Lloyds,  of  which  fact  the  plaintiff 
had  knowledge,  and  be  bad  this  shipment  on 
that  vessel  indorsed  upon  his  policy  without 
giving  any  notice  to  insurers  of  the  anonj'- 
mous  communication.  Held,  a  concealment 
which  vitiated  the  contract.  Leigh  v.  Adams, 
25  L.  T.  (N.  S.),  566. 

44.  The  plaintiff,  resident  at  Liverpool,  em- 
ployed A.  to  buy  madder  at  Smyrna,  and  to 
ship  it  for  him.  A.  purchased  a  cargo  and 
advised  its  shipment  January  12th,  inclosing 
shipping  documents  on  the  19th.  She  sailed 
on  the  23d,  and  was  stranded  in  the  course  of 


245 


CONCEALMENT. 


2iG 


What  is. 


that  day.  The  cargo  became  a  total  loss,  of 
which  notice  was  given  to  the  agent  the  next 
day,  who  advised  his  inineipal  of  the  loss  on 
the  26th,  the  (Jrst  post  day  after  tlie  loss,  which 
letter  did  not  reach  insured  until  long  after 
he  had  made  insurance.  The  agent  purposely 
abstained  from  sending  notice  of  the  loss  by 
telegraph,  in  order  to  enable  the  plaintitl"  lo 
make  insurance.  Held,  the  plaintiff  was  af- 
fected by  the  knowledge  of  his  agent;  that 
the  intentional  conceahnent  of  the  agent  was 
a  defense  to  the  action.  Pruuilfoot  v.  Monte- 
fiore,  2  L.  R.  Q.  B.,  511 ;  15  W.  R.,  930;  36  L. 
J.  Q.  B.,  235 ;  IG  L.  T.  (N.  S.),  585. 

45.  The  owners  of  ship  directed  the  plaint- 
iff to  cause  insurance  to  be  made  upon  her 
for  a  year,  and  he  instructed  H.,  an  insurance 
broker,  to  procure  it.  He  applied  for  insur- 
ance, January  15th.  The  plaintiff  received  a 
Jetter  from  the  master  on  that  day,  informing 
Jiim  that  she  had  been  aground,  sustained 
■damage,  and  had  arrived  at  Carthagena  in  a 
sinking  condition.  The  plaintiff"  communi- 
cated this  information  to  the  broker,  who 
failed  to  disclose  it  to  insurer,  and  on  the  16th 
the  defendant  accepted  a  risk  of  £3,000.  Find- 
ing that  notice  of  the  accident  had  not  ap- 
peared, the  plaintiff  sent  an  extract  from  the 
master's  letter  to  Lloyds,  which  was  the  first 
information  insurer  received  of  it.  He  wrote 
the  broker:  "Understanding  that  the  ship  has 
been  on  shore,  I  do  not  consider  ray  risk  cora- 
luences  until  she  has  been  surveyed  and  re- 
paired." H.  gave  no  reply.  In  the  books  of 
insurer  he  remained  debited  with  the  premium 
until  after  she  was  subsequently  lost,  but  she 
had  been  previously  surveyed  and  repaired 
at  Carthagena,  and  made  perfectly  seaworthy 
for  any  kind  of  voyage,  April  33d.  She  was 
•wrecked  and  totally  lost,  October  9, 1857.  Held, 
tlie  failure  to  disclose  the  information  con- 
veyed in  the  master's  letter  was  a  fatal  con- 
cealment, which  avoided  the  policy;  that  the 
defendant's  letter  to  the  broker  did  not  estab- 
lish a  new  contract,  because  there  was  no  evi- 
dence of  an  acceptance  of  the  terms  men- 
tioned, liussell  V.  Thornton,  4  H.  &  N.,  788; 
29  L.  J.  Ex,  9;  affirmed,  6  H.  &  N.,  140;  30 
L.  J.  Ex.,  69 ;  6  Jur.  (N.  S.),  1080 ;  8  W.  R.,  615. 

46.  Insurer  agreed  to  insure  freight  of  ship 
Pedro  Eerrar  from  Cuba  to  the  United  King- 
dom. At  the  time  of  procuring  this  agree- 
ment, the  plaintiff  had  notice  that  a  British 
barge,  laden  with  copper  ore,  was  reported 


ashore  at  Iragua;  but  of  this,  nothing  was 
said  to  insurer.  When  the  policy  was  de- 
manded, insurer  delivered  it  under  protest, 
saying,  "I  sign  a  policy  of  Don  Pedro  Ferrar 
under  protest,  and  am  determined  to  resist 
any  claim  that  may  be  made  under  it,  to  the 
best  of  my  ability."  It  appeared  that  the 
master's  letter  had  advised  the  insured  that 
she  was  the  only  ship  taking  copper  at  the 
time  of  lading.  Held,  a  concealment  of  a 
material  fact,  which  vitiated  the  contract. 
Nicholson  v.  Power,  20  L.  T.  (N.  S.),  580. 

47.  The  plaintifl^s  agent  received  a  letter 
which  stated,  "  I  was  in  company  with  the 
ship  Davy  at  twelve  at  night,  lost  sight  of  her 
all  at  once.  The  captain  spoke  to  me  the  day 
before,  stating  that  she  was  leaky,  and  the 
next  day  we  had  a  hard  gale."  This  was  uot 
communicated  to  insurers.  Vessel  was  lost 
by  capture.  Held,  a  fatal  concealment.  Sea- 
man V.  Fonereau,  3  Strange,  1183. 

48.  The  broker  who  procured  the  insurance 
saw  a  notice  at  Lloyd's  which  stated  that  an- 
other vessel  had  fallen  in  with  her  off  the  Sal- 
vages on  the  37th;  that  she  was  deep  and 
leaky.  Held,  a  failure  to  communicate  this  to 
the  insurer  avoided  this  policy  notwithstand- 
ing the  notice  was  absolutely  false.  Lynch  v. 
Dunsford,  14  East,  494 ;  Lynch  v.  Hamilton,  3 
Taunt.,  37. 

49.  At  the  time  the  policy  was  made  the 
insured  had  intelligence  which  indicated  that 
she  was  a  missing  ship.  Held,  a  new  trial 
would  be  granted,  as  the  jury's  special  finding 
seemed  to  be  imperfect.  Elkin  v.  Jansen,  13 
Mee.  «&W.,  655;  14  L.  J.  (N.  S.),  Ex.  201;  9 
Jur.,  353. 

.50.  The  insured  heard  that  a  ship  described 
like  his  was  taken,  but  he  made  the  insurance 
without  giving  any  information  to  the  insurers 
of  what  he  had  heard.  Insurers  brought  this 
bill  to  have  the  policy  surrendered  and  it  was 
so  decreed,  but  the  insurers  were  ordered  to 
refund  the  premium  less  the  costs  of  suit.  Do 
Costa  11.  Scandret,  2  P.  Wms.,  170. 

51.  In  her  port  of  lading  she  was  drivca 
on  a  rock,  but  got  off'  without  any  apparent 
daihage.  The  master  wrote  to  her  owners,  but 
did  not  mention  the  accident.  They  received 
his  letter  October  5th,  and  effected  insurance 
on  her  for  the  voyage  October  25th.  She  ar- 
rived at  her  port  of  discharge,  and  it  was  thou 
discovered  that  the  accident  had  caused  some 
damage.     Held,  it  was  the  master's  duty  to 

133 


247 


CONCEALMENT. 


2iS 


What  is  not. 


communicate  the  accident  to  her  owners;  tliat 
the  damage  which  slie  received  was  by  impli- 
cation excepted  from  the  risk,  and  tluit  tliere 
could  be  no  return  premium.  Oladstone  i). 
King,  1  Man.  &  Sel.,  35. 

52.  She  sailed  on  the  morning  of  Septem- 
ber IGth,  and  the  shipper  advised  by  letter  the 
lading  of  the  vessel,  and  in  it  stated  "The 
consignee  may  insure  if  he  likes."  About  six 
o'clock  that  evening  the  shipper  heard  that 
she  was  lost.  On  the  17th  he  knew  the  fact. 
The  post  which  took  his  letter  of  advice  did 
not  leave  till  one  o'clock  P.  M.  of  the  17tli. 
The  insurance  was  made  on  the  21st.  Held, 
the  shipper  was  the  consignee's  agent,  that 
he  had  full  opportunity  to  send  information  of 
the  lossbefore  the  mail  departed,  and  it  was 
his  duty  to  do  so;  his  negligence  was  the  neg- 
ligence of  his  principal.  Fitzherhert  v.  Mather, 
1  Term,  12. 

.53.  The  master  of  the  Henrietta,  after  her  ar- 
rival at  Greenock,  met  E.,  an  intimate  accjuaint- 
ance  of  A.,  and  told  him  of  the  loss  of  A.'s 
ship,  who  desired  it  might  be  concealed.  The 
same  day  B.  held  a  conversation  with  the  clerk 
of  A.,  in  which  B.  asked  the  clerk  whether 
tiiere  was  an  insurance  made  upon  A.'s  ship, 
or  for  her  account.  A.  subsequently  instructed 
the  clerk  to  have  insurance  efi'ected  upon  the 
vessel ;  but  it  did  not  appear  that  any  of  the 
conversation  which  took  place  between  B. 
and  the  clerk  was  made  known  to  A.  Held, 
the  policy  was  void,  because  the  court  was  sat- 
isfied if  the  Henrietta  had  not  arrived  in  the 
road  off  Greenock  the  day  preceding  and  had 
not  brought  intelligence  that  the  ship  was  ta- 
ken, the  insurance  would  not  have  been  made. 
Stewart  v.  Dunlop,  4  Bro.  P.  C,  483,  ,n. 

54.  "  On  goods  from  Lisbon  to  the  Clyde, 
premium  10  guineas  per  cent.,  to  return  5 
guineas  per  cent,  for  convoy  and  arrival." 
Sliippers  advised  "She  is  a  charming  little 
schooner,  a  prize  going  home  for  condemna- 
tion, and  will  be  ready  for  sea  in  two  or  three 
days,  with  or  without  convoy,  for  which  she 
shall  not  wait  a  single  day;  we  have  deter- 
mined on  running  with  the  Nancy."  Another 
letter  stated,  "  There  being  no  convoy  at  pres- 
ent appointed  for  Britain,  the  Nancy  intends 
to  run  it;  however,  should  any  partial  convoy 
otier,  she  will  naturally  take  the  benefit  of  it." 
The  consignees  ordered  insurance;  quoted  in 
the  order  some  of  the  language  of  the  letters 
mentioned,  but  said  nothing  about  a  prize  ' 
124 


going  homo  for  condemnation,  or  that  she  was 
a  running  ship.  She  was  captured  by  a  Span- 
ish  privateer.  Htld,  the  general  understand- 
ing of  the  sentence  "  to  return  five  per  cent, 
for  convoy  and  arrival  "  is  that  vessels  so  in- 
sured would  sail  with  convoy,  though  some 
might  possibly  sail  without;  that  the  sentence 
quoted  led  the  insurer  to  believe  that  he  was 
taking  the  risk  upon  a  vessel  which  might  sail 
with  convoy,  whereas  the  insured  knew  that 
the  risk  was  on  a  vessel  which  would  not  sail 
with  convoy,  therefore  insurers  were  dis- 
charged.    Reid  v.  Earcey,  4  Dow,  97. 

(e)  Of  occupation. 

55.  On  the  life  of  the  insured  who  died  the 
day  after  it  was  made.  In  the  printed  appli- 
cation in  answer  to  a  question  upon  that  sub- 
ject, he  stated  he  was  a  farmer.  The  con- 
ditions of  the  policy  provided  that  any  untrue 
or  fraudulent  allegation  made  in  effecting  the 
insurance  should  render  the  policy  void. 
Held,  if  the  insured  was  a  slave  taker  ty 
occupation,  the  policy  was  void.  Ilartman  ». 
Keystone  Ins.  Co.,  21  Penn.  St.,  466. 

II.  "What  is  not. 

(a)  Of  the  interest  insured. 

1 .  The  mortgagor  agreed  with  the  mortga- 
gee, that  the  latter  should  procure  insurance, 
and  the  former  pay  the  premiums.  The  mort- 
gagee procured  insurance  in  his  own  name, 
and  said  nothing  about  the  agreement.  Held, 
no  concealment.  Kernochan  v.  New  York 
Bowery  In».  Co.,  17  N.  Y.,  428;  s.  c,  5  Duer,  1. 

2.  It  is  suflicient  if  the  insured  has  an  in- 
surable interest;  and  it  is  not  necessary  that 
the  part  owner  of  the  vessel  should  disclose 
to  the  insurer  that  he  is  p.art  owner.  Turner 
V.  Burrows,  5  Wend.,  .541;  affirmed,  8  id.,  144. 

3.  It  is  not  necessarj',  unless  questioned  by 
the  insurer,  to  disclose  the  fact,  that  a  person 
is  interested  in  the  ship  whose  name  does  not 
appear  upon  the  custom  house  documents  or 
bill  of  sale.  Bixhy  v  Franklin  Ins.  Co.,  8 
Pick.,  86. 

4.  A  failure  to  disclose  to  the  insurer  that 
the  buildings  are  upon  land  not  owned  by  the 
insured  is  no  defense  to  the  action,  unless  the 
policy  by  its  terms  requires  that  fact  to  be 
made  known.  Fletdier  r>.  Commonwealth  Ins. 
Co.,  18  Pick.,  419. 


2i9 


CONCEALMENT. 


250 


What  is  not. 


5.  The  master  sailed  heron  shares,  manned, 
victualed  and  paid  halt  her  port  charges,  and 
so  continued  until  she  was  lost.  iZcW,  though 
lie  was  owner  pro  hue  viie,  it  was  not  necessary 
to  disclose  the  fact  to  the  insurer,  liuss  v. 
Waldo  Mut.  Ins.  Co.,  53  Me.,  187. 

6.  The  assignee  of  a  policj-  is  not  bound  to 
state  incumbrances  against  the  propertywhen 
it  is  ratified  to  him.  Cumberland  Valley  Mu- 
tual Protection  Co.  v.  Mitc/iell,  48  Penn.  St., 
374. 

7.  A.  part  of  the  property  insured  had  been 
levied  on  by  the  insured  for  rent  in  arrear, 
sold  and  bought  in  by  him.  H^eld,  it  was  not 
necessary  to  disclose  these  facts  to  the  insurer. 
Columbia  Ins.  Co.  v.  Cooper,  50  Penn.  St.,  331. 

8.  M.  held  a  judgment  against  H.,  who  set 
off  to  the  judgment  creditor  the  property  de- 
scribed, subject  to  two  mortgages,  -fSO  and  $35. 
He  made  application  for  insurance,  stated  that 
it  was  his  property,  and  mentioned  the  in- 
cutnbrauces.  He  mortgaged  the  premises  for 
$175,  and  assigned  the  policy  to  secure  it,  to 
which  insurer  consented.  Ueld,  the, execution 
creditor  had  the  whole  title  and  estate  in  him, 
subject  to  the  debtor's  right  to  redeem ;  that  the 
omission  to  state  that  his  estate  was  subject  to 
that  right  was  no  defense  to  the  action.  Clapp 
e.  Union  Mat.  Ins.  Co.,  27  N.  H.,  143. 

9.  At  the  time  the  policy  was  made,  certain 
litigation  in  reference  to  the  property  in- 
sured was  pending  between  persons  not  par- 
ties  to  the  policy,  but  insured  failed  to  disclose 
the  fact  to  insurers.  Held,  no  defense  to  the 
action.  Ilill  v.  La  Fayette  Ins.  Co.,  2  Mich., 
47(5. 

10.  The  insured  was  the  chattel  mortgagee 
of  the  property  described  in  the  policy;  but 
the  nature  of  his  interest  was  not  disclosed. 
The  policy  provided  "That  the  company 
would  not  be  liable  for  loss  or  damage  to  prop- 
erty owned  by  any  other  party,  unless  the  in- 
terest of  such  party  be  stated  on  this  policj'." 
Held,  it  was  unnecessary  for  insured  to  state 
the  nature  of  his  interest  in  the  property  in- 
sured. Norwieh  Fire  Ins.  Co.  v.  Boomer,  53 
111.,  442. 

1 1.  Insured  did  not  disclose  that  there  was 
a  mortgage  on  the  property.  Ileld,  it  was  not 
material  to  the  risk,  hence  a  disclosure  of  it 
was  not  necessary.  Delahyv,  Memphis  Ins.  Co., 
8  Humph.,  084. 

12.  Two  separate  policies  on  vessel  and 
cargo,  from   Charleston  to  Marseilles,  thence 


to  Havana.  She  was  laden  at  Havana  but 
touched  at  Charleston.  It  appeared  by  the 
manifest  that  the  goods  were  shipped  in  the 
names  of  Spaniards.  Spain  and  her  colonics 
were  at  war.  Held,  a  failure  to  disclose  these 
facts  vitiated  the  policy.  Union  Ins.  Co.  v. 
Stoney,  Harper,  235;  s.  c,  3  McCord,  387. 
Cut  this  case  was  tried  the  third  time,  when 
the  former  decisions  were  overruled,  and  the 
plaintiff  was  permitted  to  recover.  8.  c,  4 
McCord,  511. 

(b)  Of  time  of  sailing. 

13.  Ship  sailed  from  Boston  November  19, 
1831.  She  was  insured  March  13,  1832,  at  and 
from  Boston  to  Smyrna,  and  at  and  from 
thence  back  to  Boston ;  she  was  never  heard 
of  afterwards ;  nor  was  she  out  of  time  when 
the  insurance  was  effected.  Ten  days  after 
she  left  Boston  a  severe  storm  occurred  there ; 
and  one  underwriter  refused  to  take  a  risk  on 
ber  on  being  told  she  had  sailed  before  the 
storm.  i?«W,  the  time  of  her  sailing  was  not 
material  to  the  risk,  and  the  failure  to  com- 
municate it  to  the  insurer  did  not  affect  the 
policy.  Fiske  v.  New  England  Ins.  Co.,  15 
Pick.,  310. 

14.  The  broker  knew  that  the  ship  had 
sailed  on  her  voyage,  but  did  not  communi- 
cate the  fact  to  the  insurer.  Held,  as  a  gen- 
eral rule  it  was  not  necessary;  but  there 
might  be  circumstances  which  would  render 
it  material,  as  if  she  were  a  missing  ship,  or 
out  of  time.  Foley  v.  Moline,  5  Taunt.,  430;  s. 
C.,1  Marsh.,  117. 

1.5.  On  ship  at  and  from  her  port  of  dis- 
charge, lost  or  not  lost.  She  had  sailed  live 
days  before  the  policy  was  made,  of  which  in- 
sured had  notice.  Held,  no  concealment. 
Fort  V.  Lee,  3  Taunt.,  381. 

(c)  As  to   information  of  loss,  dam- 
age, or  danger  apprehended. 

16.  The  policy  was  made  after  a  loss  had 
happened,  at  a  time  when  it  was  unknown  to 
the  insured.  The  master  took  measures  to 
1  revcnt  the  loss  being  known,  for  the  avowed 
I  urpose  of  enabling  the  owner  to  effect  in- 
surance, and  in  consequence,  information  of 
II. c  loss  had  not  reached  the  parties  at  the 
time  the  policy  was  made.  iTeW,  the  insured, 
1  living  acted  in  good  faith,  was  not  to  suffer 

135 


251 


CONCEALMENT. 


252 


What  is  not. 


for  the  fraudulent  conduct  of  the  master.  Af- 
tirmiug  s.  C,  4  >Iasou,  74.  General  Interest 
Ins.  Co.  V.  Haggles,  12  Wheat.,  408. 

17.  The  master  was  instructed  to  go  to 
Hamburg,  if  he  could  obtain  permission  from 
tlie  cruising  vessel  at  the  entrance  of  the 
Eyder,  but  not  to  attempt  it  unless  he  was 
well  assured  that  the  blockade  of  the  Elbe 
was  raised.  Held,  if  the  instructions  to  the 
master  were  contrary  to  the  rules  estab- 
lished by  the  English  courts  of  admiralty, 
they  should  have  been  communicated  to  the 
insurers,  notwithstanding  such  rules  were  not 
authorized  by  the  law  of  nations;  but  it  was 
also  held,  these  instructions  were  not  contrary 
to  those  rules.  Sperry  v.  Delaware  Ins.  Co.,  2 
Wash.  C.  C,  243. 

18.  Four  policies,  on  ship,  freight,  cargo; 
the  fourth  on  additional  cargo,  consisting 
principally  of  goods  brought  b3'  a  Spaniard 
from  Cadiz  to  New  York,  and  entered  for  ex- 
portation for  the  benefit  of  drawback.  Thej' 
were  sold  by  tlie  Spaniard,  and  the  i^urchaser 
sold  them  to  insured,  which  was  not  disclosed 
to  insurer.  Held,  i{  a  taint  attached  to  a  part 
of  the  cargo,  it  pervaded  the  whole ;  Ijut  before 
the  concealment  could  avoid  the  policy  it 
must  appear  to  have  been  material  to  the  risk, 
and  if  known  would  have  increased  the  pre- 
mium ;  that  we  are  all  very  wise  in  finding 
out  causes  which  have  led  to  particular  re- 
sults, after  the  results  are  seen,  and  are  apt  to 
give  weight  and  consequence  to  circum- 
stances which  would  have  passed  unnoticed, 
■hut  for  the  results;  hence,  if  the  insured  pur- 
chased the  goods  bona  fide,  that  made  them 
neutral  and  they  were  not  liable  to  condem- 
nation. Marshall  v.  Union  Ins.  Co.,  2  Wash. 
C.  C,  357. 

19.  Loss  by  stranding,  March  26,  2  A.  M., 
about  ninety  miles  from  New  York.  Two  part 
owners  effected  insurance  for  themselves,  and 
the  other  part  owner  (the  master),  April  9th,  fol- 
lowing. Those  who  effected  the  insurance 
knew  nothing  of  the  loss.  The  master  was  in- 
jured so  that  he  could  not  attend  to  business  for 
two  or  three  days  after  it  occurred.  Held,  there 
was  not  anything  like  gross  negligence  in  not 
communicating  witli  liis  partners  at  such  a 
crisis  whicli  would  look  like  design  or  justify 
the  inference  of  fraud;  that  the  policy  was 
valid.  Andrews  v.  Marine  Ins.  Co. ,9  Johns.,  32. 

20.  Insured  told  tJie  companj-'s  agent  thht 
the  premises  had  been  on  fire  two  or  three 

126 


times,  and  he  could  not  account  for  the 
causes;  the  agent  failed  to  communicate  these 
facts  to  the  insurer.  The  agent  was  autlior- 
ized  to  accept  applications  and  receive  pre- 
miums,  but  was  not  empowered  to  issue  poli 
cies.  Held,  it  was  sufficient  if  insured  com 
municated  to  the  agent  all  the  facts  in  respec\ 
to  the  fires  that  had  been  suppressed  and  hii. 
apprehensions  in  regard  to  them,  and  he  w^ 
not  chargealde  with  the  agent's  failure  t 
communicate  them  to  the  insurer.  Behef  •.. 
Hartford  Mutual  Fire  Ins.  Co.,  25  Conn.,  51. 

21.  Policy  effected  April  20th.  Vessel  lost 
on  the  17th.  The  master  had  addressed  a  let- 
ter to  the  plaintiff,  posted  it  at  Richmond  on 
that  day,  which  must  have  arrived  at  Balti- 
more post  ofllce  April  20th,  between  3  and  4 
o'clock,  and  if  called  for,  would  have  been 
delivered  at  7  o'clock  of  that  morning.  In- 
sured  resided  at  Baltimore,  hut  he  did  not 
call  at  the  post  office  for  letters  between  the 
19lh  and  the  24th.  Held,  he  was  under  no 
obligation  to  go  to  the  post  office,  nor  had  he 
any  cause  to  expect  information,  in  the  ab- 
sence of  proof  upon  that  point;  nor  was  he 
bound  to  use  all  accessible  means  of  info'ma- 
tion  to  ascertain  the  condition  of  the  j  rop- 
erty  up  to  the  time  of  making  the  insurance. 
Keptune  Ins.  Co.  v.  Sohfnson,  11  G.  &  J.,  256. 

22.  The  property  insured  was  at  West  Point, 
Mississippi.  It  appeared,  that  one  of  the  per- 
sons in  interest,  who  had  the  custody  of  the 
property,  was  obnoxio.us  to  the  people  of  that 
vicinity.  Held,  it  was  not  necessary  to  dis- 
close the  popularity  or  impopularity  of  in- 
sured;  for  insurers  were  presumed  to  know 
of  the  disturbed  condition  of  that  part  of  the 
countr}'.    Keith  v.  Globe  Ins.  Co.,  .52  III.,  518. 

23.  The  court  instructed,  if  there  was  any 
danger  from  incendiarism,  fairly  and  reason- 
ably  to  be  apprehended,  known  to  the  insured, 
it  was  their  duty  to  inform  insurer's  agent  of 
it,  and  a  failure  to  do  so  would  relieve  the 
insurer;  but  the  court  added,  "The  djinger 
must  be  realty  and  substantiallj'  one  that  neces- 
sarily enhanced  the  risk,  and  one  which  a  man 
of  ordinary  prudence  and  caution  would  regard, 
not  mere  idle  talk  or  reports."  Held,  no  error. 
McBride  v.  Republic  Fire  Ins.  Co.,  30  Wis.,  562. 

24.  The  master  wrote  liis  owners,  that  the 
merchants  at  Malaga  would  not  ship  on  Eng- 
lisli  ships  unless  they  had  a  convoy;  that  they 
were  shipping  on  Spanish  s'.iips;  tliat  there 
was  great  danger  in  going  from  Gibraltar,  the 


253 


CONCEALMENT. 


2o4 


Wliat  is  not. 


place  where  the  letUT  was  written,  to  Malaga. 
Insurance  was  made  for  £000  at  25  gs.,  on  ship 
from  Gibraltar  to  Malaga,  thence  to  Leith, 
witli  liberty  to  call  at  Gibraltar.  The  policy 
was  in  the  common  form,  but  it  stated:  "Last 
advices  were  from  Gibraltar  of  September  28, 
1778;  that  she  had  arrived  there  tlie  day  be- 
fore and  had  a  cargo  to  discliarge."  In  the 
evening  of  the  day  in  which  the  insurance 
was  effected  at  Glasgow,  November  20,  1778, 
the  insured  received  intelligence  from  the 
master,  advising  of  her  sailing  from  Gibraltar, 
and  that  she  was  captured  off  Malaga  by  a 
French  privateer,  October  9th,  and  carried 
into  Almeira,  which  intelligence  was  imme- 
diately  communicated  to  the  insurers,  who 
declined  to  recognize  the  claim  on  the  ground, 
that  the  master's  letter,  which  was  wTitten  at 
Gibraltar,  ought  to  have  been  communicated 
to  them.  HeliJ,  it  was  not  necessary  for  the 
insured  to  communicate  the  statements  made 
in  the  letter.  Reversing  the  interlocutor  of 
the  court  of  sessions  and  affirming  the  decree 
of  tlie  judge  admiral.  Tlwmpson  v.  Buchanan, 
4  Bro.  P.  C,  483. 

25.  Policy  made  May  9,  17G0,  against  "The 
loss  of  Fort  Marlborough,  from  being  de- 
stroyed by,  taken  by,  or  surrendered  unto  any 
European  enemy,  between  October  1,  1750, 
and  Oct.  1, 1700."  It  was  taken  by  the  French 
within  the  year.  The  insured  did  not  com- 
municate to  the  insurer  an  anticipated  attack 
by  the  French,  nor  the  insufficiency  of  the 
fort  to  resist;  but  it  seems  both  these  circum- 
stances were  commonly  known  among  all  the 
merchants  of  London.  Held,  no  concealment. 
Carter V.  Boehm.S  Burr.,  1905;  1  W.  Bl.,  593. 

26.  The  owner  of  a  ship  received  a  letter 
from  her  master,  written  on  her  arrival  at  the 
foreign  port  showing  thai  she  must  remain 
there  for  repairs  beyond  the  time  necessary  to 
take  in  her  cargo.  Held,  not  necessary  to 
communicate  tliat  fact  to  the  insurer  unless 
the  information  was  particularly  called  for. 
Beckwilh  v.  Sydehotham,  1  Camp.,  116. 

27.  The  insured  is  not  bound  to  communi- 
cate to  the  insurer  sensations  and  apprehen- 
sions, but  he  is  bound  to  communicate  mate- 
rial facts.    Bell  v.  Bell,  2  Camp.,  475. 

2S.  A  letter  written  by  the  commander  con- 
taining information  as  to  the  loss  of  the 
master  and  several  of  the  crew,  showing  that 
the  ship  was  short  handed,  and  that  it  was  im- 
possible to  procure  seamen.    Another  letter. 


referring  to  the  former,  written  about  two 
mouths  after,  stated  that  he  expected  to  sail  at 
the  end  of  the  next  month.  The  last  letter 
was  e.\liibited  to  the  insurers.  Held,  there 
was  no  concealment,  because  the  second  re- 
ferretl  to  the  first,  and  the  insurers  ought  to 
have  called  for  it.  Frceland  v.  Olwer,  7  East, 
457;  6Esp.,  14;  3  Smith,  420. 

29.  Two  prizes,  ship  and  brig,  were  taken 
off  the  coast  of  Ireland  to  he  carried  into 
Liverpool.  The  owners  ordered  insurance 
on  them  in  London.  A  part  owner  sent  an 
express  to  his  broker,  mentioning  the  arrival 
of  one,  and  expressed  great  fear  about  the 
other,  and  ordered  further  insurance  on  her. 
He  inclosed  a  letter  to  be  sent  to  the  insurers, 
dated  Saturday.  The  broker  received  the  ex- 
press on  Tuesday,  and  had  her  insured  on 
Wednesday.  The  nonarrival  of  Sunday  night 
could  not  have  been  known  in  London  till 
Wednesday  noon,  after  the  plaintiff  had  sub- 
scribed the  policy.  On  Tuesday  the  broker 
entered  in  Lloyd's  books  the  arrival  of  the 
brig  and  the  non-arrival  of  tlie  other.  But  the 
broker  did  not  communicate  to  the  insurers 
the  information  he  had  received.  Held,  the 
policy  was  not  void,  and  that  tliere  could  be 
no  return  of  premium.  Court,  v.  Martineau,  S 
Doug.,  101. 

'AO.  The  insured  had  received  a  letter  from 
the  master,  stating  that  he  had  been  obliged 
to  have  a  survey  of  the  ship  at  Trinidad,  on 
account  of  her  bad  character.  The  survey 
accompanied  the  letter,  but  it  gave  the  ship  a 
good  character.  Held,  it  was  not  necessary  to 
communicate  the  contents  of  the  master's 
letter  or  the  fact  of  the  survey  to  tlie  in- 
surer. Haywood  v.  Bodgers,  4  East,  590;  1 
Smith,  298. 

31.  Insurers  agreed  to  accept  the  risk, 
March  11th.  Insured  demanded  the  policy 
on  the  17th.  She  was  lost  on  the  16th,  of 
whicli  insured  had  notice,  but  said  nothing 
aliout  it  when  he  demanded  the  policy.  Held, 
the  contract  was  complete  when  the  risk  was 
accepted ;  that  a  material  fact  coming  to  the 
knowledge  of  the  insured  between  that  date 
and  the  date  of  the  policy,  need  not  he  com- 
municated. Liahman  v.  Northern,  Marine  Ins. 
Co.,  8  L.  R  C.  P.,  216;  43  L.  .1.  C.  P.,  108;  21 
W.  R.,  386;  28  L.  T.  (N.  S.),  105;  affirmed,  10 
L.  R.  C.  P.,  179;  Cory  v.  Patton,"!  L.  R.  Q.  B., 
804;  20  W.  R.,  364;  26  L.  T,  (N.  S.),  161;  41 
L.  J.  Q.  B.,  195  n.;  affirmed,  9  L.  R.  Q.  B.,  577; 

127 


CONCEALilENT. 


25G 


What  is  not. 


43  L.  J.  Q.  B.,  181 ;  23  W.  R.,  46;  30  L.  T.  (X. 

32.  Tlie  broker  received  instructions  to  in- 
sure by  letter,  dated  Sunderland,  October  13th, 
and  etfected  the  policy  October  loth,  but  did 
jiot  complete  it  till  the  17th.  He  left  his 
housR  about  10  o'clock,  taking  the  policy  with 
liim,  prepared  for  the  underwriters  to  execute, 
went  to  the  Royal  Exchange,  and  flie  insurer 
signed  it  there  about  11  o'clock.  He  then 
proceeded  to  the  Coal  Exchange,  at  which  his 
business  letters  were  usually  directed.  When 
lie  arrived  there  he  found  a  letter,  which  had 
arrived  by  that  morning's  post,  dated  the  l.ith, 
announcing  the  ship's  loss.  Held,  it  was  a 
question  for  the  jury  to  determine,  wliether 
the  broker  had  a  right  to  presume  he  had 
possession  of  all  the  information  im  which  he 
was  to  effect  the  policy,  and  the  jury  having 
found  that  fact  for  the  insured,  the  insurer 
must  be  held  liable  for  the  loss.  Wake  v. 
Atty,  4  Taunt.,  4&3. 

33.  While  going  into  Port  Moraut,  she 
touched  and  sustained  damage.  The  master 
wrote  his  owners  that  he  expected  to  make 

/repairs  and  be  ready  to  sail  by  the  2oth  of 
July.  But  the  fact  of  the  damage  was  not 
reported  to  underwriters.  Held,  no  conceal- 
ment. Adanu  v.  Murray,  Faculty  Dec,  1801 
to  1807.  p.  360. 

34.  She  had  suffered  damage  before  the 
policy  was  made,  but  nothing  was  said  about 
it  when  the  application  for  the  policy  was 
made.  Held,  no  concealment.  Smith  o.  Bis- 
sett,  Faculty  Dec,  1808  to  1810,  p.  617. 

35.  Master  wrote;  "Timber  is  scarce,  and 
cargo  not  all  ready,  but  I  will  be  as  expeditious 
as  possible ;  other  ships  are  offering  to  wait 
six  weeks  for  their  cargoes.  Will  suffer  some 
detention  from  Ijeiug  obliged  to  lie  beyond  the 
bar,  in  order  to  complete  my  cargo."  This  was 
not  communicated  to  insurers.  Held,  not  a 
concealment.  Lambe  v.  Smith,  Faculty  Dec, 
1814  to  1815,  p.  220. 

36.  The  policy  was  effected  at  Leith,  be- 
tween 13  and  1  o'clock,  December  5th.  Let- 
ters received  at  Leith  at  11  A.  M.,  contained 
intelligence  of  her  loss  at  the  mouth  of  the 
Tees,  on  the  day  preceding — one  of  them,  ad- 
dressed to  a  person  who,  immediately  on  re- 
ceiving it,  sent  word  to  the  broker  that  he 
wished  to  see  him ;  but  no  meeting  took  place 
between  them  until  between  2  and  3  P.M.; 
the  other  was  addressed  to  the  broker,  but  it 

128 


remained  in  the  post  office  till  4  P.  M.,  he 
failing  to  call  for  it.  Held,  not  sufficient  to 
affect  the  poliC3-  unless  the  del.iy  in  sending 
to  the  post  office  for  the  letter  was  wrongful. 
Stoiie  V.  Aberdeen,  "Mut.  Ins.  Co.,  11  C.  C.  S., 
1041. 

(d)  As  to  matters  vnth  which  insurers 
are  presumed  to  he  acquainted. 

37.  "  On  ship  to  the  port  of  Sisal,  liberty  to 
proceed  to  one  other  port  in  that  province  not 
southward  of,"  etc.  Sisal,  Silam  and  other 
places  on  that  coast  were  merely  open  roads, 
and  vessels  had  to  lie  at  anchor  some  miles 
from  shore,  to  land  and  take  in  cargoes  by  the 
aid  of  boats.  Held,  insured  was  not  bound  to 
inform  the  insurer  of  these  facts;  that  the 
insurer  was  presumed  to  know  them,  and  the 
word  port  in  the  policy  must  be  taken  in  refer- 
ence to  the  subject  matter,  and  though  it 
usually  meant  a  harbor,  yet  when  applied  to 
Sisal  and  other  trading  places  on  that  coast,  it 
meant  an  open  roadstead.  De  Longumere  v. 
New  York  Fire  Ins.  Co.,  10  Johns.,  120;  id., 
126. 

38.  Insurers  directed  a  policy  on  the  same 
property  to  be  canceled  because  of  a  rumored 
attempt  to  burn  the  buildings,  and  soon  after- 
wards A.  effected  this  insurance.  Held,  he  was 
not  bound  to  disclose  the  attempt  to  burn  the 
premises,  because  the  insurers  knew  of  it. 
Fish  V.  Liverpool,  London  and  Globe  Ins.  Co., 
44  N.  Y.,  538. 

39.  Silence  of  the  insured  as  to  facts  already 
known  to  the  insurer,  no  inquiry  being  made 
on  the  subject,  though  material  to  the  risk, 
does  not  affect  the  policy.  Creen  v.  Merchants 
Ins.  Co.,  10  Pick.,  402. 

40.  The  insured  are  not  bound  to  commu- 
nicate what  the  insurers  are  bound  to  know ; 
and  they  are  bound  to  know  of  a  usage  or  cus- 
tom which  prevails  at  the  place  where  the 
policy  attaches,  whether  at  home  or  abroad. 
I^orris  v.  Insurance  Company  of  North  Amer- 
ica, 3  Yeates,  84. 

41.  The  act  of  incorporation  made  it  the 
duty  of  the  company  to  appoint  a  surveyor  to 
"examine,  survey  and  take  the  correct  descrip- 
tion and  dimensions  of  all  property  to  be  in- 
sured, to  set  a  valuation  thereon,  to  take  into 
consideration  the  exposure  and  liability  of  the 
property  to  damage  by  lire,  to  fix  the  pre- 
mium and  determine  the  conditions   of  the 


5.-) 


Ul 


CONCEALMENT. 


258 


Wliat  is  not. 


insurance."  IleM,  it  was  the  company's  duty 
to  ascertain  all  facts  material  to  the  risk;  that 
the  insured  were  not  to  suHer  from  the  com- 
pany's failure  to  do  so,  and  the  omission  of  the 
insured  to  mention  that  there  was  a  corn  kiln 
attached  to  the  property  did  not  avoid  the 
policy,  though  the  premium  on  that  account 
would  have  been  much  higher.  Satteiihwiiile 
c.  Mutual  Bcni'ficial  Ins.  Ass.,  14  Penn.  St.,  393. 

42.  She  was  built  on  what  is  known  as  the 
hull  of  a  keel-boat.  That  fact  was  not  dis- 
closed to  the  insurer,  but  the  evidence  showed 
that  boats  of  this  class  were  not  unfrequently 
constructed  in  this  manner.  Held,  insured 
had  the  right  to  suppose  that  the  insurers 
■were  acquainted  with  the  manner  of  con- 
structing boats  of  this  class.  Lexington  Ins. 
Co.  V.  Paver,  16  Ohio,  324. 

43.  One  of  the  walls  settled,  and  it  was 
necessary  to  replace  it  temporarily  with  wood. 
The  insured  stated  the  building  was  in  good 
repair;  but  the  agent  knew  that  the  wall  was 
temporarily  replaced  with  wood.  Held,  not 
sucli  a  misrepresentation  as  would  avoid  the 
policy.  Oerhauser  v.  North  British  and  Mer- 
cantile Ins.  Co.,  7  Nev.,  174. 

44.  The  question  was  whether  the  agree- 
ment to  detain  the  ship  in  India  for  a  year 
longer  than  the  time  provided  for  by  the  char- 
ter part)',  ought  to  have  been  disclosed  to  in- 
surers. It  appeared  that  the  charter  party  was 
in  the  printed  form  and  of  very  long  standing, 
and  that  to  prolong  the  ship's  stay  for  a  year 
was  very  common ;  that  the  words  of  the  pol- 
icy, without  limitati(m  of  time  or  place,  were 
adapted  to  that  usage.  Held,  the  usage  was  to 
be  treated  as  though  it  were  expressly  inserted 
iu  the  policy.  Saloador  v.  Hopkins,  3  Burr., 
1707. 

45.  Intelligence  in  Lloj-d's  Lists  need  not 
be  given  to  the  insurer;  because  it  was  a  mat- 
ter that  Ijy  fair  inquiry  and  due  diligence  he 
might  have  learned,  from  ordinary  sources  of 
information.  Friere  v.  Woodhouse,  Holt  N. 
1'.,  .572. 

46.  Concealment  cannot  be  established,  un- 
less the  fact  concealed  was  known  to  the  in- 
sured and  not  known  to  tlie  insurer.  That  in 
order  to  establish  knowledge  of  the  fact 
against  the  insurer,  it  is  not  essential  that  he 
should  have  had  actual  knowledge;  it  is 
enough  if  he  had  the  means  of  knowipg  the 
fact,  and  it  was  within  his  power  to  ascertain 
it.    Then  if  he  did  not  choose  to  ascertain  it, 

0 


the  fact  was  within  his  knowledge.    Fdey  v. 
Tabor,  2  F.  &  F.,  CCS. 

47.  "To  be  void  if  the  assured  shall  omit 
to  communicate  any  matter  material  to  be 
made  known  to  the  insurer."  Held,  this 
meant  matter  not  only  material  but  also  un- 
known  to  the  insurers ;  tliat  it  did  not  apply 
to  that  which  might  be  presumed  was  knowa 
to  them  or  their  agents.  Pirn  v.  Lewis,  2  F.  & 
F.,  778. 

48.  She  was  registered  at  Lloyd's  as  A  1, 
for  seven  years,  but  in  order  to  retain  her  class, 
it  was  necessary  for  her  to  be  examined  in  the 
fourth  year,  and  if  the  examination  should  he 
satisfactory,  then  she  would  be  entitled  to  be 
initialed  in  the  register  H  F;  if  not  satisfac- 
tory, to  be  degraded ;  and  if  the  owner  should 
refuse  to  permit  examination,  or  it  was  not 
made  from  any  other  cause,  her  name  should 
be  stricken  out  of  the  register.    In  October, 
1869,  her  owner  declined  to  have  her  exam- 
ined,  and  during  the  same  month,  application 
was  made  to  the  defendants  to  insure  her  for 
twelve  months.    They  examined  the  register, 
directed  applicant's  attention  to  her  name,  in- 
quired whether  that  was  the  vessel  he  wanted 
to  insure,  to  which  he  replied,  yes.    A  rate 
was  then  given,  based  upon  the  fact  that  she 
was  A  1,  and  about  two  weeks  thereafter  the 
risk  was  accepted  upon  the  rate  named.    The 
day  following  her  name  was  struck  out  of 
Lloyd's  Register,  of  which  plaintiff  had  no- 
tice  the  following  day,  and  about  one  week 
thereafter,  the  defendant's  copy  of  the  register 
was  amended  by  striking  her  name  from  it. 
About  five  weeks    thereafter  she    was    lost. 
Held,  the  insurer  ought  to  have  known  that 
her  continuance   in   the  class    depended  on 
whether  the  usual  survey  had  been  made,  and 
that  knowledge  ought  to  have  put  him  upon 
inquiry  as  to  whether  she  had  been  or  was 
about  to  be  surveyed.    The  fact  that  insured 
had  determined  not  to  continue  her  on  the 
register  and  had  declined  to  keep  her  regis, 
tered    was  not  material.     Oandy  v.  Adelaide 
Mut.  Ins.  Co.,  6  L.  R.  Q.  B.,  746;  s.  c,  40  L.  J. 
Q.  B.,  239. 

49.  The  master  wrote  owners  that  he  had 
doubts  about  there  being  water  enough  on  the 
bar  to  let  her  out.  Insurers  procured  the  pol- 
icy, but  said  nothing  about  the  master's 
doubts.  Held,  no  concealment,  for  insurers 
were  presumed  to  know  the  depth  of  water  in 
the  harbor;  and  insured  were  not  bound  to 

129 


259 


COXCEALME^■T. 


2U0 


What  is  not. 


communicate  axiything  whicli  insurers  were 
presumed  to  kuow.  Patterson  o.  Duguid, 
Bell's  Ses.  Cas.,  281. 

(e)  Of  expiens  or  implied  warranties. 

50.  If  the  insured  is  not  asked  about  the 
age  of  the  vessel,  a  failure  to  disclose  the  fact 
that  she  is  old  is  no  concealment.  Pupleston 
V.  Kitchen,  3  "Wash.  C.  C,  138. 

51.  The  polic}'  warranted  against  barratry, 
and  the  law  by  implication  creates  a  warran- 
ty against  unseaworthiness.  Jleld,  the  in- 
sured was  not  bound  to  disclose  that  the  ves- 
sel is  uDseaworthy  —  nor  circumstances  which 
would  show  that  the  master  might  commit 
barratry  —  for  these  were  risks  with  which 
the  insurer  is  not  concerned.  Walden  v.  New 
York  Fire  Ins.  Co.,  12  Johns.,  128. 

52.  The  insured  is  not  bound  to  communi- 
cate to  the  insurer  anything  with  respect  to  a 
fact  in  regard  to  which  there  is  an  expressed 
or  implied  warranty.  DeWolf  v.  New  York 
Firemen  Ins.  Co.,  20  Johns.,  214. 

53.  The  warranty  of  seaworthiness  is  im- 
plied, hence  the  insured  were  not  required  to 
disclose  any  fact  pertaining  to  her  seaworthi- 
ness. Silloway  v.  Neptune  Ins.  Co.,  12  Gray, 
73. 

54.  The  aeent  of  insured  was  asked,  "What 
is  the  condition  of  the  Orb,  as  to  seaworthi- 
ness?" Held,  there  was  no  obligation  resting 
upon  insured  or  his  agents  to  disclose  the  fact 
tliat  insured  would  not  load  her  with  lumber, 
unless  he  could  get  it  insured,  nor  was  it 
necessary  for  them,  to  disclose  the  fact  th  it 
the  marine  reports  at  Baltimore  had  set  her 
down  as  unseaworthy  (citing  Buggies  «.  Gen- 
eral Interest  Ins.  Co.,  4  Mason,  74;  3  Kent,  280). 
Augusta  Ins.  Co.  v.  Abbott,  12  Md.,  348. 

(f)    As  to  loading. 

55.  The  insured  on  freight  need  not  dis- 
close to  insurer  that  there  is  a  stipulation  in 
the  charter  party  that  the  vessel  shall  carry 
timber  under,  and  on  deck.  Adams  v.  War- 
ren Ins.  Co.,  22  Pick.,  163. 

56.  The  insured  made  a  general  order  for 
insurance  on  the  vessel.  She  took  a  cargo  of 
live  stock  for  the  vo3'age,  of  which  nothing 
was  said  to  insurers.  The  defendant  offered 
evidence  tending  to  prove  that  an  order  for  in- 
surance on  cargo  would  not  cover  live  stock, 

130 


and  prayed  the  court  to  instruct,  "  Tliat  if  the 
jury  should  find  that  according  to  mercantile 
usage  and  understanding  a  general  order  for 
insurance  on  vessel  was  not  considered  as 
comprehending  a  vessel  employed  in  trans- 
porting live  stock  or  animals,  the  insured  was 
not  entitled  to  recover."  Held,  no  error  in  re- 
jecting  the  prayer:  to  have  granted  it  would 
have  authorized  the  jury  to  find  a  fact  upon 
which  there  was  no  evidence  in  the  case. 
Evidence  that  an  order  for  cargo  would  not, 
according  to  custom,  cover  live  stock,  is 
not  evidence  that  a  general  policy  on  vessel 
was  void,  because  the  underwriters  were  not 
apprised  of  her  owner's  intention  to  employ 
her  in  the  transportation  of  live  stock.  As  a 
general  rule,  it  is  not  the  duty  of  him  who 
seeks  insurance  on  his  vessel  to  disclose  to  the 
underwriters  the  nature  or  condition  of  the 
cargo  which  he  intsiids  to  transport.  If  the 
underwriters  desire  information  on  that  sub- 
ject, it  is  their  duty  to  ask  for  it.  Chesapeake 
Ins.  Co.  V.  AUegri,  2  G.  &  J.,  164. 

57.  Oil  of  vitriol  stowed  on  deck  fore  and 
aft.  Some  were  thrown  overboard.  Held,Vin. 
necessary  to  show  that  insurers  were  told  that 
they  would  be  stowed  on  deck.  De  Costa  v. 
Edmunds,  2  Chitty,  227;  4  Camp.,  142. 

58.  The  defendants  pleaded  that  the  fact 
that  she  was  to  carry  a  deckload  and  did  carry 
it  was  not  disclosed.  Held,  not  a  conceal- 
ment of  a  material  act.  Clarkson  v.  Touny, 
22  L.  T.  (N.  S.),  41. 

(g)  Of  the  refusal  of  other  insurers  to 
accept  the  risk. 

59.  Insured  had  made  application  to  an  in- 
surance agent  at  Baltimore,  for  a  policy  upon 
his  life,  which  was  forwarded  to  Kew  York 
and  returned  to  the  agent.  The  proof  showed 
that  the  agent  informed  insured  that  his  com- 
pany had  some  rules  about  the  relative  height 
and  weight  of  persons,  and  advised  insured  to 
withdraw  the  application,  because  his  weight 
did  not  correspond  to  his  height  by  forty- 
pounds,  to  which  he  assented,  but  he  did  not 
know  and  had  no  means  of  knowing  that  the 
application  had  been  forwarded  to  New  York. 
In  answer  to  a  question  propounded  by  the 
insurers  upon  another  application  to  them,  he 
said  that  no  company  had  declined  to  insure 
his  life.  Held,  the  court  was  right  in  refusing 
to  instruct  the  jury  that  a  failure  to  disclose- 


261 


CONCEALMENT. 


2C2 


What  is  not  material —  Questions  for  the  jury  exclusively. 


the  fjicts  connected  with  the  .ipplicalion  wliicli 
was  withdrawn  defeated  the  plaintitF's  right 
to  recover,  hecause  the  proper  question  for  the 
jury  to  determine  in  respect  to  this  subject 
was  whether  .any  company  had  declined  to 
insure  the  life  of  the  insured.  Mutual  Benefit 
Life  Ins.  Co.  v.  Wise,  34  Md.,  583. 

III.  "What  is  not  material. 

1.  It  is  not  necessary  to  disclose  to  the  in- 
surer how  long  a  ship  has  been  in  port  prior 
to  making  the  insurance.  Kemble  v.  Bowne, 
1  Caincs,  75. 

2.  Insured  need  not  disclose  to  the  insurer 
the  time  that  he  immigrated,  nor  the  date  of 
his  natur.ilization.  Duguet  v.  Rkinelander,  2 
Johns.  C,  476. 

3.  The  ship  was  foreign  built,  of  whicli  the 
Insured  was  not  informed.  Held,  no  conceal- 
ment.   Long  V.  Duff,  2  B.  &  P.,  20'J. 

IV.    Questions  foe  the  jury  exclu- 
sively, 

1.  The  insured  was  the  subject  of  a  bellig- 
cient,  but  had  resided  four  years  in  the  United 
States.  Evidence  was  given  tending  to  show 
that  a  belligerent  not  named  was  interested  in 
the  cargo.  Held,  whetlier  it  was  material  to 
the  risk.to  inform  the  insurer  of  the  belliger- 
ent's interest  was  a  subject  for  the  considera- 
tion of  the  jury.  Maryland  Ins.  Co.  v.  Ruden, 
6  Cranch,  338. 

2.  No  questions  were  asked  or  propounded 
in  respect  of  the  risk;  but  it  appeared  tliat 
carpenters  were  engaged  m.aking  repairs. 
Held,  it  was  a  question  for  the  jury  to  deter- 
mine whether  there  was  any  intent  to  fraudu- 

^Jently  conceal  that  fact.  People  v.  The  Liter- 
pool,  London  &  Globe  Ins.  Co.,  2  N.  Y.  (S.  C), 
368. 

3.  Insured  did  not  disclose  the  nature  of  his 
interest,  which  was  that  of  a  mortgagee.  Tlie 
policy  was  written,  "  On  his  woolen  manufac- 
tory aud  machinery  therein."  Held,  a  ques- 
tion for  the  jury  and  not  for  the  court,  to  de- 
termine wliether  this  failure  was  material. 
Sussex  County  Inn.  Co.  v.  Woodruff,  26  N.  J., 
541. 

4.  Slie  sailed  from  Newbern,  North  Caro- 
lina, for  Curacoa  aud  Jamaica,  but  sold  lier 
cargo  at  Curacoa,  aud  put  into  Aux  Cayes, 
without  going  to  Jamaica,  where  the  plaintiffs' 


agent  shipped  on  her  a  lot  of  wine,  upon 
wliich  plainlifl's  effected  tliis  iusurance.  The 
Prencli  autliorities  had,  by  proclamaliuu, 
about  tliree  montlis  prior,  prohibited  American 
vessels  from  entering  any  port  in  the  British 
West  Indies,  and  subsequently  before  she 
sailed,  by  another  proclamation,  declared  all 
vessels  of  neutral  powers  destined  to  llio  Brit- 
ish Windward  or  Leeward  Islands,  in  posses- 
sion of  Britisli  or  emigrants,  subject  to  capture 
or  condemnation.  Held,  whether  insured  con- 
cealed from  the  insurers  notice  of  the  proclam- 
ations, or  knowledge  that  she  was  destined  for 
one  of  the  prohibited  islands,  was  a  question 
for  the  jury.    Marsh  v.  Muir,  1  Brev.,  134. 

5.  C,  one  of  the  insured  shipped,  on  the  steam- 
er Belfast,  at  tlie  port  of  New  Orleans  for  Mem- 
phis,  a  stock  of  goods,  aud  took  jiassage  in  hsr. 
Four  days  thereafter,  150  miles  below  Mem- 
phis, she  ran  aground  and  so  remained  until 
the  day  after,  when  C.  embarked  in  another 
vessel  and  arrived  at  Memphis  tlie  following 
day,  from  which  place  he  telegraphed  to  his 
firm  at  St.  Louis:  "Insure  $7,000  New  Or- 
leans to  Mempliis."  An  indorsement  was 
then  made  upon  their  open  policy  in  accord- 
ance with  the  order.  Held,  a  question  of  fact 
for  tlie  jury  to  determine  whether  the  failure 
to  disclose  the  vessel's  condition  was  material 
or  not.  Ronenheim  v.  American  Ins.  Co.,  83  Mo., 
230. 

6.  Stipulated :  "  If  any  person  shall  insure 
his  or  their  buildings  or  goods,  and  shall  cause 
tlie  same  to  be  described  in  the  policy,  oth- 
erwise than  as  they  really  are,  so  as  the  same 
be  eliarged  at  a  lower  premium  than  is  here- 
in proposed,  such  insurance  shall  be  of  no 
force."  Tlie  interest  of  insured  wjis  that  of 
material  men,  for  lumber  supplied  the  builder. 
Held,  whether  the  failure  to  disclose  the  nature 
of  their  interest  was  material  was  a  question 
for  tlie  jury.  Franklin  Fire  Ins.  Co.  v.  Coateg, 
14  Md.,  285. 

7.  Tlie  plaintiff  purchased  and  refitted  the 
confederate  steamer  Georgia.  He  effected  in- 
surance on  her  in  Liverpool,  and  wrote  to  his 
brokers  in  London  to  procure  another  polic}-. 
She  was  insured  by  the  name  of  the  Georgia, 
but  the  fact  that  she  had  been  "  The  confeder- 
ate steamer  Georgia,"  was  not  disclosed.  She 
was  captured  by  a  United  States  cruiser.  Held, 
if  tlie  underwriter  knew  the  fact,  it  was  not 
necessary  to  disclose  it.  Tlie  court  left  it  to 
tlie  jury  to  find  whether  the  insurer  had  the 

131 


263 


CONCEALMENT. 


264 


Generally. 


means  of  knowledge  in  his  possession.  Ver- 
dict for  the  defendant.  Bates  v.  UcwUt,  4  F. 
&  F.,  1033;  s.  c,  2  L.  R.  Q.  B.,  595;  15  W.  R., 
1173;  36  L.  J.  Q.  B.,  282. 

8.  Before  the  policy  was  made,  insured  re- 
ceived from  his  captain  a  letter  announcing 
the  day  he  intended  to  sail.  Held,  it  was  a 
question  for  the  jury  to  say  whether  tlie  letter 
was  material,  and  if  so,  whether  the  disclosure 
of  it  was  rendered  unnecessary  by  inforniatum 
announced  in  Lloyd's  List  nine  days  before 
the  policy  was  efiected.  Elton  v.  Larkiiu,  8 
Bins.,  198;  5  C.  &  P.,  8G  and  385;  1  M.  &  S., 
333. 

9.  The  policy  required  a  declaration  of  the 
state  of  the  health  of  the  insured,  and  it  was  to 
be  valid  if  the  statement  were  free  from  all 
reservation  and  misrepresentation.  The  de- 
claration described,  the  insured  as  resident  at 
Fisherton  Anger.  She  was  in  fact  a  prisoner 
in  the  county  jail  there.  Held,  a  question  of 
fact  for  the  jury  to  determine  whether  the  im- 
prisonment was  material.  Huguenin,  v.  Bay- 
ley,  6  Taunt.,  186. 

10.  At  and  from  Barbados  to  Liverpool.  A 
letter  was  exhibited  to  the  insurers  stating, 
"The  Cumberland  we  expect  will  have  taken 
her  departure  from  Barbados  November  26. 
The  Barton  sailed  on  the  34th,  and  arrived  at 
Liverpool,  Sunday  last,  January  5,  but  she  is 
coppered,  and  a  remarkably  fleet  vessel."  In- 
sured knew  that  another  vessel,  the  Agreeable, 
a  fast  sailing  coppered  vessel,  which  left  Bar- 
bados November  29,  had  arrived  at  Liverpool 
January  5,  but  nothing  was  said  of  that  fact. 
Held,  it  was  for  the  jury  to  say  how  far  the 
failure  to  mention  this  circumstance  was  ma- 
terial. They  found  that  it  was  not  material. 
Liltledale  v.  Dixon,  4  B.  &  P.,  151. 

1 1.  B.  Co.  delivered  to  M.  Co.  tlieir  applica- 
tiou  for  reinsurance  upon  the  life  of  a  person 
insured  by  B.  Co.  All  the  questions  touching 
his  health,  past  and  present,  ^v  ere  unanswered, 
but  reference  as  to  them  was  made  to  the 
original  application  delivered  by  the  person 
insured  to  the  B.  Co..  copies  of  which  were 
annexed  to  the  application  made  by  B.  Co. 
The  policy  delivered  by  the  M.  Co.  recited: 
"  That  it  should  be  void  if  the  declaration  made 
by  the  insured  was  untrue."  The  hcaltli  of 
tlie  person  insured  had  materially  changed  for 
the  worse,  but  this  was  unknown  to  the  B.  Co. 
wlien  the  application  for  reinsurance  was 
made.    Held,  the  verdict  should  be  for  the  de- 

133 


fendauts  if  the  jury  believed  that  the  intention 
of  the  parties  was  that  the  person  insured  was 
in  good  hcaltli  at  tlie  time  the  reinsurance  was 
made ;  and,  that  it  should  be  for  the  plaintiff 
if  the  parties  intended  that  he  was  in  good 
health  at  the  time  the  original  policy  was 
made.  Foster  «.  Mentor  Life  Ass.  Co.,  3  El.  & 
BI.,  48;  23  L.J.  Q.  B.,  145. 

1 2.  The  day  before  the  policy  was  made,  au 
application  was  presented  to  another  com- 
pany for  insurance  upon  this  vessel,  which  was 
declined  because  she  appeared  overdue  by 
Lloyd's  List.  She  was  announced  as  lost  in 
the  Morning  Chronicle  of  the  14th.  This  ap- 
plication  being  made  at  Dundee  on  the  same 
day:  Held,  a  question  of  fact  whetlier  failing 
to  disclose  matter  contained  in  Lloyd's  List 
was  material.  Symers  v.  Qlasgow  Ins.  Co.,  19 
Scot.  Jur.,  49. 

13.  Plaiutifi  stated  in  his  application  that 
the  building  was  owned  by  himself  and  P., 
and  used  by  them  as  a  mill.  It  was  in  pos- 
session of  a  tenant  under  a  lease  for  five  years, 
and  mortgaged  for  its  full  value.  A  line  of 
railway  had  been  laid  out  through  the  land, 
for  which  plaintiff  had  claimed  damages,  al- 
leging that  it  rendered  the  mill  of  no  value. 
None  of  these  facts  were  disclosed  to  insurers. 
Held,  a  question  for  the  jury  whether  the  non- 
disclosure  was  material,  there  being  nothing 
in  the  policy  requiring  such  matters  to  be  dis- 
closed. Perkins  v.  Equitable  Ins.  Co.,  4  AUeu 
(N.  B.),  562. 

V.  Generally. 

1.  The  agent  of  the  carrier  had  notice  of 
the  loss  at  Cincinnati,  August  2d.  This  insur- 
ance was  made  by  the  consignee  in  New  York 
on  the  8th.  Held,  notice  of  the  loss  to  the 
agent  of  the  carrier  was  not  notice  to  the  iif- 
sured.  Clement  v.  Phcenix  Ins.  Co.,  6  Blatch., 
481. 

2.  If  there  is  no  warranty,  but  a  suppression 
of  facts  is  relied  upon  to  defeat  the  action, 
that  which  is  suppressed  must  have  been  ma- 
terial to  the  risk,  and  the  question  of  its  ma- 
ttriality  sliould  be  left  to  the  jury.  Gates  v. 
Madison  County  Mat.  Ins.  Co.,  2  N.  T.,  43. 

3.  Everything  material  to  the  risk  must  be 
disclosed,  and  any  failure  in  that  respect, 
though  it  were  the  result  of  a  mistake,  avoids 
the  policy.  Bowery  Ins.  Co.  v.  New  York  Fire 
Ins.  Co.,  17  Wend.,  359 ;  Walden  v.  Louisiana 
lus.  Co.,  12  La.  ^O.  S.),  134. 


2C5 


CONDEMNED  FOR  BEING  UNSOUND  OR  ROTTEN. 


266 


Survey. 


4.  Tlie  doctrine  of  concealment  is  not  ap- 
jilieil  to  (ire  insuriince  to  the  same  extent  that 
it  is  to  marine.  The  insure.d  in  a  fire  policy 
is  not  bound  to  communicate  every  fact  mate- 
rial to  the  risk.  He  must  not  misrepresent  or 
designedly  conceal  any  material  fact;  he 
must  answer  in  good  faith  all  questions;  and, 
unless  the  fact  not  communicated  could  not, 
with  reasonable  diligence,  be  discovered  by 
the  insurer,  or  anticipated  as  a  foundation  for 
a  specific  inquiry,  it  is  not  a  concealment. 
Hartford  Protection  Ins.  Co.  v.  Harmer,  2  Ohio 
St.,  452. 

5.  Whether  a  fact  concealed  was  material, 
is  to  be  ascertained  by  determining  whether  a 
knowledge  of  it  would  have  enhanced  the  pre- 
mium.   Boggs  v.  Atnerican,  Ins.  Co.,  30  Mo.,  63. 

6.  The  insured  must  communicate  to  the 
insurer  every  fact  calculated  to  influence  in- 
surer in  fixing  the  value  of  the  subject  in- 
sured. Protection  Ins.  Co.  v.  Hall,  15  B.  Mon., 
411. 

7.  Neither  the  owner  nor  lessee  of  premises 
insured  is  bound  to  disclose  the  names  or  pur- 
suits of  the  tenants  or  subtenants,  nor  is  the 
insured  on  goods  bound  to  disclose  the  man- 
ner in  which  the  building  is  occupied,  unless 
required  so  to  do.  Lyon  r>.  Commercial  Ins. 
Co.,  2  Rob.  (La.),  266. 

8.  Rumors  and  reports  which  have  gath- 
ered, no  one  knows  how,  need  not  be  com- 
municated to  the  insurer;  but  intelligence, 
properly  so  called,  as  understood  by  mercan- 
tile  men,  ought  to  be  disclosed  when  known. 
Durrell  v.  Bederly,  Holt  (N.  P.),  283. 

9.  It  was  held  iu  this  case,  that  the  person 
whose  life  was  insured  for  the  benefit  of  an- 
other must  trulj'  answer  all  questions  put  to 
him;  if  he  answered  any  of  them  falsely,  the 
policy  was  vitiated,  or  not  being  distinctly  in- 
terrogated as  to  his  habits,  he  studiously  con- 
ceals them  from  the  insurer,  the  policy  would 
"be  void.  Rawlins  v.  Desborough,  2  M.ifc  Rob., 
328;  s.  c,  8  C.  &  P.,  331. 

10.  Plea:  the  policy  was  effected  by  means 
of  false  and  fraudulent  suppression  of  certain 
facts.  The  jury  negatived  the  fraud.  Neither 
insured  nor  the  person  who  procured  the  pol- 
icy knew  of  the  existence  of  the  facts.  Held, 
the  issue  was  properly  found  for  the  plaiutifl^, 
because  unless  the  information  not  disclosed 
was  within  the  knowledge  of  insured,  it  was 
not  fraudulently  suppressed.  Greenwell  v. 
Nicholson,  1  Jur.,  285. 


CONDEMNED  FOR   BEING   UNSOUND 
OR  ROTTEN. 

(See  Seawoktbinbsb.) 

I.  Survey. 

(a)  When  conclusive. 

(b)  not  conclusive. 

I.   Survey. 

(a)   When  conclusive. 

1.  Stipulated:  "If  the  above  vessel  upon  a 
survey  shall  be  declared  unseaworthy  by  reas- 
on of  her  being  unsound  or  rotten  or  incapa- 
ble of  prosecuting  her  voyage  on  account  of 
her  being  unsound  or  rotten,  then  insurers 
shall  not  be  bound  to  pay  their  subscription 
on  this  policy."  The  special  verdict  found 
she  was  condemned  because  the  surveyors 
found  her  as  in  the  sentence  stated,  viz:  in  a 
very  leaky  state  and  in  a  very  decayed  condi- 
tion, and  that  she  was  altogether  unworthy  of 
being  repaired,  and  ought  to  be  condemned, 
because  she  was  unsafe  and  unfit  ever  to  go  to 
sea  again.  Held,  the  parties,  by  their  contract, 
made  their  rights  to  depend  on  the  fact  of  the 
survey  r.ather  than  the  truth  of  it;  any  irregu- 
larity  found  in  it  was  attributable  to  the  agents 
of  the  insured,  for  the  surveyors  were  volun- 
tarily selected  by  the  master,  and  therefore  it 
must  be  regarded  as  a  regular  survey,-  and 
sufficient  to  discharge  the  insurers.  Dorr  v. 
Pacific  Ins.  Co.,  7  Wheat.,  581 ;  Janney  v.  Co- 
himbian  Ins.  Co.,  10  id.,  411. 

2.  A  survey  made  in  a  port  of  necessity  by 
ship  masters  appointed  by  the  U.  S.  consul 
with  the  consent  of  the  master,  will  be  deemed 
a  regular  survey.  In?ies  v.  Alliance  Mut.  Ins. 
Co.,  1  Sand.,  310. 

'i.  Stipulated  :  "  If  the  vessel  upon  a  regu- 
lar survey  shall  be  declared  unseaworth}',  by 
reason  of  her  being  declared  unsound  or  rot- 
ten, then  the  insurers  shall  not  be  liable." 
The  defendants  pleaded  that  a  survey  was 
held  at  the  port  of  necessity;  that  the  survey- 
ors  declared  that  she  was  so  rotten  and  un- 
sound  as  to  render  her  unseaworthy  and  in- 
capable of  performing  the  voyage.  Ildd,  a 
good  plea.  Rogers  v.  Niagara  Ins.  Co,  3 
Hall  N.  Y.,  80. 
4.  Stipulated:  "  If  the  vessel,  after  a  regular 


267 


CONDEMNED  FOR  BEING  UNSOUND  OR  ROTTEN. 


26S 


Survey. 


survey,  shall  be  couderaneU  for  being  unsound 
or  rotten,  insurers  shall  not  be  bound."  Sur- 
veyors reported  "  Her  stern,  apron,  bends,  and 
the  most  part  of  her  timbers  decayed,  also  a 
considerable  part  of  her  planks,  from  which 
circumstances,  in  our  opinion,  to  make  her  a 
good,  strong,  staunch  and  seaworthy  vessel,  it 
■would  cost  a  great  deal  more  than  she  would 
be  worth  when  finished."  Held,  the  insurers 
were  not  liable.  Steiiimetz  v.  United  States 
Ins.  Go.,  2  B.  &  R.,  293. 

(b)    When  not  conclusive. 

5.  Stipulated:  "  If  the  above  vessel,  after  a 
regular  survey,  shall  be  condemned  for  being 
unsound  or  rotten,  the  underwriters  shall  not 
be  bound  to  pay  their  subscription  on  this 
policy."  Plea;  "That  a  regular  survey  was 
held,  and  she  was  condemned  for  being  un- 
sound to  that  degree  as  not  to  be  worthy  to  be 
repaired  and  rendered  fit  and  able  to  perform 
the  voyage."  James  Hunter  and  Paul  Proby 
certified;  "  We  find,  on  a  minute  examination 
of  the  hull,  that  without  going  into  an  exten- 
sive repair,  the  intended  voyage  cannot  be 
prosecuted,  and  considering  the  heavy  expense 
that  must  necessarily  attend  such  a  measure, 
and  which,  in  our  opinion,  would  exceed  the 
value  of  the  vessel  when  completed,  we  are 
clearly  of  opinion  th.at  the  vessel  and  her  ma- 
terials in  their  present  state  shculd  be  imme. 
diatelj'  sold  on  account  of  those  concerned." 
Held,  the  report  of  the  surveyors  was  not  con- 
clusive evidence  that  she  was  unsound  and  rot 
ten.    Marine  Ins.  Co.  ■».  Wilson,  3  Crauch,  187. 

6.  Stipulated:  "If  she  shall  be  condemned 
as  unsound  or  rotten,  the  underwriters  shall 
not  be  liable."  She  encountered  heavj-  weath. 
er,  in  which  she  was  very  much  strained  and 
made  a  great  deal  of  water ;  was  surveyed,  and 
the  survey  stated  that  she  was  found  unsound 
and  rotten,  and  that  in  her  shattered  and 
strained  condition,  and  for  want  of  proper 
<locks  at  the  port  of  distress,  the  repairs  would 
cost  more  than  she  was  worth;  she  was  ac- 
cordingly sold.  Held,  the  survey  was  not  evi- 
dence th'it  she  was  sold  because  she  was  rotten ; 
and  it  was  no  evidence  that  she  was  unsea- 
worthy  when  the  voyage  commenced.  Watson 
V.  Ins.  Co.  of  North  America,  2  Wash.  C.  C,  152. 

7.  "  Warranted,  if  tlie  vessel  upon  a  regular 
survey  shall  be  declared  unseaworthy,  by  rea- 
son of  her  being  unsound,  rotten,  or  incapable 

131 


of  prosecuting  her  voyage  on  account  of  her 
being  unsound  or  rotten,  the  insurers  shall  not 
be  bound."  She  made  port  Antonio,  after  ex- 
periencing violent  storms.  Three  persons 
surveyed  her  and  stated,  under  oath,  that  her 
timbers  fore  and  aft  were  rotten;  that  the 
oakum  had  worked  out  of  the  wood  ends  for- 
ward,  the  foremast  sprung,  main  cross  trees, 
main  transom,  rudder  head,  deck  knees  and 
ceiling  in  general,  were  rotten,  her  flying  jib, 
fore-sail,  top-sail,  and  all  other  sails,  with  the 
hulk,  not  sufiicient  to  proceed  on  the  intended 
voyage;  that  she  was  not  worthy  necessary 
repairs,  and  ought  to  be  sold  for  the  benefit  of 
all  concerned.  Held,  the  condemnation  did 
not  proceed  on  the  single  ground  that  she  was 
unsound  and  rotten ;  that  it  was  connected 
with  the  defects  and  circumstances,  and  was 
therefore  not  conclusive;  and  that  proof  de 
hors  the  survey  was  admissible  for  the  pur- 
pose of  showing  that  she  was  not  condemned 
on  account  of  rottenness  and  defects  in  her 
hulk  and  timbers,  but  because  the  injuries 
she  had  received  were  such  as  to  render  it  im- 
possible to  repair  her.  Overrules  same  case,  4 
Johns.,  132.  Haff  v.  Marine  Ins.  Go.,  8  Johns., 
163. 

8.  At  and  from  Cape  St.  Francois  to  Phila- 
delphia. Stipulated:  " If,  after  a  regular  sur- 
vey, she  shall  be  coudetnned  for  being  un- 
sound or  rotten,  the  underwriters  shall  not  be 
bound  to  pay  their  subscription  on  this  poli- 
cy." She  arrived  at  Cape  St.  Francois  Octo- 
ber 12th,  and  sailed  on  the  voyage  November 
10,  1801.  On  the  next  day,  having  encountered 
no  bad  weather,  she  sprung  aleak,  put  back, 
and  arrived  on  the  15th.  The  cargo  was 
taken  out,  four  sti-eaks  were  taken  from  her 
waist,  from  stem  to  stern,  on  both  sides.  Sur- 
veyors  reported,  "  Thej' were  in  a  bad  situa- 
tion at  the  load  water  line  as  well  as  the  ribs, 
and  timbers,  which  had  been  eaten  by  rats, 
and  were  totally  unfit  to  receive  the  nails  to 
be  used  in  replacing  the  planks.'-  Anothei 
survey  was  held,  and  they  reported  that  they 
found  the  plank  and  timbers  "very  inferior; 
that  upon  finding  this,  the}-  thought  it  useless 
to  continue  ripping,  liaving  alread}^  seen  suffi. 
cieut  to  prove  that  the  brig  was  in  so  bad  a 
state  that  the  necessary  repairs  would  exceeJ 
her  value  when  repaired."  She  was  oon- 
demned  and  sold  for  account  of  all  concerned. 
Held,  unless  the  survej-  showed  that  she  was 
unsound  or  rotten,  the  plaintiff  was  not  barred 


2G9 


CONDITION  PRECEDENT. 


270 


What  satisfies  —  What  does  not  satisfy. 


by  the  stipulation.    Garrigues  «.  Coxe,  1  Biun., 
J592. 

9.  On  brig,  stipulated:  "  If,  after  a  regular 
survej',  she  sliould  he  condemned  for  being 
unsound  or  rotten,  insurer  shall  not  be 
bound,"  etc.  She  was  surveyed  at  Antigua, 
and  it  was  certified  that  her  injuries  were 
caused  by  storm  as  well  as  by  decay.  Held, 
the  survey  was  not  conclusive  evidence  that 
she  was  condemned  for  being  "unsound  or 
rotten."  Armroyd  v.  Union  Ins.  Co.,  2  Binn., 
294. 


CONDITION  PRECEDENT. 

(See  Proofs  of  Loss.) 

I.  What  is  not. 

II.  SATISFIES. 

III.  DOES  NOT  SATISFY. 

I.  What  is  not. 

On  ship,  stipulated:  "All  chain  cables  to 
■be  properly  tested,  ships  to  be  subject  to  sur- 
vey by  the  committee  or  their  inspector  at 
specified  times,  and,  in  case  of  noncompli- 
ance with  orders  to  repair,  the  parties  neg- 
lecting to  be  uninsured."  Held,  testing  the 
chain  cable  was  not  a  condition  precedent, 
but  was  only  a  direction  to  the  committee. 
Harrison  v.  Douglas,  3  A.  &  E.,  39G;  6  N.  & 
M.,  180. 

II.  "What  satisfies. 

1 .  Policy  to  a  mortgagee  stipulated :  "  To 
be  paid  whenever,  and  as  so(m  as  his  lien  upon 
said  property,  by  virtue  of  said  mortgage,  is 
<'stablished  by  decree  of  court,  or  otherwise. 
Held,  it  w.as  sufficient  for  him  to  establish  a 
lien  upon  a  portion  of  the  mortgaged  proper- 
ty equal  in  value  to  the  whole  amount  insured. 
Harris  v.  Oaspee  Fire  and  Marine  Ins.  Co.,  9 
R.  I.,  207. 

'£.  The  policy  stipulated  that  in  case  the  in- 
sured is  mortgagee,  he  or  they  shall  assign  to 
the  company  the  mortgage  upon  the  premises 
insured,  together  with  the  debt  secured  there- 


by, or  so  much  thereof  as  will  be  sudicient  to 
I)ay  said  loss,  and  a  refusal  to  execute  such 
an  assignment  shall  operate  to  discharge  this 
company  from  all  liability  under  this  con- 
tract. Held,  an  assignment  made  and  deliver- 
ed, to  which  no  objection  was  made,  satisfied 
the  condition.  New  England  Fire  and  Marine 
Ins.  Co.  V.  Wctmore,  32  111.,  221. 

3.  According  to  the  usages  of  the  trade,  a 
license  to  land  the  cargo  was  to  be  ])rocured 
by  the  shipper  before  she  reached  her  port  of 
destination ;  but  she  never  reached  the  port  of 
destination.  Held,  procuring  the  license  was 
not  necessary  to  enable  the  insured  to  recover. 
McFee  v.  South  Carolina  Ins.  Co.,  2  McCord, 
503. 

III.  "What  does  not  satisfy. 

1.  Stipulated :  "  In  case  of  loss,  payment  to 
be  made  in  thirty  days  after  notice  and  proof 
thereof."  There  was  not  any  evidence  tending 
to  show  a  compliauce  with  this  condition. 
Held,  no  recovery  could  be  had.  Washing/on, 
Mut.  Ins.  Co.  V.  Herckenrath,  3  Rob.  (N.  Y.), 
325. 

2.  Stipulated:  "In  case  of  capture,  insured 
shall  claim  and  prosecute  as  Spanish  prop- 
erty until  condemnation  or  acquittal,  and  in- 
surers will  contribute  to  expenses  consequent." 
She  was  captured  and  condemned,  but  insured 
failed  to  prosecute  an  appeal  from  the  decree. 
Held,  the  insured  could  not  recover.  Thatcher 
V.  Bellows.  13  Mass.,  111. 

3.  On  ship  and  cargo,  stipulated:  "In  case 
of  capture  the  insured  agrees  to  claim  and 
prosecute  for  the  property  as  Spanish,  until 
acquittal  or  condemnation,  before  a  high  court 
of  admiralty."  She  was  captured,  but  no 
claim  or  prosecution  was  made,  on  the  ground 
that  to  do  so  was  immoral  and  illegal,  as  tend- 
ing to  produce  perjury  and  subornation  of 
perjury.  Held,  if  any  part  of  the  contract 
was  illegal  the  whole  was,  and  the  insurer  was 
discharged.     Coolidge  v.  Blake,  15  Mass.,  429. 

4.  A  condition  of  the  policy  required  in- 
sured to  procure  from  a  notary  public,  magis- 
trate, or  clergyman  most  contiguous  to  the 
fire,  a  certificate  setting  forth  the  character  of 
the  insured  and  the  amount  of  the  loss.  The 
t%vo  magistrates  nearest  the  tire  refused  to  give 
the  certificate,  but  the  next  nearest  gave  it. 
Held,  the  contlitiou  was  not  satisfied.    Lead- 

135 


271 


COSIDERATION. 


272 


What  is  sufficient  —  What  is  not  sufficient. 


letter  v.  u^tna  Ins.  Co.,  13  Me.,  265 ;  Roumage 
<o.  Mechanics  Fire  Ins.  Co.,  13  N.  J.,  110. 

5.  Stipulated :  "  If  alterations  shall  be  made, 
insured  must  apply  to  an  ofBcer  of  the  com- 
pany who  shall  examine  the  premises,  and  if 
the  hazard  shall  be  increased  the  premium 
shall  be  increased.  But  if  the  hazard  be  not 
increased  the  ofBcers  shall  certify,  'Altered, 
but  not  endangered.'  "  Held,  insured  could 
not  prove  that  an  alteration  had  not  increased 
the  risk,  without  showing  the  examination  and 
certificate.  Dielil  v.  Adams  Co.  Mut.  Ins.  Co., 
58  Penn.  St.,  443. 

6.  The  policy  required  insured  to  make 
preliminary  proof  as  to  whether  any  and  what 
other  insurance  had  been  made  by  insured 
upon  the  same  property.  Insured  failed  to 
make  such  proof  prior  to  commencement  of 
the  action.  Held,  he  could  not  recover.  Bat- 
taile  V.  Mercliants  Ins.  Co.,  3  Rob.  (La.),  384. 

7.  Stipulated:  "  No  abandonment  shall  take 
place,  in  Case  of  capture  or  detention  by  the 
British,  until  condemned,  and  the  proceedings 
of  the  court  and  sentence  of  condemnation 
produced.  And  in  case  of  capture  or  deten- 
tion by  any  other  power,  the  like  documents 
shall  be  produced,  unless  satisfactory  reasons 
can  be  given  that  they  cannot  be  obtained." 
Held,  an  abandonment  for  capture  by  the 
British  or  any  other  power,  could  not  be  made 
until  condemnation.  De  Peau  Xi.  Russell,  1 
Brev.,441. 

8.  Stipulated:  "The  crew  shall  not  be  less 
than  six  hands  and  a  pilot;  the  master  and 
crew  so  soon  as  practicable,  after  any  disaster, 
shall  repair  to  the  nearest  convenient  magis- 
trate or  notary,  and  there  make  a  protest,  set- 
ting forth  the  cause  of  the  disaster  as  near  as 
practicable,  and  the  extent  of  the  damage." 
Held,  a  binding  condition  upon  insured,  and 
must  be  performed  to  entitle  him  to  recover 
(citing  3  Kent's  Com.,  6th  ed.,  376).  Peoria 
Marine  and  Fire  Ins.  Co.  v.  Walser,  23  Ind., 
73. 

9.  Conditioned  that  insured  should  procure 
from  the  minister  and  church  wardens  a  certi- 
ficate of  the  loss,  and  the  character  of  the  in- 
sured. Held,  valid,  and  is  precedent  to  any 
right  of  action.  Routledge  i>.  Burrell,  1  H. 
Black,  254;  Worsley  v.  Wood,  6  Terra,  710; 
8.  c,  2  H.  Black,  574. 

10.  Conditioned  that  insured  should  pro- 
cure from  the  nearest  magistrate  a  certificate 
of  his  loss.    Held,  valid,  and  is  precedent  to 

136 


any  right  of  action. 
15  Martin  (La.),  223. 


Cornell  v.  Hope  Int.  Co^ 


CONSIDERATION, 

I.  What  is  sdfficient. 

II.  NOT  SUFFICIENT 

III.  Failttre  op. 

IV.  When  the  want  of,  cannot  be  urgeix 
V.  When  a  consideration  is  not  needeix 

I.  "What  is  sufficient. 

1.  The  compromise  of  a  doubtful  claim  or 
defense  is  a  sufficient  consideration  for  a 
promise.    Barlow  v.  Ocean  Ins.  Co.,  4  Met.,  270. 

2.  G.  applied  for  insurance  upon  cargo  for 
himself  and  others  without  stating  whom.  G. 
procured  S.  to  execute  with  him  a  promissory 
note  for  the  premium.  S.  had  no  interest  in 
the  cargo.  G.  and  two  others  were  the  ownera 
of  it.  Held,  G.  was  the  agent  of  the  other  own- 
ers  in  eflecting  the  insurance;  that  insurers 
elected  whom  thej'  would  have  for  their  debtor, 
and  having  elected,  they  must  recover  upon  the 
note  or  not  at  all.  Patapsco  Ins.  Co.  c.  Smith, 
6  H.  &  .1.,  166. 

3.  The  consideration  for  the  premium  note 
was  the  making  and  delivering  to  the  defend- 
ant of  a  policy  of  insurance,  which  by  its 
terms  insurers  had  the  right  at  any  time  to 
cancel  by  giving  proper  notice  of  their  inten- 
tion so  to  do.  Held,  a  good  consideration, 
notwithstanding  the  parties  agreed  thai  the 
policy  might  be  rescinded  at  an)'  time.  Na- 
tional Ins.  Co.  V.  Irwin,  1  Disney,  430;  Incin 
V.  National  Ins.  Co.,  2  id.,  68 

II.  "What  is  not  sufficient. 

1.  A.  insured  his  property  and  gave  a  note 
signed  in  the  name  of  his  firm  for  the  premi- 
um. Held,  the  firm  was  not  bound.  Lima 
Bock  Fire  and  JIarine  Ins.  Co.  v.  Treat,  58  Me., 
415. 

2.  Action  upon  premium  notes.  The  prop- 
erty mentioned  in  the  policy  for  which  they 
were  given  had  been  alienated,  and  the  secre- 
tary made  an  indorsement  that  it  should  cover 
other  property.  It  was  provided  in  the  charter 
that  an  alienation  of  property  should  render 


273 


CONSIGNOR  AND  CONSIGNEE; 


274 


Rights  and  duties  of. 


the  policy  Toitl  unless  the  directors'  consent 
should  he  obtained,  certified  by  the  secretary, 
pep.nitting  an  assignment  to  the  alienee.  Held, 
tlie  secretary  had  no  autliority  to  make  any 
contract  of  insurance  other  than  in  the  man- 
ner prescribed  in  the  charter  and  by-laws,  and 
this  indorsement  was  utterly  void,  that  the 
premium  note  was  without  consideration  and 
void.  Mound  City  Ins.  Co.  v.  Curran,  42  Mo., 
374. 

3.  Defendant  gave  his  promissory  note  as 
the  consideration  for  a  pol  icy.  The  charter,  a 
part  of  the  contract,  provided  that  any  sale  of 
the  property  insured  should  render  the  policy 
void.  Insured  sold  the  property.  Held,  the 
policy  was  void,  and  no  recovery  could  be 
liad  upon  the  note.  Miner  v.  Judson,  2  Hun. 
(N.  Y.),  441;  s.  C,  2  Lans.,300;  5  N.  Y.  S.  C, 
46. 

4.  The  company  issued  the  policy  a  month 
and  a  half  before  it  was  authorized  to  com- 
mence business,  and  received  the  premium 
note  as  the  consideration  therefor.  Held,  the 
policy  was  issued  without  authority,  and  there 
was  no  consideration  for  the  uote.  WHlianis 
V.  Babcock,  25  Barb.,  109. 

6.  The  defendant  produced  a  paper  as  fol- 
lows: "In  consideration  of  the  payment  by 
the  Hartford  Ins.  Co.  of  $1,000,  I  hereby  waive 
all  claims  I  may  have  against  the  Western 
Mass.  Ins.  Co.,  under  any  policies  issued  pre- 
vious to  July  9,  1860.  Owen  Duffet."  The 
agent  of  the  Western  Mass.  was  also  agent  of 
the  Hartford  Ins.  Co.,  in  which  insured  had  a 
policy  for  the  same  amount  that  he  claimed 
against  the  Western  Mass.  Ins.  Co.,  $1,000, 
upon  one  and  the  same  stock  of  goods.  Held, 
if  he  had  a  claim  upon  the  Hartford  Co.,  the 
payment  of  it  was  no  legal  consideration  for 
a  release  of  the  claim  against  the  Western 
Mass. ;  that  the  jury,  upon  the  facts  proven, 
■were  the  judges  whether  there  was  a  want  of 
consideration  for  the  release.  Weatern  Mass. 
Int.  Co.  V.  Duffey,  3  Kan.,  347. 

6.  The  plaintiff  charged  that  defendant  had 
promised  and  agreed  to  deliver  up  a  bottomry 
bond,  on  plaintiff's  making  up  the  difference 
between  the  sum  recovered  by  the  lender,  of 
his  insurer  on  the  ship,  and  the  amount  named 
in  the  bond.  Held,  nudum  pactum,  a  mere  vol- 
untary offer  on  condition  that  the  money 
should  be  then  paid,  which  was  not  complied 
with.  Harman  v.  Vanhation,  2  Vern.,  2d 
part,  717. 


III.  Failure  of. 

The  receiver  of  an  insolvent  insurance 
company  brought  suit  upon  a  note  payable  in 
annual  instalments  of  four  dollars  and  twenty 
cents  each.  The  company  was  authorized  to 
insure  on  the  mutual  plan,  taking  a  note  for 
the  premium,  or,  on  the  stock  plan,  by  taking 
the  premium  in  cash.  Held,  the  considera- 
tion failed  when  the  company  became  in- 
solvent. Farmers  and  Merchants  Ins.  Co.  v. 
Smith,  63  111.,  187. 

IV.  When  want  of,  cannot  be  urged. 

The  defend.int  made  a  promissory  note  to- 
the  Commercial  Mutual  Marine  Ins.  Co.,  who- 
indorsed  it,  "  Com'l  Mut.  Mar.  Ins.  Co.,  by 
Geo.  H.  Folger,  President."  It  was  negotiated 
to  the  plaintiffs  to  secure  the  note  of  another 
person,  given  in  payment  of  bank  stock,  trans- 
ferred to  the  insurance  company.  The  maker 
insisted  that  soon  after  the  note  was  given,  the- 
company  was  found  insolvent;  that  he  sur- 
rendered his  policy  and  demanded  a  return  of 
the  note.  Held,  no  defense  to  the  action  if  the 
plaintiffs  were  ignorant  of  the  insolvency  of 
the  company.    Brown  v.  Donnell,  49  Me.,  421. 

V.  When  a  consideration   is  not 

needed. 

Declaration  charged  the  defendant,  an  in- 
surance  broker,  with  misfeasance;  but  there 
was  not  any  averment  of  a  consideration  for 
the  broker's  undertaking.  Held,  if  one  under- 
take to  do  an  act  gratuitouslj',  he  is  liable  for 
misfeasance;  hence  a  consideration  need  not 
be  averred.  Johnston  v.  Graham,  14  U.  C.  C 
P.,  9. 


CONSIGNOR  AND  CONSIGNEE. 

Eights  and  duties  of. 

1.  If  one  merchant  is  in  the  habit  of  effect- 
ing insurances  for  his  correspondent,  and  neg- 
lects when  directed  to  do  so,  he  becomes  the 
insurer  and  is  entitled  to  the  premium.  Morr» 
V.  Summerl,  2  Wasn.  C.  C,  203. 

137 


Si75 


CONSIGNOR  AND  CONSIGNEE. 


276 


Rights  and  duties  of. 


2.  The  jjlaintififs  admitted  that  it  was  tlieir 
<luty  to  obtain  insurance  on  the  cargo  of  the 
defendant  according  to  instructions.  Held,  if 
tlie  cargo  liad  been  lost,  the}-  would  have  been 
liable  to  the  defendant  in  damages  to  the 
amount  which  they  should  liave  effected;  but 
their  failure  to  insure  gave  not  to  them  any 
right  to  the  premium,  for  the  reason  that  no 
contract  of  insurance  had  been  made.  Storer 
■V.  Eaton,  50  Me.,  219. 

3.  Consignors  ordered  consignee  to  insure, 
and  insurance  was  made  in  the  name  of  con- 
signee. Held,  if  consignee  accepts  a  consign- 
ment with  instructions  to  insure  for  consignor, 
it  is  his  duty  to  do  so;  and  if  he  ueglects,  and 
a  loss  occurs,  he  is  liable  to  his  consignor  for 
the  value.  The  consignee  had  the  right  to 
insure  to  the  full  value  of  the  property  con- 
signed, and  the  policy  will  inure  to  the  bene- 
fit of  his  principal ;  the  cousignce  being  treated 
as  a  trustee,  may  recover  the  full  amount  in- 
sured.   Shaw  V.  ^tna  Ins.  Co.,  49  Mo.,  578. 

4.  A  factor  for  hire  is  not  obliged  to  effect 
insurance  on  the  property  consigned  to  him. 
Schafier  v.  Kirk,  40  111.,  251. 

5.  To  recover  against  a  consignee  who  has 
failed  to  insure  goods  in  his  possession,  the 
evidence  upon  which  the  duty  is  founded 
must  be  most  conclusive.  Tonge  d.  Kennett, 
10  La.  An.,  800. 

6.  An  agent  who  has  been  intrusted  to  in- 
sure goods  cannot  take  the  tisk  himself  and 
recover  from  his  principal  the  premium  for 
insurance,  notwithstanding  his  failure  to  obey 
the  instructions  of  his  principal  would  render 
liim  liable  for  the  loss.  Ream  v.  Branden'.  12 
La.  An.,  20. 

7.  The  factors  of  the  plaintiff  effected  in- 
surance on  their  stock  of  tobacco  at  the  rate 
of  one-eighth  of  one  per  cent,  per  month,  and 
cluirged  their  principal  at  the  rate  of  one- 
fourth  per  mouth.  Held,  the  factors  were  in- 
surers of  their  principal,  and  the  policies  by 
them  obtained  were  to  be  treated  as  reinsur- 
ance for  their  own  benefit.  Miller  v.  Tate,  12 
La.  An.,  160. 

8.  The  defendant,  a  merchant  of  Arkansas, 
ordered  goods  of  the  plaintiff,  a  merchant  of 
St.  Louis.  They  were  shipped  upon  a  steam- 
boat and  the  usual  advices  and  bill  of  lading 
were  sent.    The  goods  were  lost  in  the  Missis- 


sippi, before  they  reached  their  destination. 
The  plaintiff'  was  not  specially  ordered  to  in- 
sure. The  defendant  had,  on  twelve  prior  oc- 
casions, ordered  goods  from  the  plaintiff', 
whicli  had  been  sent  to  him  by  steamboat;  he 
had  never  ordered  them  insured,  and  plaint- 
iff liad  never  charged  him  anything  for 
insuring  them.  It  was  not  the  custom  in 
St.  Louis  for  merchants  to  insure  goods  so 
ordered.  One  witness  testified  that  Ue  had 
purchased  plant.ation  supplies  in  St.  Louis, 
gave  no  instructions  to  insure;  that  he  was 
charged  with  insurance,  and  he  believed  it 
was  the  custom  in  New  Orleans  and  Louis- 
ville and  other  western  cities,  to  charge  the 
premium  for  insurance  without  an}*  order  to 
insure.  Another  witness  testified  that  most 
of  the  shipments  made  to  the  defendant  by 
merchants  in  cities  other  than  St.  Louis  were 
insured  by  the  shippers.  Held,  an  instruction 
based  upon  the  evidence  given  in  relation  to 
the  custom  to  insure  at  places  other  than  St, 
Louis  was  erroneous,  and  though  there  was  a 
general  custom  to  insure,  the  dealings  be- 
tween the  parties  must  control  their  rights. 
Walsh  V.  Frank,  19  Ark.,  270. 

9.  If  the  consignee  accept  a  consignment, 
accompanied  by  instructions  to  insure,  and 
he  fails  to  insure,  he  is  liable  for  the  loss,  be- 
cause he  cannot  accept  as  to  a  part  and  reject 
as  to  the  rest.  Smith  v.  Lascelles,  2  Term,  187 ; 
Wallace  v.  Telfair,  id.,  188  n. 

10.  A.  was  indebted  to  B.,  £850.  A.  re- 
sided abroad  and  B.  in  London.  A.  pledged 
his  interest  in  certain  goods  and  freight  to  B., 
as  security  for  the  debt,  and  directed  B.  to 
procure  insurance  on  them  and  freight,  in- 
closing the  bills  of  lading  to  B.  Held,  the 
defendant  was  bound  to  make  the  insurance 
or  give  notice  of  his  dissent.  Smith  v.  Las- 
celles, 2  Term,  187. 

11.  The  consignees  made  advances  to  the 
shippers,  £150,  and  insured  the  consignment 
for  £510,  being  £27  more  than  the  invoice. 
The  goods  were  damaged  on  the  voyage.  The 
consignees  failed  to  have  the  necessary  survey 
made;  in  consequence  of  that  failure  insurers 
defended  successfully.  Held,  the  consignees 
were  liable  to  the  consignors  for  the  sura  in- 
sured,  less  the  advances.  Urquhart  v.  Austra- 
lian Co.,  5  Scot.  Jur.,  348. 


138 


CONSOLIDATION  OF  ACTIONS  —  CONSTRUCTION. 


278 


Couaolidatioa  allowed;  denied —  Answers  to  questions  in  application. 


CONSOLIDATION  OF  ACTIONS. 

(See  Action.) 

I.  Consolidation  allowed. 

II.  DENIED. 

I.  Consolidation  allowed. 

1.  Where  there  are  two  causes  against  dif- 
ferent defendants,  but  by  the  same  plaintiff, 
pending  attlie  same  term,  the  court  can,  with- 
out consent  of  defendants,  order  them  to  be 
consolidated,  unless  one  of  the  defendants 
has  a  defense  ditl'erent  from  the  other  or  evi- 
dence that  the  other  has  not.  Wilkerlee  v. 
Ocean  Ins.  Co.,  34  Pick.,  G7. 

2.  Four  companies  contracted  under  one 
policy,  which  stipulated  that  each  acted  for 
itself,  and  tliut  each  would  be  liable  for  one- 
fourth  the  whole  amount  insured.  Four  sep- 
arate actions  were  commenced  upon  the  con- 
tract, and  they  were  consolidated,  which  was 
affirmed  by  a  divided  court.  Viele  v.  Oer- 
mania  Ins.  Co.,  26  Iowa,  9. 

3.  Forty-eighl  actions  by  the  same  plaintiff, 
on  the  same  policy  of  insurance,  for  the  same 
loss,  were  consolidated.  HoUingsworth  «. 
Brodrick,  4  A.  &  E.,  046;  6  N.  .&  M.,  240. 

4.  Thirtj'-eight  causes  by  one  iiiaintilf, 
against  diflferent  underwriters.  There  had 
been  a  consolidation  rule  to  abide  the  determi- 
nation of  the  court  in  Reed  v.  Bouhara,  6  Moore, 
397,  where  the  question  was  whetlier  notice  of 
abandonment  had  been  given  in  due  time. 
This  application  was  made  to  upen  the  rule, 
upon  affidavit  that  the  plaintiff  had  received 
three  letters  from  the  master  relating  to  the 
sale  and  condition  of  the  ship  previous  to  his 
arrival  in  Loudon.  Held,  the  rule  must  not 
be  opened.    Read  v.  Isaacs,  6  Moore,  437. 

II.  Consolidation  denied. 

1.  Insurers  and  insured  stipulated  that  all 
actions  against  all  the  insurers  should  be  de- 
termined by  the  decision  which  might  be 
made  in  one  of  them.  The  court  set  aside 
the  stipulation,  on  the  ground  that  it  was 
founded  in  mistake,  because  the  cases  were 
materially  different.  Alexander  v.  Mnirhead, 
2  Dessaus.  Eq.,  162. 

2.  Several  actions  were  brought  upon  the 
same  policy  against  separate  insurers.    Held, 


the  court  would  not  order  them  consolidated 
without  the  plaintilTs  consent.  Doyle  v.  An- 
derson, 1  A.  &  E.,  635;  4  N.  &  M.,  873. 

3.  Two  actions  were  brought  against  dif- 
ferent defendants  by  the  same  plaiutiff.  Ileld, 
the  court  would  not  consolidate  them  upon 
defendants'  motion  unless  the  plaintiff  would 
consent.  McGregor  v.  Ilorscfall,  3  Mee.  &  W., 
320;  7  L.  J.  (N.  S.),  Ex.,  71 ;  3  Jur.,  357. 


I. 

n. 
III. 

IV. 
V. 

VI. 

VII. 

VIII. 

IX. 

X. 

XI. 


CONSTRUCTION. 

Answers  to  questions  in  applica- 
tion. 

Boiler  clause. 

Damages. 

Lightning. 

Merchandise,  property,  cargo  and 
freight. 

Night  watchman  and  night  work. 

Use,  occupation  ok  employment. 

Voyage  or  voyages  insured. 

War  risks. 

ExPESsio  UNius  est  exclusio  alter- 

lUS. 

Generally. 


I.     Answers   to  questions  in  appli- 
cation. 

1.  Stipulated:  "The  answers  in  the  appli- 
cation shall  be  the  basis  of  the  contract,  and 
the  same  are  warranted  to  be  full,  correct  and 
true,  and  no  circumstances  are  concealed, 
withheld  or  uumentioned  in  relation  to  the 
past  or  present  state  of  health,  habits  of  life 
or  condition  of  the  said  party  whose  life  is  to 
be  insured  which  may  render  an  insurance 
on  his  life  more  than  usually  hazardous,  or 
which  may  affect  unfavorably  liis  prospectt; 
of  life;  and  if  the  forgoing  answers  and  state- 
ments be  not  in  all  respects,  full  true  and  cor- 
rect,  the  policy  shall  be  void."  Held,  there 
was  a  distinction  between  untruthful  answers 
to  specific  questions,  and  the  mere  failure  to 
make  full  answers.  To  defeat  the  policy,  the 
failure  must  relate  to  some  circumstance 
which  might  make  the  insurance  unusually 
hazardous,  or  which  might  affect  uaf;'vor- 
ably  his  prospects  of  life.  An  untruthful  or 
incorrect  answer  to  a  specific  question  reu- 

18!1 


279 


CONSTRUCTION. 


280 


Boiler  clause  —  Damages. 


derod  the  policy  absolutely  void,  though  made 
in  relation  to  a  matter  not  material  to  the 
risk.  Swick  v.  Home  Life  Ins.  Co.,  2  Dil.  C'ir. 
C,  160. 

2.  The  only  expressions  found  in  the  appli- 
cation upon  the  question  of  title  were  in  an- 
swer to  whether  the  title  was  a  'w-arranty  deed 
or  a  bond,  to  which  insured  answered,  "W.  D.," 
but  in  answer  to  another  question,  "  Is  your 
property  incumbered?  the  word  "  None,"  was 
written.  Held,  they  did  not  import  that  the 
insured  had  a  warranty  deed  or  that  her  prop- 
erty was  not  incumbered.  Rockford  Ins. 
Co.  p.  Nelson,  65  111.,  415.  And  if  the  title  was 
■warranted  to  be  by  warranty  deed,  that  was 
not  to  be  construed  as  a  title  in  fee,  for  a  war- 
ranty deed  may  pass  an  estate  for  a  term  of 
years,  or  a  life  estate,  or  no  estate  whatever; 
because  it  conveys  the  estate  of  the  grantor 
and  he  may  have  none  at  all.    Ibid. 

II.    BOILEE    CLAUSE. 

1.  The  company  was  not  to  be  liable  for 
any  breakage  or  derangement  of  the  engine  or 
any  bursting  of  the  boiler,  or  for  the  etfects  of 
lire  from  any  cause  connected  with  the  opera- 
tion of  repairs  to  engine  or  boiler,  unless  the 
damage  should  be  occasioned  and  the  repairs 
rendered  necessary  by  stranding  or  sinking  of 
the  vessel  after  her  engine  and  boiler  should 
have  been  put  in  successful  operation.  Held, 
if  the  immediate  or  proximate  cause  of  the 
loss  was  stranding,  insurer  was  liable,  not- 
withstanding the  breakage  of  the  machinery 
made  it  necessary  to  run  her  ashore,  and  she 
•was  stranded  (citing  Western  Ins.  Co.  v.  Crop- 
per, 33  Penn.  St.,  351).  Commonwealth  Ins. 
Co.  V.  Cropper,  21  Md.,  311. 

2.  On  steamfcoat  tackle,  machiner}',  etc., 
stipulated:  "Not  liable  for  any  breakage  or 
derangement  of  the  engine,  nor  bursting  of  the 
boiler;  nor  any  parts  thereof"  A  feed  cock 
bursted  and  a  bolt  was  broken  out  of  the 
stripping  box,  which  causecf  her  to  leak  and, 
to  prevent  sinking,  she  was  run  ashore  and 
lost.  Held,  insurers  were  relieved  from  lia- 
bility for  broken  or  deranged  machinery,  but 
they  were  n(>t  exempt  from  liability  for  a 
total  loss,  though  caused  by  the  breakage  of 
tlie  machinery.  Weatern  Ins.' Co.  v.  Cropper, 
33  Penn.  St.,  351. 

3.  Stipulated:  "  Not  liable  for  any  partial 
loss  or  particular  average,  unless  such  loss  or 

140 


average  shall  amount  to  ten  per  cent.,  nor  in 
case  of  partial  loss  shall  they  be  liable  for  the 
bursting  of  boilers  or  the  breaking  of  engines 
unless  occasioned  by  external  violence." 
Held,  in  ascertaining  the  amount  of  damage 
for  the  purpose  of  determining  whether  in- 
sured had  the  right  to  abandon  and  claim  for 
a  total  loss,  the  engine  and  boilers  must  be  ex- 
cluded from  the  estimate,  if  the  damage  w;u 
caused  by  the  bursting  of  a  boiler  not  pnv 
duced  by  external  violence.  Citizens  Ins.  Co. 
V.  Glasgow,  9  Mo.,  40C. 

III.    Dahaoes. 

1.  $3,000  on  certain  goods,  stipulated:  "  In 
case  of  loss,  insured  shall  not  recover  on  this 
policy  any  greater  proportion  of  the  loss  or 
damage  sustained  than  the  amount  hereby  in- 
sured shall  bear  to  the  whole  amount  insured 
on  said  property."  Insured  held  other  poli- 
cies on  the  same  property  to  the  amount  of 
$47,000,  but  they  covered  a  large  amount  of 
other  property  owned  by  the  insured.  The 
value  of  the  entire  property  destroyed  was 
$88,000.  The  value  of  the  property  covered 
by  defendant's  policy  was  $16,000.  Held,  e:icli 
parcel  should  be  deemed  insured  for  |f  of  its 
value;  that  the  parcel  covered  by  the  defend- 
ant's policy,  being  worth  $16,000,  and  it  being 
insured  only  for  $3,000,  it  was  insured  for  t^ 
of  its  value;  therefore,  there  was  nu  over  in- 
surance, .and  consequently  no  occasion  for  an 
apportionment.  Ogden  v.  East  River  Ins.  Co., 
50  N.  T.,  388. 

2.  $8,000  on  brig,  valued  at  $10,000,  for  one 
3-ear.  Stipulated:  "In  case  of  loss  or  misfor- 
tune, it  shall  be  lawful  and  necessary  for  the 
insured,  their  factors,  servants  and  assigns,  to 
sue,  labor  and  travel,  in  and  about  the  defense, 
safeguard  and  recovery  of  the  said  vessel,  or 
any  part  thereof,  without  prejudice  to  the  in- 
surance made  by  said  policy,  and  to  the 
charges  thereof  the  company  will  contribute 
according  to  the  rale  and  quantity  of  the  suui 
insured  by  said  policj*."  She  was  drivea 
ashore,  lost  her  fore  foot,  and  commenced  t> 
leak  badly.  Cargo  being  discharged,  it  was 
found  necessary  to  make  extensive  repairs. 
Her  proportion  of  the  expenses  of  unloading, 
taking  care  of  the  cargo,  and  ascertaining 
the  nature  and  extent  of  the  damage,  amounted 
to  the  sum  of  1581.16.  Partial  repairs  $8,769.74. 
Complete  repairs  at  the  port  of  destin.alioik 


t'Si 


CONSTRUCTION. 


2S2 


Damages. 


less  one-third  new  for  old,  $4,.')T4.41.  Held, 
insurors  were  liable  for  ciglit-tenths  of  the 
npairs  not  exceeding  |8,000,  and  eight-tenths 
of  the  vessel's  proportion  of  the  general  aver- 
age. Alexandre  v.  Sun  Mut.  Ins.  Co.,  51  N. 
Y.,  253. 

3.  The  contract  recited:  "The  real  property 
above  specified  is  herein  estimated  at  two- 
thirds  of  its  cash  value.  Such  estimate,  how- 
ever, is  not  to  be  conclusive  on  the  company. 
In  case  of  loss,  the  company  shall  only  be 
obliged  to  pay  as  if  they  had  only  insured 
two-thirds  of  the  cash  value  of  said  property." 
Held,  the  insurer  could  not  be  made  liable  for 
the  full  value  of  the  property,  though  it  was 
less  than  the  sura  insured.  Egan  v.  Mut. 
Jus.  Co.,  5  Denio,  326. 

4.  The  plaintiff  underwrote  certain  policies 
on  the  ship  Great  Republic,  then  lying  at  New 
York,  also  on  her  freight  and  cargo  thence  to 
Liverpool.  They  applied  to  defendant's  agent 
for  reinsurance  in  the  following  words:  "  Re- 
insurance is  wanted  by  the  M.  M.  Ins.  Co.  for 
$ ,  on  cargo  on  board  the  ship  Great  Re- 
public, at  and  from  New  York  to  Liverpool, 
ex.  50,000,  not  to  ex.  15,000.  This  policy  is  to 
be  subject  to  such  risks,  valuations  and  condi- 
tions as  are  or  may  be  taken  by  the  M.  M.  Ins. 
Co.,  and  payments  of  loss  to  be  made  at  the 
same  time."  Defendant's  agents  underwrote 
the  word  "  binding,"  and  affixed  their  signa- 
tures to  it.  Insurers  had  less  than  $50,000  at 
risk  on  the  cargo,  but  the}'  had  risks  on  ship 
and  freight,  which,  together  with  the  risks  on 
cargo  amounted  to  $05,000.  The  words  "  ex. 
50,000,  not  to  ex.  15,000"  were  admitted  to 
mean  on  the  excess  of  risks  insurers  might 
have  over  $50,000,  not  to  exceed  $15,000.  Held, 
in  determining  whether  the  defendant  was 
liable,  the  risks  taken  by  plaintiff  on  the  ship 
and  her  fcight  were  not  to  be  considered. 
Mercnntile  Mut.  Ins.  Co.  v.  State  Mutual  Fire 
and  Marine  Ins.  Co.,  25  Barb.,  319. 

5.  The  policj'  limited  the  insurance  to  three- 
fourths  of  the  value  of  the  property  msured. 
Held,  the  d.amages  must  be  limited  to  three- 
fourths  the  value.  Post  v.  Hampshire  Mut. 
Ins.  Co.,  12  Met.,  555. 

6.  The  policy  was  to  be  void  if  other  insur- 
ance was  then  upon  the  same  property.  Stip- 
ulated: "And  m  case  of  anj-  other  insurance 
upon  the  same,  whether  prior  or  subsequent, 
the  insured  shall  not,  in  case  of  loss  or  dam- 
age, be  entitled  to  recover  any  greater  propor- 


tion than  the  amount  liereby  Insured  bears  to 
the  whole  amount  insured."  At  the  time  the 
policy  was  made  there  was  other  insurance 
upon  the  same:  2,000  in  the  People's  Ins.  Co., 
of  which  notice  was  given  and  indorsed  upon 
this  defendant's  policy.  The  People's  policy 
prohibited  any  other  insurance  unless  notice 
were  given  of  it;  and  insured  did  not  give  no- 
tice  to  the  People's  Company  of  this  policy. 
Held,  the  consent  given  in  this  policy  to  other 
insurance  by  the  People's  Company  was  not  a 
warranty  that  the  People'^s  policy  should  con- 
tinue during  the  period  covered  by  defendant's 
policy;  as  there  was  no  other  valid  insurance 
upon  the  property  at  the  time  of  the  loss,  the 
defendant  was  liable  for  the  whole,  as  it  did 
not  exceed  the  sum  insured.  Forbushv.  Wes- 
tern Mass.  Ins.  Co.,  4  Gray,  337. 

7.  On  Ship.  Stipulated:  "Insurers  shall 
not  be  liable  for  any  loss  or  expense  in  replac- 
ing the  copper  now  on  the  bottom  of  said 
vessel,  or  any  part  thereof,  should  the  same  be 
removed  for  any  cause  whatever;  but  shall  be 
liable  for  the  loss  and  expense  that  may  happen 
after  she  shall  have  been  new  coppered."  Held, 
the  construction  must  be  contra  the  insurers; 
they  should  not  be  liable  for  a  new  suit  of 
copper,  although  that  on  the  vessel  at  the  com- 
mencement  of  the  risk  should  be  destroyed  by 
perils  insured  against;  but  it  was  not  to  be 
construed  into  an  agreement  that  the  vessel 
should  be  recoppered  at  the  expense  of  in- 
sured.  Prince  v.  Equitable  Safety  Ins.  Co.,  13 
Gray,  527. 

8.  Stipulated :  "  In  case  of  partial  loss  to 
drygoods,  cutlery,  or  other  hardware,  it  shall 
be  ascertained  by  a  separation  of  the  damaged 
from  the  undamaged  portion,  etc.''  Held,  it 
had  no  application  to  a  case  where  there  was 
a  loss  of  the  voyage  caused  by  sea  perils,  if 
there  were  no  means  to  tranship  the  goods  to 
the  port  of  destination.  Delaware  Ins.  Co.  v. 
Winter,  38  Penn.  St.,  176. 

9.  The  members  subscribed  a  resolution 
which  stated :  "  The  subscribers  agree,  that  to 
avoid  all  doubt  and  difficulty  in  case  a  loss 
should  occur  to  our  respective  property  by 
tire,  we  will  claim  and  receive  three-fourths 
only  of  the  amount  of  actual  loss,  provided 
that  three-fourths  of  the  amount,  as  aforesaid, 
does  not  amount  to  mcu'c  than  three-fourths  of 
the  sum  insured."  In  the  case  before  the 
court,  three-fourths  of  the  actual  loss  amounted 
to  more  than  three-fourthsof  the  sum  insured. 

141 


2S3 


CONSTRUCTION. 


2S-4 


Damafft's. 


Held,  insured  was  entitled  to  recover  tlie 
wliole  sum  insured.  Fanners  Mat.  Ins.  Co.  v. 
Gniybill,  74  Penn.  St.,  17. 

10.  Insurance  on  a  number  of  buildings, 
separate  sums  on  each,  and  a  sum  on  hay  and 
grain  therein.  Held,  insured  must  recover  for 
:he  hay  and  grain  to  the  amount  limited  upon 
it,  whether  it  was  in  one  or  all  of  the  build- 
ings,    liix  V.  Mutual  Ins.  Co.,  20  N.  H.,  198. 

11.  To  a  mortgagee  on  his  interest.  Stipu- 
lated: "Liable  only  for  two-thirds  the  actual 
value  of  the  property  insured."  Held,  the 
limitation  did  not  apply  to  the  valuation  of 
the  mortgagee's  interest,  but  to  the  actual  val- 
ue of  the  property.  Sanders  v.  Ilillsborough 
Ins.  Co.,  44  N.  H.,  238. 

12.  Insured  proposed  to  abandon  the  boat 
for  a  total  loss,  but  were  prevented,  because 
insurers  agreed  to  pay  their  proportion  of  the 
costs  of  repairs.  Held,  insurers  were  not 
bound  to  pay  the  whole  expense  of  repairs. 
Wehh  V.  Protection  Ins.  Co.,  6  Ohio,  456. 

13.  f  2,500  on  stock,  damage  to  be  estimated 
according  to  the  true  and  actual  value  of  the 
property  at  the  time  the  same  shall  happen, 
and  to  be  paid  within  ninety  days  after  n</tice 
and  proof  thereof,  made  by  insured,  at  the 
rate  of  two-thirds  the  actual  cash  value. 
There  was  another  policy  for  the  same 
amount  on  the  same  goods.  Hdd,  insurer  was 
liable  for  all  losses  not  exceeding  tlie  sum  of 
$2,500,  providing  that  was  within  two-thirds 
of  the  value  of  the  entire  stock  of  goods. 
Ashland  Mut.  Ins.  Co.  i).  Eousinger,  10  Ohio 
St.,  10. 

14.  The  b3--laws  provided  that  eacli  mem- 
ber should  pay  one  dollar  and  ten  cents  on  the 
death  of  a  member,  and  the  president  should 
draw  his  draft  on  the  treasurer  payable  in  six- 
ty days  after  receiving  notice  of  the  death,  for 
the  sum  of  one  dollar  for  each  member  in  the 
class  or  classes  to  which  the  deceased  member 
belonged,  and  that  the  treasurer  should 
promptly,  at  maturity  of  said  draft,  pay  the 
sum  specified  to  the  person  authorized  to  re- 
ceive the  same.  The  plaintiff  alleged  that 
when  her  husband  died,  there  were  3,477  mem- 
bers on  the  rolls  of  the  company.  The  de- 
fendant alleged  that  only  1,747  members  had 
responded  to  their  assessments.  Held,  the 
company's  liability  was  not  limited  to  their 
number  of  members  who  should  pay  the  as- 
sessments. Georgia  Masonic  Mutual  Life  Ins. 
Co.  d.  Whitman,  53  Ga.,  419. 

143 


1.5.  "  To  cover  and  include  all  losses,  dam- 
ag<.'s  and  accidents,  amounting  to  £20  or  up- 
wards in  each  craft,  to  goods  carried  by  J.  & 
Son,  as  lightermen,  or  delivered  to  them,  to 
be  water-borne  either  in  their  own  or  other 
craft,  for  which  J.  &  Son  may  be  responsible 
or  liable  to  the  owners  thereof,  or  others  in- 
terested." Several  underwriters  subscribed 
different  sums,  amounting  to  £2,000,  the  de- 
fendant's policy  being  £100.  Insured  had  in 
all  craft  afloat  goods  of  the  value  of  £20,000. 
An  accident  occurred  to  one  barge,  and  her 
cargo  was  damaged  £1,100,  for  which  insured 
was  lible  to  the  owners.  Held,  insurers  were 
liable  for  the  whole  loss  in  proportion  as  the 
sum  insured  bore  to  it;  the  fact  that  there  was 
a  larger  amount  at  risk  than  was  insured  was 
immaterial.  Joyce  v.  Kennard,  7  L.  R.  Q.  B., 
78;  41  L.  J.  Q.  B.,  17;  20  W.  R.,  233;  25  L.  T. 
(N.  S.),  933. 

16.  The  defendants  contracted,  "With  the 
vice  guardians,  or  the  vice  guardians  for  the 
time  being,  for  and  on  behalf  of  the  Carrick- 
ou-Shannon-Union,  that  during  the  employ- 
ment of  C.  as  collector  of  poor  rate,  the  de- 
fendants would  pay  to  the  persons  for  the  time 
being  constituting  the  vice  guardians,  all  such 
loss  not  exceeding  £500  as  the  vice  guardians^ 
and  the  persons  for  the  time  being  constitut- 
ing the  vice  guardians  might  sustain  from  any 
act  of  fraud  or  dishonesty  committed  by  C." 
The  vice  guardians  were  removed  and  the 
guardians  reinstated,  who  brought  assumpsit 
upon  the  agreement,  C.  having  made  default 
in  paying  over  the  poor  rates  collected.  Held, 
the  defendant's  liability  was  limited  to  the 
time  during  which  tlie  vice  guardians  held 
ofBce.  Guardians  of  Carrick  -  on  -  Shannon- 
Union  V.  Guarantee  Society,  2  Ir.  C.  L.  R.,  422. 

17.  $2,000  on  building,  and  $3,000  on  furni- 
ture. Stipulated :  "  In  case  of  loss,  insured 
shall  be  entitled  to  recover  only  such  proportion 
as  the  amount  insured  shall  bear  to  the  whdle 
amount  hereby  insured."  There  was  other  in- 
surance, $2,000  on  building  and  furniture. 
The  loss  was  $1,0.50  on  building,  and  $878  on 
furniture.  Held,  defendant  was  liable  for  two- 
thirds  of  the  whole  loss.  First  Congregation- 
al Church  of  Toronto  v.  Western  Ass.  Co.,  38  U. 
C.  Q.  B.,  175. 

lY.  Lightning. 
1.  A  special  clause:    "Liable  for  fire  by 


2S5 


■   CONSTRUCTION. 


2S& 


Merchandise,  property,  cargo  and  freiglit  —  Night  watchman  and  night  work. 


lightning."  The  building  was  rent  and  torn 
to  pieces  by  lightning  without  being  burned. 
Held,  insurers  were  not  liable  for  that  damage. 
Bnheork  v.  Monlgomery  County  Mut.  Ins.  Co., 
4N.y.,  326;  G  Barb.,  G37. 

2.  Against  loss  caused  by,  by  reason  of,  or 
by  means  of  fire.  Held,  it  did  not  incUule 
loss  by  lightning  unaccompanied  by  combus- 
tion, but  if  the  building  was  set  on  fire  by 
lightning,  then  it  was  within  the  policy. 
Kenniston  v.  Mer.  Mut.  Ins.  Co.,  14  N.  H., 
341. 

3.  The  by-laws  attached  to  the  policy  stipu- 
lated: "The  company  will  be  liable  for  losses 
on  property  burned  or  damaged  by  lightning." 
It  was  struck  by  lightning  and  greatly  dam- 
aged and  shattered  in  its  timbers  and  material, 
to  the  amount  of  $1,000.  Held,  the  insurer 
was  not  liable.  Andrews  v.  Union  Mutual  Fire 
Ins.  Co.,  37  Me.,  250. 

Y.    Meechandise,   peopekty,   cargo 

AND   FREIGHT. 

1.  On  cargo.  Held,  it  did  not  cover  a  sum 
of  money  paid  by  him  for  the  use  of  the  ves- 
sel during  an  embargo.  Fenny  v.  New  York 
Ins.  Co.,  3  Caines,  155. 

2.  On  cargo  from  Cagliari  to  St.  Peters- 
burgh.  She  was  bound  from  New  York  to 
Cagliari,  thence  to  St.  Petersburgli.  Held,  the 
policj-  attached  on  the  goods  that  she  took  at 
Cagliari,  but  not  on  goods  she  had  brought 
there ;  that  taking  the  latter  from  her  hold  and 
reatowing  them  was  immaterial.  Murray  s. 
Columbian  Ins.  Co.,  11  Johns  ,  302. 

3.  On  cargo  and  freight.  Held,  mules  and 
feed  laden  for  their  subsistence  during  the 
voyage  were  not  included.  Wokott  v.  Eagle 
Ins.  Co.,  4  Pick.,  429. 

4.  "  Cargo  or  freight."  Held,  it  covered 
ship  owner's  goods  in  his  own  vessel,  and  coin 
(and  the  freight  of  it)  put  on  board  by  the  ship 
owner  to  be  invested  in  merchandise.  Wol- 
cott  V.  Eagle  Ins.  Co.,  4  Pick.  429. 

5.  Cargo  of  lumber  and  other  articles 
shipped  by  a  merchant  and  consigned  to  the 
master,  he  paying  freight,  three-fifths  of 
the  lumber,  and  for  the  other  articles  a  sum 
of  money;  the  ship  owner  effected  insurance, 
"  On  property  on  board."  Held,  it  covered 
his  tliree-fifths  of  the  lumber,  but  not  the 
freight  on  tlie  other  articles.  Wiggin  v.  Mer- 
eantile  Ins.  Co.,  7  Pick.,  271. 


6.  "  On  cargo  of  a  whaling  ship."  Held,  it 
covered  oil  and  other  articles,  the  ordinary 
products  of  the  voyage.  Paddock  v.  Franklin- 
Ins.  Co.,  11  Pick.,  227. 

7.  Insurance  on  property  on  board.  Ifeldy 
that  the  term  property  included  current  bank 
bills.    Whiton  v.  Old  Colony  Ins.  Co.,  2  Met.,  1. 

8.  The  word  "  cargo  "  is  one  of  large  import 
and  means  the  lading  of  a  ship  of  whatever  it 
consists.  Macy  v.  Whaling  Ins.  Co.,  9  Met.,  354. 

9.  Insurance  on  freight  on  board,  means 
freight  of  the  vessel.  Robinson  v.  Manufactur- 
ers Iks.  Co.,  1  Met.,  143. 

10.  "  On  merchandise."  Held,  a  mast  and 
boom  in  store  for  sale,  and  a  small  railroad 
car,  were  merchandise.  Burgess  v.  Alliance  Ins. 
Co.,  10  Allen,  231. 

11.  "On  property."  Held,  it  included 
property  kept  for  use,  as  well  as  property  for 
sale.  Burgess  v.  Alliance  Ins.  Co.,  10  Allen,  221. 

12.  "On  merch.andise  generally,  and  with- 
out exception,  their  own  or  held  by  them  in 
trust  or  on  consignment."  Held,  it  included 
furniture,  wearing  apparel  and  books.  Siier 
V.  Morrs,  13  Penn.  St.,  218. 

13.  On  cargo.  Held,  it  did  not  cover  live 
stock.  An  insurance  on  live  stock  must  ba 
specific.  Allegre  v.  Maryland  Ins.  Co.,  8  G.  & 
J.,  190. 

14.  "On  goods."  Held,  it  did  not  cover 
repoudentia  interest.  Glvi-er  v.  Black,  3  Burr., 
1394;  8.  c,  1  W.  Bl.,  396,  399,  405,  422. 

YI.    Night    watchman    and    night 

WORK. 

1.  In  the  application,  this  question  was 
asked:  "During  what  hours  is  the  factory 
worked  ?  "  Answer :  "  We  run  the  cards, 
picker,  drawing  frames  and  speeder,  day  and- 
uight;  tie  rest  twelve  hours  daily.  We 
only  intend  running  nights  till  we  get  more 
cards,  which  are  making.  Sball  not  run 
nigbts  over  four  months."  Held,  an  agree- 
ment to  cease  night  work  when  the  cards 
should  be  obtained,  and  that  period  shall  nut, 
at  the  utmost,  exceed  four  months.  Bilbrough 
V.  Metropolis  Ins.  Co.,  5  Duer,  587. 

2.  The  policy  was  based  upon  a  written 
application  in  the  form  of  questions  and 
answers.  To  the  question,  whether  the  mill 
was  left  alone  at  any  time  after  the  watchman 
goes  oil' duty  in  the  morning,  it  was  answered, 
•'  Only  at  meal  times,and  on  the  Sabbath,  and; 

143 


287 


CONSTRUCTION. 


288 


Use,  occupation  or  employment. 


other  days  when  the  mill  does  not  run.  "To 
another  question,  whether  there  is  a  watch- 
man in  the  mill  during  the  night,  it  was 
answered,  "There  is  a  watchman  in  the  mill 
nights."  Held,  taking  all  the  questions  and 
answers  together,  it  was  not  intended  that 
any  portion  of  the  Sabbath  was  to  he  violated 
by  service  labor;  the  answer,  "There  is  a 
watchman  nights,"  was  not  to  be  construed  to 
mean  every  night.  Ripley  v.  Astor  Ins.  Co., 
IT  How.  Pr.,  444. 

3.  Policy  founded  upon  a  written  survey  in 
the  form  of  questions  and  answers,  among 
which  were  the  following:  "  Is  there  a  watch- 
man in  the  mill  during  the  night  ?"  "  Is  there 
also  a  good  watch  clock?"  Ans.  "There  is  a 
watchman  nights."  "No  clock."  "The  bell 
is  struck  every  hour  from  8  P.  M.  till  it  rings 
for  work  in  the  morning."  "  Is  the  mill  left 
alone  at  any  time  after  the  watchman  goes  off 
duty  in  the  morning  till  he  returns  to  his 
charge  in  the  evening?"  Ans.  "  Onl}'  at  meal 
times,  and  on  the  Sabbath  day,  and  other  days 
•when  the  mill  dees  not  run."  No  watchman 
was  in  tlie  factory  from  twelve  o'clock  Satur- 
day night  till  twelve  o'clock  Sunday  night, 
and  the  fire  occurred  while  he  was  not  there. 
Held,  the  questions  and  answers  taken  together 
were  warranties;  that  both  parties  must  have 
understood  the  questions  and  answers  to  refer 
to  every  night ;  that  parol  evidence  could  not 
be  received  to  show  that  insurer's  agent  at  the 
time  the  policy  was  made,  knew  that  a  watch- 
man was  not  kept  in  the  factory  from  twelve 
o'clock  Saturday  night  till  twelve  o'clock 
Sunday  night.  liipleyv.  uEtiia  Ins.  Co.,  30  N. 
Y.,  136;  s.  c,  29  Barb.,  553. 

4.  Insured  sent  a  policy  for  this  company 
to  make  another  exactly  like  it.  It  provided, 
"Two  watchmen  employed,  one  of  whom  shall 
be  on  duty  at  all  times,"  but  in  a  subsequent 
part,  these  words  were  written:  "One  watch- 
man waived,"  —  which  words  were  omitted 
in  this  polic}'.  She  took  fire  at  Cairo,  while 
her  watchmen  were  at  supper  at  their  board- 
ing house  on  the  bank  of  the  river.  No  cook- 
ing was  done  on  board,  and  it  was  the  custom 
for  watchmen  to  eat  their  meals  away  from  the 
boats  when  lying  in  i)i>rt.  H''.ld,  it  was  proper 
to  let  the  jury  determine  from  the  evidence 
whether  one  watchman  was  waived;  that  it 
was  also  proper  to  submit  to  the  jury  whether 
one  watchman  was  on  duty  at  the  time  of  the 
loss,  tor  the  jury  were  to  determine  whether 
144 


when  the  watchman  went  on  shore  to  get  his 
supper,  there  was  in  fact  such  a  departure 
from  duty,  as  was  contemplated  by  the  parties. 
Gibson  V.  Farmers  and  Merchants  Ins.  Co.,  1 
Cin.  Sup.  Ct.,  410. 

5.  Stipulated:  "Watchman  to  be  on  the 
premises  constantlj'  during  the  time,  until  Sep. 
tember  1, 1872."  The  watchman  went  into  the 
office  at  about  11  o'clock  at  night,  where  he 
fell  asleep  and  remained  until  he  discovered 
the  premises  on  fire.  The  buildings  insured 
were  about  one  hundred  and  eighty  feet  from 
the  office,  which  was  not  insured.  Held,  a  sub- 
stantial compliance  with  the  stiptilation.  An- 
des Ins.  Co.  V.  Shipman.,  77  111.,  189. 

VII.  Use,  occdpation  or  employment. 

1.  The  policy  prohibited  the  carrying  on  of 
au}-  business  hazardous  or  extra  haz;irdou3 
enumerated,  or  storing  goodshazardous  or  ex- 
tra hazardous,  also  enumerated.  The  trade  of 
a  grocer  was  not  among  the  trades  enumerated. 
Held,  his  business  was  neither  hazardous  nor 
extra  hazardous,  for  the  expression  of  one  is 
the  exclusion  of  all  others.  Neio  York  Equit- 
able Ins.  Co.  V.  Langdon,  6  Wend.,  623 ;  affirm- 
ing  s.  c,  1  Hall,  226. 

2.  Application  for  insurance  stated  :  "Build- 
iug  is  fastened  up,  and  only  used  for  the  pur- 
pose of  the  meeting  of  the  band  during  two 
evenings  of  the  week,  on  the  second  floor." 
Held,  a  warranty  of  the  then  existing  situation, 
but  it  was  not  to  be  extended  by  construction ; 
thiit  it  was  not  intended  that  the  building 
should  remain  fastened  up  and  unoccupied 
during  the  entire  term  of  the  policy.  Blood  v. 
Howard  Fire  Ins.  Co.,  13  Cush.,  472. 

3.  Insured  was  required  to  state  in  the  ap. 
plication  the  nearest  buildings,  how  occupied, 
and  of  what  materials.  To  which  he  answered : 
"  Shop  for  carpenter  on  the  west,  distance  25 
feet,  not  much  used;  no  other  buildings  with- 
in 200  feet  on  the  same  side  of  the  street.  One 
frame  building  on  the  other  side  of  the  street, 
distance  80  feet."  There  was  a  stove,  for  heat- 
ing,  in  the  carpenter  shop.  Held,  no  defense 
to  the  action.  Girard  Fire  and  Marine  Ins. 
Co.  v.  Stephenson,  37  Penn.  St.,  293. 

4.  The  policy  described  it  as  ''  a  warehouse," 
and  stipulated:  "  No  policy  shall  be  construed 
to  extend  to  any  liouse  or  shop  where  any 
trade  or  business  is  carried  on  requiring  thn 
use  of  fire-heat,  unless  the  same  be  mentioned 


289 


CONSTRUCTIOiN. 


290 


Voyage  or  voyages  insured. 


in  the  policy,  anil  a  proportionable  deposit 
p:ii(I,  to  Ije  aijrced  upon  with  the  directors." 
Tlie  plaintirt's'  tenant  erected  furnances  in  the 
premises,  ly  which  he  carried  on  the  raauu- 
I'acture  of  candy,  in  the  cellar,  second  and 
third  stories,  using  fire  heat  in  all.  While 
thus  used  it  was  consumed  by  fire.  Held,  the 
description  and  the  stipulation  taken  together 
prohibited  the  use  of  tire  heat  in  the  process 
of,  or  for  the  purpose  of  manufacturing  any 
article  of  commerce.  Elalaer  v.  Equitable  Ins. 
Co.,  1   Disney,  412. 

5.  Stipulated^  "  If  there  shall  be  kept  or 
stored  therein  any  articles  denominated  haz- 
irdous  or  extra  hazardous,  or  included  in  the 

jnemorandum  of  special  rates,  so  long  as  the 
same  shall  be  appropriated,  these  presents 
shall  cease;"  also:  "  No  greater  amo\int  than 
25  lbs.  of  gunpowder  shall  be  placed  at  any 
lime  in  the  building  described  in  this  policy." 
Insured  kept  from  four  to  six  pounds  of  pow- 
<ler  in  his  store.  Gunpowder  was  included  in 
the  memorandum  of  special  rates.  Held,  the 
two  clauses  will  harmonize  if  one  be  under- 
stood as  modifying  the  other ;  the  general  was  to 
be  controlled  by  the  special  clause,  for,  to  give 
a  preponderating  importance  to  the  general 
provision  would  interpolate  a  material  qualifi- 
cation upon  the  special  clause;  that  keeping 
less  than  2.5  lbs.  of  powder  did  not  affect  the 
right  of  the  insured  to  recover.  Bowman  v. 
Pacific  Inn.  Co.,2'!  Mo.,  153. 

6.  Stipulated:  "The  insured  shall  describe 
(he  building  ii}  which  goods  iu'sured  are  de- 
posited; also  state  whether  any  hazardous 
trade  is  carried  on  therein,  or  any  hazardous 
goods  are  deposited  therein ;  and  if  any  per- 
son shall  insure  his  goods  or  buildings  and 
cause  thera  to  be  described  otherwise  than 
they  really  are,  to  the  prejudice  of  the  in- 
surers, the  policy  shall  be  void."  Held,  lim- 
ited to  the  time  the  insurance  was  eflected ; 
that  a  business  might  be  introduced,  more  haz- 
ardous than  that  carried  on  at  the  time  the 
policy  was  made,  and  be  no  violation  of  the 
condition.  Pirn  v.  Reid,  6  M.  &  G.,  1 ;  6  Scott, 
N.  R,  9a2;  13  L.  J.  C.  P.,  399. 

YIII.    VOTAGE  OE  VOYAGES  INSURED. 

1.  $10,000  on  cargo  at  and  from  Alexandria 

to  St.  Tliomas  and  two  other  ports  in  the  West 

Indies,  and  back  to  her  port  of  discharge  in 

the  United  States,  and  shall  so  continue  until 

10 


the  goods  shall  be  safely  landed.  Held,  it  was 
an  insurance  upon  every  successive  cargo 
taken  in  the  course  of  the  voyage  out  and  home, 
and  so  covered  a  return  cargo  purchased  with 
the  proceeds  of  the  sales  of  the  outward  cargo; 
and  the  fact  tliat  a  portion  of  the  original 
cargo  had  been  safely  landed  at  an  interme- 
diate  port,  before  the  loss,  was  immaterial. 
Columbian  Ins.  Co.  «.  Catlett,  13  Wheat.,  383. 

2.  On  the  freight  of  the  bark  Margaret 
Ilugg,  at  and  from  Baltimore  to  Kio  and  back 
to  Havana  or  Matanzas.  She  put  into  Nassau 
in  distress  on  her  return  voyage,  laden  with 
jerked  beef,  part  of  which  had  been  jettisoned ; 
the  balance  was  so  badly  damaged  that  some 
of  it  was  necessarily  thrown  into  the  sea,  and 
the  smaller  part  landed  and  sold  because  it 
was  unfit  for  reshipment.  Held,  the  policy 
was  not  for  one  entire  voyage  from  Baltimore 
out  and  home,  therefore  the  insurers  were  not 
entitled  to  credit  for  freight  earned  upon  tlie 
voyage  from  Baltimore  to  Rio.  Hugg  v.  Au- 
gusta Insurance  and  Banking  Co.,  7  How.,  595 ; 
s.  c.  Tan.  Dec,  159. 

3.  Time  policy,  to  expire  May  1,  1839,  at 
noon,  "excluding  during  the  term  all  ports 
and  places  in  Mexico  and  Texas,  also  the 
West  Indies  from  July  15th  to  October  15th." 
During  the  term  she  went  from  Boston  to  St. 
Josephs,  Florida;  thence  to  Havana  and 
thence  to  New  York.  September  13th,  sho 
sailed  from  New  York  for  St.  Jago  de  Cuba; 
arrived  there  October  1st;  sailed  thence  oa 
her  return  voyage  to  New  York,  October  85th, 
and  was  wrecked  December  15th,  in  Long 
Island  Sound.  Held,  the  language  was  sub- 
ject to  various  interpretations;  it  might  be 
construed  to  prevent  the  vessel  from  being 
employed  in  any  voyages  from  Mexico,  Texas 
or  the  West  Indies  between  July  loth  and  Oc- 
tober loth,  which  would  release  the  insurers ; 
or  it  might  be  construed  as  permitting  such 
voyages'  to  and  from  Mexico,  Texas  and  the 
West  Indies  during  the  excluded  period,  but 
exonerating  the  insurers  for  losses  in  the 
course  thereof,  which  would  discharge  the  in- 
surers from  this  loss;  or  it  might  be  construed 
as  exempting  insurers  from  all  risks  and 
losses  in  ports  and  planes  in  Mexico,  Texas 
and  the  West  Indies  between  July  15th  and 
October  15th;  and,  if  such  a  construction  wera 
placed  on  it,  the  present  loss  would  be  within 
the  policy;  where  there  is  any  ambiguity  in 
the  words  used,  they  are  to  be  construed  most 

lis 


291 


CONSTRUCTION. 


292 


Voyage  or  voyages  insured. 


strongly  against  the  party  for  whose  benefit 
they  were  introduced,  for  -oerha  chartarum  for- 
tius accipiunier  contra  proferentem,  and  there 
fore  the  loss  was  within  the  policy.  Palmer  v. 
Warren  Lis.  Go.,  1  Story,  360. 

4.  "At  and  from  Tobago  to  one  or  more 
ports  in  the  West  Indies,  and  at  and  from 
thence  to  Norfolk,  against  all  risks;  blockaded 
ports  and  Hispaniola  excepted."  She  sailed 
from  Tobago  for  Curacoa,  then  blockaded  in 
fact;  but  when  she  sailed  the  blockade  was 
not  known  at  Tobago,  nor  was  It  known  to 
the  master  until  he  was  warned  off  by  a  Brit- 
ish ship  of  war.  He  then  made  for  Norfolk, 
but  was  captured  on  the  voyage  bj'  a  French 
privateer.  Held,  the  exception  took  a  partic- 
ular risk  out  of  the  policy,  which  but  for  the 
exception  would  have  been  within  it;  and  a 
voyage  to  Hispaniola  was  not  insured;  had 
she  sailed  for  Hispaniola  the  voyage  would 
have  been  entirely  at  the  risk  of  the  insured, 
for  it  was  a  place  specified  and  particularly 
excluded;  but  the  same  reasoning  could  not 
apply  to  blockaded  ports,  for  the  ''risk  of  a 
blockaded  port  excepted,"  was  the  risk  in- 
curred by  breaking  the  blockade;  hence  sail- 
ing from  Tobago  for  Curacoa,  with  knowl- 
edge that  it  was  blockaded,  would  have  in- 
curred that  risk;  but  sailing  for  it  in  igno- 
rance of  its  blockade  was  not  within  the  ex- 
ception, for  insurer  had  no  objection  to  Cur- 
acoa, other  than  wliat  might  arise  from  its 
being  blockaded;  the  dangers  of  the  blockade 
were  the  particular  dangers  which  induced 
the  exception ;  the  exception  therefore  ought 
not  to  be  extended  beyond  the  danger  con- 
templated.    Teuton  v.  Fry,  5  Cranch,  335. 

5.  "Upon  all  kinds  of  lawful  goods  and 
merchandises,  laden  or  to  be  laden,  etc.,  be- 
ginning the  adventure  from  and  immediately 
after  the  loading  thereof,  from  July  10,  1820, 
and  so  to  continue  until  they  shall  be  safely 
landed  on  January  10,  1837,  at  noon."  Held, 
it  covered  a  trading  voyage,  which  did  not 
cud  at  the  first  port  made  by  the  vessel;  that 
it  was  equivalent  to  a  trading  voyage  ex- 
pressed, with  liberty  to  touch  and  trade  at 
such  ports  on  the  globe  as  the  insured  might 
choose,  subject  to  the  accustomed  and  usual 
mode  of  transacting  business  at  the  several 
places  she  might  visit;  and  that  however 
often  the  goods  might  be  changed,  the  policy 
attached  to  all  of  them,  and  included  goods 
lost  in  their  passage  from  the  shore  to  the  ves- 

146 


sel,  in  the  lighter  of  the  insured,  if  these  were 
procured  with  the  proceeds  of  goods  upon 
which  the  policy  had  attached.  Coggeshallv. 
American  Ins.  Co.,  3  Wend.,  283. 

6.  On  ship  at  and  from  New  Orleans,  Cam- 
peachy  and  Havana,  for  a  period  of  six  cal- 
endar months.  //cZfi,  it  was  not  an  insurance 
from  New  Orleans  to  Carapeachy  and  Havana 
and  back  to  these  several  places;  but  it  wa» 
an  insurance  for  six  months  on  a  trading 
voyage  or  voyages,  at  and  from  either  of  tho 
ports  named,  without  restriction,  for  six 
months ;  and  that  the  vessel  having  arrived  at 
Havana  when  the  limitation  of  time  was  not 
reached,  the  policj'  covered  a  loss  on  a  voyage 
from  Havana  to  New  York.  Grousset  v.  Sea 
Ins.  Co.,  24  Wend.,  210. 

7.  Upon  ship  and  her  outfits.  Stipulated : 
"  No  vessel  shall  sail  from  the  harbor  of  Glou- 
cester on  any  voyage  east  of  Cape  Sable  after 
November  10th  nest,  at  noon,  or  on  a  trip  to 
Georges  after  November  15th  next,  at  noon ; 
nor  shall  any  vessel  sail  on  any  voyage  what- 
ever after  November  25th  next,  at  the  risk  of 
this  company."  She  sailed  from  Gloucester 
November  13th,  on  a  voyage  to  Eastport,  for 
the  purpose  of  procuring  bait  for  a  fishing 
voyage,  and  when  within  one  hundred  miles 
thereof,  she  was  driven  ashore.near  Penobscot 
Ba}',  about  twenty-five  miles  from  the  coast  of 
Maine.  Held,  if  she  was  pursuing  a  voyage 
east  of  Cape  Sable,  she  was  not  protected  by 
the  policy;  the  word  voyage  did  not  neces- 
sarily mean  route,  though  often  used  in  that 
sense.  It  meant  enterprise.  If  she  left  Glou- 
cester with  a  purpose  of  going  on  a  voj'age 
east  of  Cape  Sable,  liable  to  be  defeated  on  her 
going  to  Eastport,  then  the  plaintiffs  could 
not  recover;  and  in  order  to  recover,  the 
plaintifls  must  show  that  the  vessel  was  not 
on  a  prohibited  voyage.  Friend  v.  Oloucester 
Ins.  Co.,  113  Mass.,  326. 

8.  Time  policy,  six  months  from  September 
8,  1794,  "  Beginning  the  adventure  from  the 
loading  thereof  on  the  said  vessel  and  so  shall 
continue  and  endure  till  March  8, 1795,  and  to 
continue  at  the  same  rate  of  premium  till  her 
next  arrival  at  Philadelphia.  To  be  valued  as 
interest  sh.all  appear.  Warranted  American 
property."  She  loaded  at  Hamburg  Septem- 
ber 8,  1794,  with  a  cargo  valued  at  $5,333,  and 
sailed  for  Philadelphia.  On  her  passage,  Sep- 
tember 14th,  she  was  stopped  bj-  a  Freneli, 
privateer,  carried    into    Dunkirk,  where  tlia 


293 


CONSTRUCTION. 


294 


Voy<age  or  voyages  insured. 


supercai:go  was  permitted  to  sell  the  cargo  on 
account  of  the  owners.  Tliere  she  took  a 
small  cargo  valued  at  .fl,500,  and  sailed  for 
Hamburg,  but  was  carried  into  Falmouth  by 
a  British  privateer,  and  after  sustaining  an 
average  loss  of  £90,  was  released  and  reached 
Hamburg  towards  the  end  of  October.  There 
she  took  cargo  valued  at  .f2,.500  and  sailed  for 
Philadelphia,  where  she  arrived  February, 
IIQ").  Held,  insurers  were  entitled  to  recover 
premium  on  the  value  of  the  diflcrent  cargoes 
for  the  time  they  were  respectively  on  board, 
less  the  average  loss.  Pollock  v.  Donaldson,  3 
Call.,  510. 

9.  Two  policies  each  $5,000.  One  on  oil  in 
bulk  or  barrels  cu  board  good  barges,  trading 
between  the  wells  on  Oil  Creek,  Allegheny 
River,  and  Pittsburgh.  The  other  on  the 
same,  between  Oil  City  and  Pittsburgh.  The 
wells  on  Oil  Creek  were  above  Oil  City,  which 
was  at  the  mouth  of  Oil  Creek.  A  quantity 
of  oil  put  into  a  barge  at  the  wells  was  car- 
ried to  Oil  City,  where  more  oil  in  bulk  was 
added,  making  74.3  barrels  in  the  hold  in  bulk, 
and  forty  barrels  were  put  on  deck.  Also  140 
barrels  of  oil  were  put  on  a  steamboat,  and  the 
barge  was  towed  by  the  steamboat  to  Forsyth's 
Landing  near  Pittsburgh,  where  the  oil  in 
barrels  was  taken  from  the  barge,  and  that  on 
the  deck  of  the  steamer  transhipped  to  the 
deck  of  the  barge  for  tlie  purpose  of  being, 
landed.  The  steamer  then  departed,  leaving 
the  barge  safely  moored.  Next  morning  she 
was  submerged  at  the  stern,  five  barrels  from 
the  deck  lost,  and  all  the  oil  in  the  hold  gone. 
There  was  some  evidence  of  an  injury  on  the 
side  of  the  barge,  as  if  some  floating  object 
had  struck  lier.  Held,  insured  were  entitled 
to  recover  on  both  policies;  that  the  points 
mentioned  were  descriptive  of  the  barges  and 
not  of  the  freight:  that  the  risk  attached 
■wherever  the  petroleum  was  taken  on  board 
between  the  points  mentioned.  Phanis  Ins. 
Co.  V.  Cochran,  51  Penn.  St.,  143. 

10.  At  and  from  Jamaica  to  London.  She 
was  at  anchor  at  Port  Maria,  Jamaica,  a  very 
hazardous  station;  and  as  soon  as  completely 
loaded,  sailed  for  Port  Antonio,  the  Jamaica 
rendezvous  for  convoy,  intending  to  remain 
there  for  convoy,  but  was  lost  between  Port 
Maria  and  Port  Antonio.  Held,  the  policy 
protected  her  from  port  to  port.  Cruiekshank 
V.  Janson,  3  Taunt.,  301. 

11.  Liberty  to  cruise  six  weeks  means  six 


weeks  successively  from  the  commencement 
of  the  cruise.    Syers  v.  Bridge,  2  Doug.,  527. 

1  a.  "  From  Cape  of  Good  Hope,  Botany  Bay, 
Port  Jackson,  or  all  ports  and  places  in  New 
South  Wales,  New  Holland,  "Van  Dieman's 
Land  or  the  islands  adjacent,  and  all  or  any 
ports  and  places  backwards  and  forwards  or 
in  any  other  manner  beyond  Cape  Horn,  all 
or  any  islands  and  all  ports  and  places  in  the 
East  Indies,  Persia,  China  or  on  the  northwest 
coast  of  America;  and  to  and  from  all  ports 
and  places  of  whatsoever  denomination  wher- 
ever,  after  her  departure  from  the  Cape  of 
Good  Hope,  and  at  all  times  whatsoever  until 
her  safe  arrival  and  discharge  at  Canton,  with 
leave  to  sell  and  resell,  barter,  exchange  and 
reexchange  property,  and  to  load  or  unload 
in  part  or  whole  at  all,  every  or  any  port  or 
place,  without  inquiry  into  the  regularity  of 
her  proceedings,  to  continue  and  endure  dur. 
ing  her  abode  there  until  she  shall  bo  arrived 
as  above,  witli  leave  to  touch  and  trade  at  all, 
any  or  every,  ports  and  places  in  the  East  in- 
dies, Persia,  China,  and  at  all  ports  and  places 
of  whatever  denomination  or  in  whatever  lati- 
tude  or  longitude,  either  on  her  outward  or 
homeward  bound  voyage."  She  was  licensed 
by  the  East  India  company  from  England  to 
the  Cape,  thence  to  the  Pacific  Ocean,  and 
thence  to  the  northwest  coast  of  America,  to 
trade  and  traffic  there ;  thence  to  Japan,  Corea 
and  Canton,  and  to  return  to  England ;  to  be 
in  force  three  years.  She  was  lost  in  the 
Pacific  Ocean  after  she  had  abandoned  all  in- 
tention of  proceeding  to  Canton.  Held,  the 
insured  was  entitled  to  recover.  Norville  v. 
St.  Barhe,  5  B.  &  P.,  434. 

1 3.  On  goods  from  L.,  to  a  great  many  places 
in  China,  or  to  all  or  any  other  port  or  porta 
or  places  in  China,  East  Indies  or  the  Indian 
and  China  seas,  the  Gulf  of  Siam  or  seas  adja- 
cent, Canton,  Manilla  and  Singapore,  with  leave 
for  the  ship  or  any  vessel  or  vessels,  on  board 
which  the  interest  may  be  transhipped,  etc." 
At  the  time  she  sailed,  her  destination  was  un- 
certain,  because  England  and  China  were  at 
war.  She  was  badly  damaged  off  the  Cape 
of  Good  Hope  and  took  in  much  water,  wl  ich 
damaged  the  cargo  very  considerably.  An- 
other  ship  was  sent  to  Hong  Kong  to  take  the 
cargo,  there  being  no  warehouses  there ;  and 
while  this  was  being  done,  the  vessel  into 
which  the  cargo  was  transhipped,  broke  from 
her    moorings,  was  driven   ashore,  and   the 

147 


295 


CONSTRUCTION. 


206 


War  risks. 


goods  lost.  Held,  the  ouly  question  was, 
"With  what  intention  was  the  transliipment 
made  at  Hong  Kong."  Olieerson  v.  BriglUman, 
1  C.  &  K.,  300 ;  s.  c.  (upon  the  same  state  of 
facts,  it  was  luld,  that  the  insurers  were  liable), 
8  Q.  B.,  781;  15  L.  J.  (N.  S.),  Q.  B.,  274;  10 
Jur.,  875. 

14.  "At  and  from  New  York  to  Quebec, 
during  her  stay  there,  and  thence  to  the  U.  K., 
warranted  to  sail  from  Quebec  on  (>r  before 
November  1,  1853."  She  sailed  from  New 
York  for  Quebec,  October  15th,  and  was  lost 
before  she  arrived  there.  Plea:  That  during 
the  whole  of  November  1, 1853,  slie  was  at  sea 
safely  proceeding  from  New  York  to  Quebec; 
that  she  did  not  arrive  at  Quebec  before  No- 
vember 1,  1853 ;  that  she  was  not  lost  by  any 
perils  in  the  policy  insured  against  before 
November  1,  1853;  that  she  was  lost' several 
days  thereafter,  and  that  the  time  of  her  sail- 
ing from  New  York  for  Quebec  was  not  at 
that  season  of  the  }'ear  reasonably  sufficient 
to  enable  her  to  fulfill  the  warranty  of  sailing 
from  Queljec,  November  1st.  Held,  it  should 
be  construed,  warranted  to  sail  from  Quebec 
on  or  before  November  1,  1853,  if  she  arrives 
there  by  that  time ;  that  unless  such  a  con- 
struction was  placed  on  it,  there  would  be  no 
insurance  whatever  between  New  York  and 
Quebec;  that  any  other  construction  would 
make  the  warranty  read,  "  To  sail  from  New 
York  in  such  time  as  to  arrive  at  Quebec 
November  1,  1853."  Saines  v.  SoUand,  10 
E.\cUr.,  803. 

IX.  Wak  kisks. 

1.  If  the  policy  does  not  warrant  the  prop- 
erty neutral,  and  the  national  character  of  the 
ship  is  not  warranted,  the  insurer  assumes 
belligerent  as  well  as  neutral  risks.  Elting  v. 
Scott,  2  Johns.,  157. 

2.  On  cargo  at  and  from  Boston  to  every 
port  or  place  to  which  she  might  proceed, 
taking  the  usual  risks,  stipulated:  "The 
Diana  is  cleared  for  Rio  Janeiro  and  north- 
west  co.ast;  has  goods  contraband  of  war,  and 
has  no  register;  this  insurance  is  not  against 
illicit  trade  with  the  Spaniards,  but  is  under- 
stood to  cover  the  property  under  whatever 
papers  she  may  sail."  Being  bound  to  Lima, 
she  arrived  oft'  Callao,  and  before  traffic  took 
place  the  government  took  possession  of  her, 
unloaded  the  cargo  and  sold  it,  placinc  the 

148 


proceeds  in  the  treasury  until  the  .king  of 
Spain's  pleasure  should  be  known.  Held,  the 
loss  was  not  within  the  policy.  Higginson  o 
Pomeroy,  11  Mass.,  104. 

3.  On  goods  and  on  commissions  as  con- 
signee. The  insurers  were  exempted  from 
"all  loss  and  expense  that  may  arise  from  the 
ordinary  dangers  and  perils  of  the  seas."  Held, 
the  exemption  took  away  all  risks  except  cap- 
tures, arrests,  detentions,  etc. ;  and  that  a  loss 
in  consequence  of  thick  weather,  in  which 
she  was  cast  away  and  went  to  pieces,  was  not 
within  the  policy,  although  she  liad  previously 
been  boarded  by  a  British  sloop  of  war,  who 
had  taken  out  part  of  her  crew,  put  a  prize- 
master  and  nine  men  on  board,  and  ordered 
her  to  Halifax,  to  which  port  she  was  bound 
when  lost.    Law  v.  Ooddard,  12  Mass.,  113. 

4.  On  ship  and  cargo  from  Boston  to  port 
or  ports  in  Europe — ^stipulated:  "The  in- 
surers, in  case  of  restraint,  are  exempted  from 
plunder,  waste  and  expense,  and  from  capture 
and  condemnation,  by  all  powers;  but  they 
agree  to  take  the  dangers  of  the  seas  and  the 
perils  in  the  policy  not  excepted,  even  while 
detained  and  afterwards."  On  the  passage 
out,  she  sufl'ered  sea  damage  to  three-fourths 
her  value,  and  one-fourth  her  cargo  was 
thrown  overboard  to  preserve  lives  of  crew, 
ship  and  balance  of  cargo,  and  she  was  forced 
to  put  into  France,  where  ship  and  cargo  were 
seized  by  the  government.  Held,  the  capture 
vras  within  the  exception,  and  the  insurers 
were  liable  for  so  much  of  the  cargo  only  as 
was  thrown  overboard  Sice  v.  Homer,  13 
Mass.,  330. 

5.  Policy  taking  the  usual  risks  does  not 
Include  the  risk  of  condemnation  for  a  breach 
of  the  trade  laws  of  a  foreign  country,  unless 
the-voyage  be  to  a  place  where  no  legal  trade 
can  be  carried  on,  in  which  case  the  risk  of 
coudemnation  will  be  presumed  to  have  been 
within  the  intentions  of  the  parties.  Parker  v. 
Jones,  13  Mass.,  173. 

6.  The  policy  excepted  loss  "  arising  from 
the  existing  laws  or  regulations  of  any  bel- 
ligerent powers  restricting  neutral  commerce." 
Held,  the  insurer  was  liable  for  a  loss  caused 
by  violating  the  decree  of  a  belligerent  power 
made  after  the  execution  of  the  policy.  TiVood 
V.  Jfeic  England  Marine  Ins.  Co..  14  Mass.,  31. 

7.  Policy  to  E.  on  a  cargo  of  coffee,  dated 
December  24,  1860,  from  Rio  to  Richmond,  or 
some  other  Atlantic  port  in  the  United  States. 


VJ7 


CONSTRUCTION. 


298 


Expressio  unius  est  exclusio  alterius  —  Generally. 


Tlio  owners  of  the  ship,  insurers  and  insured, 
were  all  citizens  of  Virginia.  Slie  was  cap- 
tured and  condemned  by  tlie  United  States  as 
a  lawful  prize,  on  the  ground  that  it  was 
enemies'  properly.  Held,  a  loss  within  the 
policy.  Merchants  Ins.  Co.  ■».  Edmond,  17 
Grattan,  13S. 

8.  So  long  as  insuring  the  property  of  a 
foreigner  is  not  contrary  to  the  law  of  Eng- 
land, the  person  who  insures  it  must  be  con- 
sidered as  putting  himself  in  the  same  situa- 
tion as  the  foreigner;  and  if  the  insurer  has 
undertaken  to  indemnify  the  insured  against 
lo.ss  by  enemies,  that  must  mean  enemies  of 
the  state  of  which  the  insured  was  a  member. 
Butler  V.  Wildman,  3  B.  &  A.,  398. 

X.    EXVKESSIO    UNIUS    EST    EXCLUSIO  AL- 
TERIUS. 

1.  "  Onsteamer,  her  hull,  boilers,  machinery, 
tackle,  furniture,  etc.,  against  loss  that  shall 
happen  by  fire,  other  than  fire  happening  by 
means  of  any  invasion,  insurrection,  or  civil 
commotion,  or  any  military  or  usurped 
power."  She  collided  with  a  schooner,  in 
consequence  of  which  she  rapidly  filled  with 
water,  and  within  ten  or  fifteen  minutes  the 
water  reached  the  floor  of  the  furnace,  and  the 
steam  thereby  generated  forced  the  fire  out, 
which  communicated  with  the  wood  work 
and  spread  rapidly,  so  that  all  her  upper 
works  and  the  combustible  freight  were 
wrapped  in  flames,  and  continued  to  burn  half 
or  three  quarters  of  an  hour,  when  she  reeled 
over  and  sunk  in  twenty  fathoms  of  water. 
From  the  eflects  of  the  collision  alone  she 
would  not  have  sunk  below  her  promenade 
deck,  and  could  have  been  tnwed  to  a  place  of 
safety,  where  vessel,  machinery,  tackle  and 
furniture  could  have  been  repaired  and  re- 
stored to '  former  condition  for  the  sum  of 
$15,000,  towage  included.  The  submergence 
was  the  result  of  the  fire,  which  burned  off  her 
light  upper  works,  liberated  the  light  freight 
and  reduced  her  floating  capacity.  The  loss 
by  fire  was  ascertained.  Held,  a  loss  by  fire, 
the  result  of  any  cause  other  than  those  e.v- 
cepted,  was  within  the  terms  of  the  contract; 
that  the  insurers  were  liable  for  the  damage 
caused  by  fire  only  (affirming  s.  c,  6  Blatch., 
241;  34  Conn.,  561).  Insurance  Co.  v.  Trans- 
portation Co.,  12  Wall.,  194. 

'i.  S\h,  grain   of   all   kinds,  Indian   meal. 


fruits,  cheese,  dried  fish,  vegetables,  roots,  and. 
all  other  articles  perishable  in  their  own  na- 
ture were  warranted  ftee  from  average,  unless 
general.  Held,  the  e.'fpression  dried  fish,  im- 
plies that  other  fish  were  not  to  be  included; 
for  expressio  unius  exclusio  est  alterius.  Baker 
V.  Ludlow,  3  Johns.  C,  290. 

3.  Against  the  perils  of  the  rivers,  fire, 
pirates,  assailing  thieves,  etc.  A  number  of 
causes  of  loss  were  then  excepted,  but  loss  by 
grounding  was  not  one  of  them.  The  boat 
grounded  on  a  bar  in  the  Mississippi  river. 
Held,  as  grounding  was  not  among  the  ex- 
cepted causes  of  loss,  it  was  within  the  policy. 
Firemen's  Ins.  Co.  v.  Powell,  13  B.  Mon.,  311. 

4.  "  On  plate  glass,  against  damage  from  any 
cause  except  fire,  breakage  during  removal,  al- 
teration orrepair  of  premises."  A  fire  occurred 
on  the  adjoining  premises,  slightly  damaging 
the  rear  of  these.  Whilst  the  plaintiff  and  his 
neighbors  were  removing  his  stock  to  a  p'.ace 
of  safety,  a  mob,  attracted  by  the  fire,  tore 
down  the  shutters  and  broke  the  windows  for 
the  purpose  of  plunder.  Held,  the  loss  was 
not  within  the  exception.  Marsden  v.  City  and 
County  Ass.  Co.,  1  L.  R.  C.  P.,  232;  s.  c,  12 
Jur.  (N.  S.),  7C;  35  L.  J.  C.  P.,  60;  1  H.  &  R, 
53 ;  14  W.  R.,  106 ;  13  L.  T.  (N.  S.),  465. 

XI.  Generally^ 

1.  For  Geo.  F.  Strass  and  others,  of  Rich- 
mond. Held,  it  did  not  necessarily  imply  that 
the  persons  not  named  were  of  Richmond. 
Hodgson  v.  Marine  Ins.  Co.,  5  Crancli,  100. 

2.  "Person  or  persons"  include  bodies 
corporate  and  bodies  politic,  as  well  as  nat- 
ural persons.  United  States  v.  Amedy,  11 
Wheat.,  393. 

3.  In  construing  a  policy,  the  rule  is  that 
the  language  shall  be  taken  most  strongly 
against  the  insurer,  for  it  is  signed  by  him 
and  not  by  the  insured,  and  all  its  e.vceptions 
and  reservations  are  of  the  insurer.  Insurance 
Companies  ».  Wright.  1  Wall.,  456. 

4.  In  construing  answers  or  representations 
made  by  the  insured,  if  the  words  used  are  am- 
biguous, so  as  to  lead  to  dilTerent  conclusions, 
that  which  is  most  favorable  to  the  insured 
must  be  adopted,  because  the  insurer  could 
have  removed  all  doubt  by  requiring  further 
explanations.  Nicoll  v.  American  Ins.  Co.,  3 
W.  &  M.,  529. 

5.  A  representation  that  insured  is  a  natu- 

149 


299 


CONSTRUCTION. 


300 


Generally. 


ralizctl  citizen  since  the  year  1784  means  he 
•was  naturalized  not  after  the  year  1784.  Cou- 
Ion  V.  Sowne,  1  Gaines,  288. 

6.  Policy  on  a  barque  on  the  stocks,  near  a 
ship,  in  a  ship  yard.  Timbers  not  united  to 
the  keel  or  structure  thereon,  completely  pre- 
pared for  and  intended  to  be  used  in  its  frame 
work,  lying  in  the  yard  in  a  place  proper  and 
convenient  for  that  purpose,  and  valueless  for 
any  other,  were  burned.  Held,  they  were  not 
insured.  ITood  v.  Manhattan  Ins.  Co.,  11  N. 
T..533;2Duer,  191. 

7.  On  cargo  bj-  steamers  generally  cannot 
be  limited  to  steamers  in  which  the  insured  was 
interested,  although  when  the  policy  was  effect- 
ed, such  only  were  contemplated.  2few  York 
Marine  and  Fire  Ins.  Co.  n.  Roberts,  4  Du  er,  141 

8.  $1,800  on  grist  mill  and  |700  i.n  ma- 
chinery. Renewed  generally  for  $2,500.  Held, 
it  should  be  construed  largely  for  the  benefit  of 
insured,  and  that  it  applied  to  both  the  mill 
and  machiner3'  in  the  aggregate.  Drigg^i  v. 
Albany  Ins.  Co.,  10  Barb.,  440. 

9.  On  canal  boat  one  year.  "  Not  liable  for 
damage  caused  by  ice."  She  was  moored  and 
ft-ozen  in  at  the  canal  basin  at  Oswego.  In 
the  spring,  after  the  ice  broke  away  in  the 
river,  it  jammed,  which  caused  an  overflow  of 
■water;  the  stern  of  the  boat  became  loosened, 
while  the  bow  remained  fast  in  the  ice.  She 
was  twisted  and  injured.  Held,  a  loss  by  ice, 
for  which  insurers  were  exempt.  Allison  v. 
Corn  Exhange  Ins.  Co.,  57  N.  T.,  87. 

10.  On  stock  of  ready  made  clothing,  in- 
dorsed "This  policy  is  transferred  to  the 
frame  building  owned  by  M.,  on  the  east 
side  of  Whitehall  street,  etc."  Meld,  it  was 
not,  by  the  transfer,  made  an  insurance  on  the 
building,  but  attached  to  ready  made  stock  in 
that  building.  Marco  v.  Liverpool  and  Lon- 
don Ins.  Co.,  35  N.  T.,  664. 

11.  Tlie  by-laws  of  a  mutual  insurance 
company  provided  that  upon  alienation  of  the 
subject  insured,  the  msured  may  surrender  the 
policy  and  receive  a  sum  not  exceeding  his 
deposit  money.  "  All  deposit  money  not  de- 
manded in  a  year  from  the  expiration  of  the 
policy  shall  be  deemed  forfeited  and  become 
the  property  of  the  society."  Held,  upon  sur- 
render of  policy,  insured  shall  receive  so  much 
of  his  deposit  money  as  was  not  liable  to  legal 
appropriation  by  the  company.  Also,  the 
limitation  of  time  did  not  mean  in  a  year 
from  the  time  the  risk  was  terminated  by  alien- 

150 


ation;  it  meant  in  a  year  from  the  expiration 
of  the  policy  by  efflux  of  time.  Sullitan  v. 
Massachusetts  Mutual  Fire  Ins.  Co.,  2  Maas., 
318. 

12.  Insured  and  one  of  the  insurers  agreed 
to  be  bound  by  the  final  judgment  to  be  ren- 
dered in  an  action  then  pending  against  one 
of  the  insvrrers.  A  verdict  rendered  in  favor 
of  the  insured  during  the  pendencj'  of  review, 
was  compromised.  Held,  the  compromise  was 
not  a  final  judgment.  Higgimon  v.  Chray,  8 
Mass.,  385. 

13.  On  ship  and  cargo.  Stipulated:  "ShouH 
this  vessel  and  cargo  be  insured  in  England, 
this  policj' is  to  be  canceled."  ZTeW,  insurer 
was  liable  for  the  cargo,  there  being  no  other 
insurance  on  it,  although  there  was  insurance 
in  England  upon  the  vessel.  Dacia  v.  Board- 
man,  12  Mass.,  80. 

14.  Policies  of  insurance  shall  be  construed 
according  to  the  intention  of  the  parties,  and 
not  according  to  the  strict  literal  meaning  of 
the  words.  Cro)/sj7?ai  c.  £.i/?,  3  Yeates,  375; 
4  Dall.,  294. 

15.  Stipulated:  "  If  insured  shall  have  made 
any  other  assurance  prior  in  date  to  this  pol- 
ic}',  then  the  said  assurers  shall  be  answera- . 
ble  only  for  so  much  as  the  amount  of  such 
prior  assurance  maj-  be  deficient  towards  fully 
covering  the  premises  hereby  assured."  The 
plaintiffs  made  other  insurance  of  the  same 
date,  but  it  was  prior  in  time  to  defendant's 
policy.  Held,  prior  in  date  was  equivalent  to 
prior  in  time,  hence  it  was  competent  for  tlie 
defendants  to  aver  and  prove  tlie  precise  time 
of  execution.  Brown  v.  Hartford  Ins.  Co,  3 
Day,  58. 

16.  If  the  insurers  intended  that  no  prop- 
erty- should  be  put  on  board  but  such  as  was 
neutral,  they  should  have  insisted  upon  a  rep- 
resentation to  that  effect,  or  expressly  war- 
ranted in  regard  to  it.  Baltimore  Ins.  Co.  v. 
Taylor,  3  H.  &  J.,  198. 

17.  In  construing  a  policy  of  insurance,  the 
court  should  give  it  a  fair  and  liberal  interpre- 
tation, such  as  under  all  the  circumstances  of 
the  case  appears  most  consonant  to  the  inten- 
tion of  the  parties.  Biggin  v.  Patapsco  Ins. 
Co.,  7  H.  &  J.,  279. 

1 8.  There  is  not  any  principle  of  law  which 
allows  the  understanding  of  one  of  the  parties 
to  determine  the  meaning  of  the  contract;  the 
rule  is  sometimes  applied  in  cases  of  ambigu- 
ity, that  words  are  to    be    construed    most 


501 


CONSTRUCTIVE  TOTAL  LOSS  -  CONTINUANCE. 


303 


Miscellaneous. 


Btrongly  against  the  party  using  them;  that  is 
founded  upou  a  principle  of  lionesty  and 
good  faith  that  when  a  promise  or  stipuhition 
is  susceptible  of  two  meanings,  it  should  be 
construed  and  efl'ectuated  in  that  sense  in 
which  the  parly  making  it  knew,  or  had 
reason  to  believe,  it  was  understood  and  re- 
ceived by  the  other  party.  Montgomery  v. 
Firemen's  Ins.  Co.,  16  B.  Mon.,  427. 

19.  "On  a  lot  of  brushes  for  one  month 
laden  on  the  flat  boat  Rough  and  Ready,  with 
privilege  of  trading  up  and  down  the  Missis- 
sippi and  Ohio  rivers,  and  with  further  priv. 
ilege  of  continuing  the  policy  for  one  or  more 
months  upon  payment  of  premium,  excluding 
from  this  risk  all  loss  or  damage  arising  from 
fire  or  ice."  It  was  renewed  Jauuarj'20th  for 
one  inonth,  indorsed:  "The  within  policy  is 
renewed  for  one  month,  as  hereinafter  stated, 
for  the  sum  of  $4,000  on  brushes  within  de- 
scribed, it  being  understood  that  insured  is 
not  entitled  to  claim  for  any  loss  or  damage 
arising  from  ice,  etc."  It  was  again  renewed 
for  the  sum  of  "  |3,000  on  brushes  within  de- 
scribed,  $45  premium  for  one  month."  The 
goods  were  destroyed  by  fire.  Held,  upon  the 
£rst  renewal,  ice  only  was  excepted;  by  the 
last  renewal  the  original  policy  and  not  the 
second  renewal  was  continued ;  the  original 
policy  excluded  tire  and  ice,  consequently  in- 
surer  was  not  liable  for  loss  by  fire.  Honnick 
v.  Phanix  Ins.  Co.,  23  Mo.,  83. 

20.  Stipulated:  "The  company  will  be 
responsible  for  the  accuracy  of  surveys  and 
Taluations  made  by  its  agents."  Held,  the 
■word,  "survey,"  could  not  be  limited  to  mat- 
ters of  measurement  or  description,  for  "sur- 
"vey,"  as  here  used,  has  acquired  in  insurance 
business  a  meaning  which  includes  what  is 
commonly  called  the  application  (citing 
■Glendale  Manufacturing  Co.  v.  Protection  Ins. 
•Co.,  21  Conn.,  19).  May  v.  Buckeye  Ins.  Co., 
25  Wis.,  291. 

21.  It  was  agreed  that  all  should  be  bound 
by  the  verdict  given  in  one  case.  There  was 
a  verdict  for  the  plaintiff  and  a  new  trial 
awarded.  Held,  it  meant  a  verdict  that  should 
stand.    Hodson  v.  Riehardson,  3  Burr.,  1477. 

22.  Policy  to  an  agent  upon  a  ship  " at  and 
from  Lisbon  to  Cadiz  and  at  and  from  thence 
10  Flushing;  lo  return  eight  per  cent,  if  she 
sailed  from  Cadiz  with  convoy  for  England, 
and  two  per  cent,  more  for  convoy  from  Eng- 
iand  to  Flushing,  or  ten  per  cent,  if  with  con- 


voy for  the  voyage  and  arrived."  Held,  the 
stipulation  for  return  premium  should  be 
read:  To  return  ten  per  cent,  if  the  ship  sails 
with  convoy  for  the  voyage  and  arrives ;  if 
from  Cadiz  with  convoy  for  England,  eight 
per  cent.;  and  two  per  cent,  more  for  convoy 
from  England  to  Flushing.  In  this  mode  of 
arranging  the  provisions,  respecting  the  re- 
turn of  premium,  the  word  arrive  is  naturally, 
in  point  of  construction,  carried  forward  and 
united  successively  with  each  branch  of  these 
provisions,  and  operates  plainly  as  a  con- 
dition  equally  affecting  them  all.  Kdlner  v. 
Le  Mesurier,  4  East,  396;  1  Smith,  72. 

23.  The  proposal  for  reinsurance  stated 
"Valued  at  £6,000;  insured  only  for  £4,000." 
Insurances  in  other  offices,  £1,500;  Adelaide, 
£500;  Australasia,  £250;  Netherlands,  £500; 
India,  £1,250.  P.  I.  Co."  Held,  the  words  "  in- 
sured only  for  £4,000  "  must  be  construed  as  the 
amount  of  insurance  made  by  the  original 
insurance,  and  not  a  representation  that  all 
the  insurance  amounted  to  only  £4,000.  An- 
derson V.  Pacific  Fire  and  Marine  Inn.  Co.,  21 
L.  T.  N.  S.  P.  C,  408. 


CONSTRUCTIVE  TOTAL  LOSS. 

(SeeToTAi,  Loss.) 


CONTRABAND  OF  WAR. 

(See  Illicit  Trade.) 


CONTINUANCE. 

1.  The  defendant  moved  for  a  continuance, 
alleging  that  a  commission  to  take  depositions 
had  not  been  returned,  though  due  diligence 
had  been  used  in  forwarding  it.  Held,  the  ap- 
plication for  a  continuance  was  properly  over- 
ruled, because  the  affidavit  did  not  state  that 
the  testimony  sought  would  be  procured  with- 
in a  reasonable  time.  Thompson  v.  Missis- 
sippi Marine  and  Fire  Ins.  Co.,  2  La.  (0.  S.), 
238. 

2.  Upon  the  trial,  insured  obtained  leave  to 

151 


303 


CONTRACT. 


304 


What  is  part. 


amend  by  inserting  the  policy  and  its  con- 
ditions in  his  complaint.  Insurers  moved 
for  time  to  file  a  new  answer,  and  made  affida- 
vit that  the  amendment  was  a  surprise,  and  in 
consequence  thereof,  they  were  not  prepared 
•with  evidence  to  meet  the  new  allegations. 
But  the  insurer's  answers,  on  file  in  the  cause, 
were  applicable  to  the  cause  of  action  e.xhi- 
bited  by  the  amended  complaint.  Ileld,  the 
motion  to  continue  was  properly  overruled. 
Bonner  v.  Home  Ins.  Co.,  13  Wis.,  677.' 


CO  J<  TRACT. 

I. 

What  is  pakt. 

II. 

KOT  PART. 

III. 

COMPLETE. 

IV. 

NOT  COMPLETE. 

V. 

Modification  or  substitution. 

VI. 

Execution  and  DELivERy. 

VII. 

New  PROMISE. 

VIII. 

Continuing. 

IX. 

Ratification  and  adoption  (pro  and 

con). 

s. 

Lawful. 

XI. 

Unlawful. 

XII. 

Effect  op  war. 

XIII. 

When  several. 

XIV. 

When  joint. 

I.  "What  is  pakt. 

1.  The  plaintiff  had  been  the  local  agent  of 
the  defendant  in  the  city  of  St.  Louis,  and  had 
served  under  a  letter  written  by  the  company, 
which  stated,  "Your  status  is  this:  You  are 
there  working  up  a  business  for  j-ourself,  and 
are  to  be  paid  the  highest  commissions  we  pay 
to  any  agent."  Held,  the  plaintiff  might  show 
by  parol  the  highest  commissions  or  bes-t 
terms  paid  by  the  defendant  to  any  of  its 
agents  who  performed  duties  similar  to  those 
performed  by  the  plaintiff;  but  a  usage,  among 
other  insurance  companies  doing  business  in 
St.  Louis,  to  pay  commissions  on  renewal 
premiums  or  the  commuted  value  thereof  for 
the  time  the  policy  or  policies  were  in  force, 
to  agents  after  thej'  ceased  to  act  as  agents, 
was  inadmissible,  for  the  letter  established  the 
contract,  which  could  not  be  construed  in 
152 


parts,  but  must  be  t.ikcn  altogether.  Partridge 
V.  Life  Ins.  Co.,  1  Dil.  Cir.  C,  139. 

2.  The  policy  was  printed  on  one-half  of 
the  sheet,  and  conditions  were  printed  on  the 
other  half,  but  no  reference  was  made  to  theia 
in  the  polic}-.  Held,  they  were  part  of  the 
policy,  and  a  violation  of  any  of  them  avoided 
the  policy.  Roberts  v.  Chenango  County  Mut. 
Ins.  Co..  3  Hill,  501. 

3.  Conditions  in  the  proposals  for  insurance, 
attached  to  and  referred  to  in  the  policy,  are 
part  of  the  contract.  Duncan  v.  Sun  Fire  In». 
Co.,  6  Wend.,  488. 

4.  A  paper  purporting  to  be  conditions  of 
insurance  annexed  to  a  policy  is  prima  facie 
a  part  of  it,  although  no  express  reference  is 
made  in  the  policj' to  it;  and  where  the  ap- 
plication is  signed  by  the  insured,  and  the 
policy  refers  to  it  as  a  part  thereof,  it  is  a  part 
of  the  conti'act.  Murdoch  v.  C/ienango  County 
Mut.  Ins.  Co.,  2  N.  Y.,  210. 

5.  Suit  upon  a  note  made  as  security  for 
dealers,  under  an  agreement  that  it  should  be 
paid  in  premiums  for  insurance,  which  the 
maker  might  procure  for  his  friends  or  for 
himself.  Held,  the  receiver  could  not  repudi- 
ate that  agreement,  though  made  without  a 
formal  vote  of  the  directors.  Emmet  u.  Reed, 
8  N.  Y.,  313 ;  4  Sand.,  229. 

6.  Policy  founded  upon  an  application  ex- 
pressed to  be  the  application  of  the  insured. 
Held,  the  plaintiff  must  enforce  the  contract 
with  the  application  as  part  of  it.  Brown  v. 
Cattaraugus  Mut.  Ins.  Co.,  18  N.  Y.,  38.i. 

7.  Policy  made  subject  to  condition  and 
survey.  Held,  they  all  made  one  contract. 
LeRoy  v.  Market  Fire  Ins.  Co.,  39  N.  Y.,  90. 

8.  The  polic}'  was  made  subject  to  survey 
No.  280,  filed  in  the  office  of  the  Park  Ins.  Co. 
The  issue  was,  whether  the  paper  put  in  evi- 
dence as  that  survey  was  designed  or  intended 
as  the  paper  mentioned  and  described  in  the 
policy.  The  court  instructed  the  jury  that 
they  should  determine,  as  a  question  of  fact, 
whether  the  minds  of  the  parties  met  as  to  the 
survey  in  question;  that  though  their  minds 
did  not  meet  on  that  question,  the  plaintiS 
was  still  entitled  to  recover  on  the  policy. 
Held,  error.  LeRoy  v.  Market  Ins.  Co.,  45  N. 
Y.,  80;  s.  c.  39  N.  Y.,  90. 

9.  Application  for  insurance  not  to  exceed 
§10,000  gold  on  cargo  "Valparaiso  to  New 
York."  On  wool,  valued  at  18  cents  per  pound 
until  otherwise  agreed;  ores,  etc.,  valued  at 


305 


CONTRACT. 


306 


What  is  p;u-t. 


invoice  cost  ami  fiCleeii  per  cent,  addi'cl,  pi-iv- 
ilcge  to  load  not  exceeding  twenty-five  per 
cent,  registered  ores.  Slie  was  burned  willi 
cargo  on  board,  |56,253.  Ajiplications  had 
been  made  to  otlier  companies,  prior  to  tlie 
making  of  tliis,  for  otlier  insurances,  wliicli 
amounted  in  all  to  about  $100,000.  All  of 
defendant's  policies  jirovidcd:  "If  insured 
shall  have  made  any  other  insurances  upon 
the  premises  aforesaid,  prior  in  date  to  this 
policy,  then  this  company  shall  be  answera- 
ble only  for  so  much  as  the  amount  of  such 
prior  insurance  may  be  deficient  towards  fully 
covering  the  premises  hereby  insured,  and 
shall  return  the  premium  upon  so  much  of 
the  sum  insured  as  they  shall  by  such  prior 
insurance  be  exonerated  from,  etc."  Hekl^  ev- 
idence was  admissible  to  show  that  in  effect- 
ing insurance  upon  property  of  this  character, 
where  the  precise  value  was  not  known,  appli- 
cations were  made  to  difTerent  companies  for 
different  sums,  amounting  in  the  aggregate  to 
the  value  of  the  property  suppo.sed  to  be  at 
risk,  which  were  accepted  and  made  binding 
until  the  exact  value  of  the  property  could  be 
ascertained,  and  when  ascertained,  apportioned 
among  the  different  companies,  who  had  made 
the  risk  binding,  in  proportion  as  the  amount 
taken  by  each  company  should  bear  to  the 
whole  estimated  amount,  and  hence  insured 
■were  entitled  to  a  policy  for  $3,688.73,  and  a 
judgment  therefor  with  interest.  Fabhri  v. 
Fhoenix  Ins.  Go.,  55  N.  Y.,  129 ;  Fahbri  v.  Mer- 
cantile Mut.  Ins.  Co.,  6  Lans.,  440;  s.  c,  04 
Barb ,  85. 

10.  The  application  stated:  "  Theapplicant 
hereby  covenants  and  agrees,  that  the  forego- 
ing valuation,  description  and  survey  are  true 
and  correct.  They  are  submitted  as  his  war- 
ranty, and  the  basis  of  the  desired  insurance." 
The  only  reference  in  the  policy  to  the  appli- 
cation was  in  these  words:  "On  the  following 
property  as  described  in  tlie  application." 
Held,  the  description  was  adopted  and  nothing 
else ;  that  there  was  no  warranty  as  to  value. 
Owens  V.  Holland  Purchase  Ins.,  Co.,  56  N.  Y., 
67-5;  s.  c,  IN.  Y.  S.  C,  385. 

11.  Stipulated:  "Reference  being  had  to 
the  applicati<in  of  the  said  E.,  for  a  more  par- 
ticular description,  and  forming  part  of  this 
Ijolicy."  Held,  the  application  was  part  of  the 
contract.  Egan  v.  Mutual  Ins.  Co.,  5  Denio, 
336. 

12.  On    his    flouring    mill.      Stipulated: 


"  When  a  policy  is  made  and  issued  upon 
a  survey  and  description  of  certain  property, 
such  a  survey  and  description  shall  be  deemed 
to  be  a  part  and  portion  of  such  policy  and 
a  warranty  on  the  p:ut  of  the  insured."  It  re- 
ferred to  survey  No.  18,011,  filed  in  the  office 
of  the  People's  Ins.  Co.  The  defendant  offered 
to  prove  that  the  risk  was  taken  by  a  person 
connected  with  the  latter  company;  that  it 
was  shown  to  the  secretary  of  the  defendant 
who  was  requested  to  issue  a  policy  upon  it, 
which  was  accordingly  done.  It  was  con- 
ceded that  the  defendant  did  not  expect  to 
connect  the  plaiutitl"  with  the  survey.  Held, 
it  was  error  to  exclude  the  evidence  tendered. 
Steward  v.  Phceniz  Fire  Ins.  Co.,  5  Hun.  (N. 
Y.},  261. 

13.  The  husband  made  an  application  and 
acted  for  the  wife  in  procuring  the  execution 
of  the  policy  upon  his  own  life,  which  was- 
delivered  to  the  defendant's  agent,  remaining 
in  his  hands  for  about  two  months.  The  agent 
made  known  this  fact  to  defendant,  who  in- 
structed him  to  retain  it  until  he  should  be 
furnished  by  the  plaintiff  with  a  certificate  of 
the  good  health  of  her  husband.  Such  a  cer- 
tificate was  sent,  and  upon  the  trial  was  offered 
as  against  the  plaintifi',  and  rejected  The  de- 
fendant also  offered  to  prove  that  the  cer- 
tificate was  false,  because  the  husband,  at  the 
time  it  was  made,  suffered  from  ulceration  of 
the  lun'gs.  Held,  error,  for  the  policy  was^ 
procured  by  the  husband  in  compliance  with 
a  condition  made  by  the  defendant.  The  wife 
ratified  the  husband's  acts,  and  by  accepting 
the  policy  and  bringing  suit  upon  it,  made 
them  her  own.  She  could  not  affirm  in  part 
and  repudiate  in  part.  She  could  not  claim 
to  enforce  the  policy  as  valid  and  ignore  the 
instrumentalities  by  which  it  was  obtained 
(citing  Baker  ii.  Union  Mutual  Life  Ins.  Co., 
43  N.  Y.,  288;  National  Life  Ins.  Co.  v.  Minch, 
53N.  Y.,  140;  El  well  v.  Chamberlain,  31  N. 
Y.,  619 ;  Graves  v.  Spier,  58  Barb.,  349 ;  Swift  v. 
Massachusetts  Mutual  Life  Ins.  Co.,  13  Al. 
L.  J.,  363).  Estes  v.  World  Mutual  Life  Ins. 
Co.,  6  Uun.  (N.  Y.),  349.) 

14.  R.  procured  insurance  on  his  property. 
After  his  decease  the  policy  expired.  His 
executrix  applied  to  the  agent,  who  had  issued 
it,  to  insure  the  estate  of  R.,  a  certain  amount 
upon  the  factory  and  a  certain  amount  upon 
movable  machinery  therein,  "subject  to  a 
survey  on  file  in  this  office."    Held,  tl;e  origi. 

153 


307 


CONTRACT. 


308 


What  is  part. 


nal  survey  upon  which  Ihe  former  policy 
was  issued  was  no  part  of  this  contract,  ex- 
cept for  the  purpose  of  identifying  the  prop- 
erty insured.  Clinton  v.  Rope  Ins.  Co.,  45  N. 
Y.,  454;  B.C.,  51  Barb.,  047. 

15.  The  policy  referred  to  tlic  application 
for  a  more  particular  description  of  the  sub- 
ject insured.  Held,  the  application  was  part 
of  the  contract.  Shoemaker  v.  Glens  Falls  Ins. 
€o.,  60  Barb.,  84. 

16.  Stipulated:  "The  application  must  con- 
tain a  full  and  true  exposition  of  all  facts  and 
circumstances  in  regard  to  condition,  sita- 
ation,  value  and  risk  of  the  property,  so  far 
as  known  to  insured."  The  application  rc- 
<iuired  an  examination  of  the  mill  everj'  thirty 
minutes  after  work  should  be  discontinued. 
It  was  stated  that  the  mill  was  worked  from 
5  A.  M.  to  8:  30  P.  M.;  sometimes  extra  work 
will  be  done  in  the  night.  Held,  the  applica- 
tion was  part  of  the  contract,  the  answers 
contained  in  it  were  representations,  and  so 
far  as  they  were  material  to  the  risk,  must  be 
substantially  true;  and  so  far  as  they  were 
executory,  there  must  be  a  substantial  cnm- 
|)liauce;  that  the  court  was  bound,  as  matter 
of  law,  to  require  an  examination  of  the  mill 
every  thirty  minutes  after  the  work  ceased; 
but  when  it  ceased  was  a  question  of  fact  for 
the  jury.  Houghton  v.  Manufacturers  Mut. 
Ins.  Co.,  8  Met.,  114. 

1 7.  The  policy  referred  to  a  survey,  con- 
sisting 0|f  questions  and  answers.  Held,  the 
whole  survey  was  incorporated  into  the  pol- 
icy, and  they  constituted  one  entire  contract. 
Sheldon  v.  Hartford  Fire  Ins.  Co.,  22  Conn.,  235. 

18.  If  the  policy  refers  to  the  application 
as  part  thereof,  it  is  a  part  of  the  contract. 
Philbrookv.  New  England  Mutual  Fire  Ins.  Co., 
S7  Me.,  137. 

19.  If  the  charter  and  by  laws  are  referred 
to  as  part  of  the  policy,  they  are  binding 
upon  all  parties.  Marshall  v.  Columbian  Mu- 
tual Fire  Ins.  Co.,  27  N.  H.,  157. 

20.  The  written  instructions  to  insure  re- 
quired insurance,  |12,000  on  goods  and  cash, 
from  Port  de  Paix  to  Philadelphia.  The  pol- 
icy was  made  to  insure  goods  and  merchan- 
dise, and  it  stipulated:  "Beginning  the  ad- 
venture from  and  immediately  following  the 
lo.ading  thereof  at  Port  d<i  Paix."  Held,  the 
written  instructions  or  memorandum  should 
control  and  explain  the  expressions  in  the 
ibrmal  policy,  and  the  mistake  therein  must 

154 


be  rectified  thereby.    Norris  v.  Insurance  Co. 
of  North  America,  3  Yeates,  84. 

21.  The  order  for  insurance,  if  adopted, 
forms  a  part  of  the  policy,  and  is  to  be  resort- 
ed to  when  construing  tlie  policy.  Maryland 
Ins.  Co.  V.  Bossiere,  9  G.  &  J.,  121. 

22.  The  action  was  founded  upon  a  certifi- 
cate of  insurance,  subject  to  the  conditions  of 
policy  No.  780,  which  policy  was  not  pro- 
duced. Held,  insurer  could  not  recover  with- 
out producing  it.  Underwriters  Agency  v. 
Sutherlin,  46  Ga.,  652. 

23.  Stipulated:  "  When  a  policy  is  issued 
upon  a  survey  and  description  of  the  prop- 
erty, such  survey  and  description  shall  be 
taken  and  deemed  to  be  a  part  and  portion  of 
such  policy,  and  a  warranty  on  the  part  of  the 
insured  and  tlie  said  applicant  hereby  coven- 
ants and  agrees  that  the  foregoing  is  a  full, 
just  and  true  exposition  of  all  the  facts  and 
circumstimces,  conditions,  situation  and  value 
of  the  property  to  be  insured,  so  far  as  the 
same  are  known  to  the  applicant  and  material 
to  the  risk."  Held,  the  survey  was  a  part  of 
the  contract  and  a  warranty  on  the  part  bi  the 
insured;  but  there  must  be  a  substantial 
breach  of  the  warranty  before  the  action  could 
be  defeated.   Cox  v.  .^tna  Ins.  Co.,  39  Ind.,  586. 

24.  The  policy  on  its  face  referred  to  the 
application  in  which  certain  declarations 
were  made  respecting  the  life  proposed.  Held, 
the  policy  and  the  application  constituted  the 
contract  between  the  parties.  Mutual  Benefit 
Life  Ins.  Co.  v.  Miller,  39  Ind.,  475. 

25.  If  the  act  of  incorporation  makes  the 
charter  a  part  of  the  contract  and  the  insured 
a  member  of  the  companj-,  tlie  insured  cannot 
plead  ignorance  of  its  provisions.  Illinois 
Mutual  Fire  Ins.  Co.  v.  Marseilles  Manf.  Co., 
6  111.,  236. 

26.  The  action  was  founded  upon  a  certifi- 
cate  of  insurance  which  referred  to  a  policy  by 
number,  but  it  was  never  made.  Held,  if  it 
was  the  usage  and  custom  of  the  insurer  to  re- 
fer  to  a  policy  which  had  no  existence,  and  in 
accordance  therewith,  insurer  was  to  make 
and  deliver  one  if  required,  then  the  rights  of 
the  parties  were  to  be  governed  bj'  the  same 
terms  and  conditions  as  the  instrument  would 
contain  if  in  existence,  and  these  were  to  be 
ascertained  by  the  uniform  and  settled  custom 
of  the  company  without  change  of  any  of  its 
terras  and  conditions.  Home  Ins.  Co.  v 
Favorite,  46  111.,  2C3. 


309 


CONTRACT. 


310 


What  is  not  part. 


27.  The  insured  O'y  a  mutual  insurance 
couijian^)  is  bound  to  take  notice  of  tlie  com- 
pany's act  of  incorporation,  its  provisions, 
and  the  by-hv\vs  made  under  it.  Simertil 
z.  Dubuque  Mutual  Fire  Ins.  Oo.,  18  Iowa, 
319. 

28.  The  insurer  cannot  be  allowed  to  repu- 
diate a  custom  in  reference  to  wliich  he  is  pre- 
sumed  to  have  contracted,  and  under  which 
the  insured  had  a  right  to  expect  his  loss,  if 
any,  would  be  adjusted  and  settled;  nor  was 
it  necessary  tliat  tlie  usage  should  extend  to 
the  whole  state.  If  it  was  generally  known  in 
the  port,  city  or  towu  where  the  policy  was 
made,  it  was  binding  upon  the  parties.  Ful- 
ton  Ins.  Co.  V.  Jlihur,  23  Ala.,  420. 

29.  Conditions  of  insurance  in  a  separate 
paper  without  stamp,  seal  or  signature,  were 
referred  to  in  the  policy.  Held,  they  were 
binding  upon  the  insured.  RouUedge  v.  Bur. 
rell,  1  ii.  Black.,  354. 

30.  On  goods  at  and  from  Gottenberg  to 
any  port  in  the  Baltic,  beginning  the  adven- 
ture from  the  loading  thereof;  but  declared 
that  'if  was  in  continuation  of  other  policies 
specified,  and  tliese  were  on  the  same  goods  at 
and  from  Norfolk,  Virginia,  at  which  place 
the  goods  were  laden.  Held,  the  words  of  ref- 
erence to  tlie  other  policies,  in  effect,  intro- 
duced them  into  that  on  whicli  the  action  was 
brouglit  for  verba  relata  inesse  videntur.  Bell 
«.  Hobson,  3  Camp.,  272 ;  16  East,  340. 

31.  She  was  insured  subject  to  certain 
rules,  one  of  whicli  was  that  ships  insured 
were  not  to  sail  from  any  port  on  the  east 
coast  of  Great  Britain  to  any  port  in  the  Belts 
between  December  20th  and  February  15th. 
She  left  Newcastle-upon-Tyne  February  8th 
for,  and  was  lost  in,  the  Baltic,  February  14th. 
Held,  the  rule  was  a  warranty  that  she  should 
not  sail  within  the  period  mentioned,  towards 
any  port  in  the  Belts ;  the  word  "  to  "  meant 
towards  and  not  arriving  at.  Colledge  v.  Harly, 
■6  E.\ch.,  205;  20  L.  J.  Ex.,  146. 

32.  B.  &  Co.,  by  letter,  authorized  the  man- 
agers of  a  mutual  marine  insurance  company 
to  insure  ship  in  the  association,  and  under- 
took to  abide  by  the  rules  and  regulations 
thereof,  by  which  each  insurer  became  liable 
to  contribute  to  the  losses  in  certain  propor- 
tions, lu  pursuance  of  the  authority  con- 
ferred by  the  letter,  a  stamped  policy  was 
issued,  but  it  did  not  refer  to  the  rules  and 
regulations.     Held,   insured   were    liable    as 


contributories.     In  re  Albert  Average  Ass'n, 
BlyWs  Case,  13  L.  R.  Eq.  Cas.,  529. 

33.  The  policy  referred  to  the  application 
and  made  it  part  of  the  contract.  The  policy 
stiimlatcd  that  if  the  interest  of  tlie  insured  in 
the  properly  was  not  absolute,  it  should  be 
void,  unless  truly  represented  and  stated  in 
the  policy.  Insured  had  mortgaged  the  prop- 
erty, which  was  not  mentioned  in  the  policy, 
but  was  stated  in  the  application.  Held,a.s\xf- 
ficient  compliance  with  the  condition,  for  the 
applicatiim  was  part  of  the  policy.  Fourdiner 
V.  Hartford  Fire  Ins.  Co.,  15  U.  C.  C.  P.,  403. 

II.  What  is  not  paet. 

1.  The  policy  was  sent  to  insured  with  a 
paper  called  a  survey,  which  he  was  requested 
to  sign  and  return,  but  he  retained  both.  Held, 
the  policy  was  not  delivered  upon  condition 
that  the  survey  should  be  executed,  nor  was  it 
any  part  of  the  contract.  LeBoy  v.  Park  Ins. 
Co.,  39  N.  Y.,  50. 

2.  A  corporator  insured  his  property  in  the 
corporation,  and  gave  his  note  for  the  premi- 
um. In  his  absence  a  by-law  was  created, 
which  provided  that  if  a  note  given  for  deposit 
on  any  policy,  and  the  interest  thereof,  to  be 
paid  semi-annually,  be  at  any  time  three 
months  in  arrear,  the  policy  shall  be  sus- 
pended and  of  no  effect,  until  the  interest  be 
paid.  Held,  it  applied  to  policies  made  and 
notes  given  after  its  enactment.  Insurance 
Co.  V.  Connor,  17  Penn.  St.,  136. 

3.  The  application  signed  by  the  insured 
stated  :  '•  If  any  untrue  answer  has  been  given 
to  any  of  the  foregoing  interrogatories  where- 
by the  said  company  has  been  deceived  as  to 
the  character  of  the  risk,  then  said  policy  is 
to  be  void  and  of  no  effect."  The  policy  re- 
ferred to  the  applicHtion  for  a  more  particular 
description  of  the  property  insured,  but  the 
application  was  cot  made  part  of  the  com- 
plaint  nor  filed  with  it.  Held,  the  application 
was  not  a  part  of  the  policy,  nor  were  the 
statements  in  it  to  be  regarded  as  warranties 
(citing  Trench  u.  Chenango  County  Ins.  Co.,  7 
Hill,  122j.  Commonwealth  Ins.  Co.  v.  Moi\^ 
ninger,  18  Ind.,  352. 

4.  An  application  was  expressly  referred  to 
in  the  policy,  but  it  appeared  that  none  hail 
been  made.  Held,  not  error  for  the  court  to 
instruct  the  jury  that  the  policy  was  the 
w^hole  contract  between  the  parties.    Newman 

155 


311 


CONTRACT. 


312 


What  Ls  complete. 


e.  Springfield  Fire  and  Marine  Ins.  Co.,  17 
Minn.,  123. 

5.  The  policy  provided,  that  if  an  appli- 
cation or  survey  be  referred  to,  it  shall  be 
considered  a  part  of  the  contract,  and  a  war- 
ranty on  tlie  part  of  the  insured;  but  there 
■were  no  words  of  reference  in  the  policy  to 
any  survey.  The  complaint  Mleged  an  agree- 
ment to  insure,  founded  on  an  application. 
Held,  the  application  was  no  part  of  the  con- 
tract. Weed  V.  Schenectady  Ins.  Go.,  7  Lang.,  452. 

6.  Policy  was  renewed,  "  Upon  condition 
that  the  application  upon  which  this  policy 
was  originally  predicated  shall  continue  valid 
and  in  full  force."  The  application  and  the 
policy  was  "made  in  reference  to  a  survey  on 
file  in  this  office,"  produced  by  insurer  but  was 
addressed  to  another  company,  signed  by  the 
president  of  that  other  company,  who  deliv- 
ered it  to  this  compan3'  and  procured  the 
original  policy  and  this  renewal.  There  was 
no  evidence  that  the  application  was  made 
with  the  knowledge  of  insured.  Held,  in- 
sured was  not  bound  by  the  statements  con- 
tained in  the  application,  for  it  was  the  act  of 
a  third  person,  nor  did  the  condition  in  the 
certificate  of  renewal  enlarge  the  effect  of  the 
original  reference  in  the  policy.  Denny  v. 
Conway  Stock  and  Mutual  Fire  Ins.  Co.,  13 
Gray,  493. 

7.  Insured  stated,  "There  had  not  been 
any  material  alteration  in  or  about  the  prop- 
erty to  be  insured  since  the  last  application 
was  made."  But  the  sums  insured  by  this 
policy  were  on  different  property,  tor  amounts 
different  to  those  mentioned  in  the  Inst  appli- 
cation. Held,  insured  did  not  adopt,  nor 
could  insurers  have  supposed  that  they  in- 
tended to  adopt  in  the  new  policy,  the  state- 
ments of  values  mentioned  in  the  former. 
Eddy  Street  Foundry  v.  Farmers  Mutual  Fire 
Ins.  Co..  5  R.  I.,  436. 

III.  What  is  complete. 

1.  Complainant  applied  to  defendant's 
agent  for  insurance  upon  dwelling  house, 
$8,000,  one  year,  and  desired  the  agent  to 
write  the  application  for  him,  and  to  state  in 
it  the  cause  which  prevented  complainant 
from  signing  it.  Complainant  desired  the 
agent  to  send  the  company's  answer  to  him. 
The  agent  made  it  November  2.5th,  complying 
with  complainant's  request.  The  company 
loC 


replied,  the  risk  would  be  taken  at  seventy 
cents  premium;  and  tlie  agent,  on  receipt  of 
the  company's  answer,  wrote  complainant, 
giving  the  company's  terms,  and  added, 
"  Should  you  desire  to  effect  the  insurance, 
send  your  check  to  my  order  for  |57,  and  the 
business  is  concluded."  This  was  written 
December  2d,  but,  being  misdirected,  did  not 
reach  complainant  till  December  20th.  He 
mailed  a  letter  next  day  assenting  to  the 
terms,  inclosing  his  check  for  $57,  to  the 
agent's  order,  and  r^iuested  him  to  deposit 
the  policy  in  a  bank  named,  for  safe  keeping. 
This  did  not  reach  the  agent  till  December 
31st,  who  then  refused  to  effect  the  insurance, 
on  the  ground  that  the  complainant's  accept- 
ance came  too  late  (a  part  of  the  dwelling 
having  been  consumed  by  fire  December  22dj. 
Held,  the  offer,  under  the  circumstances 
stated,  prescribing  the  terms  of  Insurance, 
was  intended  and  was  to  be  deemed  a  valid 
undertaking  on  the  part  of  the  company  that 
they  would  be  bound  according  to  the  terms 
tendered,  if  an  answer  should  be  transmitted 
in  due  course  of  mail  accepting  them,  whicli 
could  not  be  withdrawn  unless  the  withdrawal 
reached  the  party  to  whom  it  was  addressed 
before  his  letter  of  reply  announcing  the  ac- 
ceptance had  been  transmitted;  *that  on  the 
acceptance  of  the  terms  proposed,  transmitted 
by  due  course  of  mail  to  the  company,  the 
minds  of  both  parties  met  on  the  subject  in 
the  mode  contemplated  at  the  time  of  enter- 
ing upon  the  negotiations,  and  the  contract  be- 
came  complete.  The  party  to  whom  the  pro. 
posal  was  addressed  had  a  right  to  regard  it 
as  a  continuing  offer  until  it  reached  him  and 
was  in  due  time  accepted  or  rejected.  Taylot 
V.  Merchants  Ins.  Co.,  9  How.,  390. 

2.  Open  running  policy  on  5,000  bags  of 
coffee  from  Rio  to  a  port  or  ports  of  the  United 
States.  The  premium  was  acknowledged  as 
paid  at  the  rate  of  one  and  a  half  per  cent  ; 
but  it  stipulated  for  an  additional  premium  if 
shipped  by  vessels  lower  than  A  2,  or  bj  for- 
eign vessels,  and  for  a  return  of  one  quarter 
per  cent,  if  shipped  direct  to  an  Atlantic  port; 
"  The  premium  on  risks  to  be  fixed  at  tlie  time 
of  indorsement,  and  such  clauses  to  apply  as 
the  company  may  insert,  as  the  risks  are  suc- 
cessively reported."  Neitlier  party  knew  that 
the  coffee  was  shipped  or  on  what  vessels  it 
had  or  might  be  shipped.  The  shipments 
were  to  be  reported  to  the  insurer  as  sor)n  as 


CONTRACT. 


B14 


What  is  complete. 


insureil  received  advices.  Held,  the  premium 
^vas  fi.\ed,  except  in  the  case  of  a  foreign  ves- 
sol,  or  one  rating  lower  than  A.  3;  that  there 
was  no  question  in  the  case  but  to  determine 
the  rating  of  this  vessel  upon  which  this 
shipment  was  made;  the  word  rating  means 
the  delerniinalion  of  tlie  relative  state  or  con- 
dition of  vessels  in  regard  to  their  insurable 
qualities;  that  as  there  was  nothing  in  the 
language  of  the  policy  itself  to  indicate  the 
source  to  which  the  parties  were  to  look  for 
the  delerminalion  of  the  rating  of  the  vessels, 
the  question  was  like  any  other,  of  value, 
quantity  or  quality,  to  be  decided  by  refer- 
ence to  all  the  sources  of  information  whicli 
would  enable  the  jury  to  fix  the  fact  correctly  ; 
that  the  parties  were  not  confined  to  the  rate 
or  classification  on  the  register  of  the  insurer; 
and  tliat  the  usage,  for  the  insured,  upon 
<luestions  of  this  kind,  to  be  governed  bj'  the 
insurer's  register  could  apply  only  to  a  vessel 
that  had  an  actual  rating  upon  the  books  of 
the  company  of  a  date  so  recent  as  to  be  rec- 
ognized by  insurers  as  a  valid  rating;  there- 
fore, as  the  vessel  in  question  had  no  rating 
upon  insurer's  register,  it  was  not  any  evi- 
dence of  her  rating.  Insurance  Companies  v. 
Wright,  1  Wall.,  im. 

3.  The  company  had  its  principal  place  of 
business  at  Philadelphia,  but  N.  &  II.  were 
its  agents  in  Hartford,  Conn.  They  proposed 
to  C.  to  insure  certain  premises  of  his,  and  he 
thereupon  made  an  application  to  insure 
$10,375  from  August  26,  1870,  for  a  term  of 
five  years,  at  a  fixed  consideration.  The  agents 
agreed  to  give  him  credit  for  the  premium  till 
October  1st  next,  and  that  the  policy  should  be 
retained  by  N.  &  H.  for  C.,  for  his  conveni- 
cnce,  till  October  1st.  The  premises  were  de- 
stroyed by  fire  September  20th,  at  which  time 
no  policy  had  been  made.  The  company  had 
no  knowledge  of  the  negotiations  for  the  con- 
tract to  insure  till  after  the  fire;  but,  after  the 
fire,  the  agents  filled  up  a  blank  policy,  con- 
sulted with  their  principals,  and  refused  to 
deliver  it.  The  premium  was  tendered  and 
refused.  Held,  credit  for  the  preinium  did  not 
impair  the  preliminary  contract;  and  the 
agents  were  authorized  to  do  after  the  fire 
what  they  had  previously  stipulated  to  do  on 
behalf  of  the  company;  the  relations  of  the 
parties  and  the  obligations  of  the  company 
were  not  changed  by  the  neglect  of  the 
agents;  the  insured  had  a  right  to  sue  upon 


the  policy  to  recover  for  the  loss;  and,  upon 
failure  of  Die  company  to  produce  the  policy 
upon  the  trial,  to  give  evidence  of  its  contents 
(citing  Kohne  v.  Insurance  Co.,  1  Wash.  C.  C, 
Vi;  Lightbody  v.  North  Amer.  Ins.  Co.,  23 
Wend.,  18;  City  of  Davenport  v.  Peoria  F.  & 
M.  Ins.  Co.,  17  Iowa,  276).  Insurance  Co.  v. 
Colt,  20  Wall.,  560. 

4.  The  complainants  made  insurance  upon 
the  ship  Great  Republic  for  a  large  amount, 
and  thej'  directed  S.  to  propose  to  the  respond- 
ents for  reinsurance  to  the  amount  of  $10,000 
for  six  months,  from  December  24,  1853,  at 
noon,  subject  to  the  same  risks,  valuations 
and  conditions,  at  three  per  cent.  Tiio  re- 
spondent's president  declined  to  take  it  at 
three  per  cent.,  but  said  he  would  take  it  at 
three  and  half  per  cent.  8.  stated  he  was  not 
authorized  to  agree  for  that  rate.  This  oc- 
curred December  24th;  and  Monday,  the  26th, 
S.  received  inftructions  to  agree  to  the  rate 
asked.  This  day  was  observed  by  merchants, 
bankers  and  insurers  as  a  holiday;  but  S. 
went  to  respondent's  office,  saw  the  president 
about  it,  the  rate  was  changed  upon  the  appli- 
cation to  three  and  a  half  per  cent.,  and  he 
assented  to  the  terms,  but  informed  S.  that 
no  business  was  being  done  at  the  office  that 
day  ;  that  it  would  be  attended  to  the  next  day; 
the  application  was  received  and  retained  by 
the  president.  Held,  there  was  an  agreement 
to  reinsure  according  to  the  terms  contained 
in  the  proposal;  that  when  one  of  the  parties 
either  accepted  a  continuing  oft'er,  or  renewed 
a  proposal  made  by  the  other,  a  binding  con- 
tract was  completed ;  the  statement  made 
by  the  president,  that  he  would  attend  to  it 
next  daj',  could  not  be  interpreted  to  mean 
that  he  had  not  made  a  contract  for  a  policy, 
because  he  had  already  made  a  contract  to 
execute  one  next  day  in  due  form  to  carry  the 
agreement  into  effect.  Commercial  Mutual 
Marine  Ins.  Co.  v.  Union  Mut.  Ins.  Co.,  19 
How.,  318;  affirming  s.  c,  2  Curtis,  524. 

5.  The  plaintiffs  were  in  the  habit  of  send- 
ing plates  of  their  work  to  be  bound  by  F.  at 
his  place  of  business,  10  Spruce  street,  and  of 
procuring  insurance  upon  them  for  the  short 
time  required  to  bind  and  return  them.  About 
two  months  prior  to  the  present  occasion,  they 
sent  certain  sets  of  their  works  to  this  binder, 
and  procured  a  policy  upon  them  from  the 
defendants  for  $1,000  for  one  month.  Tliey 
afterwards  sent  to  F's  place  of  business  five 

157 


315 


CONTRACT. 


318 


What  is  complete. 


other  sets  of  their  works  to  be  bound,  and  im- 
mediately dispatched  a  messenger  to  defend- 
ants to  procure  insurance  upon  them  for  a 
mouth.  He  stated  to  defendants'  secretary 
the  purpose  of  his  errand  in  a  manner  suffi- 
ciently precise  to  embrace  all  the  terms  of  the 
insurance,  except  the  rate  of  premium.  Refer- 
ence was  made  to  the  former  policy  on  other 
sets;  the  secretary  said  the  company  would 
insure  the  property,  and  would  send  the  policy 
to  the  owners  on  the  following  Monday.  This 
conversation  occurred  Saturday-  afternoon. 
Held,  an  agreement  to  insure  presently,  and  to 
furnish  written  evidence  of  the  contract  as  soon 
as  it  could  be  i)reparcd  conveniently ;  that  as 
nothing  was  said  about  the  premium,  it  was 
a  fair  inference  of  fact  that  it  was  to  be  the 
same  as  that  charged  in  the  prior  policy,  and 
was  a  debt  against  the  owners  of  the  projierty, 
for  which  credit  was  given  until  the  policy 
should  be  delivered.  Audubon  v.  Excelsior 
Im.  Co.,  27  N.  Y.,  216. 

6.  Defendants  appointed  D.  &  Co.  as  their 
agents  at  Appalachicola.  The  custom  at  that 
place  was  to  obtain  from  persons  engaged  in 
the  business  of  insurance,  a  certificate  to  cover 
shipments  of  cotton  from  various  points  to 
the  person  named,  who  kept  a  book  in  which 
he  entered  all  shipments  with  their  value  of 
the  description  specified  in  the  certificate,  and 
at  the  end  of  each  month  to  exhibit  the  book 
to  insurer,  who  fixed  the  premium.  Ship- 
ments were  rarely  known,  either  to  consignee 
or  insured,  until  arrival  of  the  vessel.  D.  & 
Co.  made  a  certificate  of  insurance  to. the 
plaintiff  to  cover  all  cotton  shipped  by  or  for 
account  of  persons  named,  at  a  fixed  valuation 
per  bale.  While  the  certificate  was  in  force, 
but  before  the  shipment  was  reported  by  in- 
sured to  the  agent,  a  steamboat  with  1S4  bales 
of  cotton,  $9,200,  consigned  to  the  plaintiff  for 
account  of  persons  named  in  the  certificate, 
was  consumed  by  fire.  Held,  insurers  were 
bound  to  take  notice  of  the  mode  of  doing  the 
business  of  insurance  at  Appalachicola;  that 
.n  a  controversy  not  between  the  agent  and 
the  insured,  the  knowledge  of  the  agent  was 
the  knowledge  of  the  insurer;  that  if  the 
agents  violated  private  instructions,  that  was 
no  defense  to  the  action.  HarUhorne  v.  Union 
Mut.  Ins.  Co.,  36  N.  Y.,  172 ;  s.  c,  5  Bos.,  538 ; 
Pratt  V.  Union  Mut.  Ins.  Co.,  9  id.,  97. 

7.  The  loss  was  not  covered  by  the  policy, 
but  insured  called  on  the  defendant  and  de- 
158 


sired  to  know  where  the  property  was.  De- 
fendant's agent  replied,  it  was  in  Washington, 
the  point  of  destination.  Insured  denied  that 
it  was  there,  and  offered  to  abandon  it,  on  the 
ground  that  the  vessel  had  sprung  a  leak,  and 
was  propably  frozen  in  at  the  mouth  of  the 
Potomac.  Defendant's  agent  told  him  to  find 
the  property,  have  it  inspected,  sold  at  auc- 
tion, do  the  best  he  could  with  it,  return  to 
the  company,  and  it  would  pay  the  deficiencj-. 
Insured  found  it,  and  did  with  it  as  requested, 
but  the  ■  company  refused  to  pay,  on  the 
ground  that  they  were  not  liable  for  goods 
shipped  on  deck.  Held,  the  plaintiff  was  en- 
titled  to  recover  on  the  new  agreement;  that 
it  was  properly  a  question  for  the  jury  to  de- 
termine whether  the  defendants  made  that 
new  agreement  after  their  attention  had  been 
drawn  to  the  fact  th.at  the  property  was  lader) 
on  deck.  Willets  v.  Sun  Mut.  Ins.  Co.,  45  X. 
Y.,  45. 

8.  M.  was  the  agent  of  several  companies, 
including  the  defendant.  P.  applied  to  him 
to  insure  a  quantity  of  cotton  for  a  certain 
time,  at  a  stipulated  rate  of  premium,  and  for 
a  certain  amount,  leaving  it  to  him  to  deter- 
mine the  companies  and  the  amount  in  each. 
The  agent  entered  |6,100  of  the  whole  sum 
upon  his  register  for  the  defendant,  credited 
the  premium  to  the  defe-udant,  which  was  re- 
ported, and  paid  over  before  loss.  Held,  a 
valid  contract.  Ellis  v.  Albany  City  Fire  Ins. 
Co.,  50  N.  Y.,  402 ;  4  Lans.,  433. 

9.  Plaintiff  made  application  to  defendant's 
agent,  for  a  policy  on  the  life  of  her  husband ; 
paid  the  premium  and  took  a  receipt,  in 
which  it  was  stipulated  that  the  application 
should  be  forwarded  to  the  principal  ofijce 
for  acceptance;  if  accepted,  a  policy  to  be  is- 
sued ;  if  declined,  the  premiuiu  to  be  returned, 
but  if  death  should  occur  before  the  princi- 
pal's decision  shall  have  been  received,  the 
sum  insured  to  be  paid.  The  application  was 
accepted,  and  a  policy  sent  to  the  agent  who 
refused  to  deliver  it,  because  the  health  of  the 
person  insured  had  declined.  The  second 
premium  became  due,  it  was  tendered  and  re- 
fused, and  the  person  insured  died  soon  after. 
Held,  the  only  contingency  on  which  the  con- 
tract could  fail  was  the  rejection  of  the  appli- 
cation by  the  principal ;  that  contingency  did 
not  happen,  hence  the  contract  was  complete. 
Fried  v.  Royal  Ins.  Co.,  50  N.  Y.,  243;  s.  c,  47 
Barb.,  127. 


317 


CONTRACT. 


318 


What  is  complete. 


10.  Plaintiffs' agent  having  executed  their 
policy  insuring  certain  buildings,  machinery 
and  fixtures,  was  ordered  by  them  to  cancel 
it.  Whereupon  he  instructed  his  clerk  to 
wake  application  to  defendant's  agents  to 
reinsure  the  risk.  Tlicy  made  a  polic}'  in  tbe 
name  of  the  owner  covering  the  risk  described 
in  plaintiffs'  policy,  and  delivered  it  to  the 
clerk  of  plaintiffs'  agent,  who  made  an  un- 
successful effort  to  find  the  owner,  and  to  de- 
liver it.  The  premises  were  consumed  two 
days  after  defendant's  policy  was  issued.  The 
day  after  the  fire  occurred  defendant's  agents 
received  the  premium.  The  owner  made 
proof  of  loss  and  sent  them  to  the  plaintiffs, 
claiming  that  the  policy  made  by  the  defend- 
ant was  without  authority  from  her,  and  that 
the  plaintiffs'  agent  in  procuring  it  had  no 
authority  so  to  do.  Held,  not  a  contract  to  re- 
insure, but  one  of  original  insurance,  and  up- 
on which  the  plaintiffs,  as  assignee  of  the 
owner,  were  entitled  to  recover.  Excehior  Fire 
Ins.  Co.  V.  Royal  Ins.  Co.,  55  N.  Y.,  343 ;  s.  c, 
7  Lans.,  138. 

11.  Insurers  appointed  R.  to  make  agree- 
ments to  insure  propertj'  at  Savannah,  to  re- 
ceive the  premium,  transmit  it;  and  the  ap- 
plication to  be  binding,  provided  insurers 
should  accept  the  premium  when  tlie  applica- 
tion should  be  presented  for  their  delibera- 
tion. R.  received  a  premium,  delivered  his 
receipt  for  it  January  5,  1820.  The  loss  oc- 
curred on  the  morning  of  the  11th,  before  he 
had  transmitted  the  application.  Held,  in- 
surers were  bound  to  pay  the  loss  unless  they 
could  show  proper  objections  to  the  rate  or 
the  risk;  that  if  both  of  these  were  unobjec- 
tionable, at]d  the  policy  would  have  been  is- 
sued but  for  the  liappening  of  the  loss,  the 
court  would  compel  them  to  recognize  the 
rate  and  to  be  satisfied  with  the  risk.  Perkins 
V.  Washington  Ins.  Co.,  4  Cow.,  645;  revers- 
ing s.  c,  6  Johns.  C,  485. 

12.  The  insured  sent  his  ship  with  a  cargo 
to  Gibraltar ;  she  was  to  proceed  thence  on  a 
trading  voyage  to  the  Pacific,  going  first  up 
the  Mediterranean,  not  further  than  Marseilles, 
for  the  purpose  of  obtaining  a  change  of  cargo, 
or  for  some  other  object  necessary  to  the  suc- 
cess of  the  voyage.  He  made  application  for 
insurance,  in  writing,  as  follows:  "On  ship 
Nancy,  James  Selby,  master,  at  and  from  the 
port  of  Gibraltar  fwhere  she  now  is),  to  a  port 
in  the  Mediterranean,  not  higher  than  Mar- 


seilles,  at  and  from  thence  to  Sonsonate,  in 
the  province  of  Guatemala,  Pacific  Ocean, 
with  liberty  to  use  Guayaquil.  Property  war- 
ranted American,  to  be  proved  in  Philadel- 
pliia  only.  $15,000  on  lier  profits.  Valued  at 
|'20,000."  This  application  was  made  Novem- 
ber 13th,  and  marked  "  Binding,"  by  the  de- 
fendant's president.  Insured  was  to  send  his 
notes  for  the  premium.  On  the  15th  of  the 
same  montli,  before  the  policy  was  made,  and 
before  the  notes  were  delivered,  information 
was  received  by  both  parties  that  she  acci- 
dentally took  fire  at  Gibraltar,  September  19th 
preceding,  and  was  entirely  destroyed.  Held, 
a  completed  contract,  but  that  the  words 
"  Where  she  now  is,"  was  a  warranty  that  she- 
was  safe  at  Gibraltar  at  the  time  the  applica- 
tion was  made,  and  tliis  being  untrue,  no  re- 
covery could  be  had.  Callaghan  v.  Atlantic 
Ins.  Co.,  1  Edw.  C,  64. 

13.  September  2,  1869,  defendant's  agent, 
French,  resided  at  Auburn,  at  which  place 
plaintiff  resided.  On  his  way  to  the  cars  he 
met  French,  and  paid  him  the  premium  for 
insurance  against  accidents.  The  agent 
promised  to  make  tlie  policy  as  soon  as  he 
readied  his  office.  On  that  day  the  plaint- 
iff sprained  his  knee.  The  agent  refused  to 
deliver  the  policy.  All  the  policies  were  sub- 
ject to  the  condition  that  immediate  notice 
should  be  given  in  writing  of  any  accident  oi 
injury,  with  full  particulars  of  it,  and  satisfac- 
tory proof  within  seven  months  thereafter. 
Held,  insured  was  entitled  to  a  policy,  and  a 
court  of  equity  would  decree  payment  of  the 
amount  agreed,  if  plaintiff  could  prove  per- 
formance of  the  conditions  contained  in  the 
usual  policy.  Rhodes  v.  Railway  Passenger 
Ins.  Co..  5  Lans.,  71. 

14.  March  28,  plaintiff  applied  to  defend- 
ant's agent  for  insurance,  who  accepted  the 
risk,  and  delivered  a  receipt  for  the  premium, 
in  which  it  was  stated  the  policy  should  take 
effect  at  noon  of  that  day.  The  premium  was 
not  paid,  but  tlie  agent  agreed  that  the  plaint- 
iff might  send  it  to  him  when  convenient.  The 
property  was  destroyed  April  7th.  Insured 
sent  the  premium  to  the  agent  immediately 
after  the  fire,  said  nothing  about  tbe  loss,  and 
the  agent,  not  having  heard  of  it,  sent  the  pre- 
mium and  application  to  defendants,  who, 
without  any  notice  of  the  loss,  made  and  sent 
a  policy  to  the  agent  to  be  delivered  to  the 
plaintiff;  but  subsequently,  on  hearing  of  the 

15» 


319 


CONTRACT. 


320 


What  is  complete. 


loss,  directed  liim  not  to  deliver  it.  Held,  de- 
fendant could  not  be  permitted  to  say  that  the 
policy  would  have  been  valid  from  March 
2Sth  if  no  fire  had  occurred,  and  also  to  insist 
that  it  was  not  valid  because  of  the  fire  April 
7th;  tliat  the  plaintiff  was  under  no  legal  or 
moral  obligation  to  inform  the  defendant  of 
tlie  fire  before  or  at  the  time  the  premium  was 
jiaid;  that  he  was  entitled  to  have  his  applica- 
tion acted  upon  after  the  fire  in  precisely  the 
same  manner  as  if  no  fire  had  occurred.  Whit- 
cker  t.  Farmers  Union  Ins.  Co.,  29  Barb.,  313. 
15.  Policy  for  sixty  days,  to  expire  March 
24,  1863,  noon.  The  plaintiff  had  an  inter- 
view with  defendant's  agent  February  27th, 
who  then  inquired  whether  plaintiff  desired 
to  have  this  and  another  insurance  on  the 
same  propertj-,  in  another  company,  renewed 
wjien  they  should  expire,  both  being  to  expire 
at  the  same  time,  to  which  plaintiff  replied 
that  he  required  them  to  be  renewed  for  sixty 
<lays.  In  the  afternoon  of  March  24th,  the 
agent  was  asked  by  plaintiff  whether  he  had 
renewed  tbese  policies.  The  agent  inquired 
when  they  expired,  and  the  plaintiflT  told  him 
they  had  expired  that  day,  and  the  agent  stated 
be  would  go  right  over  and  do  it.  This  con- 
versation occurred,  not  in  the  agent's  place  of 
business,  but  in  a  neighboring  store.  Xothing 
was  said  about  the  premium,  but  the  evidence 
disclosed  the  fact  that  this  agent  had  previ- 
ously renewed  several  insurances  for  the  plaints 
iff  in  the  same  wtiy-  The  agent  was  a  banker, 
and  plaintiff  kept  his  bank  account  with  him, 
and  lie  had  on  former  occasions  debited  plaint- 
iff in  account  with  the  necessary  amount  of 
premium,  without  any  check  for  it.  Held,  the 
evidence  was  suflicient  to  establish  a  contract 
to  renew  the  insurance  for  sixty  days,  notwith- 
standing all  policies  and  renewal  certificates, 
supplied  by  the  company  to  the  agent,  de- 
clared they  should  not  be  valid  till  counter- 
signed by  the  agent.  Post  v.  .^tna  Ins.  Co., 
43  Barb.,  351. 

16.  $30,000  on  propertj"-  on  board  vessel  or 
vessels  to,  at,  and  from,  all  ports  or  places  as 
per  indorsements  to  be  made  hereon  (certain 
perils  enumerated  taken),  also:  "Against  all 
other  losses  or  misfortunes  to  which  insurers 
are  liable  according  to  the  rules  and  customs 
of  insurance  in  Boston."  P.  &  B.  were  insur- 
ers' agents  at  Boston.  Tlie  plaintiffs  applied 
to  B.  for  insurance  on  400  bales  of  cotton.  New 
Orleans  to  Boston,  115  on  brig  "  Keying,"  and 
160 


285  bales  in  store  at  New  Orleans.  B.  charged 
"  one-eighth  of  one  per  cent,  for  the  risk  of 
fire  on  shore  until  shipped  from  date  of  stor- 
age "  in  addition  to  marine  premium.  B.  sul). 
sequently  altered  the  risk  on  shore  by  adding 
the  words  "thirty  days."  Held,  if  P.  «fc  B.,  as 
partners  in  business,  were  autliorized  to  act 
for  defendants,  eitlier  might  exercise  the  au- 
thority thus  conferred ;  tlie  alteration  of  the 
risk  on  shore  to  thirty  days  was  material,  and 
not  having  been  consented  to  by  one  of  the 
parties,  could  not  be  taken  into  consideration 
in  determining  their  rights.  It  was  compe- 
tent for  the  parties  before  a  breach  of  the  con- 
tract, to  var_v,  change,  or  enlarge  their  engage- 
ments and  liabilities  under  it;  and  what  the 
parties  could  do  themselves  could  be  done  by 
their  agents  properly  authorized;  that  an 
omission  to  indorse  the  risk  upon  the  policy 
before  the  loss  did  not  aflect  plaintiffs'  right 
to  recover,  for  the  subject  was  well  described, 
the  premium  agreed  upon,  the  place  of  storage 
satisfiictorily  described ;  the  only  thing  to  be 
ascertained  when  the  bills  of  lading  or  invoice 
should  come  to  hand  was  the  value.  Kenne- 
bec Co.  V.  Augusta  Ins.  &  Banking  Co.,  6 
Gray,  204. 

17.  "Lost  or  not  lost,  on  cotton  gins  and 
bandings  on  board  of  an}-  steamer  or  steamers 
at  and  from  New  York  to  New  Orleans;  all 
sums  placed  at  risk  under  this  policy  are  to 
be  indorsed  hereon,  and  this  policy  is  to  be 
closed  in  twelve  mouths  if  not  sooner  filled.'' 
Diited  June  14,  1853.  The  shipment  of  16  cot- 
ton gins  was  made  at  New  York,  August  25 
and  26,  1853,  and  the  bill  of  lading  was  re- 
ceived at  Boston  on  the  27th.  The  ship  and 
contents  were  burned  on  the  evAiing  of  the 
26th.  In  tlie  afternoon  of  the  27tli,  the  plaint- 
iffs requested  defendants  to  indorse  the  ship- 
ment, which  was  refused  on  the  ground  that 
the  property  had  been  lost  before  the  applica- 
tion was  made.  Held,  the  construction  which 
the  defendants  claimed  to  put  upon  the  con- 
tract would  enable  them  to  say,  having  re- 
ceived the  price  for  insuring  £25,000  on  any 
gins,  to  be  shipped  in  anj-  steamer,  from  New 
York  to  New  Orleans,  within  a  year,  we  will 
insure  only  such  as  it  is  our  pleasure  to  insure; 
such  a  construction  would  defeat  the  inten- 
tions of  the  parties;  if  the  insured,  acting  in 
good  faith,  intended  to  have  the  shipment  cov- 
ered by  the  policy,  and  within  a  reasonable 
time  after  the  shipment,  notified  insurer  of  his 


S21 


CONTRACT. 


322 


What  is  complete. 


flection,  insurer  could  not  refuse  to  indorse, 
notwithstanding,  between  shipment  and  no- 
lice,  intelligence  of  the  disaster  had  been  re- 
ceived (citing  Kewly  v.  Uyan,a  II.  Black.,  343; 
C.awford  i-.  Hunter,  8  Term,  l(i,  note;  Harmon 
V.  Kingston,  3  Camp.,  150).  Carver  Comp'y  v. 
Manvfaduren  Ins.  Co.,  6  Gray,  214. 

1 8.  B.  was  aulliorized  by  defendant  to  re- 
ceive proposals  for  insurance  and  premiums 
upon  risks  accepted,  but  not  lo  make  contracts. 
His  duty  was  to  forward  applications  to  the 
principal  office,  and  when  accepted,  the  poll- 
cIps  were  made  and  sent  to  him  to  deliver. 
Plaintiff  applied  to  him  for  |1,S00  insurance 
to  commence  March  12, 1855,  at  noon,  at  which 
time  the  policy  of  another  company,  for  the 
same  sum  would  expire.  B.  made  a  survey  of 
the  building,  told  him  what  the  premium 
would  be,  and  plaintiff  offered  to  pay  the  pre- 
mium, but  B.  stated  that  it  could  remain  with 
the  plaintiff,  a  banker,  because  B.  kept  an  ac- 
count with  him;  that  when  the  policy  should 
reach  him  he  would  go  and  take  the  money. 
Tlie  company  deferred  acting  on  the  applica- 
tion till  March  13th.  at  which  time  they  made 
a  policy  and  transmitted  it  to  B.  for  him  to 
deliver  it  to  insured.  The  property  was  de- 
stroyed on  the  morning  of  March  13,  ten  hours 
before  the  policy  was  executed.  It  ought  to 
have  reached  B.  March  14,  but  owing  to  falls 
of  snow,  it  did  not  arrive  until  the  10th,  at 
■which  time  insurers  telegraphed  B.  not  to  de- 
liver it.  B.  accepted  the  premium  when  it 
was  tendered,  but  refused  to  deliver  the  policy. 
It  was  stipulated  in  the  policy  that  no  insur- 
ance should  be  binding  until  payment  (jf  pre- 
mium. Held,  a  completed  contract  when  the 
insurers  signified  their  acceptance  of  the  offer; 
and  it  was  unnecessary  for  a  knowledge  of  the 
acceptance  to  have  reached  the  other  party.  Hal- 
lock  V.  Commercial  Ins.  Co.,  26  N.  J.,  268 ;  affirm- 
ed, Commercinl  Ins.  Co.  v.  Hallock,  27  N.  J.,  645. 

19.  Plaintiff  applied  to  defendant's  agent 
for  insurance  on  an  academy,  paid  requisite 
proportion  of  premium  and  executed  note  for 
residue,  and  had  the  survey  made.  Secretary 
of  company  wrote  agent  to  require  plaintiff  lo 
substitute  earthenware  collar  in  place  of  sheet 
iron,  and  to  have  the  trustees  of  academy, 
who  held  the  title,  assent  to  the  insurance, 
saying,  that  being  certified  that  these  were 
done,  he  would  send  the  policy.  All  were 
performed,  and  the  agent  was  requested  to 
call  fjr  the  trustees'  consent,  which  he  prom. 

11 


iscd  to  do  but  neglected,  and  the  building  was 
consumed  before  he  got  it.  Held,  the  con- 
tract to  insure  was  complete  from  the  time 
jjlaintiff  gave  notice  that  he  had  complied 
with  all  the  conditions  mentioned.  Hamilton. 
V.  Lycoming  Mut.  Ins.  Co.,  5  Penn.  St.,  339. 

20.  On  brig  from  Havana  to  a  port  of 
discharge  in  the  U.  S.  It  was  subsequently 
indorsed,  "  The  brig  herein  named,  with 
cargo,  has  liberty  to  pi-oceed  from  Havana  to 
Malanzas  to  finish  loading,  and  the  risk  to  be 
continued  at  and  from  thence  to  her  port  of 
discharge  in  the  U.  S.  Cargo  valued  at  the 
same  for  which  the  sum  of  $40  is  added  to 
note  3,427."  The  vessel  was  lost  while  going 
from  Havana  to  Matanzas.  Held,  it  was  a 
contract  binding  upon  the  corporation  al- 
though it  was  not  recorded  upon  the  record 
book  of  the  corporation.  Warren  v.  Ocean  Ins. 
Co.,  16  Me.,  439. 

21.  The  constitution  and  by-laws  of  the 
Company  provided:  "All  policies  shall  be 
printed  in  the  common  form,  contain  the 
names  of  the  stockholders,  and  the  secretary 
shall  have  full  authority  to  use  their  names 
and  sign  for  each  member ;  and  every  policy 
so  signed  shall  be  as  binding  on  all  the  associ- 
ates the  same  as  if  each  had  affixed  his  own 
signature.  Premiums  less  than  .$20  to  be  paid 
in  cash,  and  all  sums  over  that  by  note,  if  the 
secretary  shall  so  determine."  L.,  one  of  the 
plaintiffs,  applied  for  insurance  in  behalf  of 
all  the  owners  of  a  schooner.  The  president 
and  secretary  agreed  to  take  $2,000  on  her  at 
ten  per  cent,  for  one  year,  commencing  Octo- 
ber 25,  1839,  lost  or  not  lost.  L.  signed  the 
company's  terms  on  the  proposition  book.  A 
policy  was  made  and  recorded,  and  upon 
application  for  it,  L.  said  he  would  leave  the 
polic}',  as  he  had  no  authority  to  sign  the 
names  of  the  other  owners  to  the  note  for  the 
premium,  but  would  take  it,  get  it  signed  and 
return  it  in  a  few  days.  About  December  6th, 
the  president  met  L.  on  the  wharf  and  told 
him  to  go  up  to  the  office  and  settle  that  busi- 
ness, meaning  the  note.  L.  said  he  would 
call  another  time.  Tne  loss  of  the  vessel 
became  known  December  9th.  L.  called  at 
the  office  on  the  11th,  and  mentioned  the  loss, 
and  then  offered  the  note  and  demanded  the 
policy,  which  was  refused.  Held,  the  parties 
could  consent  that  the  writing  should  be  the 
evidence  of  their  agreement,  though  it  be  left 
in  the  hands  of  one  or  the  other  without  any 

161 


323 


CONTRACT. 


324 


What  is  complete. 


formal  delivery  of  it  by  citlier  to  llie  otlier; 
and  if  it  was  customary  for  policies,  wlien 
made,  to  remain  in  the  office  of  insurer,  and 
still  be  obligatory,  and  such  had  been  tlie  case 
in  question,  or  the  agent  of  the  insurer  had 
declared  the  risli  was  taken ;  or  if  there  had 
been  no  loss  the  premium  would  have  been 
recovered ;  a  jury  might,  from  these  or  any  of 
them,  conclude,  that  the  parties  intended  to 
constitute  a  binding  contract;  not  giving  the 
note  for  the  premium  might  appear  unim- 
portant, for  that  would  be  only  a  reiteration 
of  the  promise  to  pay,  which  was  contained 
or  fully  implied  in  the  proposal  for  insurance. 
Loring  v.  Proctor,  26  Me.,  18.  This  cause  was 
again  heard  under  another  title  upon  the 
same  state  of  lacts  and  it  was  held,  the  plaintifT 
was  entitled  to  recover.  Blanchard  v.  Waite,  28 
Me.,  51. 

22.  Insurer's  agents,  residing  at  Portland, 
had  authority  to  malie  any  contract  of  insur- 
ance, in  belialf  of  the  company,  which  the 
company  itself  was  competent  to  make.  It 
was  the  custom  at  Portland  to  accept  build- 
er's risks,  and  afterwards  to  issue  a  policy 
upon  what  is  called  a  permanent  risk  The 
plaintiff  applied  to  the  agent  for  a  builder's 
risk,  $3,500,  and  reqeusted  the  agent  to  keep 
the  property  insured,  which  the  agent  agreed 
to  do,  and  he  made  an  entry  thereof  in  the 
blotter;  afterwards,  when  the  builder's  risk 
had  terminated,  the  risk  was  continued  as  a 
permanent  yearly  risk,  commencing  July  1, 
18G6.  No  specific  rate  of  premium  was  agreed 
upon ;  but  the  agent  was  directed  to  retain  the 
proper  amount  of  pi'emium  from  a  claim  the 
plaintiff  bad  against  the  company,  wliich  the 
agent  agreed  to  do,  and  in  settling  the  claim 
subsequently  to  the  loss,  retained  the  pre- 
mium; but  the  company  declined  to  recog- 
nize the  act  and  directed  the  agent  to  pay  the 
amount  retained  from  the  claim.  No  policy 
was  issued  at  the  time  the  loss  occurred,  but 
the  common  practice  was  to  make  policies 
subsequently  to  the  acceptance  of  risks,  and  to 
treat  them  as  commencing  from  the  time  of 
entering  them  in  the  blotter.  Held,  if  tlie 
plaintiff  and  the  defendant's  agents  under- 
stood that  an  insurance  was  effected,  the  pre- 
payment of  the  premium  was  unnecessary,  for 
that  was  an  advantage  the  company  might 
waive;  that  an  agreement  to  insure  without 
fixing  therate  of  premium  was  an  .agreement  to 
insure  at  the  customary  rates;  and  all  the 
162 


essential  terms  of  a  contract  were  fixed  and. 
complete  (citing  Audubon  v.  Excelsior  Ins. 
Co.,  27  N.  Y.,  216).  Walker  «.  Metropolitan 
Ins.  Co.,  56  Me.,  371. 

23.  The  defendants  issued  an  open  running 
policy  to  H.,  "  for  account  of  whom  it  may 
concern,  loss,  if  any,  payable  to  him,  lost  or 
not  lost,  $50,000  on  property  on  board  ves- 
sel  or  vessels  at  and  from  port  or  ports  in 
the  United  States  and  foreign  countries  to 
other  ports  in  the  United  Slates  and  foreign 
countries,  with  such  other  risks  as  may  be 
agreed,  as  per  indorsement  hereon  accepted 
by  this  company."  Insurer  gave  certain 
blank  certificates  to  H..  for  him  to  fill  and 
sign  them  for  the  company,  and  authorized 
hira  to  indorse  the  risks  and  receive  tlie  pre- 
miums therefor.  He  indorsed  a  risk  and  gave 
a  certificate  in  favor  of  the  plaintiff;  $600  oa 
cargo,  hay,  on  board  schooner  "Julia,"  at 
and  from  Dover,  N.  B.,  to  Boston.  Held,  "  as 
per  indorsement  hereon  accepted  by  the  com- 
pany," indicated  that  the  risk  was  to  be 
agreed  upon,  and  was  to  be  regarded  as  ac- 
cepted by  the  company  by  indorsement;  the 
contract  was  complete  when  the  premium  waa 
paid  and  the  risk  agreed  upon  as  per  indorse- 
ment. Wass  V.  Maine  Mutual  Marine  In-s.  Co., 
61  Me.,  537. 

24.  Insurer's  agent  knew  that  P.  had 
bought  out  the  interest  of  his  partner,  and 
that  he  was  sole  owner  of  the  property  in- 
sured. P.  delivered  the  old  policy  to  tlie  in- 
surer's agent,  and  told  him  he  wanted  the 
property  insured.  The  agent  had  it  renewed, 
and  delivered  the  policy  and  renewal  to  P., 
who  never  looked  at  tliem  till  after  the  fire 
occurred.  Held,  under  the  circumstances  of 
the  case  a  jury  would  have  the  right  to  find  that 
insurer  made  a  new  and  valid  contract  with 
tlie  plaintiff.  Pierce  «.  Nashua  Fire  Ins.  Co., 
50  N.  H.,  297. 

25.  She  was  insured  for  one  month,  but 
struck  a  rock  in  the  Arkansas  river  and  wa» 
obliged  to  put  into  Little  Rock  for  repairs.  A 
second  policy,  by  the  same  insurer,  was  made 
upon  her  while  she  was  undergoing  repairs, 
conditioned,  that  tlie  damages  sustained  by 
grounding  on  the  rock  should  be  repaired  and 
the  vessel  made  as  good  as  she  was  prior  to 
the  accident.  Before  the  repairs  were  com- 
pleted the  water  rose  suddenly  and  she  be- 
came a  total  loss.  I{eld,the  condition  did  not 
postpone  the  risk  until  the  repairs  were  com- 


325 


CONTRACT. 


326 


What  is  complete. 


picted.    Ilyde  v.  Mississippi  Marine  and  Fire 
Ins.  Co.,  10  Liv.  (O.  S.),  543. 

26.  The  agent  of  a  foreign  insurance  com; 
pany  receivcil  the  premium  for  a  life  policj', 
and  in  tlie  receipt  stipulated,  that  it  should  be 
exchanged  for  the  policy  within  thirty  days, 
if  the  application  should  not  be  rejected  by  the 
parent  office.  Insurer  did  not  reject  the  ap. 
plication  within  thirty  days,  but  awaited  a 
certificate  from  a  Louisville  pliysician.  About 
four  mouth.s  after,  the  person  whose  life  was 
proposed  died,  and  then  insurers  directed 
their  agent  to  retain  premium  pro  rata  for 
thirty  days,  and  to  return  the  balance  to  the 
representatives  of  the  deceased.  Held,  it  was 
insurer's  duty  to  forward,  the  rejection  within 
thirty  days  after  receiving  notice  of  receipt  of 
the  premium;  the  premium  was  for  an  insu- 
rance for  twelve  months,  unless  rejected  by 
the  company  within  thirty  days,  and  not  an 
agreement  to  insure  for  thirty  days,  with  the 
right  to  refund  unearned  premium.  Ken- 
nedy V.  New  York  Life  Ins.  Co.,  10  La.  An., 
809. 

27.  It  was  the  custom  between  insurer  and 
insured  to  consider  all  cotton  consigned  to  a 
merchant  as  covered  by  his  open  policy,  un- 
less the  contrary  was  expressed  in  the  bill  of 
lading.  Held,  where  no  such  reservation  was 
expressed  in  the  bill  of  lading,  insurer  was 
bound  for  all  cotton  so  consigned.  Bmmstein 
V.  Crescent  Mut.  Ins.  Co.,  24  La.  An.,  .589. 

28.  "  On  such  property,  in  such  sums,  to 
and  from  such  ports  or  places,  and  by  such 
good  and  seaworthy  steamboats  or  other  river 
craft  as  may  be  approved  by  this  company 
and  entered  in  the  book  attached  to  this  pol- 
icy; no  risk  shall  be  binding  until  so  ap- 
proved and  entered."  Insured  received  no- 
tice April  6th,  that  a  shipment  had  been  made 
April  3d,  from  Montgomery,  Ala.,  to  New  Or- 
leans, on  the  steamer  "  Benefit."  He  pre- 
sented the  invoices  to  a  clerk  in  insurer's 
office  on  the  9th,  and  the  goods  were  properly 
described  by  indorsement ;  date  of  shipment, 
sum  insured,  destination,  rate  of  insurance 
and  amount  of  premium  being  stated.  She 
was  lost  on  tlie  7th,  of  which  insurer  had  no- 
tice, but  neither  the  clerk  nor  insured  knew 
of  it.  Held,  the  contract  became  complete 
when  the  entry  was  made  in  the  book  at- 
tached to  the  policy.  Marx  v.  National  Ma- 
rine and  Fire  Ins.  Co.,  25  La.  An.,  39. 

29.  Application  was    made  and  accepted, 


February  9th,  to  take  effect  from  noon  of  that 
day,  and  policy  was  made,  but  it  remained  in 
the  hands  of  insurers.  Five  days  after,  the 
premises  were  consumed  ;  and  insured  paid  the 
premium  and  took  the  policy  without  dis- 
closing the  fact.  Held,  a  completed  contract, 
and  insured  was  under  no  legal  or  moral  ob- 
ligation  to  notify  the  company  of  the  loss. 
Keim  v.  Home  Mut.  Ins.  Co.,  42  Mo.,  38. 

30.  In  favor  of  the  St.  Louis  Museum,  etc. 
The  property  was  sold  under  a  deed  of  trust 
and  plaintift's  purchased  it.  The  policy  was 
taken  by  the  purchaser  to  an  insurance 
broker,  who  was  told  of  the  sale,  and  he  gave 
the  company  notice  of  it,  and  applied  for  in. 
surance  upon  the  same  property  in  favor  of 
the  purchasers,  and  at  the  same  time  delivered 
up  the  policy.  The  insurers  returned  it  in- 
dorsed: "Loss,  if  any,  payable  to  A."  The 
purchasers  subsequently  sold  the  property  and 
sent  the  policy  to  insurer's  office  requesting  that 
it  might  be  changed  to  cover  "  chairs,  benches 
and  furnaces,  the  property  upon  which  it  had 
been  issued  having  been  sold."  The  presi- 
dent indorsed:  "This  policy  is  hereby 
changed  to  cover  chairs,  benches  and  furnaces 
instead  of  museum  collection  which  is  re- 
moved." Held,  in  the  absence  of  explicit  pro- 
hibition in  the  charter  and  by-laws,  corpora- 
tions have  the  right  to  make  parol  contracts 
(citing  Angell  &  Ames  on  Corponations,  sec. 
240).  That  the  act  of  insurer  was  an  engage- 
ment to  retain  the  unearned  premium,  regard 
the  policy  as  valid,  and  pay  the  loss  to  the 
parties  designated.  Northrup  v.  Mississippi 
Valley  Ins.  Co.,  47  Mo.,  435. 

31.  The  company's  agent  applied  for  in- 
surance upon  his  own  property,  which  was 
granted  and  a  policy  sent.  But  tlie  agent,  be- 
ing dissatisfied  with  the  rate  of  premium,  re- 
turned it  to  the  comp.iny  for  a  reduction, 
which  was  made,  and  it  again  reached  his 
hands  November  6th,  on  which  day  he  charged 
himself  in  account  with  the  premium.  The 
company  transmitted,  with  the  policy,  an  ac- 
count showing  several  charges  against  the 
agent,  in  which  was  the  premium  for  the  pol- 
icy on  the  agent's  property.  The  practice 
was  to  make  remittances  at  the  end  of  every 
month,  less  the  commissions.  On  the  morn- 
ing of  the  7th,  the  property  was  destroyed  by 
fire.  Held,  notice  of  the  acceptance  of  the 
policy  was  not  required;  and  nonremittance 
of  the  premium  did  not  give  the  company  the 

163 


CONTRACT. 


328 


What  is  complete. 


right  to  say  that  the  policy  was   not  in  force. 
Lungslrass  v.  German  Ins.  Co.,  48  Mo.,  201. 

32.  Defendant's  agent  solicited  plaintiff  to 
make  application  for  insurance  January  10, 
1871,  whicli  was  accepted  from  noon  of  that 
day.  The  policy  remained  in  the  hands  of  the 
company  till  March  27th,  following,  at  which 
time  insured  paid  the  premium  and  took  the 
policy,  but  said  nothing  of  the  fact  that  the 
property  had  heen  destroyed  bj'  fire  on  the 
preceding  day.  Tlie  company  delivered  the 
policy  in  ignorance  of  that  fact.  When  the 
application  was  made,  insured  said  he  could 
not  pay  the  premium  at  that  time,  and  the 
agent  told  him  it  would  make  no  difference, 
he  would  take  his  note  for  it  at  one,  two,  or 
six  months.  Plaintiff  declined  giving  his 
note,  said  he  would  have  the  money  in  a  short 
time  and  pay  the  premium  in  cash.  Held, 
the  plaintiff  had  the  right  to  rely  on  the 
agreement,  and  was  not  bound  to  voluntarily 
inform  the  company  of  the  fire.  Baldwin  v. 
Chouteau  Ins.  Co.,  56  Mo.,  1.51. 

33.  Application  made  by  the  husband  for 
a  policy  on  his  life  in  favor  of  his  wife  was 
completed  September  27,  1850.  It  was  agreed 
that  the  premium  sliould  be  credited  against 
the  husband's  bill  for  advertising  for  the  com- 
pany. The  companj-'s  books  showed  an  ap- 
proval of  the  application.  A  policy  issued  Oc- 
tober 2, 1850,  was  sent  to  the  agent,  and  by  him 
received  October  5th.  The  husband  had  been 
taken  sick  in  the  meantime,  September  29th. 
He  died  October  4th.  The  agent  returned 
the  policy  to  the  companj-.  Held,  the  com- 
pany's acceptance  completed  the  contract,  for 
the  proposal  was  a  continuing  offer  up  to 
the  lime  the  answer  was  sent,  and  then  the 
acceptance  made  the  contract  complete  (citing 
Frith  V.  Lawrence  under  the  title  of  Mactiers, 
Adm'r,  «.  Frith,  G  Wend.,  103;  Kohne  b.  Ins. 
Co.  of  N.  A.,  1  Wash.  C.  C,  93;  Adams  v. 
Liudsell,  1  Barn.  &  Aid.,  681 ;  2  Kent  Com., 
477  and  note;  Tayloe  v.  Merchants  Ins.  Co.,  9 
How.,  390).  Kentucky  Jlut.  Ins.  Co.  v.  Jenks, 
5  Ind.,  96. 

34.  A.  applied  to  insurer's  agent  to  insure 
against  loss  by  fire  the  sum  of  $1,000  for  one 
year.  The  proposal  was  forwarded  to  the 
principal,  who  accepted  it.  It  was  agreed 
that  the  policj'  should  be  delivered  when 
called  for  and  the  premium  should  be  paid 
within  five  days;  but  before  that  time  expired, 
the  building  was  consumed  by  fire.    Held,  a 

Itil 


completed  CDnlract.    Neio  England  Ins.  Co.  v. 
Robinson,  25  Ind.,  536. 

35.  The  jury  found  specially  that  the  con- 
tract was  made  March  9th;  that  the  premium 
was  paid  March  14th;  that  the  horse  was 
first  diseased  March  13th,  and  died  March 
14th,  before  the  policj'  issued.  It  provided 
that  the  company  should  not  be  responsible 
for  animals  diseased  "  at  the  time  of  insur- 
ance." Held,  the  special  finding  supported  a 
general  verdict  for  the  insured,  for  the  con- 
tract of  insurance  may  be  complete  without 
evidence  of  it  in  writing  (citing  New  England 
Ins.  Co.  v.  Robinson,  25  Ind.,  536).  American 
Horse  Ins.  Co.  v.  Patterson,  28  Ind.,  17. 

36.  Insured  applied  to  insurer's  agent  for 
insurance.  The  amount,  premium  and  term 
were  agreed  upon,  with  the  understanding 
that  the  agent  was  to  see  the  building,  and  if 
it  should  be  found  as  represented,  the  policy 
should  take  effect  from  noon  of  that  da\-, 
March  20th,  and  that  the  agent  should  call  in 
the  evening  and  state  his  conclusion.  He  exam. 
incd  it  and  gave  notice  that  the  risk  wa.s  ac 
cepted.  It  was  consumed  by  fire  on  the  night 
of  March  20th,  and  on  the  following  morning 
the  agent's  clerk  issued  the  policy,  all  partie* 
being  ignorant  of  the  fire.  Held,  tlie  insure* 
was  liable  for  the  loss.  City  of  Davenport  v 
Peoria  Marine  and  Fire  Ins.  Co.,  17  Iowa,  276. 

37.  A.  applied  to  the  authoiized  agent  of  a& 
insurance  company  to  insure  property  from 
December  18th,  and  it  was  agreed  that  the  pol 
icy  should  issue  on  that  day.  It  was  made  oa 
that  day  but  not  issued  till  the  22d.  Held,  % 
binding  contract  from  the  18th.  Hubbard  v. 
Hartford  Fire  Ins.  Co.,  33  Iowa,  325. 

38.  Insured  alleged  that  on  July  1,  1860,  he 
made  application  to  insurers  through  their 
agent  for  insurance  to  tlie  amount  of  $1,000, 
for  the  term  of  one  year  from  Uiat  date,  upon 
his  stock  of  saddlery,  harness,  saddlery  hard- 
ware, whips,  and  a  great  variety  of  other  goods 
such  as  are  usuallj-  kept  for  sale  in  a  whole- 
sale and  retail  saddle  and  harness  manufac- 
tory, and  agreed  to  paj-  $47.50  as  premium 
therefor  within  one  month  from  that  date ;  that 
the  agent  acting  for  insurer  agreed  to  make 
out  and  deliver  within  one  month  to  insured 
a  policy  of  insurance  on  said  goods;  that  it 
should  date  from  July  1,  1860 ;  that  the  said 
agent  had  authority  to  contract  to  make  in- 
surance  for  insurer ;  that  July  9lh  the  property 
was  consumed  by  fire ;  that  the  same  was  the 


329 


CONTRACT. 


330 


What  is  complete. 


]>r(>pcTly  01'  insured  ;  tliat  on  or  al)out  .July  25, 
IHliO,  insured  tendered  the  premium  and  de- 
manded the  policy,  wliich  was  refused.  Held, 
it  disclosed  a  cause  of  action;  if  the  com- 
l)Iaiut  was  insufficient,  that  did  not  affect  the 
plaintitr's  riglit  to  recover,  for  it  was  the  duty 
of  insurer  to  require  the  pleading  to  be  made 
delinite  and  certain,  hence  insured  was  entitled 
to  recover.  Western  Mass.  Ins.  Co.  v.  Ditffcy, 
2  Kan.,  347. 

39.  Insured  applied  to  insurer's  agent  for 
insurance  on  stock  of  "goods  and  groceries." 
The  sum  insured  was  fixed,  deposit  note  made 
and  delivered,  the  per  centum  paid  to  ageut 
who  passed  it  to  the  credit  of  the  insurer,  and 
forwarded  it  to  his  principal.  The  property 
was  destroyed  before  the  application  reached 
the  principal.  Ileld,  the  contract  was  com- 
plete when  the  insured  did  all  that  was  to  be 
done  on  his  part,  although  the  agent  had  no» 
power  to  issue  the  policy,  rnlm  v.  Medina 
Cvunty  Mutual  Fire  Ins.  Co.,  20  Ohio,  529. 

40.  May  1,  1868,  insured  took  from  insurer 
an  cpen,  or  what  is  sometimes  called  a  run- 
ning policy,  to  continue  for  one  year,  insur- 
ing goods  "Lost  or  not  lost;  shipments  to  be 
reported   and  indorsed."     It  was  proven  that 
insured  had  not  reported  all  their  risks;  tliat 
one  .shipment  was   insured   in   another  com- 
pany, not  by  the  procurement,  however,  of  the 
insured,  but  by  the  consignors  of  that  ship- 
ment.   April  1,  1809,  insured  ordered  tobacco 
from   Louisville  for  Fort  Smith.     They  re- 
ceived the  invoice  April  11th,  and  reported  the 
shipment  on  the  12th,  to  insurers'  agent,  who 
sent  the  application  to  insurers'  secretary,  who 
rejected  it  on  the  14th,  because  he  had  heard 
the  tobacco  had  been  burned  on  the  10th.    It 
appeared  that  insured  was  asked  by  insurers' 
agent  whether  the  risk  should  be  indorsed 
from  Louisville  or  from  Memphis  only,  and 
insured  replied  he  would  be  satisfied  to  have 
it  taken  from  Jlemphis,  and  it  was  so  indorsed 
upon  the  policy.     She   reached  Memphis  in 
safety,  entered   the  Arkansas  river,  struck  a 
snag  forty  miles  below  Little  Rock,  sank,  and 
was  burned  to  the  water's  edge.  Held,  insurers 
could  make  themselves  responsible  for  a  loss 
that  had  already  happened  even  though  it  were 
total ;  and  that  their  intention  so  to  do  was 
evidenced   by  the   words  "lost  or  not  lost," 
found  in  the  policy;  that  under  such  a  policy 
the  contract  was  not  completed  until  the  de- 
sire to  insure  was  made,  and  until  made,  the  I 


contract  was  inchoate;  that  when  the  desire 
to  insure  was  made  to  insurers'  acting  and  ac- 
credited  agent,  and  the  premium  agreed  upon 
and  charged  to  insured,  then  the  contract  be- 
came  complete;  the  failure  to  report  all  sliip- 
ments  to  insurers  did  not  work  a  forfeiture  of 
the  polic}-,  because  there  was  no  agreement 
between  tlie  parties  that  insured  should  report 
all  shipments;  and  a  failure  to  perform  an  im- 
plied duty  does  not  avoid  a  contract;  and  a.s 
the  contract  itself  did  not  fi.x  a  penalty  for  the 
failure  to  report  all  shipments,  the  law  will 
not  arbitrarily  say  the  failure  ipsofaeto  created 
a  forfeiture.  Arkamtds  Ins.  Co.  v.  Boatick, 
27  Ark.,  539. 

41.  The  plaintifi"  introduced  evidence  tend- 
ing to  prove  an  application  made  to  defend- 
ant's agent  for  a  policy  on  the  life  of  plaintiff's 
husband,  and  the  payment  of  |50  on  account 
of  the  first  year's  premium,  provided  the  de- 
fendant should  conclude  to  make  the  policy. 
The  apiilication  was  received  by  defendant,  a 
policy  made  and  forwarded  to  the  ageut  for 
delivery,  but  it  did  not  reach  his  hands  until 
after  the  death  of  plaintiff's  husband.  Held,  a 
valid  contract;  for  the  moment  the  company 
concluded  to  take  the  insurance,  the  $50  paid 
to  the  agent  became  the  properly  of  the  com- 
pany absolutely,  and  the  plaintiff  became  en- 
titled to  a  policy,  lience  it  was  error  to  non- 
suit  the  plaintiff.  Cooper  v.  Pacific  Mvt.  Ins. 
Co.,  7  Nev.,  116. 

42.  An  open  or  running  m.irine  policy'  to 
insure  "The  various  sums  to  be  indorsed  on  it 
upon  treasure,  bullion  and  bonds  laden  or  to 
be  laden  on  seaworthy  steamships,  steam- 
\essels  or  propellers,  beginning  the  adventure 
upon  said  treasure,  bullion  and  bonds  from 
and  immediately  after  the  loading  thereof  at 
certain  ports  named,  risks  applicable  hereto  to 
be  reported  to  this  company  for  indorsement 
as  soon  as  known  to  the  insured;  to  cover 
treasure  and  bullion  shijjped  by  W.  F.  &  Co. 
at  their  risk,  by  reason  of  their  assuming  the 
responsibility  of  assurance  thereon.''  A  ves- 
sel was  lost  with  treasure  shipped  by  "W.  F.  & 
Co.;  advices  of  it  were  on  the  vessel  and 
lost  with  her,  but  duplicate  advices  sent  by 
the  following  steamer,  were  reported  and  in- 
dorsed upon  the  policy  to  the  amount  of  $0,158; 
but  while  the  vessel  was  en  route,  a  messenger 
or  servant  of  W.  F.  &  Co.,  in  the  course  of  his 
business,  as  such,  received  from  passengers  on 
board,  .1i7,343.50,  to  be  carried  by  W.  F.  &  Co., 

165 


331 


CONTRACT. 


332 


'UTiat  is  complete. 


and  for  which  he  gave  shipper's  receipts 
against  all  perils;  while  the  vessel  lay  .it  the 
port  of  departure,  the  messenger  received 
$3,657.50,  for  which  he  gave  similar  receipts, 
and  notified  the  local  agent  of  W.  F.  &  Co.  of 
the  possession  of  these  sums,  in  order  that 
they  might  be  embraced  in  his  letter  of  ad- 
vice; but  the  local  agent  forgot  and  omitted  to 
do  So,  and  gave  notice  only  of  the  sum  first 
mentioned.  So  soon  as  the  messenger  arrived, 
application  was  made  for  these  sums  to  be  in- 
dorsed on  the  policy,  but  insurer  refused. 
Held,  the  policy  commenced  when  the  treasure 
was  actually  on  board  at  one  of  the  specified 
ports  in  the  possession  of  the  messenger  of 
insured  for  transportation ;  it  was  immaterial 
whether  it  was  taken  on  board  at  one  of  the 
ports  named  or  some  other  place  in  the  course 
of  the  voyage;  it  was  the  duty  of  insured  to 
report  to  Insurer  the  amount  of  the  shipment 
80  soon  as  the  fact  was  known  to  insured,  by 
whatever  method  information  was  obtained; 
the  insured  was  not  at  liberty  to  await  advices 
from  their  agent,  if  they  obtained  the  informa- 
tion from  other  sources;  advices  of  any  ship- 
ment from  the  agent  were  not  required  by  the 
policy;  the  company  was  liable  notwith- 
standing the  loss  had  occurred  and  was 
known  to  the  parties  before  the  indorse- 
ment was  made.  Wells  v.  Pacific  Ins.  Co.,  44 
Cal.,  397.     ■ 

43.  The  agent  made  and  delivered  a  receipt 
for  the  premium  to  insure  £500  for  one 
year,  subject  to  the  approval  of  the  parent 
ofBce,  but  to  be  a  binding  coutr.act  for  at  least 
twenty-one  days,  within  which  time  the  ap- 
plication was  to  be  submitted  and  approved 
or  rejected.  It  was  dated  October  27th.  The 
property  was  consumed  December  1st,  at 
which  time  no  policy  had  been  sent  to  the 
agent:  but  insured  had  applied  to  him  for  it, 
and,  relying  upon  the  fact  that  he  had  not  re- 
ceivect  notice  of  its  rejection,  he  replied  that 
the  risk  had  been  taken.  After  the  loss,  the 
company  insisted  that  it  had  not  been  accepted. 
Held,  the  company  was  bound  to  make  the 
loss  good.  Penly  t.  Beacon  Ins.  Co.,  7  Grant 
Ch.,  130. 

44.  The  policy  was  not  made  at  the  time 
the  fire  occurred,  and  insurers  refused  to  make 
it  because  it  appeared  the  building  had  cost 
but  $3,837,  including  materials  valued  at  $130 
to  be  used  in  finishing,  and  $3C5  the  value  of 
a  veranda.    Held,  no  defense  to  the  action. 

166 


Laidlaw  v.  Liverpool  and  London  Int.  Co.,  13 
Grant  Oh.,  337. 

45.  Insurers  accepted  a  risk  on  freight, 
March  11th.  She  was  lost  the  16th.  Insured 
demanded  a  stamped  policy  on  the  17tli,  but 
he  did  not  communicate  the  loss  to  insurers, 
and  then,  for  the  first  time,  they  required  to 
be  informed  as  to  the  amount  insured  upon 
the  hull;  and,  in  the  policy  they  inserted: 
"  Hull  warranted  not  insured  for  more  than 
£2,700,  after  March  20th."  There  was  an  ad- 
ditional  insurance  of  £500  in  a  club  company, 
which  was  to  expire  March  20th,  to  be  con- 
tinned  from  year  to  year,  unle.ss  ten  daj's'  no- 
tice should  be  given  of  an  intention  to  discon- 
tinue it ;  and  in  the  absence  of  notice  to  that 
effect,  all  policies  were  to  be  treated  as  re- 
newed on  the  day  of  their  expiration.  Held, 
the  warranty  was  complied  with,  for  tbers 
could  be  no  continuation  of  that  policy,  the 
vessel  being  lost  before  it  expired;  that  the 
risk  being  accepted  March  11th,  insurers  were 
bound  by  the  terms  then  entered  into,  and 
could  not  insert  additional  terms  for  their 
own  benefit  (citing  Cory  u.  Patton,  7  L.  R.  Q. 
B.,  304).  Litlimnn  v.  Northern  Maritime  Int. 
Co.,  8  L.  R.  C.  P.,  316;  42  L.  J.  C.  P.,  108;  21 
"W.  R.,  386;  28  L.  T.  (N.  S.),  165;  affirmed,  10 
L.  R.  C.  P.,  179. 

46.  The  registered  deed  of  settlement  pro- 
vided: "  The  common  seal  shall  not  be  affixed 
to  any  policies  except  by  order  of  three  di- 
rectors, signed  by  them,  and  countersigned  by 
the  manager."  Another  section  provided: 
"Every  policy  shall  be  given  under  the  hand 
of  not  less  than  three  of  the  directors,  and 
sealed  with  the  common  seal."  Hdd,  a  policy 
executed  and  sealed  with  the  common  seal, 
signed  by  three  directors,  one  of  whom  was 
manager,  was  valid,  notwithstanding  there 
was  no  previous  order  for  it,  signed  by  three 
directors  and  countersigned  by  the  manager; 
the  simple  omission  of  a  formality,  or  va- 
riation from  a  form  required  by  the  deed  of 
settlement,  could  not  make  the  contract  a  nul- 
lity. Prince  of  Wales  Life  Ass.  Co.  v.  Harding, 
El.  Bl.  &  El.,  183 ;  s.  c,  4  Jur.  (N.  S.),  851 ;  27 
L.  J.  Q.  B.,  297. 

47.  W.  was  authorized  to  accept  or  reject 
applications  in  beh.alf  of  defendant.  He  ac- 
cepted the  risk  and  received  the  premium; 
but  the  plaintiff  supposed  that  W.  was  the 
agent  of  another  company,  and  upon  r&. 
ceiving   a  receipt  for    the  premium,    wrote, 


CONTRACT. 


33t 


What  is  not  complete. 


that  he  'did  DOt  want  to  cliange,  it'  tlie 
■old  office  was  willing  to  take  the  insurance; 
that  lie  knew  nothing  ahout  the  defendant 
company,  and  should  require  to  bo  made 
.satisfied  of  its  respectability  and  stand- 
ing before  he  consented.  The  premises 
were  consumed  by  fire  five  days  thereafter. 
Jleld,  a  completed  contract.  Mackie  v.  Euro- 
pean As».  Co.,  17  \\\  R.,  987;  21  L.  T.  (N.  S.), 
103. 

48.  Defendants  made  a  policj'  to  reinsure 
plaintiffs :  "  All  sums  which  the)-  might  have 
at  risk  above  £5,000,  taken  by  the  plaintiffs' 
agents  on  goods  in  any  ship  (of  a  certain  class) 
from  Calcutta  to  London,  to  be  thereafter  de- 
-clared."  From  time  to  time,  as  plaintiffs  re- 
ceived the  names  of  the  ships  and  the  panic- 
"iilars  of  the  amount  of  excess  on  each,  they 
declared  the  names  and  amounts  to  defend- 
ants, and  indorsements  were  made  to  corre- 
spond, upon  the  policy.  March  16, 1860,  there 
remained  upon  this  policy  £5,000  uuappro- 
priated.  On  the  same  day  a  telegram,  dated 
Calcutta,  March  10th,  arrived  in  Loudon, 
which  stated,  "  Ship  Red  Gauntlet  burned  and 
scuttled,  some  cargo  will  be  saved."  On 
March  17tli,  plaintiffs  appropriated  the  re- 
maining £5,000  to  other  ships.  On  the  19th 
of  March,  the  defendants  extended  the  policy 
£10,000,  and  on  March  2l3t  the  plaintiffs  re- 
•ceived  instructions  from  their  Calcutta  agent, 
that  there  was  an  excess  of  risk  on  the  Red 
■Gauntlet,  of  which  the  defendants  were  imme- 
■diately  notified,  and  were  informed  that  the 
amount  of  the  risk  in  excess  of  £5,000  would  be 
indorsed  upon  the  policy  as  of  the  19th  of 
March.  March  26th,  full  particulars  from  Cal- 
cutta were  received,  and  plaiutifl's  iudorsedthe 
excess  and  made  a  declaration  thereof  to  the 
<lcfendants.  March  24tli,  the  defendants  ex- 
tended the  policy  £20,000.  Held,  the  fact  that 
the  accident  to  the  Red  Gauntlet  was  known 
at  the  time  the  policy  was  extended  (March 
19,  1800)  did  not  aflect  the  plaintiffs'  right  to 
recover,  because  it  was  not  known  to  either 
party  that  she  was  one  of  the  ships  on  which 
any  risk  had  been  taken.  That  the  words, 
"  to  be  declared,"  did  not  give  the  defendants 
the  right  to  reject  the  risk  when  declared,  for 
it  meant,  as  soon  as  an  excess  over  £5,000  has 
been  taken  by  the  plaintifl's,  tliey  will  declare 
the  name  of  the  ship  to  whiclt  they  will  ap- 
ply  the  defendants'  policy.  Oledstaiies  v.  Moy- 
ai  Excluiuge  Ass.  Co.,  5  B.  &  S.,  797;  s.  c,  11 


Jur.  (N.  S.),  108;  34  L.  J.  Q.  B.,  30;  13  W.  R., 
71;  11  L.  T.  (N.  S.),  305. 

49.  The  insurers  were  resident  in  London, 
but  had  an  agent  in  Glasgow  w-ith  whom  C. 
and  D.  made  an  insurance  upon  a  vessel  and 
took  from  the  agent  an  agreement  for  a  policy. 
There  was  no  exception  in  it  suspending  the 
policy  while  the  vessel  should  be  at  sea.  The 
agent  transmitted  the  order  for  the  policy  to 
his  principals,  who  sent  a  policy  to  him, 
which  contained  a  cla\ise  exempting  insurer 
from  claim  while  the  vessel  should  be  at  sea. 
It  was  not  demanded  by,  nor  was  it  delivered 
or  shown  to  insured,  who  renewed  the  policy 
through  the  same  agent  at  the  end  of  the  year. 
The  memorandum  of  renewal  referred  to  the 
specific  policy  then  in  the  agent's  oflice  in 
Glasgow.  It  was  neither  demanded  by,  de- 
liveied  nor  shown  to  insured;  and  soon  after 
she  was  destroyed  by  fire  at  sea.  Held,  the 
memorandum  delivered  to  the  insured  was  the 
contract  between  the  parties;  that  the  policy- 
was  not  the  contract,  because  it  did  not  con- 
form  to  the  original  agreement,  and  because 
the  insured  was  never  informed  as  to  the  ex- 
emptiou,  and  therefore  insured  never  adopted 
the  policy;  also,  the  renewal  had  reference  to 
the  original  agreement,  and  insurers  were 
bound  to  execute  it  conformably  to  the  stipu- 
lation of  the  original  agreement.  Pattison  o. 
Mills,  2  Bli.  (N.  S.),  519;  1  Dow  &  C,  342. 

IV.  What  is  not  complete. 

1.  "  On  coffee,  laden  or  to  be  laden  on  board 
good  vessel  or  vessels  from  Rio  Janerio  to  any 
port  in  the  United  States,  to  add  an  additional 
premium  if  by  vessels  lower  than  A.  2,  or  by 
foreign  vessels.  Having  been  paid  the  con- 
sideration  of  this  insurance  by  the  insured  or 
his  assigns  at  and  after,  at  the  rate  of  one  and 
a  half  per  cent.,  the  premium  on  risks  to  be 
fixed  at  the  time  of  indorsement,  and  such 
clauses  to  apply  as  the  company  may  insert 
as  the  risks  are  successively  reported."  The 
practice  was  for  the  agent  at  Philadelphia  to 
indorse  the  risks,  transmitting  the  indorsement 
to  his  principals  in  New  York,  they  to  name 
the  premium  and  communicate  it  to  insured. 
Insured  applied  to  the  agent  to  indorse  a  ship- 
ment on  the  "  Mary  "  from  Rio  to  New  Orleans, 
which  was  communicated  to  the  company,  for 
it  to  fix  the  premium.  At  first  the  company 
declined  the  application,  on  account  of  the 

167 


335 


CONTRACT. 


330 


What  is  not  complete. 


alleged  inferior  character  of  the  vessel ;  but,  as 
ipsurcil  insisted  upon  his  right  to  have  her  in- 
sured within  the  terms  of  the  policj',  the  com- 
pany  fixed  the  premium  at  ten  per  cent,  gen- 
erally, or  two  and  a  half  per  cent,  against  total 
loss  ouly.  This  rate  of  premium  insured  re- 
fused to  pay,  and  she  was  lost  on  tlie  voyage. 
Held,  when  goods  were  laden  upon  vessels 
classed  below  A.  3,  a  mere  declaration  tliereof 
was  not  enough  to  complete  the  contract;  that 
the  additional  premium  which  insurer  re- 
served the  right  to  fix  at  the  time  the  risk  was 
declared  must  be  paid  or  secured  by  the  in- 
sured,  or  the  contract  was  not  complete  in  re- 
spect to  it.  Orient  3Iut.  Ins.  Co.  v.  Wright,  23 
How.,  401 ;  Sun  Mut.  Ins.  Co.  v.  Wright,  id., 
412. 

2.  June  5,  1867,  T.  made  application  to  in- 
surer's agent  at  San  Francisco  for  a  policy  on 
his  life  for  $5,000,  and  delivered  to  him  his 
promissory  note  for  $99.30,  the  amount  of  the 
first  quartcrl)'  premium.  The  agent  gave  him 
a  receipt  for  that  sum  as  the  first  quarterly 
premium,  the  policy  to  take  effect  from  that 
date,  provided  the  application  should  be  ac- 
cepted; the  premium  to  be  refunded  in  case  it 
should  be  rejected.  The  agent  transmitted  the 
application  by  steamer  to  his  principals  at 
New  York,  the  time  for  transmission  being 
from  twentj'-three  to  thirty  da3-s.  A  policy 
dated  April  5th,  reciting  payment  of  the  pre- 
mium, was  sent  to  the  agent  at  San  Francisco 
for  insured,  together  with  two  receipts  signed 
,by  the  officers  in  New  York  to  be  counter- 
signed by  the  agent,  dated  April  Gth  and  July 
6th,  respectively,  purporting  to  be  receipts  for 
two  quarterly  premiums  commencing  at  their 
respective  dates.  They  were  countersigned  by 
the  agent  and  the  stamps  canceled.  The  pol- 
icy stipulated:  "If  the  said  premiums  shall 
not  be  paid  on  or  before  the  days  above  men- 
tioned for  the  payment  thereof,  the  said  com- 
pany shall  not  be  liable  for  the  sum  insured, 
or  any  part  thereof"  A  clerk  in  the  office  of 
the  agent  at  San  Francisco  wrote  a  letter  Au- 
gust 8th,  advising  Y.  that  the  policy  had  ar- 
rived, and  inquiring  whether  it  should  he  sent 
to  his  address  at  Vallejo,  or  whether  he  would 
call  for  it,  which  letter  was  found  among  the 
effects  of  Y.  after  his  decease.  Y.  was  shot 
August  21,  186T,  conveyed  to  a  hospital,  and 
remained  there  until  he  died,  September  20th 
following.  The  agent  tore  the  seal  and  presi- 
dent's signature  from  the  policy  October  31st. 
163 


Payment  of  tlie  claim  was  refused.  Ildd,  the 
policy  transmitted  was  not  in  accordance  with 
the  terms  of  the  receipt.  The  indispensable 
element  of  the  consent  of  one  of  the  parties 
did  not  exist.  Hence  there  was  no  contract 
(reversing  s.  c,  2  Sawyer,  825;  S.  C.  U.  S). 
Mutual  Life  Ins.  Co.  ■».  Young,  5  Ins.  L.  J.,  17. 
3.  B.,  an  insurance  broker,  accustomed  to 
procure  risks  for  defendant,  examined  plaint- 
iff's  premises  and  forwarded  to  the  defendant 
a  written  and  printed  application,  signed  by 
the  plaintiff,  which  stipulated  that  "Any  mis- 
representation or  suppression  of  material  facts 
shall  destroy  the  applicant's  claim  for  dam- 
age or  loss,  and  the  company  shall  not  be 
bound  for  any  act  done,  or  statement  made  to 
or  by  any  agent  or  other  person  not  contained 
in  this  application."  Defendant's  president^ 
on  receiving  the  application,  replied :  "The 
risk  will  be  taken  at  two  per  cent.,  and  if  the 
plaintiff  wishes  the  insurance  at  that  rate, 
send  a  new  application."  B.  told  plaintiff 
that  he  thought  there  must  be  some  mistake 
about  it;  that  the  risk  would  be  taken  at  a 
lower  rate.  Plaintiff  signed  a  new  applica- 
tion, dated  October  18,  1854,  a  mere  copy  of 
the  former,  in  which  insurance  was  asked  on 
a  stone  dwelling  house.  It  was  transmitted 
to  defendant  and  declined  immediately  after 
received.  The  premium  was  paid  to  B.  No. 
vember  1st,  and  the  house  was  burned  the  fol- 
lowing day.  (The  case  does  not  show  when  the 
application  was  transmitted.)  The  premises 
were  a  stone  building  with  a  wooden  kitchen, 
12x14  feet,  one  story,  attached.  Held,  the  de- 
fendant proposed  to  insure  a  stone  house, 
which  was  accepted  by  the  plaintiff;  that  as 
the  house  was  part  wood  and  part  stone,  the 
proposition  did  not  embrace  it  (dissenting. 
Strong  and  Allen,  JJ.).  Chase  v.  Hamilton 
Ins.  Co.,  20  N.  Y.,52;  s.  c,  23  Barb.,  527. 

4.  Policy  one  year  from  July  21,  184.5. 
Stipulated :  "  It  may  be  continued  for  such 
further  time  as  may  be  agreed  on,  provided 
the  premium  therefor  is  paid  and  indorsed;" 
also,  "No  insurance,  whether  original  or  con- 
tinned,  shall  be  considered  binding,  until  the 
actual  payment  of  the  premium."  The  pre- 
mium was  paid  for  the  year  ending  July  21, 

1847,  and  for  the  year  ending  July  21,  1848. 
The  premises  were  consumed  September  10, 

1848.  The  plaintiff  offered  to  prove  tliat  while 
the  original  policy  was  in  force,  a  verbal 
agreement  was  made  between  the  parties,  that 


337 


CONTKACT. 


33& 


What  is  not  complete. 


until  notice  to  tlie  contrary  slioulil  be  given 
by  one  party  to  the  otlier,  the  clefemlaiit  should 
renew  the  policy  from  year  to  year  without 
further  notice,  and  deliver  a  ccrtilicate  of  re- 
newal, and  that  the  plaintiff  should  pay  the 
premium  therefor  on  demand;  that  it  was  the 
usage  for  the  defendant  to  make  such  verbal 
itgreements,  and  to  pay  losses  in  pursuance 
thereof;  that  the  defendant  renewed  tlie 
policy  for  1840  and  1847,  and  delivered  the 
rejiewal  certificates,  and  that  plaintiff,  within 
a  few  days  after  their  delivery,  paid  the  pre- 
mium in  pursuance  of  that  verbal  agreement. 
UHd,  tlie  evidence  was  admissible;  that  it  w:vs 
not  obnoxious  to  the  rule  which  prohibits 
parol  testimony  to  vary  a  written  instrument, 
for  a  proviso  in  a  policy  already  executed  and 
delivered,  declaring  that  premiums  must  be 
paid  in  advance,  has  no  effect,  except  to  im- 
part convenient  information  to  persons  who 
wish  to  be  insured;  that  it  had  no  effect  upon 
a  delivered  perfect  contract,  nor  could  it  pre 
vent  the  parties  from  making  such  future 
contract  as  they  pleased ;  that  for  any  renewal 
or  continuation  of  the  policy  it  was  competent, 
for  the  parties  to  make  a  parol  agreement  to 
waive  the  cash  premium,  and  to  substitute 
therefor  a  promise  to  pay  on  demand  at  a 
future  day.  First  Buptid  Church  v.  Brovldyii 
Fire  Ins.  Co.,  19  N.  Y.,  305 ;  s.  c,  18  Barb.,  69. 
But  upon  another  trial  it  was  proved  that  in- 
Hurers  declined  to  renew  the  policy  July  21, 
1847,  unless  insured  would  pay  an  enhanced 
rate  of  premium,  which  the}'  did.  Held,  if  the 
premium  was  varied,  a  new  assent  of  the 
parties  to  the  agreement  for  an  indefinite  re- 
newal must  be  established,  because  a  change 
of  the  premium  was  a  refusal  to  continue  the 
risk  for  an  indefinite  period,  s.  c,  28  N.  Y., 
1H3 ;  s.  C,  23  How.  Prac,  448. 

5.  Stipulated:  "Not  to  be  binding  until 
after  the  payment  of  the  premium."  B.,  of 
his  own  motion,  filled  up  two  policies  in  the 
name  of  the  plaintiff,  for  two  companies  of 
which  he  was  agent.  Plaintiff  being  absent 
from  the  city,  the  agent  left  them  with  plaint- 
iff's clerk,  with  instructions  that  when  the 
plaintiff  returned  he  should  pay  the  premium 
if  the  policies  should  be  accepted,  or  return 
them  if  he  chose.  Evidence  wiis  given  to 
show  that  the  agent  was  accustomed  to  waive 
the  condition  of  the  prepayment  of  the  pre- 
miums. Held,  so  long  as  the  policies  were 
unaccepted  they  had  no  subsisting  force,  be- 


cause the  company  had  no  right  of  action  fo' 
the  premium.  The  ackno\vledgment  of  the 
receipt  of  premium,  like  the  instrument,  was 
provisional,  to  take  effect  when  acceptance 
should  be  signified.  Wood  v.  Poughkeepsie 
Ins.  Co.,  32  N.  Y.,  619. 

6.  The  Bowditch  Mut.  Ins.  Co.  made  the 
policy  for  a  term  of  five  years.  That  com- 
pany, the  Kssex  Mutual  and  the  Lawrence 
Mutual  were  consolidated  and  incorporated 
by  the  name  of  the  Hamilton  Mut.  Ins.  Co., 
conditioned  not  to  take  effect  until  it  shall  be 
accepted  by  the  members  of  said  corporations 
respectively,  at  a  meeting  called  for  that  pur- 
pose.  Held,  the  plaintiff  could  not  recover 
against  this  defendant  unless  he  proved  an 
acceptance  of  the  act  consolidating  the  three 
companies.  Gardner  v.  Hamilton  Inn.  Co.,  33 
N.  Y.,  421. 

7.  Policy  "On  the  good  bark  called  the  Em- 
press, or  by  whatever  other  name  or  names  the 
vessel  is,  or  shall  be  named  or  called."  The 
plaintiff' claimed  to  recover  for  the  loss  of  the 
bark  St.  Mary.  Held,  that  unless  the  evidence 
showed  that  the  insurer  intended  to  take  the 
risk  on  the  bark  St.  Mary,  no  contract  existed, 
because  the  minds  of  the  parties  did  not 
meet.  Hughes  v.  Mercantile  Mut.  Ins.  Co.,  55 
K.  Y.,  265;  reversing  s.  c,  44  How.  Pr.,  351. 

8.  President  of  an  insurance  company 
agreed  orally  to  insure  certain  sums  upon 
certain  property,  for  a  time  specified,  at  a  cer- 
tain rate  of  premium,  and  on  the  following- 
day  he  made  memorandum  thereof  upon  the 
company's  books.  A  few  days  thereafter,  one 
of  the  owners  saw  company's  surveyor  and 
told  him  the  risk  was  to  be  differently  appor- 
tioned. The  surveyor  requested  one  of  the 
owners  to  go  and  settle  the  apportionment, 
and  a  few  days  before  the  fire  occurred,  he 
told  one  of  the  owners  to  go  that  afternoon 
and  settle  it,  or  the  company  would  not  con- 
sider itself  liable  for  any  loss.  Nothing  fur- 
ther was  done;  no  policy  issued  and  no  pre- 
mium paid  when  the  property  was  consumed. 
Held,  not  a  consummated  cantract,  because 
there  was  no  implied  agreement  for  a  credit 
of  the  premium  beyond  the  time  necessary  to 
prepare  the  policy,  and  the  neglect  to  pay  the 
premium  after  called  upon  to  consummate  the 
contract  was  an  abandonment  of  the  agree- 
ment. Sandfoj-d  v.  Trust  Fire  Ins.  Co.,  11 
Paige,  547. 

9.  An  agent  authorized  to  solicit  and  mako 

16» 


S39 


CONTRACT. 


340 


What  is  not  complete. 


contracts  for  insurances  agreed  to  furnish  a 
policy  in  which  there  should  be  a  special 
provision,  That  if  at  the  end  of  three  years  the 
plaintiff  desired  to  terminate  the  policy,  the 
company  would  repay  the  amount  of  premi- 
ums, without  interest.  A  policy  w-as  offered 
which  did  not  contain  that  provision.  Held, 
no  contract.  Tifft  v.  Phmnix  Mutual  Life  Ins. 
Co.,  6  Lans.,  198. 

10.  Plaintift'had  a  policy  in  tlie  Andes  Ins. 
Co.  He  made  application  to  defendant's 
iagents  to  cancel  that  policy,  obtain  what  re- 
turn premium  they  could  get,  and  to  credit  it 
to  him  for  insurance  in  another  company. 
The  Andes  refused  to  pay  the  return  premium, 
of  which  plaintift"  was  informed;  but  it  seems 
■the  agents  applied  to  defendant  for  a  policy, 
and  one  was  sent,  but  it  did  not  arrive  until 
after  the  loss,  and  it  stipulated :  "  If  the  pre- 
mium shall  not  have  been  paid,  such  insu- 
rance shall  be  void."  He  made  preliminary 
proof  of  loss,  and  claimed  against  the  Andes 
Company.  Held,  no  contract  with  the  defend- 
ant. Train  v.  Holland  Purchase  Ins.  Co.,  1 
Hun.  (N.  Y.),  537;  s.  c,  3  N.  Y.  S.  C,  777; 
reversed,  directing  the  court  to  refer  it  to  a 
jury.     Ct.  of  App.     5  Ins.  L.  J.,  177. 

11.  F.  applied  to  defendant's  agent  to  in- 
sure his  house.  The  agent  knew  that  F. 
owned  and  resided  the  year  previous  in  a 
Jiouse  on  the  Cornwall  road,  but  at  the  time 
the  application  was  made,  insured  had 
ceased  to  reside  there,  and  then  owned  and 
resided  in  anotlier  house.  Held,  no  contract, 
for  the  minds  of  the  parties  never  met.  Mead  v. 
Westchester  Fire  Ins.  Co.,  3  Hun.  (N.  Y.),  608. 

12.  The  person  who  made  application  for  in- 
surance testified  that  the  risk  was  taken,  $2,500 
at  two  per  cent.  Held,  in  the  absence  of  evidence 
to  show  thi  time  for  which  the  insurance  was 
made,  no  recovery  could  bo  had.  Tyler  v.  New 
Amsterdam  Fire  Ins.  Co.,  4  Rob.  (N.  Y.),  151. 

13.  December  2!),  1820,  plaintiff  wrote  from 
Keiinebunk,  Maine,  asking  defendants  on 
■what  terms  they  would  insure  brig  Hesper 
and  cargo  from  Martinico  to  United  States. 
January  1st,  defendants  answered,  two  and  a 
half  per  cent.,  which  was  received  by  phxiutiff 
January  3d,  on  which  day  he  replied,  request- 
ing a  policy  on  the  terms  mentioned.  But  in 
the  meantime,  Januar3'  2d,  defendants  wrote 
l)laintiff,  declining  to  take  the  risk.  Held, 
Bot  a  completed  contract.  McCulloch  v.  Eaijle 
Ins.  Co ,  1  Pick,,  278. 

170 


14.  Owner  of  property  made  oral  applica- 
tion for  insurance ;  the  company  sent  an  ap- 
plication and  premium  note  for  him  to  sign. 
He  signed  and  delivered  them  to  his  agent 
(who  was  the  postmaster)  to  transmit  to  the 
company;  but  before  they  were  transmitted, 
the  property  burned.  Held,  not  a  completed 
contract,  because  the  papers  were  within  tfre 
control  of  the  princ'pal.  Thayer  v.  Middlesex 
Mut.  Ins.  Co.,  10  Pick.,  326. 

15.  Where  a  person  makes  application  to  a 
mutual  insurance  company  for  insurance,  and 
the  policy  is  made  but  he  refuses  to  accept  it, 
no  action  will  lie  against  him  for  the  premium, 
because  the  contract  was  not  completed;  and 
it  is  immaterial  that  the  rate  of  premium  was 
agreed  upon  by  the  parties.  Real  Estate  Mu- 
tual Fire  Ins.  Co.  v.  Roessle,  1  Gray,  336. 

16.  Policy  to  Gerrish,  dated  March  1,  1857, 
subject  to  by-laws,  payable  in  case  of  loss  to 
Brewer,  mortgagee.  The  by-laws  provided: 
"  Before  the  policy  shall  be  delivered,  the  per- 
son  insured  shall  pay  such  premium  and  give 
such  note  for  deposit  as  the  president  and 
directors  shall  from  time  to  time  determine." 
December  11,  1854,  Gerrish,  being  present  and 
a  director,  the  directors  voted:  "Premiums 
on  all  policies  shall  be  payable  within  thirty 
days  from  date  of  policy,  and  if  not  paid 
within  sixty  days,  the  policy  shall  be  consid- 
ered canceled."  This  policy  was  never  deliv- 
ered, and  no  deposit  note  or  premium  was 
paid  or  delivered  at  the  time  the  fire  occurred, 
June  9, 1857.  G.  had  formerly  procured  other 
policies  upon  property  which  he  owned,  and 
tills  was  renewed  in  pursuance  of  an  oral 
agreement  between  the  defendant's  president 
and  G.  August  11,  1S57,  an  assessment  was 
laid  for  the  loss,  and  G.,  who  was,  largely  in- 
sured on  other  risks,  paid  his  proportion. 
Held,  the  effect  of  the  by-law  was,  that  the 
contract  should  not  be  completed  nor  the  pol- 
icy take  eflect  until  the  premium  was  paid 
and  premium  note  delivered.  Brewer  v.  Chel- 
sea Mutual  Fire  Ins.  Co.,  14  Gray,  203 ;  Buffum 
V.  Fayette  Mutual  Fire  Ins.  Co.,  3  Allen,  360; 
Mulrey  v.  Shawmut  Mut.  Ins.  Co.,  4  id.,  116. 

17.  "On  property  lost  or  not  lost  on  board 
vessel  or  vessels,  steamboat  or  steamboats,  or 
land  carriage,  at  and  from  ports  or  places  to 
ports  or  places."  All  sums  at  risk  under  this 
policy  to  be  indorsed  hereon,  and  valued  at 
the  sum  indorsed,  at  such  per  cent,  as  shall  be 

I  written  against  each  indorsement.    On  Mon- 


^•il 


CONTRACT. 


342 


What  is  not  complet*". 


day,  March  32d,  insured  told  iiis  accountant 
and  bookkeeper  that  goods  were  coming,  and 
it  would  be  necessary  to  get  an  indorsement 
on  the  policy.  He  omitted  to  do  so  that  even- 
ing, and  the  ne.xt  morning  as  soon  as  he 
reached  the  store  he  took  tlic  policy,  carried 
it  to  insurer's  office,  and  requested  an  indorse- 
ment of  $4,000  on  goods  from  Philadelphia. 
Tlie  insurer's  clerk  said  the  steamer  was  lost 
with  all  on  board.  Held,  all  indorsements 
were  to  have  the  concurrence  and  sanction  of 
both  parties ;  it  was  a  mere  inchoate  contract, 
practically  a  new  and  separate  insurance  on 
each  successive  parcel  of  goods,  as  they  were 
indorsed  on  the  policj'  and  a  rate  of  premium 
agreed  upon.  Hartshorn  v.  Shoe  and  Leather 
Healers  Ins.  Co.,  15  Gray,  240. 

18.  The  agent  of  insurer  testified,  that  he 
offered  the  policy  to  insured,  who  said  he 
could  not  pay  for  it;  but  the  wife  of  the  de- 
ceased, the  plaintiff,  testified  that  the  agent 
said  he  had  brought  the  policy,  and  the  de- 
ceased told  the  agent  to  go  to  B.,  who  would 
pay  him  the  premium,  and  that  the  agent 
agreed  to  do  so.  The  agent  did  not  go  to  B., 
but  returned  the  policy  to  the  general  agent. 
A  few  days  thereafter  it  was  discovered  that 
the  agent  had  not  called  upon  B.  for  the  pre- 
mium. Plaintiff  sent  it  to  the  general  agent 
who  refused  it.  The  deceased  was  ill  at  the 
time  the  policy  was  offered,  and  died  in  about 
two  months  thereafter.  Held,  an  arrangement 
between  the  deceased  and  B.  on  the  one  hand 
with  the  agent  tliat  the  premium  should  be 
paid  bj',  and  the  polic}'  delivered  to  B.,  and  a 
failure  of  the  agent  to  call  on  B.  for  the  pre- 
mium were  not  equivalent  to  an  actual  pay- 
ment and  delivery.  Hoyt  v.  Mutual  Benefit 
Life  Ins.  Co.,  98  Mass.,  539. 

19.  The  question  was  whether  there  was  a 
delivery  of  the  policy,  either  actual  or  con- 
structive. The  plaintiff  testified,  referring  to 
the  agent :  "  He  came  in,  said  to  my  husband, 
'I  have  brought  5'our  policy;'  my  husband 
said  he  '  was  very  glad  of  it ; '  took  it,  looked 
at  it,  passed  it  to  me  and  said,  '  here,  Eliza,  is 
your  policy;'  I  took  it,  glanced  it  over;  my 
husband  said  to  the  agent  '  I  am  not  feeling 
well  enough  to  attend  to  this  business  t.o-da}', 
but  I  have  made  arrangements  with  Mr.  Banks 
to  do  it  for  me ; '  the  agent  said  he  would  go ; 
I  passed  him  the  paper  as  he  rose  to  go  oiit  of 
the  room,  and  he  went  over  there,  or  said  he 
would  go,  to  Mr.  Banks."    Held,  there  was  no 


evidence  that  the  agent  intended,  or  that  the 
deceased  or  his  wife  understood  that  the  pol- 
icy became  her  property  by  reason  of  what 
occurred  at  that  interview;  and  a  verdict  and 
judgment  founded  tliereon,  was  not  warranted. 
Market/  v.  Mutual  Benefit  Life  Ins.  Co.,  lOo 
Mass.,  78. 

20.  A  person  not  authorized  applied  in  the 
owner's  name  for  insurance  upon  a  building, 
"  occupied  as  a  machine  shop."  It  was  in 
fact  occupied  as  an  organ  factory,  the  risk  of 
which  was  greater  than  a  machine  shop.  In- 
sui'ers  had  no  knowledge  of  its  occupancy; 
but  insured  accepted  the  policy  and  paid  the 
premium.  Held,  the  contract  was  void,  for  the 
minds  of  the  parties  never  met  upon  the  sub- 
ject matter  of  insurance.  Ooddard  v.  Monitor 
Ins.  Co.,  108  Mass.,  56. 

21.  A.  made  application  for  a  policj'  on  his 
life,  |5,000.  The  agent  accepted  the  premium 
and  delivered  a  receipt  providing  for  the  de- 
livery of  a  policy  within  thirty  days  from 
date,  or  if  the  application  should  be  rejected, 
to  return  the  premium  on  demand;  no  liabil- 
ity being  assumed  by  the  company  "  unless 
the  said  risk  is  approved  and  a  policy  issued 
at  the  home  office  at  New  York."  The  com- 
pany approved  the  application  and  sent  a  pol- 
icy to  the  agent.  A  died  six  days  after  tht! 
payment  of  the  premium  and  before  delivery 
of  the  policy.  Held,  the  receipt  was  not  a 
present  insurance  for  tliirty  daj's  or  until  a 
policy  should  be  furnished.  It  was  not  an 
absolute  agreement  to  insure  or  to  make  and 
deliver  a  policy.  There  was  no  liability  until 
delivery  of  a  policy  to  the  person  insui'ed. 
Marks  v.  Hope  Mutual  Life  Ins.  Co.,  117  Mass., 
528. 

22.  Action  on  premium  note;  the  maker 
had  requested  insurance  on  26  horses  and  30 
oxen.  The  company  replied  that  the  risk 
would  be  taken  at  fifteen  per  cent. ;  or,  at  teu 
per  cent.,  if  the  stock  were  warrantfed  safe 
December  7th,  and  that  no  partial  loss  would 
be  paid  under  ten  per  cent.  The  maker  re- 
plied accepting  the  terms,  and  ordered  a  policy 
on  26  horses  valued  at  $2,200,  and  on  20  oxeu 
valued  at  $800.  The  company  sent  a  policy 
for  46  head  of  horses  and  oxen  valued  at  $3,000. 
The  maker  of  the  note  returned  it  and  de- 
manded his  premium  note,  which  was  refused. 
Held,  no  recoverj'  could  be  had.  Ocean  Ins. 
Co.  V.  Carrington,  3  Conn.,  357. 

2ii.  Defendant's  agent  casually  meeting  C, 

171 


343 


CONTRACT. 


344 


What  b  not  complete. 


asked  him  to  insure  his  life.  C.  replied  th.it 
he  was  on  a  trip  to  New  York,  intending  to 
be  absent  ten  or  twelve  weeks,  and  could  not 
attend  to  it  at  that  time;  but,  upon  being 
pressed,  he  sig::ed  an  application  and  submit- 
ted to  a  medical  examination.  It  was  agreed 
that  when  the  policy  should  be  received,  it 
should  be  sent  by  mail  to  tlie  address  of  C.  at 
Kew  York,  who  was  to  send  the  premium  or 
to  return  the  policy;  the  policy  lo  take  eflect 
•when  the  premium  should  be  paid.  The  de- 
fendant accepted  the  application  and  the  pol- 
icy was  sent  to  the  address  of  C.  at  New  York, 
■where  it  was  not  called  for,  and  was  returned 
to  the  agent,  who  then  sent  it  to  another  place 
■where  he  expected  it  would  reach  the  hands 
of  C. ;  but  C.  died  two  days  before  it  was  mailed 
for  the  last  place.  Held,  not  a  completed  con- 
tract. Rogers  v.  Charter  Oak  Life  Ins.  Co.,  41 
Conn.,  97. 

24.  W.  was  appointed  agent  and  surveyor 
■nitli  authority  to  receive  applications  for  in- 
surance and  the  cash  payment  to  be  made 
thereon.  He  received  $25,  October  9, 1851,  as 
casli  premium  for  insurance  upon  property 
specified.  There  was  conflicting  evidence  as 
to  whether  he  had  mailed  the  application;  but 
the  company  proved  that  it  had  never  been  re- 
ceived. The  loss  took  place  six  months  after 
the  agent  received  the  premium.  Held,  the 
company  was  chargeable  with  having  received 
the  proposal  because  the  agent  ■was  authorized 
to  receive  it;  but  the  companj''s  failure  to  re- 
ject it  did  not  amount  to  an  acceptance  ;  that 
the  plaintiff  had  the  power  to  correct  the  de- 
lay, because  the  failure  to  accept  ought  to  have 
been  treated  by  him  as  a  rejection  ;  for  a  pro- 
posal not  answered  remains  a  proposal  for  a 
reasonable  time,  and  is  then  treated  as  with- 
drawn. Insurance  Co.  v.  Johnson,  23  Penn.  St., 
72. 

2.%.  Policy  to  wife  on  the  life  of  husband. 
He  concluded  to  increase  the  amount,  $2,000, 
to  $5,000,  to  which  the  agents  assented,  fixing 
the  premium  at  $101,  one-half  cash  and  one- 
half  premium  notes,  at  twelve  months  with  in- 
terest, to  surrender  the  old  when  the  new  pol- 
icy should  be  issued.  The  new  policy  was 
sent  by  insurers  to  their  agents,  who  sent 
it  to  the  husband,  stating  that  the  ■whole 
premium  must  be  paid  in  cash,  requesting 
)iim  to  return  the  policy  if  he  could  not  accede 
to  the  terms.  He  retained  the  policy,  and  died 
about  four  months  after,  not  having  remitted 
173 


the  balance  of  cash,  $2.57,  nor  any  reply  to 
the  agent's  letter.  Ileld,  the  proposal  of  in- 
sured was  not  accepted ;  that  a  counter  pro. 
posal,  in  the  sliapeof  a  new  policj',  was  sent  to 
him,  and  his  assent  to  this,  according  to  its 
terms,  was  necessary  to  make  a  comjileted  con- 
tract. He  was  told  that  the  whole  of  the  pre- 
mium must  be  paid  in  cash;  there  was  no 
final  delivery  until  he  complied  with  the  pro- 
posal; that  retaining  the  new  policy  did  not 
prove  an  acceptance  of  it,  so  long  as  anything 
el.se  remained  undone  which  he  was  required 
to  do.  Myers  v.  Keystone  Mutual  Life  Ins.  Co., 
27  Penn  St.,  268. 

26.  A  policy  was  made  and  transmitted  to 
the  general  agent,  founded  upon  an  applica- 
tion made  by  the  deceased  upon  her  life  in 
favor  of  her  husband.  The  general  agent  re- 
tained the  policy  for  the  insured  to  pay  the 
premium  in  the  autumn.  It  was  sent  by  the 
agent  to  a  person  residing  near  the  insured, 
who  was  to  take  the  premium  and  deliver  the 
policj*.  It  reached  the  hands  of  that  person 
November  6th,  and  the  party  insured  died  the 
following  day,  before  any  offer  to  deliver  was 
made.  Held,  not  a  completed  contract.  Col- 
lins v.  Insurance  Co.,  7  Phila.,  201. 

27.  A  party  cannot  be  bound  by  a  paper 
which  does  not  on  its  face  purport  to  have 
been  made  by  him,  or  in  his  behalf,  unless  it 
be  shown  that  he  has  in  some  way  adopted  it 
as  his  own,  or  agreed  to  be  bound  by  it ;  and 
it  is  error  for  the  court  to  instruct  tlie  jurj'  to 
assume  that  the  party  is  bound  by  the  paper. 
Witherell  v.  Maine  Ins.  Co.,  49  Me.,  200. 

28.  Stipulated:  "No  shipments  to  be  con- 
sidered  insured  until  approved  and  indorsed  on 
this  policy  by  this  compau}-.  Indorsements  val- 
ued at  the  same,  provided  they  do  not  vary  from 
the  cost  more  than  —  per  cent.,  beginning  the 
adventure  from  aud  immediately  after  the  load- 
ing thereof,  etc."  The  course  of  dealing,  be- 
tween the  parlies,  had  been  to  have  the  goods 
inilorsed  and  afterwards  on  the  daj'  of  sailing, 
or  shortly  thereafter,  for  insured  to  furnish 
insyrer  with  an  invoice  showing  the  value, 
then  to  complete  the  indorsement  by  writing 
that  in  and  the  rate.  November  8tli,  insured 
applied  to  indorse  a  shipment  of  soap,  etc., per 
steamer  "Kingfisher,"'  which  was  done;  the 
next  da)-  a  second  application  was  made  to  in- 
dorse bacon,  which  was  done ;  but  it  was  writ- 
ten upon  the  same  line  as  the  previous  indorse- 
ment, so  that  when  the  value  of  the  soap  was 


345 


CONTRACT. 


346 


What  is  not  complete. 


written,  the  whole  read,  "  Soap  in  boxes  and 
bacon,  $510,"  which  was  the  value  of  the  soap 
only ;  and,  after  the  vessel  was  over  due,  it  was 
discovered  that  no  value  hart  been  extended 
for  the  bacon.     Held,  the  neglect  of  the  plaint- 
irt'  to   furnish  the  value  of  the  bacon  before 
the  loss  of  the  vessel  was  highly  probable,  did 
not  authorize  him  then  lo  have  it  indorsed, 
and,  therefore,  insurer  was  not  liable.    Schm- 
f<:r  V.  BitUimore  Marine  Tns.  Co.,  33  Md.,  109. 
29.  Complainant  applied  to  defendant  for 
insurance  —  $1,.")00    on    his    factory,   fixtures 
and  stock  therein  — March  16,  1849.     Defend- 
ant's secretary  accepted  tlie  oifer  at  three  per 
cent.,  to  which  complainant  assented  by  letter; 
but  it  miscarried ;  and,  subsequently,  complain, 
ant  saw  the  secretary,  mentioned  the  fact  that 
he  had  sent  the  letter,  requested  a  policy,  and 
offered  to  pay  the  premium.    The  secretary 
replied  that  he  did  not  know  then  how  much 
the  balance  would  be;  that  complainant  might 
send  it  at  any  time,  and  also  assured  complain, 
ant  that  his  property  was  then  insured;  that 
he  would   make  out  his  policy  and  send  it 
right  away.     It  was  made  April  18th,  and  on 
the  30th  the   secretary   inclosed  a   premium 
note  to  complainant,  requesting  him  to  sign 
and   remit  it  with   $7.20  cash,  promising  to 
send  the  policy.    The  note  was  one  of  the 
usual  printed  blanks,  requiring  complainant 
to  procure  a  surety  for   its    payment.    The 
letter   and   n  )te  were  deposited   in   the   post 
office  at  Belleville  April  21st;  and  on  the  22d, 
before  tlie  note  could  be  returned,  the  premises 
were  consumed   by  lire.      Complainant  ten- 
dered the  note  and  the  money  after  the  fire, 
but  thej'  were  refused.    Held,  not  a  completed 
contract,  because  the  act  of  incorporation  pro- 
vided  that  "  Every  person  who  shall  beccmie  a 
member  by  eflecting  insurance  shall,  before 
he  receives  the  polic\',  deposit  his  premium 
note  for  such  a  sum  as  may  be  determined  by 
the  directors;"    that  there  was  no  contract 
until  the  deposit  of  the  note.    Belleville  Mut. 
Ins.  Co.  V.  Van  Wmhle,  13  N.  J.  Eq.,  333. 

30.  Open  policy  on  such  sums  and  property, 
from  such  places,  and  on  board  such  vessels, 
us  shall  be  mutually  agreed  upon  between  the 
parties,  and  indorsed  hereon.  Insured  applied 
for  |5,000  insurance  on  10,987  bushels  of  corn. 
Insurer's  secretary  wrote  that  "  The  market 
value,  which  was  twenty-one  cents  per  bushel, 
and  five  per  cent,  was  insurer's  rule,  but  that 
it  might   stand  insured  until  Monday,  when 


we  shall  be  glad  to  see  you  upon  the  subject." 
The  cargo  was  lost  on  Sunday.  Held,  not  a 
completed  contract;  that  there  was  no  accept, 
ance  of  the  modification  of  the  value  to  be 
insured.  Neville  v.  Merchants  and  Mannfne- 
iurers  Ins.  Co.,  19  Ohio,  452;  overruling  s.  c, 
17  id.,  192. 

3 1 .  The  intestate  agreed  to  pay  $50  for  an 
insurance  of  $5,000  on  his  life  for  six  months. 
No  policy  was  issued.  Plaintiff  alleged  pay- 
ment of  $45.  llekl,  no  cause  of  action.  S.  C. 
N.  C.  Bal-nes  v.  Piedmont  and  Arlington  Life 
Tns.  Co.,  5  Ins.  L.  .1.,  141. 

32.  The  agent  of  the  owner  of  a  lot  of  cotton 
wrote  to  the  company's  agent,  requesting  him 
to  find  Oliver  Cromwell,  and  get  particulars  as 
to  how  he  would  ship  two  lots  of  cotton,  one  of 
fifty  and  the  other  of  sixty  bales,  and  to  insure 
them  from  Albany  to  Apalachicola,  and  to  send 
bills  to  him  and  he  would  remit  b}'  express. 
The  company's  agent  found  Cromwell,  ascer- 
tained that  sixt}'  bales  were  on  the  steamer 
White  Rose,  at  Albany;  that  she  would  leave 
next  morning,  and  that  the  fifty  bales  would 
go  in  one  of  the  agent's  "  boxes."  The  com- 
pany's agent  acknowledged  the  receipt  of  the 
letter  written  by  the  owner's  agent,  and  stated 
how  the  cotton  was  shipped.  About  ten  days 
thereafter  the  steamer  White  Rose  sunk  in 
Hell  Gate,  on  her  way  to  Apalachicola,  and 
the  cotton  was  damaged  $9,500.  A  few  days 
thereafter,  the  owner's  agent  saw  the  com- 
pany's  agent,  and  offered  to  pay  the  premium, 
who  refused  it  on  the  ground  that  the  pro|)- 
erty  was  not  insured,  because  he  was  not  in 
the  habit  of  advancing  insurance  premiums 
for  persons  who  ordered  insurance.  Held,  a 
case  of  fraud  on  the  part  of  the  company's 
agent;  that  his  principal  was  bound  for  the 
care,  diligence,  fidelity'  and  fraud  of  his  agent 
in  the  transaction.  Seabrook  v.  Underioriters 
Agency,  43  Ga.,  583.  But  upon  a  further  hear- 
ing of  this  cause,  it  appeared  that  the  com- 
pany's  agent  was  also  agent  at  the  same  place 
for  several  other  insurance  companies,  and 
there  was  no  proof  to  show  for  which  of  the 
companies  he  was  acting  at  the  time  he  did 
the  acts  from  which  the  fraud  was  to  be  in- 
ferred. Held,  that  without  such  evidence  the 
plaintiff  could  not  maintain  the  action,  s.  c, 
49  Ga.,  563. 

33.  The  plaintiff  had  signed  an  application 
lor  a  policy,  in  which  there  was  a  statement 
!l'.;\t,  "  Only  the  home  officers  of  the  company, 

173 


34T 


CONTRACT. 


34S 


What  is  not  complete. 


in  Macon,  Ga.,  have  authority  to  determine, 
whether  or  not  the  policy  shall  issue  on  appli- 
cation." The  agent  gave  a  receipt  for  the 
premium,  "to  be  binding  on  tlie  company 
until  the  policy  is  received."  The  company 
jssut'd  a  policy  for  $3,000,  sent  it  to  the  agent, 
■who  went  to  deliver  it,  but  found  the  insured 
so  drunk  that  he  said  nothing  to  him  about  it, 
and  returned  it  to  the  company,  who  marked 
it  "  Canceled,  rejected  by  the  applicant." 
There  was  no  monej-  paid,  but  the  applicant 
had  given  his  note  to  the  agent  for  the  pre- 
mium. Held,  the  company  was  not  liable. 
Cotton  States  Life  Ins.  Co.  v.  Scurry,  50  Ga.,  48. 

34.  The  defendant  ordered  the  insurance, 
the  policy  was  made  in  due  form,  but  he 
never  called  for  it  and  it  was  never  delivered. 
Held,  the  plaintiif  could  not  recover  the  pre- 
mium, unless  the  law  or  usage  of  the  place 
where  the  policy  was  ordered  made  it  a  com- 
pleted contract  and  bound  the  company  in 
case  of  loss.  Lindauer  v.  Delaware  Mutual 
Safety  Ins.  Co.,  13  Ark.,  4G1. 

35.  Application  made  Februar}'  7th,  for  in- 
surance on  ship.  The  secretary  marked  the 
rate  of  premium,  which  was  consented  to  by 
the  insured,  and  the  policy  was  made.  The 
agent  of  the  insured  was  expressl}'  informed 
that  the  policy  would  not  be  delivered  until 
payment  of  premium.  Before  the  premium 
was  paid,  and  while  the  policy  was  in  the 
possession  of  the  insurer,  the  ship  was  de- 
stroyed by  fire,  at  her  dock.  Held,  not  a  com- 
pleted contract.  Berthoud  v.  Atlantic  Marine 
and  Fire  Ins.  Co.,  13  La.  (O.  S.),  539. 

36.  "  On  goods  and  merchandise,  to  be 
laden  on  board  vessels,  as  interest  may  ap- 
pear, adding  ten  per  cent,  to  invoices.  Risks 
to  attach  from  time  of  shipment,  which  are  to 
be  reported  to  insurers  on  receipt  of  invoices, 
for  indorsement."  It  was  subsequently  modi- 
fled  by  indorsing:  "This  policy  shall  cover 
merchandise  to  the  address  of  insured  from 
European  ports  to  New  Orleans  tia  Boston  or 
New  York."  Insurer's  agent  was  informed 
that  certain  goods  would  go  by  the  Arctic. 
The  agent  replied,  "All  right;  but  we  will  be 
compelled  to  wait  the  receipt  of  the  invoice 
to  indorse  this  on  the  policy."  The  purchas- 
ers of  the  goods  it  seems  embarked  on  the 
Arctic.  No  bill  of  lading  was  ever  taken  for 
the  goods,  nor  was  there  any  evidence  that 
the  merchandise  had  been  shipped  as  a  part 
of  the   cargo  of  that   vessel.    The  company 

174 


refused  to  indorse  the  value  of  the  goods  on 
the  policy,  and  refused  to  pay  the  loss.  Held, 
by  the  terms  of  the  contract,  insured  was 
bound  to  present  to  insurer  an  invoice  of  the 
goods  and  pay  or  secure  the  premium,  and  un- 
til that  was  done,  the  contract  was  incomplete. 
Doui-ille  V.  Sun  Mut.  Inn.  Co.,  12  La.  An.,  259. 

37.  The  application  provided  it  should  not 
be  binding,  "  Until  the  first  premium  shall  be 
received  by  said  company  or  some  authorized 
agent  thereof,  during  the  lifetime  of  the  per- 
son whose  life  is  insured,  such  person  being 
still  in  good  assurable  condition;"  and  the 
policy  provided:  "Not  binding  until  counter- 
signed by  J.  R.  P.,  agent  at  New  Orleans,  and 
the  advance  premium  paid."  Before  the 
policy  was  received  by  the  agent  at  New 
Orleans,  the  person  proposed  died.  Held,  not 
a  completed  contract.  Hardie  v.  St.  Lnuii^ 
Mutual  Life  Ins.  Co.,  26  La.  An.,  242. 

38.  "  On  shipments  by  good  vessels  for  the 
period  of  six  months,  from  St.  Louis  to  port 
or  ports  on  the  western  waters,  and  from  the 
same  to  St.  Louis,  or  from  Atlantic  ports  m» 
New  Orleans  to  St.  Louis.  Indorsements  on 
this  policj'  to  be  evidence  of  property  at  the 
risk  of  the  company  under  the  same."  Goods- 
were  shipped,  consigned  to  the  insured,  but 
lost  before  notice  of  the  shipment.  The  com- 
pany refused  to  indorse  the  risk  after  notice 
of  the  loss.  Held,  they  were  not  bound  to  do 
so  under  the  terms  of  the  contract.  Edwards 
-0.  St.  Louis  Perpetual  Ins.  Co.,  7  Mo.,  382. 

39.  Plaintiff  made  application  for  insur 
ance  upon  certain  premises  to  an  agent  author 
ized  to  receive  and  forward  it,  who  suggested 
the  rate  of  premium  at  nine  per  cent.  Insured 
also  signed  a  blank  premium  note,  and  they 
were  forwarded  t(i  insurer's  principal  place 
of  business.  The  company  made  a  policy  at 
the  rate  of  fifteen  per  cent.,  sent  it  to  the  agent 
and  instructed  him  that  he  might  return  it 
without  charge  if  insured  deemed  the  rate  too 
high.  The  agent  was  absent,  but  returned  be- 
fore the  premises  were  burned ;  no  demand 
was  made  for  the  policy,  nor  was  any  offer 
made  to  pay  any  portion  of  the  premium  in 
cash.  The  companj-'s  charter  required  ten 
per  cent,  on  the  premium  note  to  be  paid 
before  any  policy  should  be  binding.  Held,  .i 
mere  proposition  which  had  not  been  assented 
to.  Wallingford  v.  Home  Mutual  Fire  ami 
Marine  Ins.  Co.,  30  Mo.,  46. 

40.  Policy  to  G.  as  agent,  "  in  such  sumiv 


349 


CONTRACT. 


350 


What  is  not  complete. 


from  and  to  such  places,  on  board  such  vessels 
as  shall  be  specified  by  the  application  and 
mutually  agreed  upon  and  written  on  this 
policy."  Shipment  was  made  September  1st, 
and  lost  early  on  the  3d.  In  the  afternoon  of 
that  day,  application  was  made  for  insurance 
on  them,  but  insured  did  not  have  the  policy 
■witli  him  at  that  time.  The  secretary  entered 
the  application  on  liis  cargo  book,  and  told 
insured  to  bring  his  policy  tliat  the  risk  might 
b«  indorsed  (the  practice  was  to  pay  premiums 
at  the  end  of  every  month).  Immediately 
after  G.  left  the  office  of  the  companj',  the 
secretary  took  up  the  evening  paper  and  saw 
a  notice  of  the  loss.  He  addressed  a  note  to 
G.,  staling  that  the  goods  were  not  insured, 
and  subscqucntlj-  refused  to  indorse  the  risk 
on  the  policy.  Held,  not  a  completed  contract. 
Plalito  V.  Merchants  and  Manufacturers  Ins. 
Co.,  38  Mo.,  2-18. 

41.  "On  steamboat;  loss,  if  any,  payable  to 
B.  &  W."  The  person  insured  signed  the  note, 
and  directed  his  agent  to  deliver  the  policy  to 
B.  &  W.,  provided  they  indorsed  the  premium 
note.  They  retained  the  policy  and  refused  to 
indorse  the  note.  Held,  B.  &  W.  were  not  en- 
titled to  recover.  Bidwell  v.  St.  Louis  Floating 
Dock  Ins.  Co.,  40  Mo.,  43. 

42.  Insurer's  agent  solicited  the  complain- 
ant to  insure  his  property,  the  sum  to  be  in- 
sured was  agreed  upon,  cash  premium  paid, 
and  a  premium  note  made  and  delivered,  for 
the  balance,  and  an  application  signed  by 
complainant,  which,  among  other  things,  pro- 
vided: "The  policy  is  to  bear  date  and  take 
effect  at  noon  of  the  day  this  application  is 
approved."  It  was  dated  December  4,  18G0. 
The  receipt  given  by  the  agent  for  the  pre- 
mium note  stated  that  the  cash  and  note  were 
to  be  returned  if  a  policy  is  not  issued.  Held, 
not  a  contract  to  insure.  Winnesliiek  Ins.  Co. 
c.  Holzgrafe,  53  111.,  .516. 

43.  A  running  policy  on  cargo  stipulated 
that  it  should  not  "  cover  loss  or  damage  which 
had  accrued  at  the  time  of  indorsement, 
caused  by  gale,  explosion,  fire  or  otherwise, 
which  occurrence  might  be  kn^wn  to  the  ap- 
plicant, the  public  or  the  company  at  the 
time  application  was  made  to  indorse,  whether 
such  property  was  known  to  be  involved  or 
not,  without  such  contingency  is  expressly 
provided  for  in  this  policy  in  writing."  In- 
surer made  an  indorsement  upon  the  policy, 
embracing  certain  property.;  but  the  name  of 


the  vessel  was  not  declared,  for  neither  party 
knew  at  that  time  what  vessel  would  take  the 
goods ;  both  parties  knew  that  the  steamboat 
Carter  had  exploded  her  boilers  and  was  lost. 
The  goods  were  on  her,  but  neither  party 
knew  the  fact  at  the  ti^e.  Ileld,  they  were 
not  covered  by  tlie  policy.  Mark  v.  ./Stnu 
Ins.  Co.,  29  Ind.,  390. 

44.  Stipulated:  "Not  binding  until  coun- 
tersigned, etc.,  and  advance  premium  paid." 
At  the  time  the  insured  made  his  application, 
he  executed  two  promissory  notes,  one  due  ou 
the  delivery  of  the  policy  for  tlie  cash  premi- 
um and  the  other  in  a  year  after  date  for  the 
deferred  premium.  The  policy  was  made  ami 
delivered  to  Uie  local  agent,  but  the  insured 
was  taken  very  ill  and  the  local  agent  never 
delivered  it.  Held,  tlie  only  question  in  the 
case  was,  whether  the  note  payable  ou  the  dt- 
liverj'  of  the  policy  was  taken  in  payment  of 
the  cash  premium,  of  which  fact  the  evidence 
was  insufficient,  therefore  there  was  no  con- 
summated- contract.  St.  Louis  Mutual  Life 
Ins.  Co. !).  Kennedy,  6  Bush.,  450. 

45.  The  evidence  showed  that  the  time  fur 
which  the  insurance  was  to  run  had  not  been 
fixed  by  the  parties.  Ilrld,  an  incomplete 
contract.  Strohn  v.  Hartford  Fire  Ins.  Co.,  37 
Wis.,  G25. 

46.  Defendant  received  an  application, 
July  15,  1869,  for  insurance  upon  the  life  of 
its  agent  at  St.  Paul,  for  the  benefit  of  his 
wife.  A  policy  was  made  and  transmitted  to 
the  Minnesota  agent,  by  whom  it  was  receievod 
August  3,  1869.  The  applicant  left  the  state 
August  10th,  for  a  temporary  absence,  leaving 
his  minor  son  in  charge  of  his  business.  The 
general  agent  delivered  the  policy  to  F.,  who 
carried  it  to  the  store  of  the  applicant,  told 
the  boy  that  about  $100  was  to  be  paid  in  cash 
and  a  note  executed  for  the  same  sum.  The 
boy  signed  the  note  in  behalf  of  his  father, 
but  said  that  he  could  not  pay  the  money. 
The  agent  took  the  policy  and  the  note,  say- 
ing that  he  would  keep  them  until  the  appli. 
cant  should  return,  and  he  would  wait  for  tlie 
money.  Tlie  applicant  died  before  his  returu. 
Held,  not  a  completed  contract.  Heiman  o. 
Phmnix  Mutual  Life  Ins.  Co.,  17  Minn.,  15-3. 

47.  September  1,  1870,  plaintiff  applied  to 
defendant's  agent  for  a  policy  on  the  life  of 
her  husband.  One  was  offered,  dated  Sep- 
tember 5th,  requiring  the  premium  to  be  paid 
annually.     She  refused  to  receive  it;  and  by 

175 


551 


CONTRACT. 


352 


"SMiat  is  not  complete. 


agreement,  it  was  returned,  a  new  policy 
made,  making  the  premium  payable  semi-an- 
nually, which  was  received  by  insurer's  agent 
October  25, 1870.  Her  husband  was  taken  ill 
October  13th,  and  died  on  the  29th.  She  de- 
manded the  policy  and  tendered  the  premium 
October  25lh,  which  the  agent  refused,  on  the 
ground  that  her  husband  was  not  in  good 
health.  Held,  when  plaintiff  refused  to  re- 
ceive the  first  policy  the  parties  stood  e.xactly 
where  they  would  have  been  had  insurer  nev- 
er accepted  plaintiff's  application.  The  sec- 
ond policy  was  never  delivered  or  offered  to 
he  delivered;  there  was  nothing  to  show  any 
binding  acceptance  of  plaintiff's  last  proposi- 
tion; and  insurers  had  a  right  to  withhold  the 
second  policy  for  any  reason  to  themselves 
satisfactory.  Schwartz  ».  Germania  Life  Ins. 
Co.,  18  Minn.,  448. 

48.  The  complaint  alleged  that  complain- 
ant was  the  holder  of  a  policy  issued  by  de- 
fendant; that  about  two  weeks  before  it  ex- 
pired, defendant's  agent  agreed  to  renew  it; 
thathe  failed  to  do  so  notwithstanding  plaintiff 
liad  in  the  hands  of  his  agent  money  to  pay  the 
premium.  Held,  no  cause  of  action.  Croghan 
».  New  York  Underwriters  Agency,  53  Ga.,  109. 

49.  Plaintiff  applied  to  defendant's  agent 
at  Nebraska  City,  Ootober  11,  1865,  for  insur- 
ance on  the  steamer  "  Sunset,"  which  was  then 
lying  at  the  wharf  in  St.  Louis.  The  agent 
said  he  could  not  issue  a  policy,  but  would 
take  an  application  and  send  it  to  the  general 
agent  of  the  company.  She  was  lost  while  on 
her  way  up  the  Missouri  river,  on  the  17th. 
No  application  had  been  written.  On  the  23d 
plaintiff  tendered  the  premium  to  insurer's 
agent,  which  was  refused.  Plaintiff  testified 
that  the  agent  made  an  oral  contract  to  insure. 
Held,  the  action  could  not  be  maintained 
without  conclusive  proof  that  the  contract 
was  made;  if  it  was  left  in  doubt  upon  the 
whole  evidence,  the  suit  must  be  dismissed 
'citing  Nevill  «.  Merchants  and  Manuf.  Ins. 
Co.,  19  Ohio,  453).  McGann  v.  ^tna  Ins.  Co., 
3  Neb.,  198. 

.50.  H.  applied  to  the  Montreal  Ass.  Co., 
through  M.,  their  manager  and  agent,  to  in- 
sure  the  premises  against  fire,  but  being  un- 
able to  pay  the  premium,  the  manager  took 
his  promissory  note  for  it,  payable  in  twelve 
days,  and  promised  to  deliver  the  policy.  The 
particulars  of  the  contract  were  entered  iu 
the  books  of  the  company.  Tlie  note  became 
17B 


due  and  was  dishonored,  at  which  time  no 
policy  had  been  issued,  and  the  entry  of  iu- 
surance  was  erased  from  tlie  company's  books. 
The  premises  were  destroj-ed  by  fire  about 
four  months  thereafter.  The  statute  incor- 
porating the  company  provided,  that  all  poli- 
cies should  be  subscribed  by  three  directors, 
countersigned  by  the  secretary  and  manager, 
and  sealed  with  the  company's  seal,  and  a  by- 
law to  the  same  effect  was  passed.  Held,  the 
acts  of  the  manager  were  ultra  vires  and  void. 
Quer}':  "Is  a  verbal  contract  of  insurance 
goxl  under  the  law  of  Lower  Canada?" 
Montreal  Ass.  Co.  v.  McOilhray,  13  Moore  P 
C.  C,  87. 

51.  She  took  the  cargo  at  Leghorn.  August 
10th,  put  into  Genoa  on  the  13th,  and  remained 
there  until  January  5th  following.  The  policy 
was  made  on  the  20th.  Held.  Genoa  was  im- 
plied as  the  port  of  lading,  and  in  the  absence 
of  evidence  to  show  that  the  underwriters  had 
notice  of  the  loading  at  Leghorn,  and  the  sub- 
sequent delay,  the  policy  was  void.  Hodgson 
V.  Ricluirdson,  1  W.  Bl.,  463. 

52.  A  rule,  binding  upon  both  parties,  pro- 
vided  that  vessels  might  sail  after  the  time 
limited,  on  payment  of  additional  premium, 
regulated  by  certain  rates ;  and  l\y  anothe.- 
rule,  the  insured  was  bound  to  give  his  ac- 
ceptance for  the  premium.  A  neglect  to  give 
it  subjected  him  to  a  penalty.  Held,  insured 
could  not,  after  a  loss,  elect  to  submit  to  the 
penalty,  pay  the  extra  premium  and  have  the 
benefit  of  an  extension  of  the  date  for  sailing. 
Graham  v.  Barras,  5  B.  &  Ad.,  1011 ;  3  X.  &  M., 
125. 

53.  S.  agreed  to  become  a  member,  and  to 
be  bound  to  contribute  to  the  losses  of  other 
members.  The  risk  was  accepted  by  the  as-- 
sociation,  on  the  ship  of  S.,  but  no  stamped 
policy  was  issued.  Held,  no  evidence  of  a 
binding  mutual  contract,  because  there  was 
no  stamped  pi)lic\-  according  to  35  Geo.  Ill,  ch. 
63.  In  re  London  ilut.  Ins.  Co..  Smith's  Ca«e, 
4  L.  R.  Chan.,  611. 

54.  Defendants  authorized  E.  &  Co.,  at  Lon- 
don, to  accept  risks  and  receive  premiums. 
Plaintiff"  instruced  D.  to  procure  insurace 
on  steel  rails.  He  prepared  a  memorandum 
slip  containing  the  particulars.  It  w.as  in- 
itialed b}-  E.  &  Co.  on  behalf  of  defendiutte,  and 
a  copy  transmitted  to  defendants  by  E.  &  Co. 
the  same  da}-.  The  premium  and  stamp  duty 
were  paid  to  E.  &  Co.    The  defendants  neg 


353 


CONTRACT. 


354 


Modification  or  substitution. 


Iccted  to  deliver  a  stamped  policy.  Held,  there 
could  ho.  no  recovery  under  30  Vict.,  cli.  23, 
sees.  7  and  9,  because  there  luid  been  no  policy 
iniide.  Fis/ier  v.  Linerpaol  Murine  Tns.  Co..  8 
L.  J.  R.  Q.  B,,  4GU ;  43  L.  J.  Q.  B.,  224 ;  22  W.  R., 
13 ;  28  L.  T.  (N.  S.),  867 ;  afBrmed,  9  L.  U.  Q.  B., 
418;  43  L.  J.  Q.  B.,  114;  23  W.  R,  951 ;  30  L. 
T.  (N.  S.),  501. 

55.  "On  ship  Martha  of  Saltcoats;"  but 
there  was  not  any  vessel  of  that  name.  In- 
sured owned  a  vessel  registered  by  the  name 
"  Elizabeth  and  Pegy  of  Saltcoats,"  which 
had  been  formerly  called  the  "  Martha  of  Salt- 
coats." Held,  insurers  were  released.  Watt  v. 
undue,  Faculty  Dec,  1781  to  1787,  p.  43. 

.56.  Insured  applied  to  insurer's  agent,  at 
Edinburgh,  to  insure  £3,000  on  his  wire  mill ; 
he  then  applied  to  the  secretary  of  the  de- 
fendant to  take  £3,000.  The  secretary  agreed 
to  take  it  at  the  same  rate  of  premium  which 
should  be  made  by  the  other  company,  and  to 
make  and  deliver  a  policy  so  soon  as  that  of 
the  London  company  should  come  down; 
that  in  the  mean  time  he  would  be  held  in- 
sured. The  premium  was  ofl'ered,  but  he  was 
told  it  was  unnecessary.  The  London  com- 
pany paid  the  loss,  but  this  defendant  refused. 
Held,  the  evidence  did  not  establish  a  contract, 
for  everything  was  dependent  until  the  other 
company  should  fi.K  the  rate  of  premium. 
Christie  v.  North  British  Ins.  Co.,  3  C.  C.  S., 
3G0. 

57.  R-  proposed  to  effect  an  insurance  on 
his  life  for  £1,500.  Insurers  addressed  a  letter 
to  R.,  informing  him  of  their  acceptance, 
stating,  "The  policy  will  be  issued  on  pay- 
ment £354,  13s.  If  the  above  sum  is  not  paid 
within  fifteen  days  from  date,  a  second  medi- 
cal examination  will  be  necessary."  This 
letter  was  inclosed  to  their  agent,  w-ho  with- 
lield  it,  because  R.  had  been  taken  ill.  The 
premium  was  tendered  to  the  agent,  who  re- 
fused it,  and  it  was  then  deposited  in  bank  for 
the  company.  Held,  the  letter  of  acceptance 
did  not  complete  the  contract  until  R.  had  an 
opportunity  to  assent  to  its  terms.  The  case 
was  one  of  a  proposal  on  one  side,  and  a 
:iHinter  pr^posal  on  the  other  without  ac- 
ceptance, and,  therefore,  not  a  completed  ccm- 
tract.  Rose  v.  Medical  Invalid  Life  Ass.  Soc, 
n  C.  C.  S.,  151  S.  C.  Ibid,  345;  20  Scot.  Jur., 
534. 

58.  Application  was  made  to  insurers'  agent 
at  Racine,  to  insure  cargo  of  wheat  from  Ra- 
13 


cine  to  Cape  Vincent.  The  agent  agreed  to 
take  the  risk,  subject  to  the  approval  of  the 
board  at  Toronto,  to  whom  he  submitted  it, 
and  from  whom  he  received  instructions  to 
send  the  money,  and  policy  would  be  issued. 
lie  gave  an  interim  receipt  for  the  premium, 
and  was  credited  with  the  amount  in  the 
books  of  the  insured;  but  upon  sending  for 
the  money  it  was  not  paid  because  the  cargo 
owners'  aecountaut  was  absent,  and  before  the 
premium  was  paid  the  cargo  was  lost.  The 
comp.iuy  then  refused  to  make  the  policy  or 
take  the  premium.  Held,  the  plaintiffs  could 
not  recover,  for  the  risk  was  accepted  condi- 
tionally upon  payment  of  the  premium,  and  as 
that  was  not  made  before  the  loss  happened 
the  company  had  the  right  to  reject  the  appli- 
cation. WaUier  v.  Provincial  Ins.  Co.,  7  Grant's 
Ch.,  137;  affirmed,  8  id.,  217. 

50.  An  agent  authorized  to  accept  premi- 
ums and  contract  for  the  delivery  of  policies, 
accepted  a  risk  subject  to  the  approval  of  the 
board  of  directors,  and  received  the  premium. 
A  letter  was  directed  to  the  applicant,  at  his 
post  office  address,  within  two  weeks  after  the 
date  of  the  application,  notifying  him  of  the 
rejection  of  his  application.  He  omitted  to 
go  to  the  post  office,  and  did  not  receive  the 
letter  until  after  the  premises  were  consumed. 
Held,  the  company  was  not  liable,  notwith- 
:itanding  the  premium  had  not  been  refunded 
to  the  applicant.  Henri/  v.  Agricultural  Ins. 
Co.,  11  Gr.ant's  Ch.,  125. 

60.  "  Received  from  J.  G.  &  Co.  .$14  premi- 
um  for  an  insurance,  $2,000  on  property  de- 
scribed, subject  to  the  approval  of  the  board 
at  K.  The  said  party  to  be  considered  insured 
for  twenty-one  daj's  from  date,  within  which 
time  the  determination  of  the  board  will  be 
notified.  If  approved  a  policy  will  be  deliv. 
ered,  otherwise  the  amount  received  will  be 
refunded,  less  the  premium  for  the  time  so  in- 
sured." Held,  not  an  agreement  to  insure  for 
twenty-one  days.  The  company  might  within 
that  time  reject  the  risk  and  give  notice,  and 
their  liability  would  cease  from  the  time  no- 
tice given.  Ooodfellow  v.  Times  &  Beacon  Ins. 
Co.,  17  U.  C.  Q.  B.,  411. 
/ 
V.  Modification  oe  substitution. 

1.  The  plaintiff  was  permitted  to  prove  that 
at  the  time  the  policy  was  made,  and  at  the 
time  a  subsequent  annual  premium  was  paid, 

177 


356 


CONTRACT. 


356 


Modification  or  substitution. 


it  was  understood  and  agreed  by  the  com- 
pany and  the  insured  that  if  anything  should 
happen  to  prevent  insured  from  paying  the 
premium  at  any  time  it  should  become  due, 
the  policy  should  not  thereby  be  forfeited  ac- 
cording to  its  terms,  but  that  the  insured 
should  have  the  right  to  pay  the  premium 
within  a  reasonable  time,  and  that  the  policy 
should  continue  in  force  notwithstanding  the 
nonpayment.  It  was  also  proved  that  it  was 
the  custom  or  usage  of  the  insurer  in  dealing 
with  persons  whose  lives  it  had  insured,  to 
allow  the  insured  some  days  of  grace  within 
which  to  pay  the  annual  premium.  Held,  the 
agreement  or  understanding  made  at  the  time 
the  policy  was  delivered  was  inadmissible,  be- 
cause it  was  cotemporaneous  with  the  writing 
itself;  that  the  custom  or  usage  of  the  defend- 
ant was  also  inadmissible,  because  a  custom 
or  usage  cannot  be  received  to  control  a  plain 
and  unambiguous  contract;  but  the  evidence 
of  the  agreement,  made  subsequently  to  the  de- 
livery of  the  policy,  was  admissible  and  bind- 
ing upon  the  parties,  because  they  liad  a  right 
to  modify  the  original  writing  by  subsequent 
parol  agreement.  Howell  v.  Knickerbocker  Life 
Ins.  Co.,  44  N.  Y.,  376 ;  is.  c,  3  Rob.,  232 ;  19 
Abb.  Prac,  217. 

2.  "  On  goods  on  the  first  floor  of  No.  39 
Centre  Street,  New  York."  Before  the  policy 
expired,  insured  removed  them  to  the  story 
above  in  same  building,  and  insurers,  with 
notice  of  that  fact,  renewed  the  policy  and  re- 
ceived the  consideration  therefor.  The  re- 
newal receipt  recited :  "  On  stock,  premises  39 
Centre  Street,  New  York,"  referring  to  the 
policy  by  number,  and  continued  it  in  force 
for  one  year.  Held,  the  delivery  of  the  re- 
newal receipt  and  acceptance  of  the  consider- 
ation, with  notice  that  the  goods  had  been 
removed,  led  the  insured  to  understand  that 
the  goods  were  insured  at  the  place  where 
they  were,  and  not  at  a  place  where  they  were 
not;  that  to  suppose  otherwise,  would  be  to 
impute  to  the  insurers  a  fraudulent  intention, 
not  justified  by  the  case;  that  the  conduct  of 
insurers  was  equivalent  to  an  indorsement  on 
the  policy  showing  the  location  of  the  goods, 
or  a  parol  assent  to  the  change  of  location, 
which  was  a  modification  of  the  former  con- 
tract. Ludwig  v.  Jersey  City  Ins.  Go.,  48  N. 
Y.,  379. 

3.  Policy  to  the  mortgagor;  loss,  if  any, 
payable  to  the  mortgagee.    Stipulated:   "To 

178 


be  void  in  case  of  any  sale,  transfer  or  change 
of  title  in  the  property  insured  or  any  part  ol 
it."  The  mortgage  was  foreclosed,  and  the 
mortgagee  became  the  purchaser.  Held,  in- 
sured  had  the  right  to  prove  that  insurers 
agreed,  after  the  sale,  to  allow  the  policy  ta 
stand  as  security  for  the  interest  of  insured, 
and  that  the  proper  entries  should  be  made  to 
efl'ect  that  purpose  in  the  books  of  the  com- 
pany; and,  that  if  such  an  agreement  was 
proven,  then  the  company  was  estopped  from 
insisting  upon  a  breach  of  the  condition. 
Pratt  V.  New  York  Central  Ins.  Co.,  5-5  N.  Y., 
505 ;  s.  c,  64  Barb.,  589. 

4.  Stipulated:  "Any  increase  of  risk  shall 
avoid  the  policy,  unless  consented  to  by  the 
company,  and  nothing  but  a  specific  agree- 
ment indorsed  on  the  policy  shall  be  a  waiver 
of  any  of  its  conditions."  Held,  a  partj'  can- 
not take  away  the  right  to  make  a  new  con- 
tract, or  modify  the  old.  Hence  it  was  com- 
petent for  the  defendant  to  waive  any  of  the 
conditions  mentioned  in  the  policy.  Parker  v. 
Arctic  Fire  Ins.  Co.,  1  N.  Y.  (S.  C),  397. 

5.  At  and  from  Philadelphia  to  Cork,  and 
back  to  Philadelphia.  She  was  obliged  to  go 
to  Limerick.  Insurei'S,  for  a  consideration, 
indorsed  upon  the  policy,  "  Engaged  to  see  the 
said  ship  from  Limerick  instead  of  Cork, 
back  to  Philadelphia."  Held,  the  policy  and 
the  indorsement  must  be  read  together,  and 
Limerick  must  be  substituted  in  the  place  of 
Cork,  aud  insurers  were  liable  for  a  loss  at 
Limerick.  Bell  v.  Marine  Ins.  Co.,  8  S.  &  R.,  9b. 

6.  Two  policies;  one  on  merchandise  in  the 
storehouse,  aud  another  on  a  factor3-  and  other 
buildings,  about  80  feet  from  the  stoi-ehouse. 
In  the  application  and  survey,  insured  stated 
that  the  factory  was  worked  usually  ti'om  fi :  30 
A.  M.  to  13 :  30  P.  M.,  and  from  1  lo  7  P.  M.,  in 
summer;  aud  from  6:45  A.  M.  to  13: 15  P.  M., 
and  1  to  7  P.  M.,  in  winter.  After  August  Isl; 
the  mill  was  worked  all  night,  and  on  October 
19th  application  was  made  to  defendant's 
agent  for  permission  to  work  all  night,  which 
he  gave  November  1st,  for  a  consideration  ot 
•114.38.  They  were  burned  on  the  following 
day.  Held,  iusurers  were  liable.  North  Ber- 
tcick  Co.  V.  New  England  Fire  and  Marin* 
Ins.  Co.,  53  Me.,  336. 

7.  W.  &  J.  insured  their  stock  in  their  firn^ 
name.  After  the  death  of  J.,  the  business  wa» 
continued  by  W.,  who  continued  to  purchase 
goods  for  the  stock.    The  insured  ojered  evi- 


357 


CONTRACT. 


358 


Execution  and  delivery. 


deuce  to  prove  that  D.  was  the  general  agent 
of  the  insurers;  that  he  was  authorized  to  do 
all  acls,  in  the  prosecution  of  their  business, 
ivhicli  could  legally  be  intrusted  to  an  agent; 
that  D.  delivered  the  policy  and  collected  the 
premium  ;  that  immediately  after  the  death  of 
J.,  W.  inquired  of  D.  whether  any  change  in 
the  form  of  the  policy,  or  any  new  policy,  or 
any  other  step  would  be  necessary  to  make  the 
Ijolicy  available  to  W.  during  the  remainder 
of  the  term;  that  D.  stated,  no  change  nor 
further  action  on  the  part  of  W.  was  necessary ; 
that  D.  agreed  the  policy  should  cover  the 
interest  of  W. ;  that  assessments  were  after- 
wards  regularly  made  upon  the  policy  by  the 
company,  which  were  paid;  and  that  the 
company,  after  the  death  of  J.,  authorized  W. 
to  make  further  insurance  upon  the  stock. 
Held,  the  evidence  was  admissible  to  prove  a 
substitution  of  W.,  upon  sufficient  considera- 
tion, in  place  of  W.  &  J. ;  that  W.  was  there- 
fore entitled  to  recover  in  his  own  name  upon 
the  contract  (citing  Good'jU  v.  New  England 
Marine  and  Fire  Ins.  Co.,  25  N.  II.,  169;  Peck 
V.  New  Loudon  County  Mut.  Ins.  Co.,  23  Conn., 
575;  Benjaniiu  v.  Saratoga  County  Mutual 
Fire  Ins.  Co.,  17  N.  Y.,  415;.  Wood  v.  liutland 
Mutual  Fire  Ins.  Co.,  31  Vt.,  552. 

8.  The  secretary  indorsed:  "Loss,  if  any, 
payable  to  A.;"  and  the  president  indorsed: 
"This  policy  is  hereby  changed  to  cover 
chairs  and  benches,  instead  of  tlie  museum 
collection,  which  is  removed."  lleld,  a  valid 
contract.  Northrup  v.  Mississippi  Valley  Ins. 
Co.,  47  Mo.,  435. 

9.  •'  On  such  property,  in  such  sums,  to  and 
from  sucli  ports  or  places,  and  by  such  good 
and  seaworthy  steamboats,  or  other  river  craft 
as  may  be  approved  by  this  company,  and 
entered  in  the  book  attached  to  this  policy." 
No  risk  binding  until  S3  entered  and  ap. 
proved.  Four  days  after  the  policy  was  made, 
insured  made  an  application,  signed  by  in- 
sured and  the  secretary  of  the  company,  to 
cover  goods  "  for  whom  it  may  concern,"  on 
all  shipments  addressed  to  the  insured  on  any 
seaworthy  vessel  on  the  Mississippi  and  Ohio 
rivers  and  their  tributaries,  provided  tlie  risk 
by  any  one  boat  shall  not  exceed  |5,000,  in- 
sured to  give  prompt  notice  to  Insurer  of  every 
shipment  so  soon  as  he  receives  notice  by  bill 
of  lading  or  otherwise."  Held,  the  open  policy 
.-overed  all  shipments  from  the  time  they  were 
entered  in  the  book  attached  to  it;  and  the 


application  was  an  additional  agreement  by 
which  goods  on  certain  rivers,  not  exceeding 
a  certain  auKjuut,  were  covered  without  in- 
dorsement  or  entry  in  the  book  annexed  to  the 
open  policy.  Mam  «.  National  Marine  and 
Fire  Ins.  Co.,  25  La.  An.,  30. 

10.  On  the  profits  of  goods  valued  at  £500; 
but  it  was  altered  and  written  in  the  margin : 
"  On  his  share  of  the  goods,  say  one-fifth, 
valued  at  £1,000."  Held,  it  was  not  necessary 
for  the  plaiutiff  to  make  any  averment  in  the 
declaraticm  as  to  the  original  agreement,  or  to 
state  the  marginal  memorandum,  for  all  was 
in  fieri,  and  the  whole  constituted  but  one 
agreement.    Robinson  «.  Tobin,  1  Stark  ie,  336v 

]  1 .  On  ship  from  Liverpool  to  Quebec. 
Being  detained  after  the  time  intended  for  sail- 
ing, it  was  indorsed :  "  Tlie  Hebe  being  un- 
avoidably detained  beyond  the  intended  time 
of  sailing  for  Quebec,  the  voyage  is  changed, 
and  the  vessel  proceeds  from  London  to  St. 
Johns,  New  Brunswick,  at  and  from  thence 
back  to  London;  and  in  consideration  of  one 
guinea  per  cent,  additional,  the  underwriters 
agree  to  continue  on  the  risk  until  the  vessel 
should  bo  arrived  back  in  London,  or  her  port 
of  discharge  in  the  United  Kingdom."  Held, 
it  did  not  require  a  new  stamp.  Brockelbank 
V.  Sugrue,  1  B.  &  Ad.,  81 ;  8  L.  J.  K.  B.,  371 ;  5 
C.  &  P.,  21 ;  1  Moo.  &  R.,  103. 

VI.  Execution  and  deliveky. 

1.  H.  was  the  acknowledged  agent  of  the 
defendant.  He  employed  another  person  to 
deliver  the  policy  and  receive  the  premium, 
which  was  done  after  the  fire.  Held,  the  de- 
livery  was  the  defendant's;  that  receiving  the 
premium  before  or  after  the  fire  could  not 
affect  the  rights  of  the  parties.  Kelley  v.  Com- 
momoealth  Ins.  Co.,  10  Bos.,  82. 

2.  The  insured  may  receive  from  insurer's 
agent  the  policy,  after  the  loss  has  occurred, 
notwithstanding  insured  knows  of  the  loss, 
and  of  the  insurer's  intention  to  dispute  the 
claim,  and  to  revoke  the  agent's  authority; 
nor  IS  the  insured  bound  to  inform  the  agent 
of  any  of  those  facts  before  he  takes  the  policy. 
Ligldbody  j).  North  American  Ins.  Co.,  23 
Wend.,  18. 

3.  There  was  a  blank  for  the  president's  sig- 
nature,  and  another  for  the  signature  of  the  sec- 
retary ;  immediately  preceding  these,  the  policy 
provided,  that  it  should  not  be  valid  till  coun- 

179 


359 


CONTRACT. 


36€ 


New  promise. 


tersigned  by  A.  Andrews,  ageut.  Neither  tlie 
president  uor  secretary  iifflxed  their  signatures, 
but  Andrews  countersigned  it.  Held,  it  was 
invalid  because  it  lacked  the  signature  of  the 
president  and  secretary,  for  it  was  like  a  case 
of  a  promissory  note,  witnessed  by  llie  ageut 
but  not  signed  by  tlie  principal.  Peoria  Ma- 
rine and  Fire  Ins.  Co.  v.  Walser,  22  Ind.,  73. 

4.  There  was  evidence  tending  to  show  that 
insured  and  insurer's  agents  agreed  that  the 
latter  should  retain  the  policy  until  C,  the 
mortgagee,  should  call  for  it.  The  premium 
was  paid  by  a  promissory  note  of  insured  to 
insurer's  agents.  The  premises  were  con- 
sumed before  C.  called  for  the  policy.  Held, 
an  actual  manual  delivery  was  not  necessary. 
If  the  agents  of  insured  agreed  to  retain  it 
for  a  third  party,  the  delivery  was  complete, 
though  the  third  party  had  not  called  for  it. 
Home  Ins.  Co.  v.  Curtes,  S.  C.  Mich.,  5 ;  Ins. 
L.  J..120. 

5.  The  defendant  constituted  fifteen  persons 
named  "  His  true  and  lawful  attorneys,  jointly 
and  severally  for  him,  and  in  his  name,  to  sign 
and  underwrite  all  such  policies  of  insurance 
as  they,  his  said  attorneys,  should  jointly  and 
severally  think  proper."  This  policy  was 
signed  by  only  four  of  the  persons  named. 
Held,  tlie  power  was  given  to  any  or  all  of 
them,  and  the  execution  was  therefore  suffi- 
cient. Outhrie  v.  Armstrong,  5  B.  &  A.,  628; 
1  D.  &  R  ,  248. 

6.  The  policy  was  signed  at  the  company's 
office  by- three  de  facto  directors,  and  sealed 
with  what  purported  to  be  the  company's  seal. 
Held,  a  binding  polic}'  upon  the  company. 
County  Life  Ass.  Co.,  In  re  Briton  Ass. 
iSoc.'a  Case,  5  L.  R.  Ch.,  288;  s.  c,  39  L.  J. 
Ch.,  471;  22  L.  T.  (N.  S),  537;  18  W.  R.,  390. 

7.  The  Hull  and  London  Fire  Ins.  Co.,  reg- 
istered under  7  and  8  Vict.,  ch.  110,  h.id  power 
to  transact  all  the  bri-,nchcs  of  business  apper- 
taining  to  all  marine  insurance.  The  com- 
liiny  had  a  seal  with  its  name  upon  it.  Tlie 
directors  appointed  .an  agent  to  issue  marine 
policies,  which  were  made  in  iiie  name  of  the 
Hull  and  London  Marine  Ins  Co.  The}'  were 
signed  by  the  agent  and  stamped,  "  Hull  and 
London  Marine  Ins.  Co."  Held,  the  defend- 
ant was  not  liable  under  these  policies  even 
for  losses  adjusted.  Hambro  v.HuU  and  Lon- 
don Fire  Ins.  Co.,  3  H.  &  N.,  789;  28  L.  J. 
Ex.,  62. 

S.  The  policy  was  sent  by  insurer's  agent, 
180 


to  a  broker  for  delivery.  Held,  it  was  deliv. 
ered  when  it  passed  from  the  agent's  custody. 
McLachlan  ».  jStna  Ins.  Co.,  4  Allen,  N.  B., 
173. 

VII.  New  promise. 

1.  Two  partners  applied  for  insurance,  and 
stated,  that  tliey  owned  the  land  on  which  the 
building  stood.  One  of  them  held  the  title  to 
the  land,  but  one-half  its  cost  had  been  de- 
bited to  the  other  on  the  books  of  the  con- 
cern. The  partnership  was  afterwards  dis- 
solved and  that  owner's  interest  in  the  assets 
transferred  to  his  copartner,  to  ■whom,  with 
notice  of  all  the  facts,  insurer  agreed,  that  the 
policy  should  "stand  good."  Held,  insurer 
was  liable  for  the  loss.  Collins  v.  Charlestown 
Mutual  Fire  Ins.  Co.,  10  Gray,  155. 

2.  Policy  to  A.  The  property  was  sold  to 
B.,  who  carried  the  policy  to  tlie  broker 
through  whom  it  was  originally  issued,  told 
him  he  had  purchased,  and  requested  him  to 
have  the  policy  so  indorsed  as  to  protect  his 
interest.  The  broker  indorsed,  in  pencil, 
"Privilege  to  use  kerosene  oil  for  lights. 
Loss,  if  any,  payable  to  Chas.  Batchelor. 
Transfer."  It  was  then  forwarded  to  insurei'. 
and  the  secretary  repeated  the  same  words  in 
the  body  of  the  policy  and  signed  them,  affix- 
ing the  stamp  required  for  a  new  contract,  but 
he  omitted  the  word,  "  Transfer."  Tlie  prem- 
ises were  wholly  consumed  b}-  fire,  and  insur- 
ers  refused  to  pay  anything.  Held,  insurers 
must  be  considered  as  returning  the  policy 
with  an  intention  that  it  should  be  delivered 
to  the  person  who  held  the  interest;  they 
must  have  anticipated  he  would  hold  it  as  an 
indemnity  to  himself,  otherwise  their  conduct 
was  a  deception  and  a  snare;  hence,  the 
plaintiff  was  entitled  to  recover  the  sum  in- 
sured. Batchelor  v.  People's  Fire  Ins.  Co.,  40 
Conn.,  56. 

3.  The  premises  were  insured  to  3.,  the 
owner,  who  sold  to  S.  The  policy  was  as- 
signed, and  insurers  consented  and  then  re- 
newed it  from  the  date  of  its  expiration  for 
one  year,  by  a  paper  as  follows :  "  By  this  certi 
ficate,  the  Peoria  Marine  and  Fire  Ins.  Co.,  ia 
consideration  of  $45  to  them  paid  by  the 
holder  of  policy  No.  723,  the  receipt  wliereof 
is  hereby  acknowledged,  do  hereby  consent  to 
the  continuance  of  the  risk  originally  insured 
in  policy  No.  723,  from  Oct  .Ur  22,  1850,  to 


3G1 


CONTRACT. 


362 


Continuiiig — Ratification  and  adoption  (pro  and  con.). 


October  22,  I860,  the  original  application  to 
remain  iu  full  force  and  virtue."  Held,  this 
paper  was  a  contract  with  S.  on  the  terms  of 
the  original  policy;  that  it  neither  continued 
the  original  policy  nor  revived  it;  that  it  was 
a  new  asreement  with  S.,  on  which  slie  could 
maintain  assumpsit  in  her  own  name  (citing 
Hodges  ji.  Eastman,  13  Vermont,  358;  Flana- 
gan o.  Camden  Mut.  Ins.  Co.,  25  N.  J.,  506).  Peo- 
ria Marine  and  Fire  Ins.  Co.  v.  Hervey,  34 
111.,  46. 

4.  Plaintiff  declared  upon  a  policy  to  A., 
assigned  to  plaintiff,  with  defendant's  consent, 
for  the  consideration  that  the  defendant  was 
released  from  all  liability  to  A.,  and  thatplaiut- 
itf  had  undertaken  and  promised  defendant 
to  perform  all  the  conditions  iu  the  policy 
contained,  and  of  the  assignment  of  the  prop- 
erty insured  from  A.  to  plaintiff.  Ueld,  not  a 
sufficient  consideration  to  support  a  promise 
from  defendant  to  plaintiff;  but  the  payment 
of  a  renewal  premium  by  plaintiff  to  the  in- 
surer would  support  a  new  promise  to  insure 
the  assignee.  Vemiil  v.  Hartford  Fire  Ins. 
Co.,  4  Allen  (N.  B.;,  341. 

VIII.     CONTINTJINO. 

1.  On  freight,  from  January  24th  to  March 
1, 1852.  Stipulated,  that  the  committee,  unless 
ihey  receive  ten  days'  notice  lo  the  contrary, 
.shall  renew  each  policy  on  its  expiration,  ex- 
cept in  cases  where  it  may  be  deemed  expedi- 
ent not  to  renew  the  same,  when  the  committee 
shall  cause  similar  notice  to  be  given  to  the 
parties.  Held,  in  the  absence  of  notice  by 
sillier  party,  the  contract  was  a  continuing 
oolicy.  Michael  v.  Qillespy,  2  C.  B.  (N.  S.), 
B27;  8.  c,  3  Jur.  (N.  S.),  1219;  26  L.  J.  C.  P., 
j06. 

2.  Defendant,  a  mutual  company,  ipsured 
A.,  his  heirs,  administrators,  executors  and 
assigns  on  certain  property,  real  and  personal, 
separate  sums  on  each.  A.  sold  the  realty  to 
B.,  and  assigned  the  policy  to  him,  to  which 
insurers  assented.  A.  removed  the  personal 
property  from  the  premises,  and  B.  placed 
similar  personal  property  in  the  premises,  of 
equal  value  and  character.  Held,  insuiers 
were  liable  to  B.  for  all  property  within  the 
description  mentioned  in  the  policy,  not  ex- 
ceeding the  sum  insured,  for  the  sale  and  as- 
signment of  the  policy,  consented  to  by  in- 
surers,  constituted  a  new  contract  to  insure  B. 


on  his  furniture.   Cumminga  v.  Oheahire  Countff 
Mut.  Ins.  Co.,  55  N.  H.,  457. 

IX.   Ratification  and  adoption  {pro 
and  con.). 

1.  To  constitute  a  confirmation,  the  party 
confirming  must  be  fully  apprised  of  his 
rights  (citing  Cann  «.  Cann,  1  P.  Wms.,  723; 
Roche  II.  O'Brien,  1  Ball  &  B.,  330).  Gray  v. 
Murray,  3  Johns.  Ch.,  167. 

2.  The  owner  of  property  insured  without 
his  authority,  may  adopt  the  act  of  the  person 
procuring  the  insurance  after  the  loss  occurs, 
and  he  who  effects  the  insurance  and  receives 
the  money  holds  it  for  the  benefit  of  the 
owner.  Miltenbcrger  v.  Beacom,  9  Penu.  St., 
198. 

3.  Bond  by  an  insurance  agent,  for  the  faith- 
ful  performance  of  his  duties  "to  the  said 
directors,  their  successors  or  assigns."  Held, 
it  was  a  bond  to  the  company,  who  could  sue 
upon  it  in  their  corporate  name,  nor  was  it 
necessary  to  aver  that  it  was  made  by  the 
name  and  description  of  the  directors,  etc. 
Bnyley  v.  Onondaga  County  Mut.  Ins.  Co.,  6 
Hill,  476. 

4.  She  arrived  at  a  port  of  distress,  with 
her  cargo  in  a  damaged  condition,  which  was 
sold  and  an  abandonment  made.  Insurers 
paid  a  total  loss.  The  master  transmitted  the 
proceeds  to  a  creditor  of  the  ship  owners,  who 
received  them  with  notice  that  they  were  the 
property  of  insurers.  Insurers  first  brought  suit 
against  the  ship  owners,  summoning  the  cred- 
itor as  trustee,  and  afterwards,  but  before 
judgment  in  the  trustee  process,  commenced 
this  action  against  the  creditor  directly.  Held, 
the  bringing  of  the  action  against  the  ship 
owner  did  not  confirm  the  appropriation  of 
the  funds;  hence  plaintiffs  were  entitled  to  re- 
cover. Sun  Mut.  Ins.  Co.  v.  Hull,  104  Mass.,  507. 

5.  B.  accepted  a  policy  which  recited  that 
he  had  paid  a  cash  premium  and  delivered  his 
deposit  note  for  a  like  amount;  but  he  did 
not  read  the  policy,  and  the  person  who  pro- 
cured it  signed  the  name  of  B.  to  the  note. 
Held,  accepting  the  policy  ratified  the  making 
of  the  note.  Monitor  Ins.  Co.  v.  Buffum,  115 
Mass.,  343. 

6.  Insured  assigned  the  policy  and  sold  the 
property  insured  to  the  assignee,  to  all  of 
which    insurers    assented,  and   the  assignee 

'  then  gave  a  new  note  for  the   premium.     All 

181 


363 


CONTRACT. 


364 


Lawful  —  Unlawful. 


the  assessments  made  from  that  time  were  reg- 
ularly made  agaiust  and  paid  by  the  assignee. 
The  assignor  had  stated  in  the  application 
that  there  were  no  incumbrances  on  the  prop- 
erty insured.  The  property  was  incumbered. 
Held,  if  the  company  ratified  the  policy  lo  the 
assignee  witli  knowledge  of  the  incumbrances, 
they  were  bound  by  tlie  ratification,  and  the 
knowledge  of  the  agent  was  the  linowledge  of 
the  principal.  Receiving  payment  of  assess- 
ments was  evidence  of  ratification.  Cumber- 
land Valley  Mutual  Protection  Co.  v.  Mitchell, 
48  Peun.  St.,  374. 

7.  The  defendant  denied  tlie  agent's  author- 
ity to  make  the  contract.  Seld,  insured  had 
the  right  to  prove  tiiat  insurer  retained  the 
premium,  and  if  that  was  the  fivct  it  amounted 
to  a  ratification  of  the  agent's  agreement. 
Northwestern  Iron  Co.  v.  ^tna  Ins.  Co.,  26 
Wis.,  78. 

8.  October  8,  1870,  plaintiff  instructed  his 
brokers  to  insure  £5,000  on  ship,  and  £5,000  on 
freight.  October  lOlh  he  telegraphed,  "There 
is  a  paragraph  in  tlie  Mercury  stating, '  a  ves- 
sel is  asliore  on  the  Nortli  Breaker,  but  whether 
it  is  tlie  Cambria  or  the  Cameo  is  uncertain.' 
Can  you  find  out  at  Lloyd's  ?  Let  me  know 
by  wire  before  acting."  The  broker  tried  to 
ascertain  but  failed.  He  accordingly  proceed- 
ed to  have  the  risk  covered  on  the  12th,  but 
did  not  convey  to  the  insurers  the  information 
he  had  received.  On  the  same  day  of  the 
grounding  of  the  Cambria,  the  vessel  insured, 
appeared  in  Lloyd's  list  of  losses,  of  which  the 
defendants  had  notice.  Subsequently,  on  the 
14th  or  15th,  the  policy  was  delivered.  Held, 
the  insurers  were  bound  to  elect  within  a  rea- 
sonable time  after  they  became  aware  of  the 
concealment,  whether  they  would  affirm  the 
contract,  but  the  election  must  be  made  by  e.x- 
press  words  or  acts ;  that  the  party  defrauded 
may  keep  the  question  open  so  long  as  he  does 
nothing  to  aflirm  the  contract;  that  lapse  of 
time,  without  rescinding,  is  evidence  of  deter- 
mination to  affirm,  and  when  the  lapse  of  time 
is  great,  it  is  conclusive  evidence  of  that  fact. 
But  delivering  the  policy,  after  insurers  re- 
ceived information  of  the  loss,  was  not  evi- 
dence that  they  afiirmed  the  contract;  hence, 
insurers  were  entitled  to  .judgment.  Morrison 
V.  Universal  Marine  Ins.  Co.,  8  L.  R.  Ex.,  197 ; 
42  L.  J.  E.v.,  115;  21  W.  R.,  774;  reversing  8 
L.  R.  E.x.,  40;  43  L.  J.  Ex.,  17;  31  W.  R.,  190; 
37  L.  T.  (N.  S.),  791. 

182 


X.  Lawful. 

1.  She  was  an  alien  ship,  and  could  not 
trade  with  England  except  by  license;  was 
chartered  to  bring  a  cargo  from  Archangel  to 
London,  and  captured  in  the  port  of  Arch- 
angel. Held,  the  policy  was  valid  because  it 
did  not  follow  that  the  master  would  have  pel 
formed  the  voyage  without  obtaining  license. 
iSewell  V.  Royal  Excfiange  Ass.  Co.,  4  Taunt., 
856. 

2.  "  To  any  port  or  ports  in  the  Baltic," 
some  of  whicli  were  ,hostile  and  at  war  with 
Great  Britain.  Held,  the  law  would  imply  an 
exception  in  favor  of  those  ports  that  were  not 
hostile,  and  the  policy  was  therefore  upon  its 
face  lawful.     Wright  v.  Welbie,  1  Chitty,  49. 

XI.  Unlawful. 

1 .  On  ship  from  Boston  to  port  of  discharge 
in  Europe,  stipulated :  "  No  exceptions  are  to 
be  taken  on  account  of  ports  interdicted  bj'  the 
laws  of  the  United  States."  In  an  action  to 
recover  the  premium  on  a  promissory  note: 
Held,  the  defendant  could  prove  that  the  voy- 
age was  intended  and  made  to  a  port  so  inter- 
dicted, and  that  this  was  an  unlawful  contract 
and  sufiicient  to  avoid  the  note.  liussel  v.  De 
Grand,  15  Mass.,  35. 

2.  The  defendant  made  a  premium  note 
payable  to  the  order  of  the  companj-,  who  in- 
dorsed it  to  the  plaintiff,  a  director  of  the  com- 
pany. The  note  and  assignment  was  made 
and  delivered  in  New  York.  Held,  by  the 
laws  of  the  state  of  New  York  the  transfer  was 
not  legal,  and  as  the  plaintiff"  was  a  director  of 
the  company,  he  was  bound  to  know  that  the 
transfer  was  in  violation  of  law;  and  the  de- 
fendant, being  a  creditor  of  the  company,  had 
a  right  to  contest  the  transfer.  Litchfield  v. 
Dyer,  46  Me.,  31. 

3.  The  insured  signed  the  application  and 
executed  the  note  on  Sunday ;  the  papers  were 
post  dated,  but  there  was  no  evidence  to  show 
that  they  subsequently  ratified  the  contract. 
Held,  the  contract  was  void,  and  no  recovery 
could  be  had  upon  the  premium  notes.  Hel- 
ler V.  Crawford,  37  Ind.,  279. 

4.  T.  and  others  procured  a  policy  on  the 
life  of  H.  for  one  year;  but  thej-  had  no  inter- 
est in  his  life.  The  insured  agreed  with  M. 
to  subscribe  first,  and  in  case  H.  died  within 
the  year,  he  was  to  lose  nothing,  but  was  tc 


365 


CONTRACl. 


365 


Effect  of  war. 


chare  whatever  should  be  gaiued  from  the 
other  subscribers.  Upon  the  credit  of  M.'s 
eubscriptiou,  se%'eral   others   subscribed.      II. 

.  died  four  months  after.  Held,  the  policj'  must 
he.  delivered  up  and  the  premium  repaid.  A. 
D.  1690.  Wittingham  ».  Thornhorough,  Fin.,  20 ; 
6.  c,  2  Vcrn.,  206 ;  affirmed,  H.  L.  C. 

~  5.  19th  Geo.  II,  ch.  37,  sec.  1,  provided  no 
assurance  shall  be  made  on  any  goods  to  be 
taken  on  board  of  any  ship,  "  interest  or  no 
interest,  or  without  further  proof  of  interest 
than  the  policy,  or  by  way  of  gaining  or  wa- 
gering or  without  benefit  of  salvage  to  the  as- 
surer." Tills  policy  stipulated:  "The  goods 
insured  were  and  should  be  valued  at  five 
tierces  of  coffee  valued  at  £27  per  tierce,  say 
£135,  and  the  policy  to  be  deemed  sufficient 
proof  of  interest."  Ueld,  a  void  policy. 
Murphy  V.  Bell,  4  Bing.,  567 ;  6  L.  J.  C.  P.,  1 18 ; 
1  M.  &  P.,  493. 

6.  Claim  under  a  policy  of  insurance  on  be- 
half of  French  subjects.  She  was  captured 
by  a  British  ship  after  hostilities  had  com- 
menced. The  policy  was  made  by  a  subject 
of  Great  Britain.  Held,  a  subject  of  Great 
Britain  shall  not  enter  into  an  insurance  that 
■will  have  the  effect  of  protecting  the  property 
■of  the  subjects  of  a  country  in  hostility  with 
Oreat  Britain.    £!x  parte  Lee,  13  Ves.  Jr.,  64. 

7.  Reinsurances  illegal  by  the  statute,  19 
<}eo.  II,  ch.  37,  for  which  no  premium  had 
been  paid  by  the  broker;  but  he  had  credited 
insurers  with  it  in  account.  Held,  the  insurer 
•could  not  recover  against  the  broker.  Edgar 
<v.  Folder,  3  East,  222. 

8.  Against  capture  from  San  Domingo  to 
Dunkirk.  The  policy  was  made  September 
18th,  and  she  commenced  to  take  her  cargo 
October  18th.  The  insured  were  French  sub- 
jects. France  and  England  remained  at 
peace  till  the  February  following.  She  re- 
inained  with  her  cargo  at  San  Domingo  till 
September  following,  when  she  was  captured 
by  British  frigates  and  condemned  as  prize  to 
the  British  force.  Held,  a  contract  to  indem- 
nify the  enemy  against  the  reprisals  of  a  bel- 
ligerent is  invalid.  Oamha  ».  Le  Mesurier,  4 
East,  407. 

9.  On  cargo  purchased  on  account  of  cer- 
tain Frenchmen;  shipped  for  their  benefit  on 
an  American  ship,  before  and  actually  ex- 
ported after  the  declaration  of  hostilities  be- 
tween Great  Britain  and  France,  eflecled  by  a 
British  subject  under  orders  from  the  French 


subject.  The  insurer  was  a  British  subject. 
She  was  captured.  Held,  the  insurance  could 
not  e.xtend  to  cover  any  loss  by  capture  made 
by  his  majesty  and  his  subjects  during  the  ex- 
istence of  hostilities  between  the  respective 
countries  of  the  insured  and  the  insurer. 
Brandon  V.  Curling,  i  East,  410;  1   Smith,  85. 

10.  A.,  B.  and  C.  were  partnei-s  in  making 
insurance  upon  ships  —  contrary  to  6  Geo.  I, 
ch.  18,  sec.  12,  but  tliey  agreed  that  the  poli- 
cies should  be  underwritten  in  the  name  of  A, 
only,  several  of  which  were  made  and  the  pre- 
miums paid  to  certain  insurance  brokers. 
Held,  an  action  against  the  brokers  for  the 
premiums  could  not  be  maintained.  Booth  v. 
Hodgson,  6  Term,  405. 

11.  A  company  of  ship  owners  agreed  to 
insure  each  others'  ships  and  covenanted  sev- 
erally  to  pay  a  certain  sum  in  case  of  loss,  in 
proportion  to  their  respective  shares;  but  ia 
case  any  should  be  insolvent,  all  the  others 
were  to  be  responsible.  Held,  void  under  6 
Geo.  I,  ch.  18,  sec.  12.  Lees  v.  Smith,  7  Teem, 
338. 

XII.  Effect  of  wak. 

1.  The  breaking  out  of  war  does  not  dis- 
solve the  contract  of  insurance.  Saltus  ■n. 
United  Ins.  Co.,  15  Johns.,  523. 

2.  If  an  ante  bellum  contract  is  dissolved  at 
all,  it  is  because  its  performance  is  inconsist- 
ent  with  the  duties  and  allegiance  the  parties 
owe  their  respective  countries,  and  involves 
some  violation  or  infringement  of  these ;  but 
if  the  contract  has  been  partly  executed  by 
one'  party,  by  parting  with  money  or  other 
valuable  things  for  the  promise  that  the  other 
will  perform  his  part  of  the  engagement,  in- 
tervening  war  does  not  destroy  the  contract. 
Statham  v.  Ifew  York  Life  Ins.  Co.,  45  Miss., 
581. 

3.  Ship  insured  from  Bayonne  to  Mart- 
inique, thence  to  Bayonne.  She  was  at  Mart- 
inique when  that  place  was  captured  by  the 
British ;  was  seized  and  taken  as  a  prize.  The 
insured  was  a  French  subject,  resident  in. 
France,  but  there  was  peace  between  that  na- 
tion and  Great  Britain  when  the  policy  was 
effected.  His  Majesty  granted  a  license  to 
Alves,  Rebello  &  Co.,  authorizing  them  to  re- 
ceive the  money  insured.  Held,  it  was  not 
lawful  for  a  British  subject  to  insure  an  enemy 
from  capture  made  by  his  own  government, 

183 


367 


CONTRIBUTION — CONVOY. 


36S 


Miscellaneous. 


for  the  law  infers  that  the  contract  contains  an 
exception  as  to  captures  made  by  the  govern- 
ment of  liis  country,  and  an  express  insurance 
against  such  capture  would  be  abrogated  by 
the  law  of  England.  Held,  also,  that  during 
•war,  all  commercial  intercourse  with  the 
enemy  is  illegal  at  common  law.  It  follows 
that  whatever  contract  teijds  to  protect  ene- 
mies' property  from  the  calamities  of  war, 
though  etfected  antecedent  to  the  war,  is  never- 
theless illegal.  Furtado  v.  Badgers,  3  B.  &  P., 
191. 

XIII.  When  several. 

1.  Stipulated:  "  The  insurers  will  contrib- 
ute each  one  according  to  the  rate  and  quan- 
tity of  the  sum  therein  assured.  Valued  at 
£3,200,  insuring  £3,000."  There  were  seventy- 
two  subscribers,  but  no  sums  were  written  op- 
posite to  any  of  their  names.  The  articles 
of  association  stipulated,  "  When  a  loss  hap- 
pens and  any  of  the  members  are  insolvent, 
the  insured  shall  have  no  claim  for  their  share 
of  the  contribution  upon  the  other  parties  to 
the  policy."  Held,  a  valid  contract  in  the 
same  manner  as  if  the  policy  were  subscribed 
by  a  number  of  individuals.  Douoell  v.  Moon, 
4  Camp.,  166. 

XIV.  "When  joint, 

1.  The  defendants  were  shareholders,  one 
of  them  a  director  in  the  company,  which 
issued  a  policy,  signed  by  the  directors  and 
purported  on  its  face  to  have  been  made  be- 
tween the  company  and  the  insured.  It  stip- 
ulated that  the  capital  stock  and  funds  of  the 
company  should  alone  be  liable  to  make  good 
all  demands  that  might  accrue  to  the  insured; 
that  no  proprietor  of  the  company  should  be 
subject  or  liable  or  in  anywise  charged  by 
reason  of  the  policy,  beyond  the  amount  of 
his  or  her  shares  in  the  capital  stock.  It  was 
then  averred  that  "the  defendants  promised 
to  perform  and  fulfill  all  things  in  the  policy 
mentioned  on  their  part  as  such  insurers,  and 
that  the  defendants  then  and  there  became  and 
were  insurers  to  the  plaintiff  and  duly  sub- 
scribed the  policy;  that  although  the  capital 
stock  and  funds  of  the  compan}'  were  and  are 
sufficient  to  pay  the  loss,  payment  had  not 
been  made."  The  action  was  against  the 
184 


subscribers  of  the  pnlicy.  The  defendants 
separated;  one  pleaded  nonassumpsit  and 
others  demurred  generally.  Ileld,  the  decla- 
ration disclosed  a  joint  contract  by  all  the  de- 
fendants, and  the  demurrer  admitted  the 
promise  averred,  namely,  that  the  capital 
stock  should  be  applied  to  payment  of  the 
loss,  nallett  V.  Bowdall,  21  L.  J.  Q.  B.,  98;  18 
Q.  B.,  2;  16  Jur.,  462;  affirming  Dowdall  s. 
Hallett,  19  L.  J.  Q.  B.,  37;  14  Jur.,  309.) 

2.  Four  companies  transacting  business  by 
the  name  of  the  Underwriters  Agency,  con- 
tracted under  one  policy  with  plaintiff  to  in- 
sure certain  property,  stipulating:  "That 
nothing  herein  shall  be  construed  as  creating 
any  joint  liability  on  the  part  of  the  above 
named  companies  or  either  of  them,  but  that 
such  companies  shall  only  be  regarded  as 
severally  liable  for  the  amount  insured  by 
each"  (one-fourth).  Held,  the  contract  was 
joint,  with  a  stipulation,  in  terms,  for  the  lia- 
bility of  each  company,  and  it  was  within  the 
power  of  the  jury  to  so  mould  their  verdict, 
under  the  provisions  of  the  code,  as  to  conform 
to  the  express  stipulation  of  the  contract. 
Sutlwrlin  v.  Underwriters  Agency,  53  Ga.,  442. 


CONTRIBUTION. 

(See  Genebai,  Atebage.) 

-Ajjcong  CO-INSUEEES. 

Several  underwriters  made  insurance  upon 
cargo,  two  of  whom  paid  judgments  rendered 
against  them  for  the  whole  loss.  Held,  they 
could  maintain  actions  against  their  co- 
insurers  for  contribution.  Thurston  t.  Koch, 
4  Dall.,  348. 


CONVOY. 

I.  What  satisfies  the  warranty. 

11.  DOES  not  satisfy  THE  WARRANTY 

I.  What  satisfies  the  waeeantt. 

1.  "On  ship  from  London  to  Naples,  war- 
ranted to  depart  with  convoy."    She  departed 


369 


CONVOY. 


370 


What  does  not  satisfy  the  warranty. 


•with  convoy,  but  was  separated  from  it  by 
stress  of  weather  in  the  Downs,  driven  into 
Foy,  waited  there  for  convoy,  sailed  expecting 
to  meet  it,  she  went  on,  did  not  meet  convoy, 
and  was  captured  by  a  French  man-of-war. 
Jleld,  the  warranty  was  satisfied.  Jifferici  v. 
Lfgendra,  1  Hult  K.  B.,  465;  Show.,  320; 
Carth.,  316. 

2.  She  sailed  with  convoy,  but  was  driven 
back  to  port  by  heavy  weather.  She  sailed  again 
without  waiting  for  ne.xt  convo}-  and  without 
joining  convoy  frcmi  any  other  port.  Held,  the 
requiremculs  of  the  statute  were  like  the  com- 
mon  case  of  warranty,  to  sail  with  convoy; 
that  if  she  sailed  with  convoy  on  the  voyage, 
she  complied  with  the  requisitions  of  the 
statute,  and  if  for  some  necessary  cause  she 
was  honestly  obliged  to  leave  her  convoy,  the 
insurer  could  not  complain.  Lniiig  v.  Olover, 
5  Taunt,  49. 

3.  On  a  voyage  from  A.  to  C,  warranted  to 
depart  with  convoy  for  the  voyage.  Convoy 
was  appointed  to  B.,  a  port  in  the  course  to 
and  near  C.  She  was  captured  between  B. 
and  C.  Hold,  it  was  proper  to  leave  to  the 
jury  the  question  whether  there  was  not  a 
sufHcient  convoy,  within  the  meaning  of  the 
policy.    D'Eguino  v.  Sewicke,  2  H.  Black.,  551. 

4.  "  Warranted  to  sail  with  convoy,"  to  be 
allowed  to  sail  from  loading  port  direct  to  a 
rendezvous  to  join  convoy,  on  condition  that 
in  case  of  capture  while  so  sailing,  a  deduc- 
tion should  be  made  of  £15  per  cent,  from  the 
sum  insured  or  the  loss  sust-ained.  Held,  she 
might  sail  without  convoy  for  the  rendezvous, 
although  there  were  convoy  between  the  load- 
ing port  and  the  rendezvous.  Warwick  v. 
Scott,  4  Camp.,  62. 

5.  The  defense  was  that  she  had  been  guilty 
of  a  breach  of  the  convoy  act.  She  sailed 
without  convoy  and  was  captured.  The  own- 
er's son  was  on  board.  Held,  to  vitiate  the 
policy,  it  must  be  shown  that  the  insured  was 
privy  to  or  instrumental  in  causing  her  to  sail 
without  convoy,  and  where  the  conduct  of  the 
agent  is  set  up  as  a  defense,  it  must  be  shown 
he  had  authority  for  that  purpose;  and  this 
must  be  proven,  notwithstanding  the  sailing 
without  convoy  was  directed  by  the  master  or 
supercargo.  Carstnirs  v.  Allnutt,  3  Camp., 
497;  Metcalfv.  Parry,  4  id.,  123. 

6.  The  court  will  presume  the  ship  com- 
plied with  the  provisions  of  the  convoy  act. 
TJiornton  v.  Lance,  4  Camp.,  231. 


7.  She  was  Spanish  built,  purchased  at 
Hamburg  by  a  British  subject,  the  plaintifl". 
She  was  not  registered.  Her  master  ai)i)Iied 
to  the  adnuralty  for  a  license  to  go  to  Leg. 
horn  and  Naples  without  convoy,  which  was 
granted,  to  Naples  (inly.  He  sailed  for  Leg- 
horn, and  was  captured  ofT  that  place  by  a 
French  privateer.  Held,  a  register  was  not 
necessary;  that  she  might  therefore  proceed 
without  convoy.  Long  v.  Duff,  2  B.  &  P., 
209. 

8.  "  Warranted  to  sail  with  convoy  for  the 
voyage."  The  commander  sent  a  ship  to- 
bring  up  the  merchantmen  for  Tortola,  but 
the  ship  sent  did  not  form  a  part  of  the  con- 
voy for  the  remainder  of  the  voyage,  and  the 
ship  insured  was  lost  before  she  joined  the 
commander  of  the  convoj'.  Held,  warranty 
was  satisfied.    Manning  v.  Gist,  3  Doug.,  74. 

9.  Warranted  to  depart  with  convoy  from 
Fleckery.  She  sailed  for  Fleckery,  arrived,, 
and  wailed  two  months  for  convoy.  In  the 
morning  at  nine,  three  men  of  war  with  a 
merchant  fleet  in  convoy  stood  off  Fleckery, 
and  signaled  ships  to  come  out.  The  convoy 
sailed  gently  on,  and  the  ship  insured  with 
others  got  out  about  twelve  o'clock.  The  con- 
voy was  then  about  two  leagues  ahead.  It 
was  blowing  a  gale,  and  by  six  in  the  after- 
noon she  came  up  to  the  fleet,  but  could  not 
get  sailing  orders.  She  was  taken  by  a  French 
privateer.  Held,  the  warr.anty  was  observed. 
Victorin  v.  Cleeve,  2  Strange,  1250. 

10.  Warranted  to  depart  with  convoy.  One 
was  appointed  for  that  trade  at  Spithead.  She 
tried  to  take  one  on  the  Downs,  but  failing, 
she  sailed  for  Spithead,  and  was  taken  on  her 
way.  i?eW,  the  warranty  was  observed.  Gor- 
don V.  Morley,  2  Strange,  1265. 

II.  What  does  not  satisfy  the  wab- 

EANTT. 

1.  "Warranted  to  depart  with  convoy." 
She  sailed  from  Spithead,  the  rendezvous,  in 
company  with  convoy.  The  master  left  the 
ship  for  the  purpose  of  getting  sailing  instruc- 
tions from  the  admiral ;  but  he  was  drowned, 
and  never  was  seen  again.  Held,  the  warranty 
to  depart  with  convoy  required  proof  of  sail- 
ing orders;  that  without  them  the  master 
could  not  answer  signals,  nor  know  where  to 
rendezvous  in  case  of  storm.  Wehb  i'.  Thomp- 
son, 1  B.  &  P.,  5. 

185 


371 


COUNTERSIGKING  POLICY. 


37j 


Miscellaneous. 


2.  Warranted  to  sail  with  convoy,  means 
sailing  with  convoy  for  the  voyage.  Lilly  v. 
Eicer,  1  Doug.,  73. 

3.  "Warranted  to  depart  with  convoy." 
The  convoy  left  before  she  reached  the  rendez- 
vous, and  she  put  herself  under  the  admiral's 
command,  as  he  was  going  to  England.  The 
captain  of  the  "  Glorieaux  "  took  her  under 
his  protection,  but  he  had  no  orders  from  the 
admiral,  and  she  was  captured.  Held,  the 
warranty  was  not  satisfied.  Hibbert  v.  Pigou, 
3  Doug.,  224. 

4.  Ships  sailing  from  foreign  ports  are  not 
within  tlie  convoy  act,  unless  there  were  per- 
sons at  those  ports  authorized  to  grant  con- 
voys or  licenses;  and  proof  that  c<mvoys  were 
appointed  from  those  ports  is  not  sufficient. 
It  must  be  shown  that  persons  were  there 
legally  authorized  by  the  admiralty  to  ap- 
point convoys.  D'Augilar  v.  Tohin,  Holt  N. 
P.,  185. 

5.  Warranted  to  depart  with  convoy.  She 
did  not  obtain  sailing  instructions  before  leav- 
ing the  rendezvous;  they  might  have  been 
obtained  by  proper  endeavor.  Held,  the  war- 
ranty was  broken.  Anderson  v.  Pitcher,  2  B. 
.&P.,  164;  3Esp.,124. 

6.  "  Warranted  to  sail  with  convoy."  The 
convoy  sailed  July  2oth,  but  the  ship  insured 
did  not  sail  till  tlie  27th,  nor  did  she  reach  tlie 
rendezvous,  Bluefields,  till  the  29th;  but  she 
came  up  with  the  convoj-,  August  20th,  re- 
ceived sailing  orders  and  continued  with  the 
■fleet  till  September  Hth,  when  a  gale  separated 
them,  and  she  was  captured  by  the  enemy. 
Held,  the  warranty  was  not  observed,  hence 
insurers  were  released.  Bunmore  v.  Allan, 
Faculty  Dec.  1781  to  1787,  p.  432. 

7.  Warranted  to  sail  with  convoy  on  or 
before  the  1st  of  August,  1783.  Bluefields 
was  the  appointed  place  of  rendezvous;  but 
she  remained  at  Savannah-La-Har,  a  distance 
of  several  miles  from  Bluefields,  but  within 
call  by  signal.  While  there  the  master  re- 
ceived orders  by  signal  to  sail,  to  which  he 
gave  obedience,  but  she  was  prevented  by  a  sud- 
den calm  from  joining  convoy  till  August  29th. 
She  remained  in  company  with  it  till  Septem- 
ber  16th,  when  the  fleet  was  dispersed  by  a 
severe  storm,  and  she  was  afterwards  captured. 
Held,  she  did  not  sail  with  convoy,  hence  the 
insurers  were  released.  Monteaik  x.  Crosse, 
faculty  Dec,  1787  to  1792,  p.  87. 


COUNTERSIGNING  POLICY. 

(See  CosTBACT,  VI.) 

1.  Stipulated:  "  Not  to  be  in  force  till  coun 
lersigned  by  B.  at  Boston."  B.  was  the  per- 
son insured,  and  insurers'  agent.  After  his 
death,  the  policy  was  found  among  his  papers, 
but  it  had  never  been  countersigned.  Held,  ia 
the  absence  of  proof  to  show  that  the  condi- 
tion was  waived,  no  recovery  could  be  had 
upon  it.  Badger  «.  Ameriain  Popular  Life 
Lns.  Co.,  103  Mass.,  244;  Prall  v.  Mutual  Pro- 
tection Life  Ins.  Co.,  5  Daly,  298. 

2.  Not  valid  until  countersigned  by  an  agent 
named.  Held,  the  policy  might  become  efifect- 
ual  without  countersigning,  provided  it  was 
the  intention  of  the  parties  to  treat  it  as  exe- 
cuted, and  to  dispense  with  that  condition. 
Myers  t.  Keystone  Mutual  Life  Ins.  Co.,  27 
Penn.  St.,  268. 

3.  N.  was  for  many  years  local  agent  of 
insurer,  and  his  wife  held  a  policy  upon  his 
life.  Renewal  certificates  for  premiums  fall- 
ing  due  upon  policies  issued  in  his  district; 
were  sent  to  him  for  him  to  receive  the  money 
and  remit  to  the  company;  all  of  them  con- 
tained a  printed  notice  that  they  were  not 
valid  until  payment  of  the  premium  and  coun- 
tersigned  by  N.  as  agent.  The  premium  was 
paid  in  1866,  but  the  renewal  receipt  was  not 
countersigned  by  N.  as  agent.  He  died  in 
1867,  and  after  his  death  the  renewal  receipt 
for  the  premium  due  for  1867  was  found 
among  his  papers,  but  it  was  not  counter- 
signed. Held,  the  fact  that  the  certificate  was 
not  countersigned  did  not  rebut  the  presump- 
tion that  the  premium  was  paid.  Norton  v. 
Phmnix  Mutual  Life  Ins.  Co.,  36  Conn.,  503. 

4.  If  the  policy  or  renewal  receipt  with  the 
agent's  name  written  upon  them  were  deliv. 
ered  as  completed  instruments,  neither  the 
agent  nor  his  principal  can  afterwards  object 
that  they  were  not  countersigned.  Hibemia 
Ins.  Co.  v.  O'Connor,  29  Mich.,  341. 

5.  Action  on  a  promissory  note,  executed 
in  consideration  of  a  policy  for  $6,000  on  the 
steamer  John  Drennon,  for  one  year.  The 
instrument  delivered  was  signed  by  the  presi- 
dent of  the  company,  but  stipulated  not  to  be 
valid  till  countersigned  by  John  Burgoyne,  at 
Cincinnati.  It  never  was  countersigned  by 
him.    Held,  it  Avas  not  a  valid  policy,  and  was 


136 


373 


COURT  AND  JURY. 


37i 


Questions  for  the  court. 


no  consideration  for  the  note.    Lynn  v.  Dur- 
goynf,  13  B.  Mou.,  39U. 

6.  The  act  of  incorporation  provided: 
"Policies  signed  by  the  president  and  coun- 
tcrsigned  by  the  secretary,  but  not  otherwise, 
shall  bo  valid  and  binding  on  the  company." 
This  policy  was  not  signed  by  the  president, 
but  it  was  countersigned  by  the  secretary. 
Held,  it  was  not  valid,  but  the  company  could 
be  compelled  to  execute  a  valid  policy.  Perry 
V.  New  Castle  Fire  Ins.  Co.,  8  U.  C.  Q.  B.,  363. 


COURT  AND  JURY. 

I.  Questions  for  the  court. 

II.  JURY. 

I.  Questions  for  the  court. 

1 .  The  circuit  court  has  no  right  to  order  a 
peremptory  nonsuit,  against  the  will  of  the 
plaintifif;  but  the  defendant  may  move  the 
court  to  instruct  the  jury  that  the  evidence 
given  for  the  plaintiff  is  not  suflicieut  to  war- 
rant a  verdict  in  his  favor.  Such  a  motion  is 
not  addressed  to  the  discretion  of  the  court, 
and  presents  a  question  of  law  for  the  consid- 
eration of  the  supreme  court  (affirming  s.  c, 
8  Blalch.,  170:  9  id.,  301).  Insurance  Co.  v. 
Folsom,  18  Wall.,  237. 

2.  "  Free  from  average  unless  general." 
Held,  if  these  words  had,  by  a  long  course  of 
commercial  usage,  acquired  a  precise  and 
definite  meaning  among  commercial  men,  it 
would  be  the  duty  of  the  court  to  give  them 
that  meaning.  Wadsworth  v.  Pacific  Ins.  Co., 
i  Wend.,  34. 

3.  The  court  is  bound  to  take  judicial  no- 
tice of  things  wliich  are  public  history,  and 
affect  the  people  generally.  Smnnerton  ■v. 
Columhian  Ins.  Co.,  37  N.  Y.,  174;  s.  c,  9  Bos., 
861. 

4.  When  the  facts  are  agreed  by  the  parties, 
or  found  by  the  jury,  the  question  is  then  one 
of  law  for  tlic  court  to  decide.  Smith  v.  New- 
buryport  Marine  Ins.  Co.,  4  Mass.,  668. 

5.  Whether  a  fact  concealed  is  material  is 
a  question  for  the  jury ;  but  if  the  evidence  of 
it  is  agreed  upon  by  the  parties,  it  is  then  a 
question  for  tlie  court.  Fletcher  v.  Common- 
uealth  Ins.  Co.,  18  Pick.,  419. 


6.  If  all  th^  evidence  offered  for  the  purpose 
of  establishing  any  given  fact,  with  all  the  in- 
ferences which  can  be  dr.awn  from  it,  is  not 
sufficient  in  law  to  establish  the  fact,  it  is  the 
duty  of  tlie  court  to  refuse  to  submit  the  ques- 
tion  to  the  jury  (citing  Parks  v.  Ross,  11  How., 
362).     F(y  V.  Alliance  Ins.  Co.,  16  Gray,  4.55. 

7.  State  laws  and  regulations,  incorporated 
by  implication  into  a  pul)lic  act  of  congress, 
need  not  be  pleaded,  and  therefore  need  no 
proof,  because  the  court  will  take  judicial 
notice  of  them.  Flanigen  v.  Washington  Ins. 
Co.,  7  Penn.  St.,  306. 

8.  AVhether  the  prelimin.ary  proof  is  admis- 
sible is  for  the  court.  Tlie  jury  are  to  deter- 
mine the  authenticity  of  the  papers.  Klein  v. 
Franklin  Ini>.  Co.,  13  Penn.  St.,  347. 

9.  There  were  two  barrels  of  whisky  near 
the  still,  and  thirty  barrels  stored  in  the  cellar. 
Held,  it  was  proper  for  the  court  to  tell  the 
jury  that  this  was  an  incident  of  the  business 
of  distilling.  People's  Ins.  Co.  v.  Spencer,  53 
Penn.  St.,  3.53. 

10.  Where  no  testimony  is  offered  of  a  fact, 
or  the  evidence  is  so  vague  and  indefinite  that 
by  no  rational  inference  can  the  fact,  .attempt- 
ed to  be  proved,  be  adduced,  it  is  the  duty  of 
the  court  to  instruct  the  jury  that  the  infer- 
ence of  fact  cannot  be  drawn  from  the  evidence 
given.  Riggin  v.  Patapsco  Ins.  Co.,  7  H.  &  J., 
279. 

11.  The  force  of  the  testimony  given  is  for 
the  jury,  and  the  court  below  ought  to  grant 
a  new  tri.al  if  the  evidence  given  calls  for  a 
finding  different  from  tliat  niiide  by  the  jury; 
but  it  is  not  for  the  appellate  court  to  correct 
the  verdict.  New  York  Life  Ins.  Co.  v.  Flacky 
3  Md.,  341. 

1 2.  If  certain  facts  are  found,  then  the  ques- 
tion upon  them  is  a  matter  of  law  for  the 
court,  and  it  is  not  error  for  the  court  to  in- 
struct the  jury  that  certain  facts  est.ablisli  a 
certain  proposition  of  law.  Winneshiek  Ins. 
Go.  V.  Schneller,  60  111.,  465. 

13.  The  word"gix"  was  illegibly  written, 
the  s  having  the  appearance  of  an  o.  The 
court  left  it  to  the  jury  for  them  to  find  whether 
the  word  was  six  or  oix.  Held,  error.  It  was 
tlie  duty  of  the  court  to  determine  the  matter 
from  tlie  context  and  inspection.  Lapeer 
Conyity  Ins.  Co.  v.  Doyle,  30  Mich.,  159. 

14.  If  the  facts  are  admitted,  the  supreme 
court  must  pass  on  their  legal  effect.  It  is 
(>uly  when  they  are  disputed  or  there  is  evi 

187 


375 


COURT  AND  JURY. 


Questions  for  the  jury. 


deuce  tending  to  sustain  the  claim  of  each 
party  that  the  finding  of  the  trial  court  is  con- 
clusive against  the  loser.  Woods  v.  Atlantic 
Mutual  Ins.  Co.,  50  Mo.,  112. 

II.  Qdestions  foe  the  jukt. 

1.  Whether  there  was  a  competent  crew  for 
the  voyage,  at  what  time  such  crew  should  be 
on  board,  the  proper  pilot  ground,  the  course, 
the  usage  of  trade  in  relation  to  the  master 
and  crew  being  on  board  when  she  breaks 
ground  for  the  voyage,  are  questions  of  fact 
for  the  consideration  of  the  jury  exclusively; 
and  the  court  cannot  solve  them  without  arro- 
gating the  rights  and  privileges  of  a  jury. 
Whether  the  ship  was  seaworthy  when  she 
broke  ground,  or  her  laying  off  and  on  after 
her  departure,  waiting  for  the  master  to  come 
on  board,  or  the  insured  omitted  to  communi- 
cate to  his  agent,  with  due  and  reasonable  dil- 
igence, his  knowledge  of  the  loss  of  the  ship, 
aud  whether  a  failure  to  mention  the  time  of 
the  vessel's  sailing  was  a  fact  material  to  be 
made  known  to  the  insurer,  were  questions  in 
the  cause;  but  the  court  instructed  the  jury, 
"  That  upon  the  whole  evidence  in  the  case  the 
.plaintiffs  are  not  entitled  to  recoTer,  and  the 
verdict  of  the  jury  ought  to  be  for  the  defend- 
ants." Held,  this  was  withdrawing  from  the 
proper  consideration  of  the  jury  matters  of 
fact  in  controversy  between  the  parties,  and 
therefore  the  judgment  should  be  reversed. 
M'LanaTuin  v.  Universal  Ins.  Co.,  1  Pet.,  170. 

2.  Whether  the  premium  would  have  been 
higher  had  the  property  been  differently  de- 
scribed, or  whether  a  representation  was  ma- 
terial, are  questions  for  the  jurj:.  Columbian 
Ins.  Co.  V.  Lawrence,  2  Pet.,  2.5. 

3.  Whether  a  misdescription  had  any  effect 
upon  the  premium  is  a  question  of  fact  fur  the 
jury.  Columbian  Ins.  Co.  i>.  Lawrence,  10  Pet., 
507. 

4.  It  is  a  question  of  fact  for  the  jury  to  de- 
termine whether  the  vessel  was  seaworthy  at 
the  commencement  of  the  voyage.  Popleston 
V.  Kitchen,  3  Wash.  C.  C,  138. 

5.  Warranty  depending  on  matter  of  fact  is 
a  question  for  the  jury.  Denis  v.  Ludlow,  2 
Caines,  111 ;  Curry  v.  Commonwealth  Ins.  Co., 
10  Pick.,  535. 

6.  On  the  day  the  policy  was  made,  a  vessel 
arrived  with  infurn^alion  that  tlieship  insured 
sailed   about   October   3d.     The  broker   who 

188 


made  the  insurance  stated  that  she  was  ex- 
pected to  sail  about  the  1st.  Held,  it  was  a 
question  for  the  jury  to  determine  whether 
the  concealment  was  material.  Licinyston  v. 
Delafield,  1  Johns.,  522. 

7.  The  juiy  are  to  de'ermine  whether  the 
insurer  accepted  or  refused  the  abandonment. 
Bell  V.  Columbian  Ins.  Co.,  2  Johns.,  98. 

8.  What  facts  are  material  and.  necessary  to 
be  communicated  to  the  insurer  is  not  a  ques- 
tion for  the  court,  but  for  the  jury.  JVeio  York 
Firemen's  Ins.  Co.  v.  Walden,  12  Johns.,  513. 

9.  Insured  offered  his  books  of  accounts. 
They  were  admitted  without  objection,  and 
tlie  only  question  was  whether  they  had  beea 
fraudulently  altered.  Held,  it  was  a  question 
for  the  jury.  Kelly  v.  Indemnity  Ins.  Co.,  38 
N.  Y.,  35;2. 

10.  A  question  of  concealment  must  be  sub- 
mitted to  the  jury.  Sexton  v  Montgomery  Mat. 
Ins.  Co.,  9  Barb.,  191. 

11.  The  defendant  interposed  an  equitable 
defense.  Held,  it  was  nevertheless  a  case  tri- 
able by  jury.  Sturm  v.  Atlantic  Mut.  Ins.  Co., 
6  J.  &  Sp.  (N.  Y.),  281. 

12.  The  defendants  defended  on  the  ground 
that  certain  questions  propounded  in  the  ap- 
plication had  been  falsely  answered.  Held,  a 
question  for  the  jury.  Boos  v.  World  Mutual 
Life  Ins.  Co.,  4  Hun.  (N.  Y.)  133;  s.  c,  6  N. 
Y.  S.  C,  364. 

13.  Whether  a  vessel  is  so  much  out  ot 
trim  as  to  be  unseaworthy  at  the  commence- 
ment of  the  voyage  is  a  question  for  the  jury. 
Chase  v.  Eagle  Ins.  Co.,  5  Pick.,  51. 

14.  Whether  an  abandonment  is  timely  is  a 
mixed  question  of  law  and  fact  for  the  jury. 
Meynolds  v.  Ocean  Ins.  Co.,  22  Pick.,  191. 

15.  Whether  alterations  or  additions  to  a 
a  building  insured  increased  the  risk,  is  a 
question  of  fact  for  the  jury.  Curry  v.  Com- 
monwealth Ins.  Co.,  10  Pick.,  535. 

16.  Where  the  whole  cargo  in  a  literal  and 
strict  sense  is  not  discharged  at  one  port,  and 
the  vessel  proceeds  to  another  with  a  small 
portion  of  the  cargo,  the  question,  whether  she 
was  substantially  discharged  at  the  first  port, 
must  be  left  to  the  jury.  Upton  v.  Salem  Com- 
mercial Ins.  Co.,  8  Met.,  605. 

17.  Wliether  the  risk  has  been  increased  is 
a  question  for  the  jury.  Gamieellt.  Merchants 
and  Farmers  Mut.  Ins.  Co.,  12  Gush.,  167. 

1 8.  Whether  the  word  '•  room,"  among  man- 
ufacturers, was  understood  as  one  loft  or  stor> 


COURT  AND  JUR\. 


ui  8 


Questions  for  the  jury. 


divided  by  partitions  with  doors  in  tliem,  was 
a  question  of  fact  for  the  jury,  and  the  jury 
could  find  that  it  was  so  understood,  notwith- 
standing it  was  not  so  known  among  persons 
engaged  in  the  Ijusincss  of  insurance.  Daniels 
V.  Hudson  Rker  Fire  Ins.  Co.,  13  C'usli.,  416. 

19.  Wliether  tliere  has  been  anj' increase  of 
rislc  is  a  question  of  fact  for  the  jury.  Rich- 
ards V.  Protection  Ins.  Co.,  30  Me.,  273. 

20.  The  insured  warranted  to  Iteep  a  watch 
while  manufacturing  starch.  Held,  wliether 
a  suitable  watch  under  the  circumstances  was 
kept,  was  a  question  for  the  jury.  Percival 
V.  Maine  Mut.  Ins.  Co.,  33  Me..  242. 

21.  Whether  tlie  right  to  abandon  lias  been 
waived  may  sometimes  be  a  question  of  law 
purely  ;  and  at  others,  a  mi.xed  question  of  law 
and  fact;  wlien  it  is  a  question  of  law  merely, 
the  court  will  decide  it;  and  if  it  is  a  ques- 
tion of  law  and  fact,  the  court  will  leave  it  to 
the  jury  upon  proper  instructions.  Curcier  v. 
Philadelphia  Iiu.  Co.,  5  S.  &  R.,  113. 

22.  The  insured  is  not  obliged  to  apply  to 
the  insurer  to  have  the  insured  premises  ex- 
amined to  ascerlain  whether  an  alteration  has 
increased  the  risk  ;  he  may  take  the  risk  of  that 
question  before  the  jury.  Perry  County  Mut. 
Ins.  Co.  V.  Stewart,  19  Penn.  St.,  45. 

23.  "  On  merchandise,  in  a  three  story 
building  on  the  corner  of  Third  street  and 
Sugar  alley,  with  libertj'  to  erect  a  brick 
building  on  the  baclv  of  the  lot  adjoining  the 
above  named  luiilding  in  the  rear."  Held,  a 
question  of  fact  for  tlic  jury  to  determine 
whetlicr  the  goods  were  in  the  building  de- 
scribed. Franklin  Fire  Ins.  Co.  v.  Updegraff, 
43  Pcnn.  St.,  350. 

24.  There  was  evidence  tending  to  show  a 
waiver  of  one  of  the  conditions.  Held,  the 
jury  was  to  say  whether  it  was  sufficient.  Ly- 
coming County  Ins.  Co.  v.  SchoUenberger,  44 
Penn.  St.,  259. 

25.  The  insured  w.as  required  to  state  the 
distance  and  direction  from  each  other,  and 
from  other  buildings  within  four  rods  of  the 
premises  insured,  to  which  they  replied:  "  A 
small  shed  twenty  two  leet  from  the  mill,  and  a 
small  building  where  cotton  waste  is  now  kept; 
\ylh  are  to  be  moved  fifteen  rods."  The  ap- 
plication warranted  tlie  description  to  be  cor- 
rect, so  far  as  regards  the  risk  and  value  of 
the  property  insured.  Held,  insured  were  en- 
titled to  a  reasonable  time  to  remove  the  shed 
aud  building,  of  which  the  jury  were  the  ex- 


clusive  judges.     Lindsey   v.   Union  Mutual 
Fire  Ins.  Co.,  3  U.  I.,  157. 

26.  Stipulated:  "Not  to  be  liable  for  :iny 
partial  loss  on  bar  or  sheet  iron,  etc.,  unless 
the  same  shall  amount  to  twenty  per  cent.  ou. 
the  aggregate  value."  The  policy  was  written 
on  808  bundles  of  rods.  Held,  the  court  could 
not  determinef,  as  matter  of  law,  whether  bun- 
dies  of  rods  were  bar  iron  within  the  pm- 
viso  —  this  was  a  question  of  fact  for  the  jury. 
Eoans  v.  Commercial  Mut.  Ins.  Co.,  6  R.  I.,  47. 

27.  The  case  belonged  to  a  class  in  which 
the  circumstances  of  reasonable  notice  would 
seldom  be  the  same.  Held,  the  court,  was 
right  in  leaving  the  question  to  be  decided  by 
the  jury.  Davis  v.  Western  Massachusetts  Ins. 
Co.,  8  R.  I.,  277. 

28.  The  court  refused  to  charge,  "  If  the  in- 
sured  did  not  have  au  interest  in  his  uncle's 
life  equal  to  the  sum  insured,  the  policy  was 
void,  and  that  the  plainlifTs  only  interest  in 
the  life  of  his  uncle  was  the  amount  of  his 
uncle's  debt  to  him,  aud  that  he  could  in  no 
event  recover  a  greater  sum  than  that."  Held, 
it  was  for  the  jury  to  say  whether,  bj'  a  fair 
and  honest  estimate,  the  plaintiff  h.ad  au  inter- 
est in  his  uncle's  life,  to  the  amount  insured. 
Mowry  v.  Home  Life  Ins.  Co.,  9  R.  I.,  346. 

29.  The  policy  required  that  notice  of  al- 
terations which  tended  to  increase  the  risk, 
should  be  given  within  twenty  days.  Held,  if 
alterations  were  made,  and  no  notice  given,  it 
was  for  the  jury  to  say  whether  the  risk  was 
tliereb}'  increased.  Schenck  v.  Mercer  County 
Mutual  Fire  Ins.  Co.,  24  N.  J.,  447. 

30.  Whether  the  risk  is  increased  by  alter- 
ations or  additions  to  the  building  insured,  is 
a  question  of  fact  for  the  jurj-.  Jolly  u.  Balti- 
more Eq.  Society,  1  H.  &  G.,  295. 

31.  Though  the  plaintitT's  proof  is  uncon- 
tradicted by  any  witness,  the  court  cannot 
assume  that  the  jury  will  find  the  facts  accord- 
ing to  that  proof;  uor  has  the  court  any  right 
to  instruct  them  to  find  according  to  the 
uncontroverted  proof,  for  the  jury  have  the 
power  to  refuse  their  credit  to  testimony,  and 
the  court  has  not  the  power  to  control  them 
in  the  exercise  of  that  admitted  right.  Charles- 
ton Insurance  and  Trust  Co.  v.  Corner,  2  Gill, 
410. 

32.  The  court  liad  not  the  right  to  assume 
a  question  of  fact  which  is  to  be  inferred 
from  the  evidence,  though  tlie  jury  would  liave 
icu'jid  the  fact  as  assumed  by  Uie  court.    Field 


379 


COVENANTOR  AND  COVENANTEE  —  CREDITORS. 


380 


Miscellaneous. 


V.  Insurance  Company   of  North   America,  3 

Md.,  244. 

33.  The  only  question  in  the  case  was, 
whether  she  was  seaworthy.  Ueld,  a  question 
of  fact  which  the  court  rightly  submitted  to 
the  jury.  Union  Ins.  Uo.  v.  Caldwell,  Dud. 
Ap.  S.  C,  263. 

34.  The  premises  insured  had  been  on  fire, 
hut  it  was  not  so  stated  to  the  insurer.  Held,  it 
was  a  question  for  the  jury,  whether  that  fact 
ought  to  have  been  made  known,  and  it  was 
proper  fortlie  court  to  tell  the  jury  to  consider 
the  true  cause  of  tlie  fire,  and  not  the  suspicions 
and  belief  of  the  insured  as  to  its  cause.  Hart- 
ford Protection  Ins.  Co.  «.  Harmer,  2  Ohio  St., 
453. 

:-J5.  It  is  the  duty  of  the  court  to  leave  the 
question  of  insurable  interest  to  the  jury,  for 
them  to  determine  it,  under  proper  instruc- 
tions.   Mitchell  V.  Home  Ins.  Co.,  32  Iowa,  421. 

36.  When  the  master  has  broken  up  the 
voyage  and  sold  the  ship,  it  ought  to  be  left  to 
the  jury  to  say,  whether  a  prudent  man  would 
have  sold  or  repaired  and  proceeded  with  her 
to  earn  wiiat  she  could.  Green  v.  Royal  Ex- 
change Ass.  Co.,  6  Taunt.,  68 ;  s.  c,  1  Marsh., 
447. 

37.  Where  a  usage  of  custom  was  claimed  to 
exist,  it  was  held  proper  for  the  jury  to  decide 
the  question  upon  the  evidence  given  pro  and 
eon.  Palmer  v.  Blackburn,  1  Bing.,  62;  7 
3Ioore,  339. 

38.  The  jury  found  that  there  was  an  aver- 
age loss.  Held,  the  court  was  precluded  to 
say  there  was  a  total  loss.  Casalet  v.  St.  Barbe, 
1  Term,  187. 

39.  Insurers  claimed  the  right  to  defend  on 
the  ground  that  ihe  claim  of  insured  was 
fraudulent  by  false  swearing.  Held,  two  is- 
sues of  fact:  First.  Whether  there  was  fraud 
in  the  claim  for  the  loss.  Second.  Whether 
the  claim  was  supported  by  the  false  swear- 
ing of  the  pursuer.  M'Kurdy  v.  North  Brit- 
inh  Ins.  Co.,  20  C.  C.  S.,  463;  30  Scot.  Jur.,  235. 

40.  The  defenders  averred  fraud  in  the  dec- 
laration, proposal  and  corroborative  reports. 
Held,  an  issue  of  fact  must  be  allowed. 
M'Zauis  V.  United  Kingdom  Temp,  and  General 
Prov.  Institution,  23  C.  0.  S.,  559;  33  Scot. 
Jur.,  286. 

41.  The  person  pi-oposed  stated  that  he  h.id 
not  suffered  from  any  disease  or  disorder  tend- 
ing to  shorten  life ;  that  he  was  not  aware  of 
auy  circumstances  touching  his  health  orhab- 

190 


its  rendering  insurance  on  his  life  more  than 
usually  hazardous,  or  with  which  the  direct- 
ors  ought  to  be  made  acquainted.  Dr.  D.,  of 
Aberdeen,  his  medical  attendant,  had  attended 
him  five  or  sis  years  before.  Held,  the  issue 
must  be,  whether  Dr.  D.  was  his  ordinary 
medical  attendant,  and  that  as  such,  he  attend- 
ed the  party  insured  during  an  illness  five  or 
six  years  prior  to  the  making  of  the  declara- 
tion; whether  insured  ever  suffered  from  any 
disease  or  disorder  tending  to  shorten  life,  and 
whether  insured  wrongfully  failed  to  disclose 
facts  material  to  the  risk.  Adamson  v.  Scottish 
Prmincial  Ins.  Co.,  6  C.  C.  S.  (3d  ser.),442;  40 
Scot.  Jur.,  217. 


COVENANTOR  ANT)  COVENANTEE. 

(See  Suicide.) 

1 .  A.  covenanted  to  do  and  perform  all  sncb 
matters  and  things  as  should  be  requisite  for 
continuing  and  keeping  the  policy  in  force; 
but  he  threw  himself  into  the  Thames  and  was 
drowned.  Held,  the  covenant  could  not  be- 
construed  negatively,  hence  it  was  not  broken 
by  the  act  of  suicide,  though  that  forfeited 
the  covenantee's  rights  under  the  policy. 
Dormay  v.  Borradaile,  10  Beav.,  335-  16  L.  .1. 
Chan.,  337;  5  C.  B.,  380;  11  Jur.,  231. 

2.  Lessee  covenanted  to  insure  the  premises 
in  the  lessor's  name,  the  money  to  be  expended 
in  the  erection  of  new  buildings.  Held,  a  cov- 
enant running  with  the  land,  and  an  action- 
would  lie  on  it  against  the  assignee  of  tlie 
lease.    Douglass  v.  Murphy,  16  U.  C.  Q.  B.,  113. 


CREDITORS. 

(See  SuBsosATioN.) 

Eights  of. 

1.  The  owner  of  personal  property  mort. 
gaged  it  to  B.,  and  procured  insurance  pay- 
able, in  case  of  loss,  to  B.,  as  interest  might 
appear.  B.  subsequently  purchased  an  undi- 
vided half  of  the  property,  surrendering  the 
debt  in  part  payment,  and  entered  into  part- 
nership with  the  insured,  using  the  property 
in  the  business.    Held,  after  a  loss,  the  credit- 


381 


CREW -DAMAGES. 


382 


What  are  not  —  What  must  be  considered  in  estimatixifi'. 


ors  of  the  firm  could  reach  the  funds  in  the 
hands  of  insurers  in  preference  to  the  creditors 
of  either  partner,  notwithstanding' there  had 
been  no  assignment  of  the  policy.  Burhank  v. 
McGluer,  54  K.  H.,  339. 

2.  The  broker's  estate  was  sequestrated,  but 
he  had  received  certain  premiums  for  certain 
underwriters  on  policies  ellected  by  him. 
Held,  the  underwriters  were  preferred  credit- 
ors. Bertram  v.  Richmond,  Faculty  Dec,  1801 
to  1807,  p.  144. 


CREW. 

(See  Babbatbt ;  Seauen;  Seawobthhtess.) 


CUSTOM. 

(See  Usage  and  Custom.) 


DAMAGES. 

(See  Adjustment;    Freioht;    General  Atebage; 
Pakticolab  Average;    Partial  Lpss.) 


I. 

What 

ARE  NOT.  • 

II. 

MUST  BE  CONSIDERED  IN  ESTI- 
MATING. 

m. 

MUST   BE  RECEIVED  TO  REDUCE, 

IV. 

MUST  NOT  BE  RECEIVED  TO  RE- 
DUCE. 

V. 

Whbn 

THE  SUM  INSURED  IS  THE  MEAS- 
URE OP. 

VI. 

THE  MEASURE  OF,  EXCEEDS  THE 
SUM  INSURED. 

VII. 

VALUED  POLICY  IS   MEAStJRE   OP. 

iriii. 

THE  VALUE  OF  THE  PKOPERTT  IS 
THE  MEASURE  OP. 

IX. 

■WAGES  AND  PROVISIONS  ARE 
PART  OP. 

X 

NOT  LIMITED  TO  AMOUNT  CLAIMED 
IN  PRELIMINARY  PROOFS. 

XI. 

Generally. 

I.  What  are  not. 

1.  In  ascertaining  value  of  goods  under  an 
open  policy,  a  charge  for  purchasing  is  not 
part  of  the  damages.    Aiwn.,  1  Johns.,  313. 


2.  The  intrinsic  value  of  a  building  is  the 
measure  of  damages.  What  it  is  worth  to  re- 
move to  other  premises  (the  lease  of  the  land 
being  about  to  expire)  is  not  to  be  considered. 
Laurent  v.  Chat!mm  Ins.  Co.,  1  Hall  (N.  Y.),  40. 

3.  On  property  described  as  his  buildings. 
He  was  tenant  for  a  year.  Held,  liis  damage* 
must  be  limited  to  the  value  of  the  unexpired 
term;  that  loss  by  interruption  of  his  busi- 
ness in  consequence  of  the  tire  must  not  ba 
considered.  Niblo  v.  North  American  Fire 
Ins.  Co.,  1  Sand.,  551. 

4.  The  policy  was  underwitten  in  Septem- 
ber, 1791,  from  Havre  to  Ostend.  Eichanga 
was  then  twenty-four  pence  on  the  French 
crown  of  three  livres.  Soon  after,  the  loss  hap- 
pened. Part  of  the  cargo  was  saved  and  soUl 
at  three  months  credit.  Exchange  had  falleu 
from  twenty-four  to  fifteen,  at  which  rate  in- 
surers were  ready  to  iiay.  Held,  insurers  had 
nothing  to  do  with  the  rise  or  fall.  Thellusson, 
V.  Bewick,  1  Esp.,  77. 

6.  The  market  value  at  the  port  of  destina- 
tion is  no  guide  in  ascertaining  the  damages. 
Pm-tsmouth  Ins.  Co.  v.  Brazes,  16  Ohio,  81. 

6.  On  his  interest  in  the  Ship  Inn  and 
offices.  They  were  destroyed,  and  the  arbi- 
trator allowed  for  the  loss  which  insured  had 
sustained  by  not  being  able  to  occupy  the 
premises.  Held,  error,  for  though  profits  are 
insurable,  they  must  be  insured  as  profits. 
Sun  Fire  Office  Co.  v.  Wright,  3  Nev.  &  Man., 
819;  1  A.  &E.,  C31. 

7.  On  buildings.  Held,  insurers  were  not 
liable  for  damages  suffered  in  consequeuc* 
of  nonoccupancy  while  repairs  were  being  * 
made,  nor  for  extra  wages  insured  were  com- 
pelled  to  pay  in  consequence  of  nonoccupancy 
during  the  period.  Menzies  v.  North  British 
Ins.  Co.,  9  C.  C.  S.  (N.  S.),  694. 

II.  What  must  be  consideeed  in  esti- 
mating. 

1.  Stipulated:  "Loss  or  damage  shall  be 
estimated  according  to  the  true  and  actual 
cash  value  at  the  time  the  loss  shall  happen." 
Insured  offered  to  prove  the  actual  cash  value 
before  the  injury,  from  which  the  damage 
caused  by  collision  might  have  been  deducted, 
and  thus  the  cash  value  of  the  property  wheu 
the  fire  attacked  it  might  have  bfeen  ascer- 
tained ;  but  tlie  plaintitt'  in  error  objected,  and 
the  evidence  was  excluded.    Held,  tliere  was- 

191 


383 


DAMAGES. 


384 


What  must  be  received  to  reduce. 


then  only  oue  way  to  establish  the  cash  value, 
and  that  was  by  ascertaining  the  cost  of  restor- 
iug  the  vessel  to  the  condition  in  which  she 
-vas  before  the  fire.  Western  3I<iKsachusetts 
as.  Co.  V.  Transportation  Co.,  13  Wall.,  201. 

2.  If  goods  are  jettisoned,  their  value  must 
1)6  estimated  by  the  prime  cost  or  original 
value.  If  the  .ship  has  arrived  at  her  port  of 
destination,  the  value  at  that  port  governs. 
Mogers  v.  Meclianics  Ins.  Co.,  1  Story,  003 ;  2 
id.,  173. 

3.  The  prime  cost  of  a  vessel  is  not  conclu- 
sive evidence  of  her  value.  The  insured  may 
prove  and  recover  her  actual  value.  Snell  v. 
Delaware  Ins.  Co.,  i  Dall.,  430;  s.  C,  1  Wash. 
C.  C,  .509. 

4.  Open  policy  on  goods.  Held,  the  price 
fixed  in  the  invoice  was  not  the  value  for 
which  Insurer  was  liable,  because  that  would 
subject  him  to  ex  parte  evidence ;  that  neither 
prime  nor  invoice  cost  were  proper  evidence 
to  determine  the  indemnity;  the  market  price 
of  the  property  insured  .at  the  time  and  place 
of  export  was  the  measure  of  indemnity.  Cai-- 
son  «.  Marine  Ins.  Co.,  2  Wash.  C.  C,  4G8. 

5.  The  goods  were  captured.  Insured, 
under  an  open  policy,  was  entitled  to  recov(!r 
prime  cost,  with  the  usual  charges  added. 
LeRoyv.  United  Ins.  Co.,  7  .Johns.,  344. 

6.  Where  an  abandonment  is  made,  and  the 
property  is  sold,  the  expense  of  selling  and 
wharfage  is  to  be  deducted  from  the  gross  sale. 
irSride  v.  Marine  Ins.  Co.,  7  Johns.,  431. 

7.  Policy  for  a  sum  expressed  in  dollars,  on 
property  in  Cuba.  Held,  in  estimating  the 
damages,  the  loss  must  be  ascertained  in  the 
currency  of  the  place  where  the  loss  occurred, 
and  its  equivalent  in  the  couiftry  where  the 
action  was  brought.  Burgess  v.  Alliance  Ins. 
Co.,  10  Allen,  321. 

8.  The  actual  damage  caused  by  fire,  not 
exceeding  the  sum  insured,  is  the  measure  oi 
the  insurer's  liability.  EUmaker  v.  Franklin 
Fire  Ins.  Co.,  5  Penu.  St.,  183 ;  s.  c,  6  Watts 
&  S.,  439. 

9.  Stipulated:  "The  said  loss  t^r  dam.age  to 
be  estimated  according  to  the  true  actual  cash 
value  of  the  said  property  at  the  time  the  loss 
shall  happen."  Held,  error  to  instruct  the 
jury  that,  "The  value  as  estimated  in  the 
manufacture  of  each  machine,  and  before  it 
was  tried  in  the  field,  would  be  the  stand- 
ard of  valuation."  The  true  rule  was,  what 
they  wtTc   worth   at   the   time   the   fire   hau- 

193 


pened,  and  this  must  be  ascertained  by  testi- 
mony. Commonwealth  Ins.  Co.  v.  Sennett,  37 
Penn.  St.,  20.5. 

10.  Tlie  market  value  of  the  thing  insured 
at  the  time  and  place  the  risk  commenced,  is 
the  value  of  the  insurable  interest.  And  if 
purchased  near  that  time  and  place,  the  cost 
to  the  insured  is  the  most  satisfactory,  though 
it  is  not  the  only  criterion.  Marchesseau  v. 
Merchants  Ins.  Co.,  1  Rob.  (La.'),438. 

11.  The  insurer  is  bound  for  the  value  at 
the  time  of  the  loss;  if  the  goods  are  damaged, 
the  difference  between  their  sound  and  dam- 
aged value.  Hoffman.  «.  Western  Marine  and 
Fire  Ins.  Co.,  1  La.  An.,  31G. 

12.  The  premium  is  a  part  of  the  value  in- 
sured, and  is  to  be  added  to  the  cost  and 
chiirges  of  the  goods  when  ascertaining  the 
amount  of  loss,  in  case  the  policy  is  not  valued. 
Louisville  Marine  and  Fire  Ins.  Co.  t.  Bland,  9 
Dana,  143. 

13.  Action  for  loss  on  machinery.  Held, 
the  jury  must  consider  the  state  and  con- 
dition (if  the  machinery  at  the  time  of  the 
fire,  and  what  it  would  h.ave  cost  to  replace 
it.  And  in  doing  that,  they  may  try  what 
would  be  the  entire  expense  of  new  machinerj', 
and  then  inquire  whether  the  mill  would  be 
better  and  how  much  better,  with  the  new 
than  with  the  old  as  it  stood  at  the  time  of  the 
fire;  and  whatever  it  would  be  better  should 
be  deducted  from  the  entire  expense  of  the 
new.     Va7ice  v.  Forster,  2  Can.  &  D.,  118. 

14.  The  intrinsic  or  marketable  worth  of 
the  subject  insured  is  the  rule  for  estimating 
its  worth.  The  actual  value  of  the  property 
insured  and  destroyed  is  the  true  criterion; 
not  the  sum  named  in  the  policy.  Hercules 
Ins.  Co.  V.  Hunter,  14  C.  C.  S.,  1137. 

15.  An  order  was  made  to  wind  up  the 
company.  Held,  the  policy  holder  was  en- 
titled  to  prove  what  a  solvent  insurance  ofiice, 
with  the  same  extent  of  proprietary  capital  as 
the  company  in  liquidation,  would  require 
him  to  pay  for  a  policy  of  the  same  amount, 
with  the  same  conditions  and  the  same  rate 
of  premium.  In  re  English  Ass.  Co.,  Holdich's 
Case,  43  L.  J.  Ch.,  613;  14  L.  R.  Eq.,  72;  20  W. 

R.,  567 ;  26  t.  T.  (N.  S.),  415. 

III.    WuAT   MUST    BE    KECEIVED   TO    KE- 
DUCE. 

1.  If  the  cargo  L»  forwarded  from  the  point 


SSI 


DAMAGES. 


3S6 


What  must  not  be  received  to  reduce  —  When  tlie  sum  msured  is  tlie  measure  of. 


of  distress,  iusurers  of  freighl  are  liable  for 
the  sum  insured,  tninus  the  ])ro  rata  freight  to 
that  jioiut.  Saltiin  v.  Ocean  Ins.  Co.,  12  Johns., 
107. 

2.  A  poliry  to  S.,  wlio  agreed  to  sell  to  B., 
gave  him  possession  and  received  $1,500  of 
the  purchase  money.  Ueld,  insured  could  not 
recover  beyond  the  unpaid  purchase  money. 
Shotuell  V.  Jeffcrso7i  Ins.  Co.,  5  Bos.,  247. 

3.  Policy  i)rovided:  "The  insurer  shall  not 
be  liable  for  more  thau  the  sum  insured,  in 
nuy  case  whatever."  A  partial  loss  had  been 
paid,  but  afterwards  the  property  was  totally 
tlestroyed.  Held,  insurer  was  entitled  to  de- 
<luct  from  the  sum  insured  any  prior  partial 
loss  paid  under  the  same  policy.  Cuny  v. 
Commonwealth  Ins.  Co.,  10  Pick.,  .535. 

4.  The  building  was  destroyed  by  lire.  The 
insurers  elected  to  rebuild,  and  a  plan,  dill'er- 
ing  in  some  respects  from  the  old  one,  was 
adopted.  Held,  it  was  error  to  insiruct  the 
jury  that  no  deduction  was  to  be  made  from 
the  expense  of  rebuilding,  although  the  new 
was  more  durable  thau  the  old  building,  and 
for  some  purposes  more  valuable.  Brinley  v. 
National  Ins.  Co.,  11  Met.,  195. 

5.  When  there  is  suit  upon  one  of  several 
policies  contributing  ratably,  the  measure  of 
damage  is,  in  proportion  as  the  amount  of 
that  policy  bears  to  the  whole  loss,  if  it  is  less 
than  the  aggregate  auiinint  insured.  Harris  v. 
Protection  Ins.  Co.,  Wright,  548. 

6.  £G,OOU  on  goods  from  Bengal  to  London, 
on  ship  or  ships  which  should  sail  between 
September  1,  1779,  and  June  1,  1780.  Another 
insurance,  £4,000,  was  made  on  goods  to  sail 
between  February  1st  and  December  31,  1780. 
Goods  were  laden  on  two  ships,  and  insured 
made  a  declaration  that  he  shipped  goods  to 
the  amount  of  £4,889,  under  the  first  policy,  and 
£1,100  under  the  second.  Both  vessels  sailed 
and  arrived  in  the  channel  together,  but  the 
first  was  afterwards  lost.  Held,  insurers  must 
have  credit  for  salvage  to  the  amount  of 
£1,100.    Ueiichman  v.  Offley,  3  Doug.,  135. 

IV.  What  must  not  be  keceived  to 

EKDUCE. 

1.  Iq  an  action  on  an  open  policy  on  goods, 
the  insured  is  entitled  to  recover  their  invoice 
price  without  any  deduction  for  drawback. 
Oahn  V.  Broome,  1  Johns.  U.,  120. 

5J  Freight  duties  or  charges  are  not  to  be  con- 
13 


s'.dercd  in  determining  a  partial  loss  on  goods. 
Cory  V.  Boyhton  Ins.  Co.,  107,  Mass.,  140. 

3.  A  committee  was  appointed  by  the  presi- 
dent, in  accordance  with  the  provisions  of  the 
act  of  incorporation,  to  inquire  into  the  loss, 
to  a.scertain  the  sum  to  which  insured  was  en- 
titled, and  to  provide  for  the  payment  of  it. 
They  reported.  Held,  the  phiintiff  was  not 
limited  in  liis  recovery  to  the  amount  reported. 
In.tnrance  Co.  v.  liiipp,  29  Penn.  St.,  520. 

4.  In  case  of  sale  from  necessity,  the  salvage 
becomes  the  property  of  insurers;  but  insured 
is  entitled  to  recover  the  full  amount  of  his 
claim,  irrespective  of  the  amount  of  the  sal- 
vage. Stephenson  v.  Piscataqua  Fire  and  Ma- 
rine Ins.  Co.,  54  Me.,  55. 

5.  She  was  chartered  from  New  York  to 
San  Francisco,  thence  to  Callao,  thence  to  the 
Chincha  Islands,  there  to  take  a  cargo  of 
guano  for  Hamburgh  or  Rotterdam,  and  the 
ship  owner  insured,  "lost  or  not  lost,"  several 
sums,  respectively,  on  charter,  primage  and 
property  on  board,  from  New  York  to  San 
Francisco.  She  sailed  under  the  charter  party 
and  was  wrecked  between  New  York  and  San 
Francisco.  The  plaintiff  had  also  chartered 
her  to  others  from  New  York  to  San  Francisco, 
and  had  made  insurance  on  that  charter,  of 
which  the  defendants  here  had  knowledge 
when  they  made  this  policy.  Held,  the  inter- 
est of  insured  in  the  guano  charter  com- 
menced when  the  ship  sailed  from  New  York; 
and  the  fact  that  she  was  chartered  from  New 
York  to  San  Francisco  and  insured  by  another 
policy  was  no  defense  to  the  plaintitf's  action. 
Melcher  v.  Ocean  Ins.  Co.,  60  Me.,  77. 

6.  In  case  of  loss,  the  damage  shall  be  esti- 
mated  according  to  the  true  and  actual  cash 
value  of  the  said  jn-operty  at  the  time  the 
same  shall  happen.  Held,  a  general  depres- 
sion in  the  value  of  steamers  generally,  caused 
hy  circumstances  which  might  be  temporary 
only,  must  not  be  considered  by  the  jury  in 
'determining  the  value  of  tlie  vessel.  McQuaig 
V.  Quaker  City  Ins.  Co.,  18  U.  C.  Q.  B.,  130.' 

V.      WuEN    THE    SUM    INSURED    IS    THE 
MEASURE    OF. 

1.  Commission  merchants  insured,  "On 
goods  as  well  the  property  of  the  insured  as 
that  held  by  them  in  trust  or  on  commission." 
Held,  they  could  recover  the  entire  value  of 
all  the  goods  so  held  at  the  time  of  the  loss, 

19S 


3S7 


DAMAGES. 


38? 


Wlien  tlie  measure  of,  exceeds  the  sum  insured  — When  valued  policy  is  measure  of. 


not  exceeding  the  sum  insured.    DeForeat  c. 
Fulton  Fire  Ina.  Co.,  1  Hall,  84. 

2.  The  policy  did  not  stipulate  that  the  in- 
sured must  disclose  the  exact  state  of  his  title. 
He  had  possession  under  a  contract  for  a  deed, 
but  had  not  paid  all  the  purchase  money. 
Held,  he  could  recover  the  sum  insured  if  that 
did  not  exceed  the  actual  value  of  the  prop- 
erty lost,  .^tna  Ins.  Co.  v.  Tyler,  16  Wend., 
385;  affirming  12  id.,  507. 

3.  The  mortgagor's  equity  of  redemption 
■was  sold  on  execution,  but  he  had  the  legal 
right  to  redeem.  Ileld,  he  could  recover  the 
whole  sum  insured,  not  exceeding  however 
the  value  of  the  property.  Strong  v.  Manu- 
faeturers  Ina.  Co.,  10  Pick.,  40. 

4.  $8,350  on  all  or  either  of  the  freight 
buildings  at  Charlestown.  Insured  owned 
several  freight  buildings,  one  of  which  was 
burned,  and  was  of  the  value  of  §50,000.  Held, 
insurers  were  liable  for  the  whole  amount  in- 
sured. Commonwealth  v.  Hide  and  Leather 
Ins.  Co.,  113  Mass.,  136. 

5.  The  wreck  was  sold  under  an  attachment 
and  the  proceeds  brought  into  court,  which, 
witli  all  the  insurance,  did  not  amount  to  the 
whole  value  of  the  subject  insured.  Held,  in- 
surers were  liable  for  the  whole  amount  of 
policy,  without  credit  for  any  portion  of  the 
wreck.  Eureka  Ina.  Co.  v.  Bobinaon,  56  Penn. 
St.,  356. 

6.  A  mortgage  was  given  partly  in  payment 
ot  the  land,  and  partly  to  secure  advances 
made  for  building,  and  the  mortgagee  insured. 
Held,  the  mortgagee  could  recover  the  whole 
amciunt  of  the  loss,  and  could  not  be  driven 
to  seek  his  remedy  against  the  land  for  any 
part  of  it.  Rex  v.  Insurance  Oompaniea,  2 
Phila.,  357. 

7.  Stipulated:  "In  all  cases  of  other  in- 
surance, the  insured  shall  not  be  entitled  to 
demand  or  recover  on  this  policy,  any  greater 
portion  of  the  loss  or  damage  than  the  amount 
hereby  insured  shall  bear  to  the  whole  amount' 
insured  ou  said  property."  The  amount  in- 
sured by  this  policy  was  $2,666.66,  and  by  an- 
other company  $1,000.  The  value  of  the 
property  lost  was  $4,000.  Held,  the  insured 
was  entitled  to  receive  the  whole  amount  of 
the  policy  (citing  Richmondville  Seminary  v. 
Hamilton  Ins.  Co.,  14  Gray,  459;  Haley  v. 
Dorchester  Ins.  Co.,  1  Allen,  536 ;  .^tna  Ins. 
Co.  V.  Tyler,  16  Wend.,  385).  Phillipa  v.  Perry 
County  Ins.  Co.,  7  Phila.,  673 

194 


8.  Insurer  contracted  to  make  good  all  loss 
or  damage  not  exceeding  the  sum  insured. 
The  value  at  risk  and  the  loss  exceeded  the 
sum  insured.  Held,  insurer  was  liable  for  the 
sum  insured.  Missisaippi  Slut.  Ina.  Co.  v. 
Ingram,  34  Miss.,  215. 

9.  Cotton  was  stored  in  several  warehouses 
and  insured  for  -$20,000.  Cotton  to  the  value  of 
$17,846  in  one  warehouse  was  burned.  There 
was  also  cotton  in  the  other  warehouses,  value 
in  all  $39,000.  Held,  the  insured  should  re- 
cover the  full  value  of  the  cotton  lost,  and 
could  not  be  limited  to  the  proportion  which 
the  whole  value  at  risk  bore  to  the  whole 
amount  insured.  Nicolet  v.  Inaurance  Co.,  S 
La.  (O.  S.),  366. 

10.  If  the  amount  lost  exceeds  the  sum  in- 
sured, the  insurer  is  liable  for  the  whole 
amount  insured.  Peddie  v.  Quebec  Fire  Asa. 
Co.,  Stuart,  174. 

1 1 .  The  value  of  the  stock  was  £3,8.50.  The 
whole  amount  of  damage  was  £397,  and  the 
whole  amount  insured  was  £100.  Held,  in- 
sured was  entitled  to  recover  the  sum  insured. 
Thompaon  v.  Montreal  Ins.  Co.,  6  U.  C.  Q.  B., 
319. 

VI.  "When  the  measure  of,  exceeds 

THE    SUM   INSURED. 

1.  The  insured  may  recover  in  excess  of  the 
sum  insured,  namely,  for  expenses  incurred  for 
the  preservation  of  tlie  thing  insured.  Law- 
rence V.  Van  Home,  1  Caioes,  276. 

2.  The  insurer  is  liable  beyond  the  sum  in- 
sured for  the  expenses  of  labor  and  travel  for, 
in  and  about  the  recovery  of  the  property  in- 
sured. Wataon  n.  Marine  Ins.  Co.,  7  Johns., 
58. 

3.  Where  the  ship  is  driven  by  perils  of  the 
sea  into  a  port  of  distress  and  general  average 
charges  attach  to  the  cargo,  the  insurer  on 
cargo  must  pay  them  in  addition  to  a  total 
loss  if  there  is  one.  Barker  o.  Phceniz  Ins, 
Co.,  8  Johns.,  307. 

VII.  "When  valued  policy  is  meas- 

ure OF. 

1.  She  was  bottomried,  and  after  abandon 
ment,  sold  to  satisfy  the  bond.  Held,  insured 
could  recover  the  amount  valued  in  the  pol- 
icy less  the  amount  for  which  she  sold.  TTt't 
tiama  v.  Smith.  2  Caines,  13 


389 


DAMAGES. 


390 


When  the  value  of  the  property  is  the  measure  of —  When  wages  and  provisions  are  part  of. 


2.  The  insured  is  entitled  to  recover  accord- 
ing to  the  valuation  agreed  upon  by  the  j^ar- 
tics,  if  tliere  be  any,  and  not  according  to  cost 
at  manufactory  or  prime  cost.  Harris  v.  Eagle 
Fire  Ins.  Co.,  5  Johns.,  3G8. 

3.  $9,000  on  ship  valued  at  $18,000;  tlic  in- 
sured made  no  representation  as  to  his  sh.are 
in  the  vessel ;  he  was  in  fact  owner  of  but  one- 
tliird;  but  claimed  the  sura  insured  on  the 
ground  that  he  intended  to  insure  the  premi- 
um as  well  as  the  value  of  his  interest  in  tlie 
ship.  Tliere  was  a  total  loss.  Held,  he  was 
entitled  to  recover  the  whole  amount  insured. 
Mayo  V.  Maine  Fire  and  Marine  Ins.  Co.,  13 
Mass.,  259. 

4.  Ship  insured  for  $18,000,  valued  for 
$18,000,  came  in  collision  witli  another  vessel 
to  which  she  did  damage  $10,000.  Her  own 
Repairs  cost  $8,000,  besides  expenses  in  gen- 
eral average.  Her  damaged  value  was  $0,000. 
Held,  insurer's  liability  for  damage  to  the 
other  vessel  could  not  be  disputed;  and  must 
be  estimated  upon  the  same  basis  of  value  as 
was  the  ship-owner's  liability  to  the  injured 
vessel,  namely,  the  value  of  the  ship  at  the 
point  of  time  immediately  preceding  tlie  col- 
lision aud  not  her  value  after  slie  was  dam- 
aged by  the  collision.  Walker  v.  Boston  Ins. 
Co.,  14  Gray,  288. 

5.  On  cargo  valued.  The  goods  were  dam- 
aged. Held,  the  measure  of  damage,  as  be- 
tween insurer  and  insured,  was  to  ascertain 
the  damage  per  cent,  on  the  property  dam- 
aged, and  apply  that  proportion  to  the  valua- 
tion named  in  the  policy.  Lewis  v.  Sucker,  2 
Burr.,  1167. 

YIII.  When  the  value  of  the  prop- 
erty IS  THE  MEASURE  OF. 

1.  Tlie  insured  is  entitled  to  the  value  of 
the  goods  at  the  place  of  destruction  and  it  is 
Irrelevant  to  inquire  whether  the  customs  du- 
ties were  paid  or  bond  given  for  them.  Wolfe 
V.  Hoxmrd  Ins.  Co.,  1  Sand.,  134;  7  N.  T.,  583. 

2.  The  carrier  insured  the  goods  against 
loss  01  damage  which  he  might  sustain  on  ac- 
count of  himself  or  others.  Held,  the  value 
of  the  property  was  the  measure  of  damage. 
Savage  v.  Corn  Exchange  Ins.  Co.,  36  N.  T., 
655;  s.  c,  4  Bos.,  1. 

3.  Defendant  agreed  to  insure  certain  books, 
but  failed  to  do  so.    Held,  the  plaintiff's  meas- 


ure of  damage,  in  the  absence  of  evidence  of 
usage  to  the  contrary,  was  the  value  of  the 
books.    Ela  V.  French,  11  N.  H.,  356. 

4.  The  value  of  the  goods  at  the  time  of  tlie 
loss  is  the  basis  upon  wliich  the  insurer's  lia- 
bility for  damage  is  founded;  but  where  the 
charter  provided  that  the  directors  shall  de- 
termine the  amount  to  be  insured,  whicli  shall 
not  exceed  the  value  of  one-half  the  property: 
Held,  the  liability  of  the  insurer  was  limited 
to  one-half  the  actual  value  of  the  property 
destroyed.  Atwood  v.  Union  Mutual  Fire  Ins. 
Co.,  28  N.  n.,  2.34. 

5.  Trover  to  recover  the  value  of  a  policy 
of  insurance,  eflected  by  a  bankrupt  on  the 
life  of  one  Lateward  for  £3,000.  The  b.ank. 
rupt  was  indebted  to  tlie  defendant  and  as- 
signed the  policy  to  him.  The  company  paid 
to  the  bankrupt  £679  15s.,  in  the  presence  of 
the  defendant,  and  the  policy  was  thereupon 
delivered  and  canceled.  The  money  was  paid 
merely  as  a  gift  or  gratuity,  and  not  as  any- 
thing due  on  the  policy  as  a  valid  instrument. 
Tlie  company  had  determined  tliat  they  were 
not  liable  upon  the  policy,  and  the  bankrupt 
and  defendant  both  admitted  tliat  they  had  no 
claim  upon  the  insurance  company.  Held,  as 
the  payment  was  made  voluntarily  upon  an 
instrument  admitted  to  be  invalid  the  defend- 
ant was  not  liable  except  for  the  value  of  the 
parchment.     Wills  v.  Wells,  8  Taunt.,  264. 

6.  Tlie  actual  market  value  of  the  goods  at 
the  time  of  tlie  loss  is  the  measure  of  damage. 
Equitable  Fire  Ins.  Co.  v.Quin,  11  L.  C,  170. 

7.  The  lessee  covenanted  to  insure,  and  as- 
signed  the  lease.  The  lessor  brought  this  ac- 
tion to  recover  for  a  failure  to  insure.  Held, 
the  value  of  the  buildings  destroyed  was  the 
measure  of  damage.  Douglass  v.  Murphy,  18 
U.  C.Q.  B.,  113. 

IX.  When  wages  and  provisions  are 

PART   OF. 

1 .  Wages  and  provisions  from  time  vessel 
is  obliged  to  bear  away  to  a  port  of  necessity, 
in  consequence  of  injuries  received,  are  re- 
coverable under  a  policy  on  the  ship.  Hen^ 
share  v.  Marine  Ins.  Co.,  2  Caines,  274. 

2.  If  insured  pay  seamen's  wages,  insurers 
must  reimburse  insured,  if  enough  for  that 
purpose  is  saved  from  the  wreck  abandoned. 
Frothinqham  v.  Prince,  8  Mass.,  563. 

inr. 


3"J1 


DEATH. 


392 


By  the  hands  of  justice —  While  violating  law. 


X.  "When  not  limited  to  amount 

CLAIMED  IN  PEELIMINARY  PKOOFS. 

The  recovery  of  the  insured  is  not  limited 
to  ihe  amount  which  he  claims  in  his  state- 
ment of  loss,  if  a  settlement  is  not  made  in 
jHirsuance  of  tliat  statement.  American  Ins. 
Go.  V.  Orimold,  14  Wend.,  399. 

XI.  Generally. 

1.  The  defendant  failed  to  issue  the  policy 
according  to  the  contract.  Held,  liable  as 
upon  a  contract  of  insurance,  at  all  events  for 
damages  for  not  delivering  the  policy.  Fried 
V.  Boyal  Ins.  Co.,  50  K.  Y.,  243 ;  s.  c,  47  Barb., 
127. 

2.  The  court  was  authorized  by  statute  to 
award  damages  if  the  appeal  was  frivolous. 
Held,  the  court  would  not  exercise  the  power 
unless  satisfied  that  the  appeal  was  taken  for 
sinister  and  improper  motives.  Morse  v.  Bvf- 
fato  Fire  and  Marine  Ins.  Co.,  30  Wis.,  534. 

3.  Defendant  assigned  a  policy  on  his  life, 
ana  covenanted  not  to  do  anything  to  avoid  it. 
He  went  to  Europe  without  the  company's 
consent,  by  which  the  policy  was  avoided. 
Held,  the  measure  of  damage  was  the  value  of 
the  policy  at  the  time  of  the  breach,  regard- 
ing the  fact  that  defendant  had  covenanted  to 
pay,  and  would  pay  the  necessary  premiums  to 
keep  it  in  force.  Hawkins  v.  Coulthurst,  13  W. 
R.,  825. 


DEATH. 

(See  Suicide.) 

I.  By  the  h.\nds  op  Justice.  • 
II.  While  violating  l.\w. 

I.    Bv    THE    HANDS    OF   JUSTICE. 

The  person  whose  life  was  insured  commit-' 
ted  forgery,  for  which  he  was  apprehended, 
convicted  and  suffered  death.  He  was  de- 
clared a  bankrupt  before  he  was  apprehended, 
and  all  his  effects,  including  the  policy, 
l)assed  to  an  assignee.  Held,  if  the  risk  had 
been  expressly  insured  against,  the  contract 
could  not  be  sustained,  because  it  would  be 
void  upon  the  plainest  principles  of  public 
policy,  for  to  hold  it  valid  would  remove  one 
19G 


of  those  restraints  which  operate  in  the  minds 
of  men  against  the  commission  of  crime 
(reversing  Bolland  v.  Disney,  3  Russ.,  351). 
Amicable  Society  v.  Bolland,  4  Bli.  (N.  R.),  194. 

II.  "While  violating  law. 

1.  The  policy  stipulated  that  it  should  not 
extend  to  a  case  of  death  caused  by  dueling, 
fighting,  or  other  breach  of  the  law  on  the 
part  of  the  insured,  or  by  his  willfully  expos- 
ing  himself  to  any  unnecessary  danger  or 
peril.  The  person  wliose  life  was  insured 
was  driving  a  matcli  on  a  race  course,  on  the 
event  of  which  a  large  sum  of  money  was 
wagered.  The  two  sulkies  came  in  collision. 
The  person  whose  life  was  insured  jumped 
out  upon  his  feet  uninjured,  he  spoke  to  his 
mare,  she  slackened  lier  speed,  he  started  to 
catch  her  and  ran  about  twenty  feet  by  her 
side;  she  was  pressed  in  towards  him  by  the 
driver  of  the  other  sulky,  and  he  was  entangled 
in  the  reins,  thrown  down  and  dragged  along 
a  few  feet,  until  his  head  struck  a  stone  with 
great  force,  from  which  he  died  the  following- 
morning.  The  statute  law  of  the  state  de- 
clared racing,  trotting,  running  or  pacing  any 
horse  for  a  wager,  a  misdemeanor,  and  sub- 
jected the  parties  to  a  fine  not  exceeding  $500. 
Held,  if  he  had  died  the  moment  he  was 
thrown  from  the  sulky,  his  death  would  have 
been  caused  by  a  violation  of  the  law,  thougli 
the  driver  of  the  other  sulky  may  have  disre- 
garded the  rules  of  the  course  and  may  have 
intentionally  sought  to  run  the  deceased  off 
the  track ;  the  fact  that  the  deceased  was  clear 
from  the  sulky,  harness  and  reins,  upright 
and  uninjured  and  spoke  to  the  mare  to  stop, 
and  then  started  forward  to  get  hold  of  the 
lines  to  stop  her,  was  not  a  new  force  or  cause 
intervening  between  the  original  cause  and 
the  injury  sufficient  to  take  the  case  out  of 
the  exception.  Insurance  Co.  v.  Seaver,  19 
Wall.,  531. 

2.  Stipulated:  "In  case  the  insured  shall 
die  by  the  hands  of  justice,  or  in  the  known 
violation  of  any  law  of  the  state  he  is  permit- 
ted to  visit,  the  policy  shall  be  void."  The 
plaintiff  insisted,  whether  the  deceased  came 
to  his  death  in  known  violation  of  the  law, 
was  a  question  for  the  jury;  also,  whether  the 
death  of  tlie  insured  was  a  reasonable,  rightful 
or  excusable  result  of  any  known  violation  of 
law  by  him,  was  a  question  for  the  jury;  but 


393 


DECK  LOADS. 


394 


\\Tien  shall  not  be  contributed  for. 


the  court  refused  to  submit  the  question.  Held, 
error.  Bradley  c  Mutual  Benefit  Life  Ins.  Co., 
45  N.  Y.,  422;  s.  c,  3  Lans.,  341 ;  see  Cluff  v. 
Mutual  Benefit  Life  Ins.  Co.,  99  Mass.,  317. 

'i.  Sliiuilated:  "  If  the  insured  sliall  die  by 
suicide,  or  iu  cou.sequcuce  of  the  violation  of 
any  law,  the  policy  shall  he  void."  lie  was 
killed  by  II.  immediately  after  he  had  com- 
mitted adultery  with  the  wife  of  II.  Held, 
though  the  act  of  adultery  was  a  violation  of 
law,  the  insured  did  not  die  in  consequence 
of  it,  if  the  offense  had  been  completed,  for  in 
that  case  it  could  not  be  said,  that  at  the  lime 
he  w.as  killed,  he  w.as  violating  any  law  or 
even  committing  a  trespass.  Goclzman  v.  Con- 
necticut Mntiial  Life  Ins.  Co.,  3  Hun.  (N.  Y.), 
515;  s.  c,  5  N.  Y.  S.  C,  572. 

4.  '•  In  case  the  insured  shall  die  by  his  own 
hand,  *  *  or  in  the  known  violation  of 
any  law  of  the  United  States,  or  of  the  said 
provinces,  or  of  any  other  country,  this  policy 
shall  be  null  and  of  no  eflect."  He  was  killed 
by  a  pistol  shot  from  the  hands  of  Cox  while 
attempting  to  take  with  force  the  horses  of 
Cox,  under  claim  of  collecting  a  debt  Held, 
if  he  committed  an  assault  upon  Cox,  but  had 
ceased,  and  was  not  threatening  to  renew  it  at 
the  time  he  was  shot,  he  was  not  killed  while 
engaged  in  a  known  violation  of  the  law. 
Chiffv.  Mutual  Benefit  Life  Ins.  Co.,  13  Allen, 
308. 

5.  The  deceased  was  killed  while  attem])t- 
ing  to  take  property  and  hold  it  for  a  debt  due 
him  by  the  owner.  Held,  the  material  ques- 
tion to  be  submitted  to  the  jury,  on  this  point, 
was,  whether  he  took  it  with  a  felonious  in- 
tent, not  whether  he  took  it  with  the  knowl- 
edge that  he  was  violating  the  civil  law  of  the 
state.  Chiffv.  Mutual  Benefit  Life  Ins.  Co..  99 
Mass.,  317. 

6.  Stipulated:  "If  the  said  H.  shall  die  in 
the  known  violation  of  any  law  of  this  state, 
then  in  such  case  this  policy  shall  be  void." 
H.  &  W.  quarreled.  H.  drew  a  pistol  and 
snapped  it  at  W.,  who  thereupon  drew  a  re- 
volver and  advanced  upon  him.  H.  then 
ptruck  W.  with  his  pistol,  and  W.  shot  at  H.  and 
missed.  H.  fled  into  a  store  and  got  behind  an 
"offset"  formed  by  a  stairway,  picked  up  a 
stick  of  wood  and  held  it  in  a  threatening  atti- 
tude, but  ditt  not  idvance,  nor  attempt  to  use 
it.  W.  pursued  H.,  fired  a  second  shot  and 
killed  him.  Held,  W.  w.as  guiltj'  of  a  crime, 
for  there  was  no  evidence  tending  to  show  that 


the  killing  was  in  self-defense;  H.  had  aban- 
doned the  conflict,  that  having  the  stick  of 
wood  in  his  hand  at  the  time  he  was  slain  did 
not  extenuate  the  guilt  of  W.;  if  II.  had  then 
killed  \V.  when  the  latter  pursued,  he  would 
have  been  excused  by  the  common  law  as  well 
as  by  the  statute  of  Missouri,  for  his  .act  would 
have  been  se  defendendo,  hence  insurers  wero 
liable.  Harper  ».  Phmnix  Life  Ins.  Co.,  19  Mo., 
506;  Overton  v.  St.  Louis  Mutual  Life  Ins.  Co., 
39  id.,  123. 


I. 

II. 
III. 


DECK  LOADS. 

(See  Cargo;  Policy.) 

When  shall  not  be  contributed  for. 
insurer  is  liable  for. 

not  liable  for. 


I.  W: 


HEN    SHALL 


NOT 
FOR. 


BE    CONTRIBUTED 


1.  Goods  on  deck  are  not  insured,  unless 
expressly  mentioned  in  the  policy.  They  are 
not  considered  as  part  of  the  cargo,  in  which 
other  shippers  are  interested ;  and  the  owners 
of  cargo  under  deck  ought  not  therefore  to 
contribute  to  the  jettison  of  goods  on  deck. 
Lenox  v.  United  Ins.  Co.,  3  Johns.  C,  178. 

2.  On  cotton,  barratry  of  the  master  and 
mariners  being  a  risk  .assumed.     Ninety  bales 
of  cotton  were  stowed  upon  deck.     Before  she 
sailed,  a  merchant  in  Charleston,  one  of  the 
agents  of  the  vessel,  observed  where  the  cotton 
w.as  being  stowed,  opposed  if,   and  insisted 
that  it  should  be  sent  by  another  vessel,  and 
not  stowed  on  deck.    He  advised  the  master 
of  the  responsibility;  told  him  that  as  he  had 
signed  clean  bills   of  lading,  he  was  bound 
to  carry  it  under  deck,  or  provide  extra  insur- 
ance for  it  if  he  carried  it  on  deck;  that  the 
insurance  made  on  a  clean  bill  of  lading  would 
not  cover  it  on  deck.    Notwithstanding  these 
remonstrances,  the  captain  persisted,  and  this 
cotton  was  jettisoned  on  the  voyage.    Held, 
the  act  of  the  master  was  not  barratrous;  cor 
was  the  cotton  protected  by   the   policy,  be- 
cause it  did  not  appear  that  it  was  tlie  custom 
to  carry  such  goods  on  deck,  or  that  they  were 
so   carried  with   the  consent  of  the   insurer, 
licnce  there  could  be  no  contribution  for  it  ia 

197 


395 


DECK  LOADS. 


396 


When  insurer  is  liable  for  —  Wlien  insurer  is  not  liable  for. 


general  averase,  and  the  shipper's  remedy  was 
against  the  master  or  liis  principal.  Atkinson 
*.  Oreat  Western  Ins.  Co.,  4  Daly,  1. 

II.  When  insukek  is  liable  foe. 

1.  Insurer  of  cargo  is  liable  for  a  loss  of 
hides  from  the  deck  of  a  lighter  nsed  to  send 
the  cargo  from  the  ship  at  quarantine  to  the 
depot  at  Broriklyu,  where,  by  the  usual  course 
of  trade,  goods  were  thus  transhipped  for  the 
purpose  of  landing.  Wadsworth  v.  Pacific 
Ins.  Co.,  4  Wend.,  34. 

2.  On  goods,  in  general  terms,  does  not  in- 
clude property  laden  on  deck ;  to  cover  them 
the  risk  must  be  expressly  taken.  Taunton 
Copper  Co.  v.  Merchants  Ins.  Co.,  23  Pick.,  108. 
But  if  the  policy  is  on  property  specifically 
named,  which  is  usually  carried  on  deck  for 
its  own  safety  and  the  safety  of  the  ship,  the 
insurer  is  presumed  to  know  that  it  is  carried 
on  deck;  and  it  will  be  presumed  that  the 
parties  intended  to  insure  it  as  on  deck.  Ibid. 
But  that  usage  must  be  settled  in  the  trade  to 
■which  the  policy  relates,  and  not  contrary  to 
any  principle  of  law,  nor  inconsistent  with 
the  terms  of  the  policy.  And  to  make  the 
usage  effectual  against  the  insurer,  it  is  not 
enough  to  prove  the  usage  to  carry  such  goods 
en  deck;  but  to  establish  the  intention  of  the 
insurer  to  take  the  particular  risk,  tlie  insured 
must  go  further,  aud  prove  that  insurers  have 
paid  losses  on  such  goods  carried  on  deck,  and 
insured  under  a  general  policy.    Ihid. 

3.  On  tallow  oil,  from  Cincinnati  to  Balti- 
more, thence  by  vessel  to  New  York.  It  was 
stowed  on  the  deck  of  a  steamer  at  Baltimore 
bound  for  New  York,  and  was  on  the  voyage 
necessarily  jettisoned.  The  court  found 
specially  th.at  it  was  stowed  on  deck  in  ac- 
cordance with  a  usage  of  long  standing.  Held, 
the  loss  was  covered  by  the  policy.  Merchants 
<fe  Manufacturers  Ins.  Co.  v.  Shillito,  15  Ohio 
St,  559. 

4.  Action  upon  a  parol  contract  to  insure. 
The  defendant  proved  it  was  made  subject  to 
the  terms  and  conditions  of  the  written  poli- 
cies, which  required  a  special  indorsement  for 
goods  on  deck.  The  goods  lost  were  stowed 
on  deck.  Held,  a  parol  contract  is  subject  to 
those  terms  and  conditions  of  the  usual  policy 
only  so  far  as  in  the  nature  of  tilings  tliey  can 
be  applied ;  hence,  it  was  proper  to  admit  evi- 

198 


dence  for  the  purpose  of  showing  whether  it 
was  the  intention  of  both  parties  that  the  sub- 
ject insured  should  be  laden  on  deck.  North- 
western Iron  Co.  V.  JEtna  Ins.  Co.,  26  Wis.,  78. 

.5.  On  40  carboys  of  vitriol  on  deck.  Dur- 
ing  a  heavy  sea  some  of  them  were  broken 
and  fire  ensued,  when  the  whole  were  tlirowa 
overboard.  Held,  if  there  was  a  usage  to  carry 
vitriol  on  deck,  the  insurers  were  bound  to 
take  notice  of  it;  if  there  was  not  such  a  usage 
the  insurers  were  not  liable.  De  Costa  v.  Ed- 
munds, 4  Camp.,  142;  2  Chitty,  237. 

6.  Insured  on  ship  paid  a  general  average 
for  pigs  jettisoned  which  were  on  deck,  and 
the  defendant  pleaded  tliat  they  were  deck 
load  for  whicli  the  other  interests  were  not 
bound  to  contril)ute.  Ileld.  the  mere  fact  of 
stowing  them  on  deck  would  not  relieve  the 
insurer  of  liability,  inasmuch  as  they  may 
have  been  placed  there  in  accordance  with  the 
usage  of  the  trade,  so  as  not  to  impede  the 
navigation  or  in  any  way  increase  the  risk. 
Milward  v.  IFihbert.  3  A.  &  E.(]Sr.  S.),  130;  11 
L.  J.  (N.  S.),  Q.  B.,  137 ;  6  Jur.,  706. 


III.  When  insurer  is  not  liable  for. 

1 .  Goods  laden  on  deck  are  not  covered  by 
a  policy  on  cargo  and  fVeight.  Wolcott  v. 
Eagle  Ins.  Co..  4  Pick.,  429. 

2.  "  On  freight."  Held,  it  covered  only 
freight  on  goods  which  would  have  been  un- 
der deck,  the  policy  not  being  valued.  Adams 
V.  Warren  Ins.  Co.,  22  Pick.,  163. 

3.  160  barrels  (>f  tlour  were  shipped  at 
Georgetown  for  Portsmouth,  for  which  the 
master  signed  bills  of  lading  in  the  usual 
form,  by  which  it  appeared  that  20  barrels 
were  to  go  under  deck  at  35  cents  per  barrel 
and  140  on  deck  at  half  that  price.  In  com- 
ing over  Nantucket  shoal,  in  bad  weatlier 
and  heavy  sea,  she  struck  and  was  in  such 
danger  that  to  preserve  the  lives  of  the  crew 
and  for  the  safety  of  ship  and  cargo,  the 
deck  load  and  20  barrels  from  the  h<ild  were 
jettisoned,  whereby  the  vessel  and  the  rest  of 
the  cargo  were  saved.  Held,  it  was  proper  for 
the  defendants  to  prove  the  general  usage  for 
the  owner  of  goods  on  deck  to  bear  the  whole 
loss  of  deck  loads  necessarily  thrown  over- 
board; by  the  general  law  jettison  from  the 
deck  presents  no  case  for  contribution,  and  this 
has  been  recognized  in  New  York  and  Mas- 


397 


DECLARATIONS  -  -  DEMURRER. 


398 


Miscellauoous. 


eachusetts;  when  the  owner  is  not  liable  to 
contribute,  the  same  reason  relieves  the  iusur- 
rer.    Ikidge  v.  Bartol,  5  Me.,  286. 

4.  "  On  cargo  lost  or  not  lost."  It  was 
laden  under  deck ;  but  there  was  other  prop- 
erly laden  ou  deck  not  insured,  \v1iich  was 
jettisonca,  tur  vfhich  insured  was  compelled 
to  contribute  in  geaeial  average.  Insured 
averred  that  the  cargo  carried  upon  deck  was 
there  carried  in  accoruauo«  with  usage  and 
custom.  Insurer  replied  a  usua^e  and  cus- 
tom not  to  consider  insurer  of  cargo  under 
deck  in  any  wise  liable  to  make  contribution 
for  or  on  account  of  deck  cargo  jettisoned. 
Insured  demurred.  Ueld,  the  demurrer  must 
be  overruled.  Toledo  Fire  and  Marine  Im. 
•Co.  «.  Speares,  16  Ind.,  52. 

5.  The  policy  was  made  on  the  written  ap- 
^jlication  of  insured,  but  no  mention  was 
made  of  any  of  the  goods  being  on  deck. 
There  were  ninety  barrels  molasses,  four 
bogheads  and  one  tierce  of  sugar  on  deck, 
which  were  lost  by  perils  of  the  sea.  Held, 
that  insurers  were  not  liable.  Smith  v.  Mis- 
eitsippi  Marine  and  Fire  Ins.  Co.,  11  La.  (O. 
S.).  U2. 

6.  Plea:  "The  goods  jettisoned  consisted  of 
timber  stowed  upon  deck;  that  the  contract 
of  insurance  was  made  at  Liverpool ;  that  ac- 
cording to  a  well  known  and  approved  usage 
and  custom,  insurers  were  not  liable  to  pay  or 
contribute  on  account  of  the  jettison  of  tim- 
ber stowed  upon  deck,  of  which  usage  aud 
custom  the  parties  at  the  time  of  making  the 
contract  had  notice."  Held,  good  pleas;  that  it 
was  no  answer  to  them  to  reply  a  custom  of 
trade  among  shippers  of  timber,  to  carry  tim- 
ber upon  deck.  Miller  v.  Titherington,  7  H. 
&  K,  954;  8  Jur.  (N.  S.),  1039;  31  L.  J.  Ex., 
363;  10  W.  R.,  356;  9  L.  T.  (N.  S.),  231.  Af- 
Jirming  s.  c,  6  H.  &  N.,  278;  7  Jur.  (N.  S.), 
2H;  30  L.  J.  Ex.,  217 ;  3  L.  T.  (N.  S.),  893. 


DECLARATIONS. 

(See  Evidence  ;  Pleadisq.) 


DEMAND. 

1.  Action  upon  promissory  note,  payable  in 
such  portions  and  at  such  times  as  the  direct- 
ois  may,  agreeably  to  their  charter  and  by- 
laws, require.  The  plaintiff  became  assignee 
of  the  effects  of  the  insolvent  company.  Ileld, 
payable  on  demand.  Ueld,  also,  the  assign- 
ment and  a  demand  by  the  assignee  was  suf- 
ficient ground  for  action,  mil  v.  Meed,  16 
Barb.,  280. 

2.  Exhibiting  a  bill  to  a  debtor  asking  him 
to  pay  it,  and  his  refusal,  are  sufficient  evi- 
dence of  a  demand.  People's  Mutual  Fire 
I'is.  Co.  V.  Clark,  13  Graj',  165. 


DELAY. 

(See  Deviation.) 


DEMURRER. 

■(See  Pleading.) 

1.  ilvery  fact  which  can  be  legally  inferred 
frow  the  evidence  is  admitted  by  a  demurrer 
to  it.    Forbes  v.  Church,  3  Johns.  C,  158. 

2.  The  court  held  that  the  demurrer  was 
put  in  solely  for  delay,  refused  to  give  leave 
to  answer,  and  ordered  the  damages  to  be  as- 
sessed in  the  usual  manner.  Feeny  v.  People'* 
Fire  Ins.  Co.,  2  Rob.  (N.  Y.),  599. 

3.  The  court  will  not,  upon  motion,  decide 
whether  a  plea  be  good  or  ill,  that  must  be 
done  by  demurrer.  Wilson  v.  Lynch,  1  Hud. 
&  B.,  3.36. 

4.  The  defendant  demurred  to  the  declara- 
ti(m  and  filed  a  plea  to  it.  Held,  he  could 
not  assign  error  upon  the  court's  failure  to 
sustain  his  demurrer.  Home  Mutual  Fire 
Ins.  Co.  V.  Garfield,  60  111.,  134. 

5.  If  the  answer  sets  up  a  complete  defense 
to  the  action  and  the  plaintiff  demurs,  and 
there  is  judgment  upon  the  demurrer  for  the 
defendant,  aud  the  plaintiff'  refuses  to  plead 
over,  that  is  an  end  of  the  case.  Simeral  v. 
Dubuque  Mutual  Fire  Ins.  Co.,  18  Iowa,,  319. 

6.  To  the  first  special  plea  there  was  a  de- 
mtirrer.  A  second  special  plea  was  filed  and 
no  replication  made  to  it.  The  cause  pro- 
ceeded  to  trial,  verdict  and  judgment.  Held, 
the  demurrer  and  special  pleas  must  be  re- 
garded as  waived  by  mutual  consent.  Georgia 
Home  Ins.  Co.  v.  Jones,  49  Miss.,  80. 

199 


399 


DEPOSIT  WITH  INSURANCE  DEPARTMENT— DEPOSITIONS. 


400 


Miscellaneous. 


DEPOSIT  WITH  INSURANCE  DEPART- 
MENT. 

1.  Securities  deposited  by  life  insurance 
company  with  tlie  superintendent  of  tlie  insur- 
ance deparlment  of  the  state  of  New  York. 
Held,  a  special  fund  for  the  security  of  policy 
holders  primarily;  that  the  superintendent 
was  at  liberty  to  hold  the  securities  and  en- 
force or  dispose  of  them  under  proceedings 
authorized  by  court,  and  was  not  bound  to 
pass  them  over  to  a  receiver  appointed  for  the 
benefit  of  general  creditors.  Mugglea  v.  Ohap- 
man,  1  Hun.  (N.  Y.j,  -324;  s.  c,  2  N.  Y.  S.  C, 
600. 

2.  Two  classes  of  insurance  are  provided  for 
by  law.  One  by  unregistered  policies  pro- 
tected by  a  deposit  of^lOO.OOO  securities  in  the 
insurance  department,  the  other  by  registered 
policies  and  annuity  bonds  secured  by  an  ad- 
ditional deposit  of  securities,  not  less  than 
$25,000.  When  the  company  is  found  to  be 
in  a  condition  unlit  for  tlie  transaction  of  busi- 
ness, the  securities  for  the  protection  of  un- 
registered policies  are  to  be  distributed  under 
a  decree  of  the  supreme  court.  The  securities 
for  the  protection  of  the  registered  policies  and 
annuity  bonds  are  to  be  sold  by  the  superin- 
tendent of  the  insurance  department,  the  pro- 
ceeds to  be  paid  over  to  the  receiver  who  is  to 
apply  them  to  the  satisfaction  of  the  regis- 
tered policies  and  annuity  bonds,  and  the  sur- 
plus, if  any,  to  the  debts  of  the  company.  The 
People  V.  Chapman,  5  Hun.  (N.  Y.),  222. 


DEPOSITIONS. 

(See  Etidence.) 

1.  If  all  the  interrogatories  are  not  answered 
by  the  witness  the  deposition  cannot  be  read. 
Winthrop  v.  Union  Ins.  Co.,  2  Wash.  C.  C,  7. 

2.  Commission  to  examine  witnesses  cannot 
issue  except  itpon  a  case  pending,  and  issue 
joined  upon  the  pleadings.  Wood  v.  Howard 
Lis.  Co.,  18  Wend.,  640. 

3.  A  commission  to  take  evidence  was 
awarded  after  trial  and  appeal.  Held,  error. 
McGoll  V.  Sun  Mut.  Ins.  Co.,  50  N.  Y.,  333;  44 
How.  Pr.,  452;  3  J.  &  Sp.,  310. 

4.  One  party  in  his  cross  interrogatories 
200 


drew  out  thodeclarjitionsof  l\:f  'jiposite  part» 
material  to  the  issues.  The  answers  were  re- 
sponsive to  the  questions.  Held,  the  opposite 
party  had  the  right  to  re.ad  the  questions  ano 
answers  as  evidence  in  the  cause.  Riilwa^ 
Passengers  Ass.  Co.  t.  Warner,  1  N.  Y.  S.  C,  21 
Add. 

5.  The  president  of  an  insurance  company, 
as  such,  is  bound  to  answer  all  questions  pro 
pounded  under  general  statutes  (eh.  129,  sec 
46),  which  are  relevant;  but  he  is  not  bound  ti> 
answer  questions  as  to  facts  which  be  could 
only  state  as  a  witness  on  the  stand,  or  in  a 
deposition;  nor  hits  a  party  any  riglit  to  inter- 
rogate his  adversary  but  once ;  but  by  a  liberal 
construction  of  the  statute  the  court  may  allow 
interrogatories  to  be  amended  or  new  ones  to 
be  filed.  Hancock  v.  Franklin  Ins.  Co.,  107 
Mass.,  113. 

6.  Where  the  commission  is  directed  to  two 
persons,  either  miiy  execute  it,  and  filing  cross 
interrogatories  waives  notice.  American  Ins. 
Co.  0.  Francia,  9  Penn.  St.,  390. 

7.  A  deposition  will  not  be  rejected  because 
the  witness  refers  to  papers  not  produced,  if  it 
appear  they  were  received  long  before  the 
deposition  was  taken,  and  were  of  si>ch  a  char- 
acter as  would  not  pnjbably  be  preserved,  or 
were  not  in  the  power  of  the  witness  or  the 
party.  American  Life  Ins.  Co.  v.  Rosenwjle, 
77  Penn.  St.,  507. 

8.  The  authority  given  to  commissioners  to 
take  testimony  must  be  strictlj'  pursued,  and 
if  the  commission  is  directed  to  one  person 
and  another  executes  it,  the  evidence  is  inad- 
missible. Maryland  Ins.  Co.  v.  Bossiere,  9  G. 
&J.,  121. 

9.  The  deposition  of  a  witness  was  excluded 
on  the  ground  that  evidence  had  not  been 
given  to  show  that  due  diligence  had  been 
used  to  produce  the  witness.  Heid,  the  court 
did  not  err.  Flynn  v.  Merchants  Mut.  Ins.  Co., 
17  La.  An.,  135. 

10.  A  party  who  obtains  a  commission  to 
take  the  testimony  of  witnesses  named  is  not 
bound  to  take  the  testimony  of  all  those  named 
in  the  commission;  a  failure  to  do  so  is  not 
a  ground  for  excluding  the  testimony  of  the 
witnesses  examined.  Bramstein  n.  Crescent 
Mut.  Ins.  Co.,  34  La.  An.,  589. 

11.  The  deposition  was  taken  in  Philadel- 
phia.  The  statute  required  notice  to  be  given 
of  an  intention  to  take,  stating  the  time  and 
place;  and  for  every  twenty  miles  three  daySy 


401 


DETENTION  —  DESCRIPTION. 


402 


Miscellaneous. 


and  one  aJditiouuI  clay.  The  distance,  com- 
puted by  the  water  route,  showed  that  the 
time  was  not  sufficient;  hut  measured  by  the 
usinl  direct  laud  routes  it  was  sufficient.  The 
water  route  was  the  most  usual  and  expedi- 
tious. Ileld,  that  the  notice  was  sufficient. 
Lindauer  v.  Delaware  Mutual  Safety  Ins.  Co.,  13 
Ark.,  4G1. 


DETENTION. 

(See  Abbests;  Bebtbaints  and  Detainuents.) 


DESCENT. 

(See  Be(JUE8T3  ;  Wife's  Poliot.) 

A  married  woman  made  insurance  on  the 
life  of  her  husband  in  her  own  name  and  for 
her  own  use,  payable  to  her  children  in  case 
she  should  die  before  her  husband.  Husband, 
wife  aud  child  perished  at  sea.  Held,  whether 
tlie  wife  had  power  to  make  a  will  was  not  a 
question  iu  the  case,  for  there  was  no  power 
reserved  in  the  policy  authorizing  her  to  dis- 
pose of  the  money  by  will  or  otherwise;  that 
the  insurauce  money  was  the  property  of  the 
representatives  of  the  husband  who  were  en- 
titled to  his  personal  estate.  Moeliring  ®. 
Mitchell,  1  Barb.  C,  264 ;  affirmed,  How.  App. 
Cas.,  502. 


DESCRIPTION. 

(See  CoNSTECcnoN;  Polict.) 

1.  The  holder  of  a  bottomry  bond  must  in- 
Bure  it  specifically.  Kenney  v.  Clarkson,  1 
Johns.,  385. 

2.  The  survey  made  part  of  the  contract, 
described  the  premises,  and  the  policy,  iu 
terms,  warranted  that  description.  Held,  error 
to  direct  the  jury  to  determine  whether  the 


fact  that  the  premises  did  not  correspond  with 
the  description  was  material  to  the  risk.  Le 
Roy  V.  Market  Fire  Ins.  Co.,  39  N.  Y.,  1)0. 

3.  On  merchandise  contained  iu  section 
lettered  "  C,"  Patcrson  stores,  South  Front, 
below  Pine  street,  Philadelphia.  At  the  time 
of  issuing  the  policy,  and  the  time  of  the  fire, 
the  merchandi.se  was  in  a  section  of  the  same 
building  designated  by  letter  "  A."  Ifeld,  in- 
surers were  not  liable;  that  the  maxim  falsa 
demonstratio  non  nocet  could  not  be  invoked 
unless  Uiere  was  left  in  the  description,  after 
casting  out  that  which  was  false,  enough  to 
clearly  point  out  the  place  of  deposit.  Bryce 
V.  Lorillard  Fire  Ins.  Co.,  55  N.  Y.,  240;  s.  c, 
3  J.  &  Sp.,  394;  46  How.  Pr,  498. 

4.  The  policy  was  on  a  building  "  Situate 
at  the  corner  of  Charles  street  and  Western 
avenue.  A  cabinetmaker's  shop  is  in  the 
building."  Held,  the  words,  "A  cabinet- 
maker's shop  is  in  the  building,"  might  be 
rejected,  and  the  policy  would  attach  upon 
the  building  the  parties  intended  to  insure, 
tliough  it  had  no  cabinetmaker's  shop  in  it. 
Heath  v.  Franklin  Ins.  Co.,  1  Cush.,  257. 

5.  To  L.  and  S.,  as  mortgagees ;  loss  pay- 
able to  W.,  the  plaintiff.  They  assigned  the 
mortgage  and  indorsed  the  notes  to  him,  some 
of  which  had  matured  at  the  time  of  the  loss, 
and  were  unpaid.  L.  and  S.,  being  .absolutely 
liable  to  pay  those  which  had  matured,  and 
liable  as  indorsers  upon  those  which  had  not 
matured,  procured  this  policy :  "  To  be  void  in 
case  the  interest  of  insured  is  not  truly  stated  . 
in  the  policy;  also,  if  the  interest  of  insured 
be  any  other  than  the  entire  and  uncon- 
ditional sole  ownership,  it  must  be  expressed 
in  writing  in  the  policy,  otherwise.it  shall  be 
void.  Held,  the  interest  was  sufficiently  de- 
scribed. Williams  v.  Roger  Williams  Ins.  Co., 
107  Mass.,  377. 

(}.  Stockholders  of  a  corporation  procured 
insurance  "  On  their  private  stock,  contained 
in  a  one  story  saw  mill,"  etc.  They  averred 
that  the  term,  "  private  stock,"  meant  capital 
stock  of  insured  in  the  body  corporate.  Held, 
sufficient.  Warren  v.  Davenport  Fire  Ins.  Co., 
31  Iowa,  464. 

7.  "  $2,000  on  his  two-story  frame  dwelling, 
occupied  by  him,  situate  on  southwest  corner 
of  Second  and  Vine  streets,  Leavenworth, 
Kansas,  and  |300  on  frame  barn  in  rear  of 
same."  The  agent  of  insurer  knew  the 
premises  for  which  insured  sought  insunmce; 

201 


403 


DEVIATIOX. 


404 


What  is. 


that  they  were  situated  on  the  southwest  cor- 
ner of  Elm  and  Second  streets,  and  that  neither 
party  intended  to  cover  property  on  the  corner 
of  Vine  and  Second  streets.  Held,  not  a  case 
of  an  entire  misdescription,  for  insured  did  not 
occupy  the  buildings  on  the  corner  of  Second 
and  Vine  streets,  and  therefore  it  was  unneces- 
sary to  have  the  instrument  reformed,  because, 
if  either  from  the  face  of  the  instrument  or 
from  extrinsic  facts,  the  true  and  the  false  de- 
ficriptiou  could  be  made  to  appear,  that  which 
■was  false  must  be  rejected  (citing  1  Greenl. 
Ev.,  sec.  301).  Held,  also,  no  repugnance  ap- 
peared on  the  face  of  the  instrument.  Apply- 
plying  it  to  the  subject  insured,  the  true  and 
tlie  false  descriptidh  appeared,  and  that  which 
•was  false  must  be  rejected  (citing  Loomis  v. 
Jackson,  19  Johns.,  419;  2  Hill  on  Real  Prop- 
erty, 358).  American  Central  Ins.  Go.  v.  Mc- 
Lanathan,  11  Kan.,  533. 

8.  The  premises  were  described  in  the  pol- 
icy as  "A  brick  building."  One  of  the  walls 
had  previously  settled,  and  was  replaced  with 
■wood.  Insurer's  agent  had  notice  of  the 
fact.  Held,  no  misdescription.  Gerhauser  v. 
North  British  and  Mercantile  Ins.  Co.,  7  Nev., 
174. 

9.  On  goods  in  the  dwelling-house  of  the 
insured.  He  had  but  one  room,  in  which  he 
lived.  iZeW,  not  a  misdescription.  Friedlander 
V.  London  Ass.  Co.,  1  M.  &  Rob.,  171. 

<  10.  "Lost  or  not  lost,  fiom  Montevideo  to 
Havre  on  £450  freight  advanced."  She  ■was 
chartered  at  the  rate  of  £250  per  mouth  from 
Montevideo  to  Havre,  freight  to  be  paid  at  the 
port  of  discharge  after  deducting  £250,  which 
it  was  stated  the  captain  had  received  on  ac- 
count of  that  charter  part}'.  Held,  no  mis- 
description of  the  interest  of  the  insured.  Ellis 
•».  Lnfone,  8  Exchr.,  540 ;  17  Jur.,  213 ;  23  L.  J. 
Ex.,  124. 

11.  The  plaintiff's  clerk  asked  defendant's 
manager  to  insure  hides  on  board  the  Socrates. 
Two  ships  ■were  named  in  the  register,  one 
name  immediately  following  the  other,  the 
first  Socrates  and  the  second  Socrate.  The 
manager  directed  the  clerk's  atttention  to  the 
first,  and  asked  him  if  Uiat  -was  the  ship.  He 
replied,  he  thought  so,  and  the  policy  was 
made.  The  hides  were  shipped  on  board 
the  Socrate,  and  lost.  Held,  insurers  were 
not  liable.  lonides  v.  Pacific  Fire  and  Ma- 
rine Ins.  Co.,  6  L.  R.  Q.  B,,  674;  35  L.  T.  (N. 
■fi.),  490. 
203 


DEVIATION. 

(See  Babbatbt;  Constbuction  ;  Poliot.) 

I.  "What  is. 

(a)  Capture. 

(b)  Gliange  of  master. 

(c)  Departure  from  the  voyage. 

(d)  Delay. 

(e)  Making  and  securing  prize. 

(f )  Mismanagement  or  negligence. 

(g)  Obeying  orders  ship  of  war. 
(h)  Rescue. 

(i)    To  avoid  perils  not  insured, 
( j)   To  procure  medicines. 
(k)  Towing. 
(1)    Trading. 
(m)  Transhipment. 
II.  Wh.yt  is  not. 

(a)  Attempts  to  save  life. 

(b)  Necessary  deviation. 

(c)  Involuntary  deviation, 

(d)  Intention,  to  deviate. 

(e)  Custom  and  usage, 

(f)  Delay. 

(g)  Construction. 


I.  "What  is. 

(a)  Capture. 

1 .  She  was  carried  out  of  her  course  into  a 
port  of  the  captor.  Held,  if  she  remained 
there  longer  than  was  necessary  to  prepare  for 
her  voyage,  it  was  a  deviation.  Kingstorc  c. 
Girard,  4  Dall.,  275. 

2.  On  ship :  "  French  risks  excepted ;  "  she 
was  captured  by  a  French  privateer,  detained 
four  days,  recaptured  by  a  British  frigate  and 
condemned  as  French  propertj-.  Held,  the 
detention  was  equivalent  to  a  deviation,  which 
discharged  the  insurer.  Roget  v.  Thurston,  3 
Johns.  Ca.,  348. 

3.  Ship  insured  from  port  of  lading  in 
France  to  United  States.  In  coming  out  of 
Bayonne  she  struck  the  bar,  and  was  carried 
back  to  repair.  Most  of  the  cargo  was  un- 
laden and  carried  by  laud  to  passage,  in  Spain, 
■n'hither  she  afterwards  ■went  and  took  it  on 
board  and  sailed  for  the  United  States.  Held, 
not  a  deviation.  Held,  aho,  taking  a  letter  of 
marque  did  not  avoid  the  policy;  but  taking 
possession  of   a  prize   and  exchanging    the 


405 


DEVIATION. 


40G 


What  is. 


men,  was  a  deviation  which  discharged  the 
insurer.     Wiggin  v.  Amory,  13  Mass.,  118. 

(b)  Change  of  vtiaster. 

4.  Stipulated:  "Should  the  vessel  insured 
change  masters  or  owners,  notice  shall  be 
given  to  insurers  without  delay,  when  insurers 
may  end  the  adventure,  if  they  .so  elect,  by 
returning  a  'pro  rata  premium."  She  was  sold 
and  the  policy  trausferrcd  to  the  plaintifls, 
with  the  understanding  that  Scott,  one  of  the 
plaintifTs,  should  take  charge  of  her  as  master, 
•of  which  insurer's  agent  was  notified,  and  he 
made  no  objection;  but,  in  consequence  of 
sickness  in  the  family  of  Scott,  another  person 
was  put  in  as  master,  and  she  was  lost  on  the 
first  trip.  Insurer  was  not  informed  of  the 
substitution.  Held,  it  was  a  change  of  risk 
without  consent  of  insurers,  analagous  to  a 
deviation  which  discharged  insurers.  Tennes- 
see Marine  and  Fire  Ins.  Co.  v.  Scott,  14  Mo., 
46 ;  Eddy  v.  Tennessee  Marine  and  Fire  Ins. 
Co.,  21  id.,  587. 

>(c)  Departure  from  voyage. 

%.  On  schooner,  from  New  Castle,  Maine, 
to  her  port  of  discharge  in  Martinique,  at  and 
from  thence  to  her  port  of  discharge  in  U.  S. 
She  sailed  on  the  voyage,  but  instead  of  going 
to  Martinique,  went  to  Mariegalante,  where 
she  arrived  July  14th,  took  a  cargo  and  departed 
upon  the  home  voyage  without  going  to  Mar- 
tinique. She  arrived  oil'  and  touched  at  St. 
Eustatia  August  17th,  and  was  lost  September 
12th,  in  Booth's  Baj-,  while  proceeding  towards 
Damariscotta,  her  port  of  destination.  After 
it  was  ascertained  that  she  had  touched  at  St. 
Eustatia,  insurers  indorsed:  "It  is  now  under- 
stood that  the  within  insured  vessel  has  been 
to  St.  Eustatia,  and  sailed  thence  for  Boston, 
about  twenty-five  days  since,  which  deviation 
shall  not  prejudice  the  within  insurance. 
Held,  it  cured  the  deviation  to  St.  Eustatia  and 
nothing  else.  It  did  not  cure  the  deviation  to 
Mariegalante.  The  return  voyage  was  from  St. 
Eustatia  to  Boston,  whereas  in  fact  she  was  lost 
on  a  voyage  to  Damariscotta ;  and,  the  demur- 
rer to  the  evidence  was  sustained.  Olidden  o. 
Miinnfacturera  Ins.  Co.,  1  Sumn.,  232. 

(i.  She  was  insured  "to  a  port  in  Cuba,  and 
at  and  from  thence  to  a  iiort  of  advice  and  dis- 
charge in  Europe."    She  arrived  at  St.  Jago 


dc  Cuba,  discharged  her  cargo,  and  sailed 
thence  to  Manzanillo,  another  port  in  Cuba, 
where  she  took  cargo  and  sailed  for  Europe, 
and  was  lost  on  the  voyage.  Held,  insurers 
were  discharged,  because  going  from  St.  Jago 
de  Cuba  to  Manzanillo  was  a  deviation. 
Hearne  v.  Marine  Ins.  Co.,  20  Wall.,  488. 

7.  From  St.  Lucia  to  New  York,  with  lib- 
erty to  touch  and  trade  at  St.  Kits.  She  lost 
some  of  her  men,  took  her  Ciirgo,  and  went  to 
St.  Bartholomews  to  get  others,  and  on  her  re- 
turn was  damaged  by  collision  exceeding  fifty 
per  cent,  of  her  value.  Held,  the  deviation 
was  not  justifiable,  because  she  ought  to  have 
been  fitted  for  the  voyage  at  the  time  of  her 
departure.  Cruder  v.  Philadelphia  Ins.  Co., 
2  Wash.  C.  C,  339;  s.  c,  id.,  202. 

8.  From  Ocrocoke  in  North  Carolina,  to  St. 
Bartholomews  or  St.  Thomas,  in  the  West  In- 
dies,  and  at  and  from  thence  to  Tobasco.  She 
went  to  St.  Bartholomews  and  thence  to  St. 
Thomas.  Held,  it  was  a  deviation,  unless  it 
was  justified  by  usage;  but  the  usage  must  be 
so  certain  and  uniform  as  to  raise  the  pre- 
sumption  that  it  was  generally  known  as  the 
law  of  that  trade.  Bulkley  v.  Protection  Ins. 
Co.,  2  Paine,  82. 

9.  If  the  insured  knows  that  the  master  is 
pursuing  a  voyage  other  than  that  insured, 
and  does  not  disapprove  of  it,  it  is  not  barra, 
try  but  deviation.  Thurston  v.  Columbian  Ins. 
Co.,  3  Caines,  89. 

10.  On  cargo  from  New  York  to  Madeira, 
stipulated  free  from  average,  etc.  Heavy 
weather  prevented  her  getting  into  Madeira 
after  she  was  in  sight  of  it,  nor  could  she  get 
into  Lisbon.  The  master  considered  it  pru- 
dent  to  run  for  the  Cape  de  Verd  islands. 
At  Mogadore  she  might  have  obtained  pro- 
visions, but  not  repairs.  Held,  evidence  of 
a  deviation,  for  she  might  have  returned  to 
Madeira.  There  was  no  adequate  or  justifia. 
ble  cause  for  breaking  up  the  voyage.  Neil- 
son  V.  Columbian  Ins.  Co.,  1  Johns.,  301. 

1 1 .  Ship  insured  from  New  York  to  Bor- 
deau.\'.  She  was  warned  by  British  ships  at 
the  mouth  of  the  Garonne  not  to  enter 
any  port  subject  to  French  influence,  was 
told  to  go  to  England  or  Malta,  or  return 
to  America.  Being  short  of  water  she  laid  her 
course  for  England,  but  sprung  a  lejik,  and 
was  compelled,  for  her  preservation,  to  put 
into  L'Orieut,  and  was  there  seized  bj-  the 
French  government.   Ueld  ijie  uorls  of  Franco 

203 


407 


PEVIATION. 


40S 


What  Ls. 


■were  not  to  be  considered  closed  to  her;  that 
"  near  open  port"  was  to  be  understood  in  a 
geographical  sense;  that  none  of  the  English 
ports  were  to  be  considered'in  respect  to  Bor- 
deaux as  a  "near  port;"  that  her  attempt  to 
make  an  English  port  was  a  deviation  which 
released  the  insurer.  Tenet  v.  Phanix  Ins.  Co., 
7  Johns.,  3C3. 

12.  On  ship  from  New  York  to  Teneriffe. 
Tor  two  per  cent,  additional,  she  had  liberty 
to  go  from  Teneriffe  to  the  Isle  of  May,  and 
Bona  Vista,  and  at  and  from  thence  to  New 
York.  One  per  cent,  to  be  returned  if  she  did 
not  go  to  Boua  Vista,  and  the  risk  should  be 
safely  ended.  She  was  refused  entry  at  Tener- 
iffe, unless  she  would  perform  a  quarantine  of 
forty  days.  Refusing  that,  she  proceeded  to 
Madeira,  the  nearest  port  at  which  her  cargo 
could  be  landed,  sold  it,  proceeded  to  the  Isle 
of  May,  took  a  cargo  for  New  York,  and  sus- 
tained sea  damage  on  the  home  voyage.  Held, 
going  to  Madeira  was  a  deviation.  Robertson 
4).  Columbian  Ins.  Co.,  8  Johns.,  491. 

1 3.  The  voyage  insured  was  at  and  from 
Port  Plata  to  New  York.  She  was  lost  in 
going  from  Port  Plata  to  Susa,  to  which 
place  she  had  a  permit  from  the  government 
to  go,  to  take  mahogouy,  but  would  have 
been  obliged  to  return  to  Port  Plata  for  her 
clearance.  Susa  is  a  bay  or  open  road  four 
leagues  east  of  La  Plata,  and  dangerous  when 
the  wind  is  in  a  certain  direction;  but  it  was 
included  in  the  district  of  Port  Plata,  which 
extended  one  hundred  miles  along  the  north 
coast  of  Spanish  San  Domingo.  Held,  a  de- 
viation which  avoided  the  policy.  Vos  ». 
liobinson,  9  Johns.,  192. 

14.  Term  policy  on  ship,  warranted  not  to 
use  ports  in  Texas,  except  Galveston,  nor  for- 
eign ports  or  places  in  the  Gulf  of  Mexico. 
For  an  additional  premium,  she  had  permis- 
sion to  use  the  port  of  La  Guna  for  one  voy- 
age. She  sailed  from  Boston,  November  9th, 
to  take  a  cargo  of  logwood  from  La  Guna  to 
the  Mediterranean.  She  proceeded  to  Mar- 
tinique, sailed  thence  for  La  Guna,  but  did 
not  enter,  because  the  custom  house  officers 
would  not  allow  her  until  she  had  paid  her 
tonnage  duties,  it  not  being  a  port  of  entry. 
She  .sailed  thence  to  Sisal  for  that  purpose, 
intending  to  return  to  La  Guna  and  take  the 
cargo,  but  was  driven  ashore  at  Sisal  and  lost. 
IfeW,  going  to  Sisal  was  a  deviation  which 
released  the   insurers.    Stecvns  v.  Commercial 

204 


Mut.  Ins.  Co.,  26  N.  Y.,  397;  8.  c,  6  Duer, 
594. 

15.  On  ship,  "At  and  from  New  York  to 
Havana."  She  went  on  a  trip  to  Elizabeth- 
port,  sixteen  miles  from  New  York,  to  test 
her  engines  and  to  take  in  coal,  returned  to 
New  York,  sailed  for  Havana,  and  was  burned 
on  the  voyage.  Held,  a  deviation  which  re-* 
leased  the  insurers.  Fernandez  v.  Great  West- 
ern Ins.  Co.  48  N.  Y.,  571 ;  s.  c,  3  Rob.,  457. 

]  6.  Ship,  cargo  and  freight  insured  from 
Boston  to  the  Canaries,  at  and  from  thence  to 
any  port  or  ports  in  Spanish  America,  and  at 
and  from  thence  to  her  port  of  discliarge  in 
the  United  Slates.  She  anchored  at  the  Cana- 
ries, sailed  thence  to  Vera  Cruz,  landed  cargo, 
took  another,  with  which  she  sailed  for  Ha- 
vana, on  which  passage  she  was  captured  and 
subsequently  condemned.  Held,  the  voyage  to 
H.avana  was  a  deviation.  Stacker  v.  Harris,  3 
Mass.,  409. 

17.  On  ship,  from  Gibraltar  to  L'nited 
States,  with  liberty  to  proceed  to  Cape  de 
Verd  Islands  for  salt.  On  her  arrival  at  the 
Isle  of  May,  many  vessels  were  there,  and  she 
must  have  waited  four  or  five  weeks  for  her 
turn.  On  the  proposal  of  the  governor,  she 
went  to  two  other  of  the  islands,  and  brought 
him  a  cargo  of  provisions,  he  engaging  that 
on  her  return,  she  should  be  immediately  dis- 
patched; and  by  this  means  she  was  expe- 
dited sooner  than  she  otherwise  would  have 
been.  After  taking  her  cargo  she  was  cajjtured 
and  condemned.  Held,  when  she  arrived  at 
one  of  tlie  islands  where  salt  was  to  have  been 
obtained,  she  could  not  proceed  thence  to  an- 
other for  the  purpose  of  earning  freight:  that 
doing  so  was  a  deviation  which  avoided  the 
policy.    Kettell  v.  Wiggin,  13  Mass.,  68. 

1 8.  "  From  New  York  to  Buenos  Ayres  and 
Montevideo,  one  or  both,  and  thence  to  ports 
of  discharge  in  the  United  States.  Liberty  to 
deviate  by  going  to  port  or  ports  in  Europe, 
by  paying  an  equitable  premium  therefor." 
Held,  the  liberty  was  to  be  taken  and  enjoyed 
in  subordination  to  the  principle  that  the  port 
or  ports  she  might  visit  should  be  only  those 
properly  in  the  course  of  the  voyage  described 
and  in  pursuance  of  the  general  purposes  of 
the  adventure,  embraced  within  the  termini,  • 
designated  in  the  policy  (citing  Arnorld  on 
Ins.,  vol.  1,  369-380:  Phil,  on  Ins..  vol.  1,  § 
1007;  Stocker  ».  Hiu-ris,  3  Mass.,  409;  Bottom- 
ley  c.  Bovill,  5  B.  &  C,  2)0 ;  Solly  ».  WhitmorOi, 


409 


DEVIATIOX. 


410 


What  Ls. 


5  B.  &  A.,  45;  Keltell  «.  Wiggiu,  13  Mass.,  68). 
Scccomb  V.  Provincial  Ins.  Co.,  10  Allen,  305. 

19.  Ou  freight,  Boston  to  Chailestou,  S.  C, 
at  aud  from  thence  to  a  port  on  the  north  side 
of  Cuba,  with  liberty  of  a  second  port  thereon, 
and  at  and  from  tlieuce  to  a  port  of  discharge 
m  the  United  States  north  of  Hatteras.    She 

•arrived  at  Havana,  sailed  thence  for  Cicu- 
fuegos,  took  a  cargo  aud  sailed  for  Boston  and 
was  lost.  i/eW,  the  words,  "with  liberty  of  a 
second  port  thereon,"  limited  her  to  a  second 
port  on  the  north  side  of  the  island ;  and  in- 
surcrs  were  discharged  when  she  took  a  sec- 
ond port  ou  the  south  side.  Nicholson  v.  Mer- 
cantile Marine  Ins.  Co.,  106  Mass.,  399. 

20.  If  there  is  a  voluntary  departure,  with- 
out necessity  or  reasonable  cause,  from  the 
regular  and  u.sual  course  of  the  voyage,  the 
insurers  are  discharged.  Crousillat  c.  Ball,  3 
Teates,  375;  4  Dall.,  294.  Aud  it  is  imma- 
terial that  the  loss  was  the  consequence  of 
deviation,  for  the  policy  ceases  when  the  de- 
viation begins.    Ibid. 

21.  "  On  cargo  to  Bremen,  with  liberty  lo 
enter  a  Dutch  port  when  iuformed  ou  arriving 
on  that  coast  that  it  can  be  done  with  .safety." 
Otfthe  coast  of  Holland,  she  fell  in  with  two 
Dutch  boats,  from  whom  she  received  infor- 
mation that  Amsterdam  was  not  blockaded, 
and  that  she  might  proceed  there  free  from 
molestation  by  British  cruisers.  She  made  for 
the  Texel,  and  when  near  the  tirst  buoy,  was 
captured  and  subsequently  condemned.  Held, 
the  information  did  not  have  any  tendency  to 
jjrove  there  was  safety  except  from  British 
cruisers,  and  that  the  departure  from  the 
course  to  Breraeu  was  a  deviation  which  dis- 
charged tlie  insurers.  Duerhagen  v.  United 
atates  Int).  Co.,  2  S.  &  R.,  309. 

22.  "On  ice,  Freeport  to  Nashville,  to  be 
brought  to  Pilt^iburgh  bj-  sweeps,  to  be  towed 
thence  by  steamboat."  The  pilot  navigated 
the  boats  past  Pittsburgh,  intending  to  land 
three  miles  below,  but  not  for  the  purpose  of 
escaping  any  danger.  The  cargo  was  lost  be- 
tween Pittsburgh  aud  the  landing.  Jleld,  a 
change  of  the  voj'age  by  insured  which  released 
the  insurers.  Merchants  Ins.  Co.  v.  Algeo,  33 
]'enn.  St.,  330. 

23.  On  steamer  for  the  term  of  three 
months,  to  be  used  between  Philadelphia  and 
Baltimore,  via  canal,  Chesapeake  Bay  aud  its 
tributaries;  also  to  use  the  port  of  Beaufort 
and  Kewbcru,  through  the  Chesapeake  and 


Albemarle  canal.  Ileld,  a  vqyage  from  Balti- 
more to  Washington  was  not  authorized,  and 
it  released  the  insurers.  Dallam  v.  Insurance 
Co.,  6  Phila.,  15. 

24.  The  mere  apprehension  of  danger  docs 
not  .justify  a  deviation,  it  must  be  founded  ou 
reasonable  evidence;  the  peril  appreliended 
must  be  such  tliat  if  encountered,  loss  or  seri- 
ous  injury  would  be  the  necessary  conse- 
quence. Itifjgin  v.  Patapsco  Ins.  Co.,  7  H.  & 
J.,  279. 

25.  Term  policy  upon  the  schooner  "  Vo- 
lant," "  trading  between  New  Orleans  and  any 
port  in  the  West  Indies,  United  States,  or  Gulf 
of  Mexico,  except  liio  Grande  or  Brazos 
ofSanJago."  She  sailed  from  New  Orleans 
to  Matanzas,  proceeded  thence  to  Savannah, 
on  which  voyage  she  was  lost  by  perils  of  the 
sea,  within  the  term  mentioned  in  the  policy. 
Held,  the  port  of  New  Orleans  was  one  of  the 
termini  of  the  voyages  insured,  and  that  a 
voyage  between  a  port  in  the  West  Indies  and 
a  port  in  the  United  States  was  not  a  trading 
between  New  Orleans  and  any  port  in  West 
Indies,  United  States,  or  Gult  of  Mexico. 
Lippincott  v.  Insurance  Co.,  2  La.  (O.  S.),  399. 

20.  The  broker  was  instructed  to  insure 
fourteen  hogsheads  of  tobacco  by  the  Kings- 
ton from  Carron  to  Hull,  with  liberty  to  call 
as  usual.  These  were  written  in  the  broker's 
books  for  the  perusal  of  the  underwriters  ac- 
cording  to  the  practice  at  Glasgow;  and  the 
insurance  was  made  "beginning  the  adven- 
ture ou  tlie  said  tobacco  at  and  from  the  loading 
thereof  on  board  said  Kingston  at  Carron 
wharf,  and  to  continue  and  endure  until  said 
Kingston,  being  allowed  liberty  to  call  at 
Leith,  shall  arrive  at  Hull  and  there  be  safely 
delivered."  The  insured  did  not  know  that 
the  allowance  to  call  at  Leith  was  substituted 
in  the  policy  for  the  more  general  term  "  as 
usual,"  as  mentioned  in  their  instructions  to 
the  broker.  The  premium  charged  was  equal 
to,  if  not  higher,  than  that  which  was  usually 
given  for  the  same  voyage  in  cases  where  it 
was  understood  or  expressed  in  the  policy  that 
the  vessel  might  touch  at  customary  jxirts. 
She  did  not  call  at  Leith,  but  put  into  Mor- 
rison's Haven,  and  was  lost  after  she  left  it 
and  had  resumed  her  course  to  Hull.  Intelli- 
gence of  the  loss  reached  insured  February 
14th,  when  they  ascertained  for  the  first  time 
that  the  policy  did  not  accord  with  their  in- 
:t  v.clions;  but   it   appeared  that  the  brrkcr 

205 


411 


DEVIATION. 


41-2 


What  is. 


iindprstood  that  by  the  term,  "touching  as 
■usual,"  was  meant  a  liberty  to  stop  at  Leith, 
and  nowhere  else.  The  Lord  of  the  court  of 
session  decreed  payment  of  the  several  suras 
insured  by  the  underwriters;  but  the  court 
here  reversed  that  judgment,  and  ordered  that 
the  insured  was  entitled  to  a  return  of  the  pre- 
mium and  nothing  more.  Elliott  v.  Wilson,  4 
Bro.  P.  C,  470;  s.  c,  Faculty  Dec,  1775  to 
1777,  p.  208. 

27.  From  London  to  Trinidad  or  the  Span- 
ish Main,  with  leave  to  call  at  all  or  any  of 
the  West  India  Islands  or  settlements,  Ja- 
maica and  San  Domingo  excepted.  She 
touched  at  Demarara  and  ran  down  in  sight 
of  Tobago,  St.  Vincent  and  St.  Lucia  success- 
ively, and  then  touched  at  Martinique,  but 
finding  no  market  tlicre,  she  sailed  for  St. 
Thomas,  running  by  St.  Kits  at  night,  and 
was  lost  the  following  day.  Held,  tlie  liberty 
granted  must  be  confined  to  any  island  in  the 
course  of  the  voyage  insured;  that  is,  from 
London  to  Trinidad,  or  the  Spanish  Main. 
Gairdner  v.  Senhouse,  3  Taunt.,  16. 

28.  On  money  expended  forreclaimiug  ship 
and  cargo  valued  at  the  sum  thereafter  to  be 
declared,  loss  to  be  paid  in  case  she  does  not 
arrive  at  Marseilles,  without  further  proof  of 
interest  than  this  policy,  warranted  free  from 
average  and  without  benefit  of  salvage.  The 
loss  was  averred  by  capture.  She  was  taken 
by  a  Spanish  privateer,  restored,  and  in  a  con- 
dition to  pursue  her  voyage,  but  was  lost  on 
another  voyage.  Ifeld,  after  she  was  restored 
she  was  bound  to  proceed  on  the  voyage,  and 
a  failure  to  do  so  was  a  deviation,  lieucc  tlie 
loss  was  not  by  capture.  Kemp  v.  Vigne,  1 
Term,  304. 

29.  The  voyage  described  in  the  policy  was 
from  F.  to  6.  and  back  to  L.  and  C.  She  ar- 
rived at  G.,  took  in  cargo  for  L.  and  C,  but 
without  going  to  L.,  she  put  into  C.  and  was 
there  stranded  and  lost.  Held,  a  deviation. 
Beatson  n.  Haworth,  6  Term.,  533. 

30.  "  At  and  from  London  to  Jamaica." 
She  sailed  with  directions  to  touch  at  Cape 
St.  Nicholas  Mole  and  to  land  stores  there. 
The  course  of  the  voyage  to  Jamaica  and  Cape 
St.  Nicholas  Mole  was  the  same  up  to  a  cer- 
tain point,  from  which  there  were  three 
courses,  one  to  the  southward  of  San  Domingo, 
another  still  further  south  of  that,  and  another 
to  the  north  of  San  Domingo.  Those  to  the 
south  of  San  Domingo  were  most  safe  and 

206 


usual,  especially  in  time  of  peace;  that  on  the 
north  was  the  shortest  but  more  difficult  navi- 
gation. She  was  captured  on  the  north  side 
of  San  Domingo  before  she  turned  off  for  Cape 
St.  Nicholas  Mole.  Held,  insurer  had  the 
right  to  expect  that  the  most  expeditious  course 
would  be  pursued;  the  instructions  given 
to  the  master  to  call  at  Cape  St.  Nicholas 
Mole  took  that  discretion  from  him  which  re- 
leased the  insurers.  Middlewood  v.  Blakes,  1 
Term,  163. 

31.  She  deviated  from  the  voj'age  insured, 
which  was  attributed  to  the  ignorance  of  the 
master.  Held,  insurers  were  released.  Phyn, 
V.  Royal  Exchange  Ass.  Co.,  7  Term,  505. 

32.  From  London  to  New  South  Wales, 
thence  to  all  ports  and  places  in  the  East 
Indies  or  South  America,  with  liberty  on  that 
voyage  to  sail  to,  touch  and  stay  at  any  ports 
or  places  whatsoever;  to  take  in  and  discharge 
passengers  at  all  ports  and  places  in  the  chan- 
nel, Cork.  Maderia,  Cape  of  Good  Hope,  St. 
Helena  and  wheresoever  she  might  proceed 
to,  as  well  on  this  as  on  the  other  side  of  the 
Capes  of  Good  Hope  and  Horn,  and  for  all 
purposes  whatsoever  to  trade  and  sail  forwards 
and  backwards  and  backwards  and  forwards. 
She  arrived  at  New  South  Wales  and  pro- 
ceeded to  New  Zealand,  intending  to  return 
to  New  South  Wales  and  then  to  proceed  to 
the  East  Indies.  She  arrived  at  New  Zealand, 
and  in  working  out  of  the  harbor  missed  stavs 
and  was  lost.  New  Zealand  was  in  the  course 
of  the  voyoge  from  New  South  Wales  to 
South  America,  but  not  in  the  course  from 
New  South  Wales  to  the  East  Indies.  Held, 
she  was  not  withiu  the  terms  of  the  policy; 
that  in  order  to  bring  the  loss  within  the  terms 
of  the  policj',  the  ship,  at  the  time  of  the  loss, 
must  have  been  on  a  voyage  from  New  South 
Wales  to  South  America,  or  from  New  South 
Wales  to  the  East  Indies,  or  sailing  back- 
wards  and  forwards  upon  some  intermediate 
voyage,  with  a  view  and  for  the  purpose  of 
accomplishing  avoyage  either  to  South  Amer- 
ica  or  to  the  East  Indies.  Bottomley  v.  Bodily 
5  B.  &  C,  310 ;  4  L.  J.  K.  B.,  337 ;  7  D.  &  R.,  702. 

33.  "On  goods  from  Loudon  to  Revel." 
She  sailed  from  the  Nore  under  convoy  for 
the  Sound;  arrived  there  and  proceeded  No- 
vember 15th  towards  Revel.  Two  daj-s  after, 
she  learned  that  an  embargo  had  been  laid  ou 
all  British  ships  in  the  ports  of  Russia;  in 
consequence  of  which  she  returned  to  Copen- 


il3 


DEVIATION. 


414 


AVbat  is. 


hagen  roads  and  layoff  Gottenburg,  a  friendly 
port,  for  six  days.  November  30lh  she  sailed 
witli  the  fleet  for  England,  and  was  lost.  Held, 
falling  back  for  England  in  the  manner  she 
did  discharged  the  insurers.  Blackenhagen  v. 
London  Ass.  Co.,  1  Camp.,  434. 

34.  She  was  prevented  from  entering  the 
port  of  destination,  because  it  was  in  the 
liands  of  the  enemy,  and  was  ordered  away 
without  being  able  to  unload  any  part  of  her 
cargo  or  to  make  needed  repairs.  She  then 
made  the  nearest  place  of  safety,  took  water 
and  pr<iceeded  to  a  port  of  discharge,  at  which 
place  it  was  ascertained,  for  the  first  time,  that 
the  cargo  was  badly  damaged  by  sea  water. 
She  encountered  very  heavy  weather  before 
and  after  she  was  turned  away  from  the  port 
of  destination.  Held,  from  the  moment  she 
put  off  from  the  port  of  destination  the  in- 
surers were  discharged;  and  that  there  was 
no  means  of  ascertaining  whether  the  damage 
to  the  cargo  liappened  before  or  after  the  de- 
viation. Parkin  o.  Tunno,  3  Camp.,  59;  11 
East,  23. 

35.  On  goods  from  London  to  Berbice,  the 
words  "  at  sea  "  were  inserted  after  the  clause, 
"  from  the  loading  thereof  aboard  the  said 
Bhip."  Liberty  was  given  to  join  and  sail  with 
convoy.  When  the  policy  was  written,  a  letter 
was  exhibited  to  insurers,  written  by  the  mas- 
ter, "  at  sea,  between  Barbados  and  Berbice." 
She  had  touched  at  Madeira,  put  off,  took  on 
cargo  there,  and  sailed;  but,  when  the  policy 
was  made,  she  was  between  Berbice  and  Bar- 
bados. Held,  the  policy  attached  at  London, 
and  touching  at  Madeira  was  a  deviation 
which  released  the  insurers.  Redman  v. 
London,  3  Camp.,  503 ;  s.  c,  5  Taunt.,  462 ;  1 
Marsh.,  136. 

36.  From  Para  to  New  York,  with  leave  to 
call  at  any  of  the  windward  and  leeward 
islands  on  the  passage,  to  discharge,  exchange 
and  take  on  the  whole  or  any  part  of  any  car- 
go at  any  ports  or  places,  particularly  at  all  or 
any  of  the  windward  or  leeward  islands.  She 
arrived  at  Barbados,  where  she  discharged 
cargo  and  took  in  a  quantity  of  sugar  with 
which  she  sailed  for  New  York,  intending  to 
call  at' St.  Bartholomew  and  St.  Tliomas,  two 
of  the  leeward  islands.  After  she  passed  St. 
Bartholomew  and  St.  Thomas,  she  was  lost 
off  Savannah.  She  had  called  at  the  two  is- 
lands for  the  purpose  of  getting  information 
as  to  the  state  of  the  markets.    Held,  calling 


at  the  two  islands  for  the  purpose  of  ascer- 
taining the  state  of  the  markets  was  a  pur- 
pose  entirely  unconnected  with  the  voyage, 
aud  was  therefore  a  deviation  which  dis- 
charged the  insurer.  Hammond  v.  Reid,  i  B. 
&  A.,  73. 

37.  She  was  insured  from  Hull  to  her  port 
or  ports  of  loading  in  the  Baltic  and  Gulf  of 
Finland,  with  liberty  to  proceed  to,  touch  and 
stay  at  any  port  or  ports  whatsoever  for  any 
purpose,  particularly  at  Elsinore.  She  dis- 
charged some  cargo  at  Elsinore,  also  at  Dant- 
zic,  and  was  proceeding  to  Pillau  to  deliver 
the  remainder  of  her  cargo,  when  in  sight  of 
the  latter  place  she  was  lost  by  perils  of  the 
sea.  Held,  the  liberty  to  touch  at  any  port,  for 
all  purposes,  meant  purposes  connected  with 
the  voyage,  which  was  from  Hull  to  a  port  of 
lading  in  the  Baltic.  If  she  had  gone  to 
Elsinore  or  Dantzic,  to  see  if  she  could  get  a 
cargo,  that  would  have  been  a  purpose  con- 
nected w^ith  the  voyage;  but  she  sailed  to 
these  ports  to  deliver  cargo,  a  purpose  wholly 
unconnected  with  the  voyage  insured,  which 
was  a  deviation  and  avoided  the  policy.  Sol- 
ly V.  Whitmore,  5  B.  &  A.,  45. 

38.  On  ship  at  and  fnmi  her  port  of  lading 
in  North  America  to  Liverpool.  She  took  or» 
part  of  her  cargo  at  K.,  New  Brunswick, 
sailed  for  B.,  seven  miles  distant,  same  bay, 
completed  her  cargo,  returned  to  K.  for  pro- 
visions, sailed  on  the  voyage  and  was  lost. 
Neither  B.  nor  K.  had  a  custom  house,  but 
were  on  creeks  which  opened  into  the  bay. 
Held,  K.  was  her  port  of  lading;  and  going  to 
B.  was  a  deviation  that  avoided  the  policy. 
Brown  v.  Tayleur,  4  A.  &  E.,  241 ;  5  L.  J.  (N. 
S.)  K.  B,  57;  5  N.  &  M.,  473. 

39.  To  ports  on  the  coast  of  Spain,  includ- 
ing T.arragona,  but  not  higher  up  the  Medi^e^- 
ranean.  The  master  intended  to  go  into  Tar- 
r.agona  but  a  current  carried  her  beyond  it,  in 
the  night,  and  being  ignorant  of  the  coast  he 
mistook  Barcelona  for  Tarragona.  She  was 
captured  while  entering  Barcelona,  which  was 
then  in  possession  of  the  French  army.  Held, 
a  deviation  which  resulted  from  the  ignorance 
of  the  master,  which  discharged  the  insurers. 
Tait  V.  Levi,  14  East,  481. 

40.  From  London  to  Preston.  The  jury 
found  that  she  was  driven  into  Liverpool  by 
stress  of  weather.  There  was  a  bill  of  lading 
for  Liverpool,  which  stated,  that  she  was 
bound    for    Liverpool;    oue    of   the    ship> 

207 


415 


DEVIATION. 


416 


'WTiat  is. 


advertising  bills  directed  "Application  to  be 
made  for  freight  or  passage  to  D.,  agent  for 
the  Liverpool  traders."  Ileld,  the  case  ought 
to  be  sent  to  anotlicr  jury.  Caltemll  v.  Taylor, 
S  L.  J.  C.  P.,  205. 

41.  From  Liverpool  to  any  of  the  wind- 
ward or  leeward  islands.  She  arrived  at  Do- 
minica, and  soon  after  went  to  Guadaloupe 
where  she  was  captured.  Held,  insurers  were 
released.  NieUon  ji-  Be  La  Cour,  2  Esi)., 
•619. 

42.  "  On  hull  and  machinery,  being  a  rein- 
surance subject  to  the  same  clauses  and  con- 
ditions as  the  original,  from  Liverpool  to 
Philadelphia  and  United  Kingdom."  In- 
dorsed, "  It  is  hereby  agreed  to  allow  the  ves- 
sel to  proceed  to  Baltimore  instead  of  Phila- 
delphia." At  the  time  she  sailed,  her  destina- 
tion beyond  Baltimore  was  not  fixed.  She  took 
a  cargo  of  wheat  at  Baltimore  for  Antwerp  and 
flailed,  her  destination  beyond  Antwerp  not 
l)eing  fixed.  January  1st  she  arrived  at  Ant- 
werp; January  2d  plaintiffs  having  learned 
that  she  had  sailed  from  Baltimore  to  Ant- 
werp, procured  the  policy  to  be  indorsed, 
"In  consideration  of  an  additional  premium 
of  f  per  cent,  being  paid  hereon,  and  which 
we  acknowledge  to  have  received,  it  is  here- 
by agreed  to  allow  the  vessel  to  go  to  Ant- 
werp." She  sailed  January  7th  from  Antwerp 
for  Leith,  on  which  voyage  she  was  totally 
lost.  Held,  the  agreement  to  allow  the  vessel 
to  go  to  Antwerp  gave  her  the  right  to  go 
there  or  to  the  United  Kingdom ;  possibly,  first 
to  the  United  Kingdom,  and  afterwards  to 
Antwerp,  but  it  did  uot  permit  her  to  go  to 
Antwerp  and  sail  thence  to  the  United  King- 
dom.    Stone  V.  Marine  Ins.  Co.,  1  Ex.  D.,  81. 

(d)  Delay. 

43.  "With liberty  of  touching  at  the  Cape 
de  Verd  Islands  on  her  outward  passage  for 
stock,  and  to  take  in  water."  She  arrived  at 
the  island  of  Fogo  May  7th,  and  took  in  four 
bullocks  and  four  jackasses,  water  and  other 
provisions.  Master  unstowed  the  dry  goods 
and  broke  open  two  bales  and  took  out  forty 
pieces  from  each  for  trade.  She  remained 
there  till  jMay  S-ith.  The  court  instructed  the 
jury  that  taking  in  the  jackasses  did  not 
avoid  the  policy,  unless  the  risk  was  thereby 
increased.  Held,  error,  because  the  insurers' 
liability  did  not  depend  upon  any  supposed 

208 


increase  of  risk,  but  wholly  on  a  departuro 
from  tlie  voyage;  the  consequence  of  a  de- 
parture was  immaterial,  because  the  depart- 
ure of  itself  discharged  insurers;  that  neces- 
sity alone  sanctions  deviation  but  tlie  devia- 
tion must  be  strictly  commensurate  with  the 
vis  major  which  is  the  cause  of  it.  Maryland 
Ins.  Co.  t.  LeRoy,  7  Cranch,  26. 

44.  "  At  and  from  Baltimore  to  Barcelona 
and  at  and  from  Barcelona  back  to  Balti- 
more." She  arrived  at  Barcelona  July  35th, 
remained  there  forty  days  at  quarantine,  went 
up  to  the  city  a  id  remained  there  until  Jan- 
uary 8th,  following.  She  then  proceeded  to 
Salou  for  the  principal  part  of  her  cargo 
which  she  took,  and  sailed  for  B.altimore,  but 
was  lost  on  the  voyage.  Her  delay  was  caused 
by  the  master's  apprehension  of  danger  in  re- 
spect to  the  dispute  between  Great  Britain 
and  the  United  States  about  the  Chesapeake 
frigate.  Held,  insurers  were  discharged,  be- 
cause it  appeared  from  the  evidence  that  after 
all  fear  from  British  cruisers  had  ceased  Nov- 
eiuber  28th,  she  was  readj-  for  sea  and  cleared 
for  Salou  December  1st,  but  when  in  the  act  of 
sailing,  information  was  given  that  the  Al- 
gerine  cruisers  were  out  capturing  American 
vessels,  the  master  was  therefore  advised  to  re- 
main in  port  awaiting  other  intelligence,  and 
did  not  sail  for  Salou  till  January  8,  which 
was  an  insufficient  excuse  for  the  delay. 
Oliver  V.  Maryland  Ins.  Co.,"  Cranch,  487. 

45.  She  was  permitted  to  go  to  Coro  in  addi- 
tion to  the  voyage  insured ;  but  before  arrival 
at  Coro,  she  put  into  Aruba  and  waited  there 
eight  days  to  take  a  supercargo.  Held,  the 
insurers  were  released.  Martin  v.  Delaware 
Ins.  Co.,  2  Wash.  C.  C,  254. 

46.  On  steamboat,  her  tackle,  etc.,  at  and 
from  Philadelphia  to  New  York,  with  liberty 
to  toiich  and  stay  at  any  ports  and  places  if 
thereunto  obliged  by  stress  of  weather  or 
other  unavoidable  accident.  She  stopped  at 
Chester,  an  interjacent  port,  to  repair  a  defect 
in  the  steam  chimney  which  existed  and  was 
known  to  her  owners  prior  to  her  depai'lure 
from  Philadelphia,  and  was  there  consumed 
by  fire.  ifsM,  insurers  were  discharged,  for 
she  had  not  the  right  to  touch  and  slay  at 
Chester,  except  compelled  by  stress  of 
weather  or  other  unavoidable  accident.  The 
purpose  for  which  she  stopped  was  not  ren- 
dered necessary  by  anything  that  occurred 
after  the  commencement  of  the  voyage  or  by 


417 


DEVIATION. 


418 


What  u. 


any  of  llie  perils  insured  against.    Audenried 
V.  MercaiUi'.c  Mut.  Ins.  Co.,  60  N.  Y.,  482. 

47.  Ou  a  voyage  from  St.  Louis  to  New 
Orleans.  She  stopped  I'or  twenty-four  hours 
to  transfer  cargo  from  another  steaml)oat, 
aground  in  the  Mississippi,  to  the  sliorc. 
Held,  a  deviation  whicli  released  the  insurers. 
Settle  V.  St.  Louis  Perpetual  Ins.  Co.,  7  Mo., 
379. 

48.  Where  the  jjolic}"  attaches  at  the  port 
<if  lading,  and  she  docs  not  sail  for  nearly 
four  months  afterwards.  Jleld,  the  delay,  un. 
accounted  for,  discharged  the  insurer.  Palmer 
v.  Marshall,  8  Bing.,  79;  1  L.  J.  (N.  S.),  C.  P., 
19;  8  Bing.,  317. 

49.  Ou  freight  at  and  from  Singapore  and 
Batavia,  both  or  eiilier  to  her  port  of  discharge 
in  Europe,  with  liberty  to  sail  to,  touch  and 
stay,  etc.  She  sailed  from  Loudon  in  Sep- 
tember, 1823,  was  detained  b^'  the  master,  for 
Jiis  own  purposes,  at  Van  Diemens  Land,  did 
uot  arrive  at  Singapore  till  March  30,  1825, 
and  sailed  thence,  on  the  voyage  insured, 
May  3d.  Held,  the  insurer  was  discharged. 
Mount  V.  LnrkiM,  8  Bing.,  lOS;  1  L.  J.  (N.  S.) 
C.  P.,  20. 

50.  On  a  yacht,  subscribed  .Tainiar}'  28th. 
She  was  not  fitted  out  till  May  following,  and 
■did  not  sail  till  the  17th.  Held,  the  insurers 
were  discharged.  Palmi'r  v.  Fenning,  9  Bing., 
400 ;  2  M.  &  Scott,  624. 

51.  Admitting  tb.at  necessity  compels  the 
substituion  of  a  voyage  for  that  insured,  it  is, 
nevertheless,  incumbent  on  the  insured  to 
pursue  the  voj'age  of  necessity  directly,  in  the 
shortest  and  most  expeditious  manner;  and, 
in  this  case  there  was  a  failure  so  to  do,  which 
avoided  the  policy.  Lavabre  v.  Wilson,  1  Doug., 
284. 

&2.  She  was  insured  from  coast  of  Africa 
to  West  Indies,  with  libert}'  to  exchange  goods 
and  slaves.  She  stayed  at  the  coast  of  Africa 
lor  several  months  as  a  receiving  ship  for  slaves 
which  were  afterwards  transferred  to  other 
ships  for  the  West  Indies.  She  stayed  there 
seven  months  beyond  the  usual  time  of  vessels 
engaged  in  that  trade.  Held,  a  deviation. 
Hartley  r.  Biiggin,  3  Doug.,  39. 

5i{.  "At  and  from  Liverpool  to  west  coast 
of  Africa,  during  her  stay  and  trade  there, 
and  baclc  to  a  port  in  the  United  Kingdom, 
she  being  held  covered  at  13s.  4d.  per  cent, 
per  month,  if  longer  than  twelve  months  out." 
She  sailed  in  July,  1869,  and  arrived  out  in 
14 


September  following.  She  took  cargo  aud 
left,  taking  in  more  cargo  at  different  places. 
She  was  at  Cabenda,  an  open  roadstead,  with 
hatches  battened  ready  to  sail,  November  24, 
18G9.  On  the  23th,  the  Robert  Jones  struck  on 
the  rocks  and  was  got  off,  but  sunk  a  short 
distance  from  the  ship  insured.  Her  cargo 
was  purchased  by  the  plaintiffs,  and  saved  by 
the  crew  of  ship  insured,  for  which  purpose, 
and  no  other,  the  ship  insuied  was  detained. 
Held,  a  deviation,  because  the  delay  was  not 
for  any  of  the  purposes  of  the  voyage.  Com- 
puny  of  African  Merchants  v.  British  and 
Foreign  Marine  Ins.  Co.,  8  L.  R.  Ex.,  154;  43 
L.J.  Ex.  60;  21  W.  R.,  484. 

54.  At  and  from  Montreal  to  Monte  Video. 
Effected  July  13th.  She  did  not  arrive  at 
Montreal  till  August  30th.  No  question  was 
asked  by  the  underwriter  where  the  ship  then 
was,  nor  was  information  offered  by  the  in- 
sured  on  that  subject  when  the  policy  was 
made.  Held,  there  is  an  implied  understand- 
ing that  the  risk  was  to  commence  in  a  reason- 
able time,  unless  the  policy  contained  express 
provision  on  the  subject,  hence,  insurers  were 
discharged.  DeWolfe  v.  ArcMngel  Maritime 
Bank  and  Ins.  Co.,  9  L.  R.  Q.  B.,  451 ;  43  L.  J. 
Q.  B.,  147 ;  33  W.  R.,  801. 

55.  On  ship  and  cargo.  At  and  from 
Georgia  to  Jamaica,  and  until  moored  twenty, 
four  hours  in  safety.  Held,  a  stay  at  Mon- 
tego  Bay  for  nearly  a  month  discharged  the 
insurers.     Leigh  v.  Mather,  1  Esp.,  412. 

66.  With  liberty  to  touch  and  stay  at  any 
port  on  her  passage.  She  was  driven  by  stress 
of  weather  to  Dublin,  where  she  remained  tea 
days,  and  while  there  broke  bulk.  Held,  in- 
surers were  released.  Stitt  v.  Wardell,  3  Esp., 
610. 

57.  From  Guernsey  to  Gibraltar,  with  liberty 
to  discharge  goods  at  Lisbon.  She  discharged 
part  cargo  at  Lisbon,  and  took  other  in  its 
place.  Held,  liberty  to  discharge  gave  her  no 
right  to  take  any  cargo.  Sheriff  v.  Potts,  5 
Esp.,  96. 

58.  At  and  from  Liverpool  to  any  port  or 
ports,  place  or  places  of  loading  and  trade,  on 
the  coast  of  Africa  and  African  islands,  dur- 
ing her  stay  aud  trade  there,  and  at  and  from 
thence  to  her  port  or  ports  of  discharge  in  the 
United  Kingdom,  backwards  and  forwards,  and 
forwards  and  backwards,  with  liberty  in  that 
voyage,  to  proceed,  sail  to,  and  stay,  at  any 
ports  or  places  whatsoever;  and  with  liberty 

209 


419 


DEVIATION. 


420 


What  is. 


to  tranship  on  board  any  vessel  or  craft,  and 
trt  be  used  as  a  tender  in  any  other  ship  or 
vessel  in  the  same  employ.  She  arrived  at 
Benin,  stayed  there  thirteen  months,  taking 
goods  from  a  vessel  in  the  same  employ,  at 
the  mouth  of  the  river  to  Camaroones,  and 
putting  them  on  board  another  vessel  in  the 
same  employ.  She  took  cargo  and  was  lost 
on  the  home  voyage.  Held,  she  was  not 
acting  as  ship's  tender;  that  her  employ, 
ment  amounted  to  a  deviation.  Hamilton  v. 
Sheddon,  3  Mee.  &  VV.,  49;  7  L.  J.  (N.  S.) 
E.\-.,  1. 

(e)  Making  and  securing  prize. 

59.  Ship  captured,  carried  to  Halifax, 
libeled  and  condemed  as  prize.  Before  she 
sailed  on  Jier  homeward  voyage,  the  master 
applied  for,  and  obtained  from  the  American 
minister,  a  commission  and  letter  of  marque, 
and  increased  his  armament  from  four  to  four- 
teen guns,  and  his  crew  from  thirty  to  seventy 
men.  The  consignees,  as  well  as  the  super- 
cargo, were  consulted  as  to  all  the  proceedings 
and  they  advised  the  taking  of  the  commis- 
sion, which  was  for  defense  only.  About 
tliree  or  four  days  from  France,  a  brig  was 
seen  standing  for  the  sliip  insured.  Slie  was 
taken  possession  of  by  the  ship  insured  and 
sent  into  France,  where  she  was  condemned. 
The  time  consumed  in  taking  and  manning 
the  brig  was  about  two  or  three  hours.  Held, 
a  deviation.  Held,  also,  the  acts  of  the  master 
were  not  barratrous,  and  insurers  were  dis- 
charged.    Wiggin  v.  Amory,  14  Mass.,  1. 

60.  On  ship  to  Fayal  and  return  to  Phila- 
delphia. She  arrived  at  Fayal,  and  sailed  in 
pursuit  of  the  sloop  Fly,  with  which  the  mas- 
ter and  her  mariners  had  fled.  She  was  to 
receive  £100  sterling  in  case  the  sloop  was 
recaptured,  the  money  to  be  for  the  joint  ben- 
etit  of  the  master  and  his  owners.  Held, 
though  the  master  stipulated  to  receive  a  part 
of  the  compensation  which  must  have  de- 
pended on  the  pleasure  of  his  owner!J,  there 
was  not  any  fraud  or  criminal  conduct  in  the 
transaction ;  hence,  his  conduct  was  not  barra- 
trous, but  a  deviation,  which  discharged  th-e 
insurer.  Hood  v.  Nesbitt,  1  Yeates,  114;  2 
Dall.,  137. 

61.  On  a  fishing  voyage,  with  liberty  to 
chase,  capture  and  man  any  prize  or  prizes. 
She  was  fitted  out  as  a  whaler,  with  thirty-two 

210 


guns  and  ninetj^-six  men.  Off  St.  Bias,  a  brig 
was  observed  taking  in  cargo,  to  sail  in  a  few 
days.  The  ship  insured  hauled  oflF  to  the 
Maria  Islands,  about  fifty-five  miles  north- 
west of  tlie  bay,  where  she  lay  ott'  and  on  for 
nine  days.  After  the  vessel  had  finished  her 
loading  and  put  to  sea,  they  took  her  as  prize 
to  Port  Jackson.  Held,  the  plaintiff  must 
suffer  a  nonsuit,  tliough  she  lay,  while  waitin;^ 
for  the  prize  to  come  out,  within  the  limits  of 
her  fishing  ground.  Hibbert  v.  Halliday,  2 
Taunt.,  42S. 

62.  She  took  a  letter  of  marque,  and  waj 
afterwards  captnred.  Held,  the  insurers  wera 
discliarged.  Deni<<on  v.  Modigliani,  5  Term, 
580. 

6.S.  "  On  ship  on  a  fishing  voyage,  with 
leave  to  cruise  for,  chase,  capture,  man,  and 
see  into  port  any  ship  or  ships  of  the  ene- 
mies," etc.  After  she  left  Rio,  in  the  begin- 
ning of  August,  she  captured  a  merchant 
vessel,  which  was  very  leaky,  and  took  her  to 
St.  Catherines  and  remained  there  a  month, 
took  the  cargo  out,  reloaded  it,  and  repaired 
the  prize,  and  remained  with  her  while  all 
this  was  being  done.  Held,  a  deviation.  Jar- 
ratt  V.  Ward,  1  C.imp.,  263. 

64.  On  ship  "With  or  without  letters  of 
marque,  valued  at  £6,000,  and  on  slaves  and 
goods,  as  interest  may  appear,  at  and  from, 
Liverpool  to  the  coast  of  Africa,  during  her 
stay  and  trade  there,  at  and  from  thence  to  her 
port  or  ports  of  sale,  discharge,  and  final  des- 
tination in  the  British  and  foreign  West  In- 
dies and  America,  with  leave  to  chase,  capture 
and  man  prizes."  Held,  liberty  to  chase,  cap- 
ture and  man,  cannot  be  extended  beyond  what 
was  necessary  for  those  acts;  that  convoying 
the  prize  afterwards  did  not  arise  out  of  that 
liberty;  thatslackeningof  sail  for  the  purpose 
of  convoying  the  prize  was  a  deviation  which 
annulled  the  policy.  Lawrence  v.  Sydebothamf. 
6  East,  45;  2  Smith,  214. 

(f)  Mismanagement  or  negligence. 

6.5.  On  cargo  on  board  a  flatboat.  A  col- 
lision  occurred  between  a  steamboat  and 
the  flatboat,  which  caused  her  to  leak.  The 
master  made  her  fast  to  the  side  of  a  steam, 
boat,  and  she  was  towed  along  until  she  sank 
and  the  cargo  was  totally  lost.  Held,  prose, 
cuting  the  balance  of  the  voyage  between. 
Vicksburg  and  New  Orleans,  after  the  injury 


421 


DEVIATION. 


422 


What  is. 


occurretl,  was  a  doviatiim.  Stewart  v.  Tennes- 
see Marine  and  Fire  Ins.  Co.,  1  Humpli.,  242. 
6C.  On  cargo,  laden  upon  a  steamboat,  from 
Grand  Gulf,  Miss.,  to  New  Orleans,  La.  She 
took  a  brig  in  tow  at  Natchez,  made  fast  to 
her  starboard  slue;  was  compelled  to  stop,  be- 
cause the  weather  was  such  she  could  not 
make  headway  with  the  brig.  While  under 
way  with  her,  in  a  heavy  gale  and  chopping 
sea,  steamer  commenced  leaking  and  filled 
■very  rapidly;  in  consequence,  she  was  run 
ashore.  Held,  a  deviation  which  discharged 
insurers  and  rendered  the  carrier  liable  to  the 
shipper.  Natchez  Ins.  Co.  v.  Stanton,  10  Miss., 
340. 

(g)  Oheyiny  orders,  ship  of  war. 

67.  While  she  was  taking  in  her  cargo,  a 
sliip  of  war  ordered  her  tn  sea  to  examine  a 
strange  sail  in  the  offing,  bearing  enemies' 
colors,  which  order  slie  obeyed' without  force, 
threats  or  remonstrance,  and  returned  to  port. 
Held,  if  a  degree  of  irresistible  force  had  been 
exercised,  or  which  the  master,  as  a  good  sub- 
ject, should  not  have  resisted,  the  deviation 
would  have  been  excused;  but, in  the  absence 
of  all  such  evidence,  insurers  were  released. 
Phelps  V.  Auidjo,  3  Camp.,  350. 

(h.)  Hascue. 

68.  On  ship  and  freight  from  New  London 
to  Martinico,  and  at  and  from  thence  to  a  port 
of  discharge  in  the  United  States.  She  loaded 
at  Martinico,  sailed  for  United  States,  was 
captured  by  a  British  ship  of  war  a  prize  mas- 
ter was  put  on  board,  from  whom  she  was 
rescued  by  her  master  and  crew ;  but  she  was 
afterwards  retaken  by  another  British  vessel 
and  carried  to  Gibraltar,  libeled  and  con- 
demned as  a  prize.  Held,  the  crew  of  a  neu- 
tral vessel  cannot  determine  for  themselves 
that  an  arrest  made  by  a,  belligerent  is  without 
color  of  right.  The  neutral  must  submit  and 
rely  upon  the  justice  of  the  tribunals  of  the 
belligerent  nation  to  restore  him  to  his  rights. 
Held,  also,  a  rescue  of  a  neutral  vessel  detained 
by  a  belligerent  for  an  alleged  viol.ation  of 
neutrality  is  a  good  cause  of  comlemnation, 
and  that  a  loss  from  this  cause  is  not  within 
this  policy.    Robinson  v.  Jones,  8  Mass.,  536. 


(i)  To  avoid  perils  not  vnsv/red. 

69.  From  Liverpool  to  Savannah.  She  ar- 
rived off  Savannah  and  put  away  for  Amelia 
Island  to  avoid  seizure  under  the  nonimporta- 
tion  law  of  the  United  States.  Held,  a  devia- 
tion  to  avoid  a  peril  not  insured  againsL 
Breed  v.  Eaton,  10  Mass.,  22. 

70.  "AVarranted  against  any  capture  after 
December  1st."  Held,  putting  into  a  foreiga 
port  to  avoid  the  consequences  of  too  late  aa 
arrival  in  the  United  States  was  a  deviation. 
Murden  v.  South  Carolina  Ins.  Co.,  1  Mills 
Const.,  90. 

(j)  To  procv/re  medicines. 

71.  She  put  into  Plymouth,  out  of  the  rego. 
lar  course  of  the  voyage,  for  the  purpose  of 
getting  medical  assistance  for  the  master  and 
mate;  but  it  also  appeared  that  the  ship's  sur- 
geon  was  not  provided  with  proper  instru- 
ments  and  medicines.  Held,  the  deviation 
was  not  justified.  Woolf  v.  Glaggett,  3  Esp., 
257. 

(k)  Towing. 

72.  On  steamboat  for  six  montlis,  with  lib- 
erty to  navigate  the  Mississippi  and  such  trib- 
utaries as  are  suitable  to  her  class.  At  Natchez, 
she  took  the  brig  Augusta  in  tow,  bound  for 
New  Orleans.  At  Fort  Adams,  she  completed 
her  loading;  the  brig  took  some  cargo,  and 
she  again  took  the  brig  in  tow,  made  fast  to 
her  starboard  side.  Encountered  heavy  weath- 
er, and  both  steamer  and  brig  pitched  and 
strained  excessively;  she  commenced  filling 
very  rapidly.  She  was  grounded  to  prevent 
sinking,  and  was  afterwards  abandoned.  Held, 
the  business  of  towing  ships  is  entirely  sepa- 
rate and  distinct  from  all  things  connected 
with  or  incidental  to  the  navigation  of  the 
river  by  steamboats,  or  the  transportation  of 
freight  and  passengers;  insured  could  not  be 
permitted  to  subject  insurer  to  risks  not  as- 
sumed in  his  contract,  hence  insurers  were 
discharged.  Herman  v.  Western  Marine  and 
Fire  Ins.  Co.,  13  La  (0.  S.),  510. 

(1)  Trading. 
7.5.  Liberty  to  touch  at  a  place  gives  no 


2U 


423 


DEVIATION. 


4^4 


What  is  not. 


right  to  trade  there,  and  trading  is  a  deviation. 
United  States  v.  T/it  Paul    Shai-man,  Pet.  C. 

0.,  9y. 

74.  On  ship  from  Liverpool  to  the  coast  of 
Africa  and  the  African  Islands,  during  her 
stay  and  trade  there,  thence  to  Liverpool,  with 
liberty  to  exchange  goods  with  other  ships. 
It  w:U5  represented  "  That  we  purcliase  no 
slaves,  nor  does  the  ship  go  to  the  West  Indies ; 
we  barter  the  produce  and  manufacture  of  this 
country  for  the  produce  of  Africa,  dye  woods, 
etc."  Slic  took  in  a  quantity  of  harwood  and 
ivory  at  Gaboon,  with  which  she  proceeded  to 
Callibar,  where  she  met  the  George,  into 
which  she  put  all  her  ivory  and  spare  bar- 
wood,  and  received  from  the  George  all  that 
(hen  remained  of  her  outward  cago,  the  inten- 
tion being  to  exert  both  ships  to  dispatch  the 
George  with  a  full  cargo  before  the  ship  in- 
sured began  to  trade  on  her  own  account. 
The  fact  of  mutual  or  combined  trading  was 
not  communicated  to  the  insurers.  Held,  it 
was  a  deviation  which  avoided  the  contract. 
Tennant  v.  Henderson,  1  Dow,  334. 

75.  At  and  from  London  to  Berbice,  "With 
liberty  to  touch  and  stay  at  any  ports  and 
places  whatsoever  and  wheresoever,  for  all 
purposes  whatsoever."  She  sailed  with  a  fleet 
under  convoy,  arrived  oft"  Madeira,  began  to 
land  the  goods  which  she  had  for  that  place. 
The  convoy  sailed  without  her  and  she  was 
captured.  Held,  the  liberty  in  the  policy  must 
be  construed  in  reference  to  the  main  scope 
of  the  voyage  insured,  and  putting  into  Ma- 
deira and  staying  there,  for  the  purposes  of 
trade,  was  a  deviation.  Williams  v.  Shee,  3 
Camp.,  469. 

76.  On  ship  at  and  from  Liverpool  to  the 
coast  of  Africa  and  the  African  islands,  and 
thence  back  to  Liverpool,  with  liberty  to  ex- 
change goods  with  other  ships  and  to  proceed 
and  sail,  to  touch  and  st.ay  at  any  ports  what- 
soever and  wheresoever,  without  being  deemed 
a  deviation.  She  traded  with  another  ship 
and  they  acted  as  mutual  tenders  to  each 
other.  Held,  the  policy  was  vitiated,  for  it 
did  not  allow  trade  and  mutual  tender.  Hen- 
derson V.  Felters,  Faculty  Dec,  1810  to  1812, 
p.  518. 

(m)  Transhipment. 

77.  On  merchandise  from  St.  Louis  to 
Council  Bluffs.    In  endeavoring  to  round  a 

212 


point  above  St.  Josephs,  she  was  caught  in  an 
eddy,  forced  towards  the  rjver  bank,  her  cabin 
broken,  her  chimneys  came  in  contact  with  a 
tree  and  were  broken  off;  one  of  tliem  entire- 
ly lost.  She  could  not  then  make  steam 
enough  to  proceed  with  the  cargo  and  was 
obliged  to  return  to  St.  Josephs  where  there 
was  ample  storage  room  for  the  cargo.  It 
would  h.ive  t.aken  twelve  days  to  have  made 
the  trip  to  St.  Louis,  make  repairs  and  return 
to  St.  Josephs,  or  to  have  procured  the  chim- 
neys from  St.  Louis  and  put  them  on  at  St. 
Josephs.  She  contracted  with  another  steamer 
to  carry  the  goods  forward,  transhipped  them, 
and  this  latter  vessel  was,  by  a  peril  of  the 
river,  sunk,  so  that  a  part  of  the  goods  insured 
were  lost.  Held,  the  detention  necessary  to 
make  repairs  would  not  have  been  sufficient 
to  break  up  the  voyage,  so  as  to  make  it  the 
master's  duty  to  tranship;  the  first  boat  was 
not  justified  in  putting  the  goods  into  another 
bottom ;  hence  the  transhipment  was  made  at 
the  risk  of  the  carrier  and  therefore  released 
the  insurers.  Salisbury  v.  St.  Louis  Marina 
Ins.  Co.,  23  Mo..  5.53. 

78.  "  On  goods  from  Liverpool  to  any  port, 
ports  or  places  on  the  Canton  river  on  the 
coast  of  China  or  islands  adjacent,  inclusive 
of  Manilla,  with  libertj-  to  wait  at  any  port  or 
place  until  the  intended  port  or  place  of  dis- 
charge can  be  entered,  including  risk  of  craft 
until  she  shall  arrive  at  her  final  port  or  place 
of  discharge,  and  until  the  same  be  there  dis" 
charged  and  safely  landed  with  liberty,"  etc. 
The  whole  of  the  goods,  except  four  bales, 
were  transhipped  to  the  James  Lang  at  Hong 
Kong.  Held,  there  was  no  authoritj-  for  tran- 
shipping the  goods,  because  the  vessel  in 
which  they  were  insured  was  still  seaworthy 
at  Hong  Kong ;  and  as  there  was  no  intention 
to  return  them  to  the  ship  in  which  they  were 
insured,  that  was  a  departure  from  the  pur- 
pose of  the  voyage  which  released  the  in- 
surers. Bold  V.  Rothernm,  8  Q.  B.,  797;  15  L. 
J.  Q.  B.,  274;   10  Jur.,  878. 

II.  What  is  not. 

(a)  Of  attempts  to  save  life. 

1.  If  the  object  of  tlie  deviation  be  to  save 
the  life  of  man,  the  humanity  of  the  motive 
and  the  morality  of  the  act  give  it  a  strong 
claim  to  indulgeuce;  but,  after  that  object  is 


425 


DEVIATION. 


426 


What  is  not. 


effected,  if  tlie  delay  be  continued  or  the  rislv 
increased  by  adding  to  llie  cargo  or  diminish- 
ing (lie  crew,  or  by  any  other  means,  for  tlie 
jiurpose  of  saving  properly,  it  is  a  de\  iation 
and  (lie  insurers  are  discharged.  Bund  e.  Brig 
Cora,  2  AVash.  C.  C,  80. 

2.  A  delay  to  sa\  e  the  crew  of  a  wrecked 
and  sinking  ship,  whose  lives  are  in  jeopardy, 
is  not  a  deviation.  The  Boston,  1  Sumn.,  328; 
The  Henry  Ewhank,  id.,  400. 

3.  She  w.as  passing  by  Gibraltar  when  the 
captain's  wife  w.as  on  deck  to  look  at  the  rock, 
turning  to  go  down  into  the  cabin,  she  missed 
her  footing  and  fell  a  distance  of  six  feet. 
She  was  in  the  third  month  of  pregnancy. 
The  vessel  was  brought  to  anchor,  a  boat  sent 
ashore  for  a  physician,  and  the  vessel  re- 
mained there  eleven  days.  While  she  so  re- 
mained, some  little  cargo  was  taken  in.  Held, 
where  the  object  of  the  departure  from  the 
course  is  to  carry  relief  to  mariners  or  pas- 
sengers destitute  or  sufl'ering  on  board  other 
vessels,  it  is  justifiable;  the  rule  is  not  confined 
to  such  cases,  and  it  can  make  no  difference 
whether  the  object  of  the  departure  is  to  alle- 
viate the  distress  and  administer  to  the  ne- 
cessities of  persons  lawfully  on  board,  or 
strangers  suflering  from  disasters  sustained 
by  the  loss  or  wreck  of  another  vessel,  for  the 
dictates  of  humanity  are  as  forcible  in  the  one 
as  in  the  other  case,  and  it  would  be  strange 
if  the  law  recognized  any  discrimination  be- 
tween them.  Perkins  v.  Augusta  Insurance 
and  Banking  Co.,  10  Gray,  312. 

(b)  Of  necessary  deviation. 

4.  She  put  into  Havana,  h.aving  run  short 
of  water.  Held,  it  would  not  be  a  deviation 
if  the  want  of  water  fairly  existed,  and  a  suf 
ficient  quantity  for  the  ordinary  voyage  had 
been  taken  at  the  port  of  departure.  Wood  v. 
Pleasants,  3  Wash.  C.  C,  201. 

5.  On  goods  at  and  from  Guadaloupe  to  a 
port  in  France,  on  the  Atlantic.  Instead  of 
going  direct  she  stopped  at  Santos,  which  was 
proved  to  be  the  safest  and  most  usual  route 
in  time  of  war.  Held,  if  she  went  there  with 
an  honest  intention  to  avoid  British  cruisers 
and  remained  no  longer  tham  was  necessary, 
the  deviation  was  excused.  Goyon  v.  Pleas- 
ants, 'i  Wash.  C.  C,  241. 

6.  At  and  from  New  York,  with  liberty  to 
touch  at  two  ports  on  the  north  side  of  Cuba ; 


the  adventure  to  continue  till  the  goods  are 
safely  lauded  at  Barracoa.  She  remained 
there  from  June  20th  till  October  oOth,  without 
bcriiig  able  to  sell  the  whole  cargo.  Held,  the 
stay  did  not  amount  to  a  deviation.  Oilvert  v. 
Uallet,  2  Johns.  C,  297. 

7.  Surinam  to  New  York.  The  master  de- 
termined to  take  the  leeward  passage,  touched 
at  Demerara  to  get  the  protection  of  a  British 
convoy  then  about  to  sail.  After  coining  to 
anchor,  a  gale  of  wind  drove  him  to  sea.  He 
continued  on  the  voyage  without  convoy,  and 
was  captured  by  a  French  privateer.  Held, 
no  deviation,  because  it  appeared  he  acted 
bona  fide  to  avoid  French  privateers  cruising 
in  the  windward  passage.  Patrick  v.  Ludlow, 
3  Johns.  Ch.,  10. 

8.  "On  ship,  against  sea  risks  only,  fron\ 
New  Orleans  to  Cape  St.  Nicholas  Mole, 
thence  to  Port  Republican,  Cape  St.  Francois, 
or  St.  Thomas."  She  met  with  heavy  weather 
and  commenced  leaking;  when  within  seventy 
miles  of  the  Mole,  in  sight  of  it,  a  British 
cruiser  turned  her  away  because  it  was  block- 
aded. She  then  made  for  St.  Thomas,  but 
stress  of  weather  drove  her  to  Jamaica,  where 
she  was  condemned  as  not  worth  repairing. 
Held,  necessity  excused  the  deviation;  that 
insurers  were  liable.  Robinson  v.  Marine  Ins. 
Co.,  2  Johns..  89. 

9.  The  master  took  the  Sound  instead  of  the 
Narrows  to  the  Hook,  the  latter  being  the 
least  dangerous  and  most  usual  route.  Heli, 
not  a  deviation,  because  there  were  several 
British  ships  ofl'  Sandy  Hook,  and  there  was 
much  apprehension  of  danger  from  them ;  to 
avoid  tliem  was  a  prudent  exercise  of  discre- 
tion. Beede  v.  Commercial  Ins.  Co.,  3  Johns., 
353. 

10.  Several  policies  on  the  Radius  and  her 
cargo  from  New  York  to  St.  Sebastian  or  Pas- 
sage; if  turned  off,  or  the  captain  thinks  it 
prudent  not  to  enter,  liberty  to  proceed  to 
Tonningen:  "Warranted  American,  and  not 
to  abandon,  if  detained  or  captured,  till  six 
months  after  notice,  unless  previously  con- 
demned, nor  if  refused  admittance  or  turned 
away,  but  may  proceed  to  any  other  near  apen 
port."  She  was  pursued  by  a  British  cruiser, 
and  for  the  purpose  of  evading  her,  she  at- 
tempted to  fetch  San  Antonio;  but  on  account 
of  the  wind  and  tide  she  failed,  and  came  to 
anchor  about  half  a  league  off  San  Antonio; 
St.   Sebastian    being    about    twenty    leagues 

2ia 


427 


DEVIATION. 


428 


What  is  not. 


further.  She  was  seized  by  the  authorities  of 
the  port,  who  took  out  lier  cargo  and  never 
restored  it;  and  she  remained  there  until  the 
place  was  taken  by  the  English  and  Spanish 
forces.  The  vessel  was  taken  by  an  English 
frigate  to  Corrunna  as  prize  of  war.  Held,  go- 
ing to  San  Antonio  was  not  deviation  under 
the  circumstances.  Fust  v.  Phxriix  Ins.  Co., 
10  Johns.,  80. 

11.  On  cargo,  from  Carlsham  to  St.  Peters- 
burgh.  After  taking  a  pilot  for  St.  Peters- 
burgh,  it  was  thought  prudent  to  get  into  the 
Bay  of  Revel;  but  it  was  found  impossible  to 
do  so  before  night,  so  she  bore  away  for  Port 
Baltic,  off  which  she  came  to  anchor  Novem- 
ber 22d.  Upon  inquiry,  it  was  found  impossi- 
ble to  get  into  Cronstadt,  and  she  proceeded 
for  Bevel,  about  twenty-five  miles  distant,  and 
got  aground  on  a  shoal  off  Surp  Point,  where 
she  filled  with  water.  Held,  no  deviation,  be- 
cause the  master  acted  bona  fide.  0-raham,  v. 
Commercial  Ins.  Co.,  11  Johns.,  353. 

12.  Ship  sailed  November  26,  1802,  with 
Vineyard  Pilot.  Captain  intended  to  stop  at 
Vineyard  to  put  off  his  wife  and  pilot.  In- 
sured knew  of  the  captain's  intentions,  but 
iusurtrs  did  not.  There  were  two  routes  to 
the  port  of  destination  —  South  Channel  and 
the  Vineyard  Sound.  The  evidence  was  con- 
flicting as  to  which  was  the  usual  route.  Held, 
the  question  of  fact  to  be  ascertained  was, 
■whether  either  of  the  routes  had  so  far  ac- 
quired an  ascendency  over  the  other  as  to  ob- 
tain the  character  of  the  usual  route;  that  the 
master  was  bound  to  pursue  the  usual  route, 
unless  necessity  required  him  to  take  the  other. 
Brazier  v.  Clap,  5  Mass.,  1. 

13.  Imminent  danger  of  capture  justifies  a 
delay  in  sailing;  and  if  viewed  as  a  deviation, 
Is  justified,  when  it  is  done  to  avoid  a  peril  in- 
sured against.  Whitney  v.  Haven,  13  Mass.,  172. 

14.  On  goods,  from  one  port  to  another, 
with  lil)erty  to  call  at  an  intermediate  port. 
She  discharged  her  deck  load  at  the  interme- 
diate, and  from  necessity  put  into  another 
port,  where  she  took  another  deck  load; 
neither  delay  nor  change  of  risk  occurred. 
Held,  no  deviation.  Chase  v.  Eagle  Ins.  Co., 
5  Pick.,  51. 

15.  The  master  intended  to  deviate  by  put- 
ting into  an  intermediate  port;  but  the  evi- 
dence showed  tiiat  necessity  was  the  imme- 
diate cause  of  putting  in.  Held,  no  deviation. 
Eobar/  v.  Norton,  8  Pick.,  159. 


16.  If  the  vessel  makes  a  port  of  necc-ssity, 
a  voyage  thence  to  a  port  suitable  for  making 
repairs  is  a  voyage  of  necessitj',  and  is  pro- 
tected by  the  policj'.  Hall  v.  Franklin  Im. 
Co.,  9  Pick.,  466. 

1 7.  Slie  sailed  from  Portsmouth  in  the  fore- 
noon, March  5th,  bound  to  Guayama.  In  the 
evening  she  encountered  strong  gales  and 
heavy  seas,  and  about  midnight,  tacked  and 
ran  into  Gloucester  in  distress,  arriving  there 
early  in  the  morning  of  the  6th.  Her  owners 
resided  at  Newburyport,  and  they  ordered  her 
to  the  latter  place,  where  she  arrived  in  the 
afternoon  of  the  7th,  and  where  needful  re- 
pairs  were  made.  Held,  the  master  was  not 
bound  to  remain  at  Gloucester  to  make  the 
needed  repairs;  if,  in  the  exercise  of  good 
judgment,  sound  discretion,  and  good  faith, 
he  deemed  it  expedient  for  the  interest  of  all 
concerned  to  go  to  an  adjoining  port,  where 
the  vessel  could  be  refitted  with  greater  con- 
venience and  less  expense,  he  might  do  so; 
but  inasmuch  as  the  insurers  liad  paid  for 
those  repairs,  they  were  now  estopped  to  say 
that  the  vessel  had  deviated  before  they  were 
made.  Silloway  v.  Neptune  Ins.  Co.,  13 
Gray,  73. 

18.  On  ship  from  Philadelphia  to  Amster- 
dam, with  liberty  to  proceed  to  a  near  port  of 
discharge  if  she  should  be  turned  awaj-.  Was 
boarded  by  a  British  cruiser,  and  ordered  not  to 
proceed  to  any  place  at  war  with  Great  Britain, 
or  which  was  closed  against  British  ships,  but 
that  she  might  proceed  to  Great  Britain  or 
Ireland  for  directions.  The  master  put  into 
Falmouth,  and  in  consequence  of  head  winds, 
remained  there  some  time,  and,  hearing  of  the 
Milan  decree,  waited  four  months  for  a  convoy, 
and  sailed  for  the  Downs,  intending  to  proceed 
to  London  or  Amsterdam.  A  gale  drove  him 
into  the  Downs,  where  she  was  totally  lost. 
Held,  the  stay  at  Falmouth  was  justifl.able; 
that  his  intention  to  put  into  the  Downs  before 
he  left  Falmouth  was  an  intention  to  deviate 
and  not  deviation;  hence,  the  insurer  waa 
liable.  Snowden  v.  Phcenix  Ins.  Co.,  3  Binn., 
457. 

19.  Where  the  vessel  has  a  deck  load,  the 
master  is  not  bound  to  sacrifice  it  l)efore  devi- 
ating for  a  port  of  necessity.  Ameriain  Ins. 
Co.  V.  Francia,  9  Penn.  St.,  390. 

20.  "  On  ship  and  cargo  from  Baltimore  to 
Portland,  Oregon.  She  was  compelled  to  put 
into  Rio  for  repairs,  where  they  were  made, 


4-29 


DKVIATION. 


430 


'Whiit  is  not. 


and  the  master,  being  unable  to  procure 
money,  executed  a  bottomry  and  respondentia 
bond  on  ship  and  cargo,  with  interest  at  fifty- 
six  per  cent,  conditioned  that  she  should  call 
at  San  Francisco  and  pay  tlie  bond.  She 
sailed  from  Rio,  encountered  a  tempest,  in 
which  she  was  greatly  damaged,  and  com- 
pelled to  return,  where  she  was  condemned 
and  sold.  Held,  there  was  no  change  of  ulti- 
mate destination;  hence,' the  risk  continued 
until  an  actual  departure  from  the  route; 
therefore,  insurers  were  not  released.  Winter 
V.  DelaiDare  Mutual  Safety  Ins.  Co.,  30  Penn. 
St.,  331. 

21.  A  deviation  is  a  voluntary  departure, 
•without  necessity  or  cause,  from  the  usual 
■course  of  the  voyage ;  but  the  master  may  de- 
part from  the  regular  and  usual  course  of  the 
voyage  to  save  eitlier  ship  or  cargo  from  a 
lieril,  though  it  is  not  insured  against,  if 
necessity  or  reasonable  cause  impels  him  so 
to  do.  The  insurer  tacitly  assents  to  all 
reasonable  efforts  that  the  master  may  make 
for  the  property  insured,  and  consequently 
authorizes  the  usual  means  of  avoiding  urgent 
danger,  whether  it  be  from  a  peril  insured 
against  or  not.  Riggiii  v.  Patapsco  Ins.  Co.,  7 
H.  &  J.,  279. 

22.  "  At  and  from  Baltimore  to  Boston." 
The  cargo  was  laden  November  19th,  but  she 
<iid  nut  sail  until  December  23d.  Held,  unless 
the  delay  proceeded  from  causes  which  justi- 
fied  or  excused  it,  insurers  must  be  discharged. 
The  actual  causes  of  delay  were  questions  of 
fact  for  the  jury,  the  legal  sufficiency  of  such 
•causes  were  to  be  determined  by  the  court. 
Proceedings  in  admiralty  for  the  recovery  of 
debts  due  for  repairs  would  not  be  a  sufficient 
€xcuse;  but  inability  to  obtain  a  crew  would 
•excuse.  Augusta  Ins.  Co.  v.  Abbott,  12  JId.,  348. 

23.  On  freight  from  Havana  to  St.  Peters- 
burg. She  met  with  rough  weather  and  a 
heavy,  short  sea,  soon  after  leaving  port,  and 
commenced  leaking  so  badlj'  that  it  required 
three  thousand  strokes  of  the  pump  per  hour 
to  keep  her  free.  When  about  twelve  days 
•out,  the  crew  represented  that  they  were  ex- 
hausted by  their  labors  at  the  pump,  and  re- 
quired the  master  to  make  a  port.  He  could 
have  run  into  Boston,  l)Ut  was  afraid  tliat  a 
southwest  wind  which  prevailed  would  drive 
the  fog  into  the  bay,  and  he  ran  into  Portland. 
Meld,  the  master  must  necessarily  be  the  prin- 
«ipal  judge  of  the  degree  of  peril  to  which  his 


vessel  is  exposed,  and  of  her  abilitj'  to  proceed 
to  a  nearer  or  more  distant  port,  and  of  the 
facilities  of  repairing  her  at  different  ports; 
that  his  decisions  respecting  these  matters, 
made  in  good  faith,  must  be  satisfactory  to  all 
interested,  although  he  should  err  in  judg- 
ment; there  was  no  testimony  in  the  case 
tendiug  to  prove  that  in  selecting  Portland  as 
a  port  of  necessity  he  was  acting  in  bad  faith, 
and  therefore  the  deviation  was  justified. 
Turner  v.  Protection  Ins.  Co.,  35  Me.,  515. 

24.  She  sustained  damages  during  a  gale, 
and  it  became  necessary  for  her  to  seek  a  port 
of  rejiair  out  of  the  voyage  insured.  Held,  no 
deviation.  Alcin  v.  Mississippi  Marine  and 
Fire  Ins.  Co.,  16  Martin  (La.),  661. 

25.  From  New  Orleans  to  Clark's  Landing 
on  the  Rio  Brazos.  She  arrived  off  the  mouth 
of  the  river  and  took  a  pilot,  and  under  his 
directions  attempted  to  enter,  but  grounded, 
floated  off  and  made  considerable  water. 
There  was  not  suflicient  depth  of  water  to  en- 
able her  to  pass  the  bar.  She  put  into  Galves- 
ton Bay,  the  nearest  port  to  her  destination. 
Held,  to  authorize  a  deviation  there  must  be  a 
necessity  for  it;  but  that  necessity  is  not  in  all 
cases  to  be  tested  by  the  result;  it  is  sufficient 
if,  under  the  circumstances  of  the  case,  there 
was  justifiable  ground  for  the  master  to  devi- 
ate. Byrne  v.  Louisiana  State  Ins.  Co.,  19 
Martin  (La.),  126. 

26.  She  deviated.  Held,  if  it  was  caused  by 
stress  of  weather,  or  unavoidable  accidents,  or 
with  a  view  to  avoid  an  enemy,  it  was  no  de- 
fense to  the  action.  Miller  v.  Russell,  1  Bay.,  309. 

27.  Stress  of  weather  drove  her  from  her 
convoy,  and  compelled  her  to  bear  away  for 
another  port.  She  was  captured  while  out  of 
the  course  to  her  destined  port.  Held,  no  de- 
fense to  the  action.  Campbell  v.  Williamson,  2 
Bay.,  237. 

28.  If  there  is  danger  of  proceeding  on  the 
voyage,  and  the  ship  needs  repairs  and  goes 
to  llie  nearest  place  for  them,  that  is  no  devia- 
tion.   Motteux  V.  London  Ass.  Co.,  1  Atk.,  545. 

29.  A  vessel  insured  may  alwa3s  do  what- 
ever would  be  expedient  if  uninsured.  What- 
ever  is  necessary  for  the  safety  of  the  ship  may 
be  done,  provided  it  be  not  excluded  by  the 
terms  of  the  policy.  H'Aguilar  v.  Tobin,  Holt 
N.  P.,  185. 

30.  "  From  Archangel  to  London."  Under 
stress  of  weather,  and  in  order  to  refit,  she  put 
back  to  Archangel.    There  were  other  porta 

215 


431 


DEVIATION. 


432 


Wtat  is  not. 


nearer  to  the  place  where  she  received  the 
damage;  the  jury  were  of  opinion  tliat  Arch- 
angel was  the  most  proper  place  for  making 
the  repairs.  Held,  no  deviation.  Morgan  v. 
Oswild,  3  Taunt.,  554. 

31.  "Warranted  free  of  capture  and  seizure, 
and  the  c6nsequences  tliereof  in  port  La 
Guayra."  She  began  to  take  in  her  cargo 
there  May  16th ;  was  about  half  loaded  when> 
the  Spanish  patriots  advanced  upon  the 
place,  and  she  was  forced  by  the  magistrates 
there,  to  take  on  board  a  great  number  of  per- 
sons as  passengers  who  were  afraid  of  being 
massacred.  She  cut  her  cables  July  7th,  .and 
proceeded  to  sea  under  the  protection  of  an 
English  ship  of  war  bound  to  St. Thomas;  but 
being  too  light  she  fell  to  leeward,  and  for  the 
purpose  of  repairing  her  helm  and  complet- 
ing her  homeward  cargo,  she  put  into  Jacmel 
and  was  wrecked.  Held,  to  avoid  a  loss  by 
capture  and  seizure  in  port  for  which  the  in- 
surers would  not  have  been  liable,  she  cut 
lier  cables  and  put  to  sea,  which  discharged 
the  insurers.  (O'Reilly  v.  Royal  Exchange 
Ass  Co.,  4  Camp.,  246.)  But  in  a  policy  upon 
freight  which  contained  no  warranty  against 
seizure  in  port,  it  was  Iield,  putting  to  sea  to 
preveut  a  loss  by  seizure  in  port  for  which  in- 
surer would  have  been  liable,  did  not  dis- 
charge the  insurers.  O^Reilly  v.  Oonne,  4 
Camp.,  249. 

32.  Whenever  a  ship  is  driven  by  stress  of 
weather  from  her  own  port  into  another,  that 
shall  not  be  treated  as  a  deviation.  Helaay 
t).  Stoddart,  1  Term,  22. 

33.  On  ship  and  freight  from  her  ports  on 
the  coast  of  Spain  to  London,  with  liberty  to 
touch  and  stay  at  iiny  port  or  place  whatever. 
She  was  compelled  to  put  into  Gibraltar  for 
provisions;  and,  while  taking  them  in, specie 
was  taken  as  freight.  Held,  it  was  proper  for 
the  jury  to  find  whether  the  going  to  Gibral- 
tar was  a  necessity  in  order  to  obtain  a  proper 
stock  of  provisions,  and  whether  the  stay 
there  was  longer  than  was  necessary  for  that 
purpose;  the  taking  of  the  specie  did  not,  per 
se,  vary  the  risk.    Raine  v.  Bell,  9  East,  195. . 

34.  From  London  to  the  ship's  port  or 
ports  of  discharge  in  the  Baltic,  with  liberty  to 
touch  at  any  port  or  ports  for  orders  or  any 
other  purpose,  and  to  touch  and  stay  at  any 
ports  or  places  whatsoever  or  wheresoever. 
She  touched  at  Carlsham  for  orders  and  was 
directed     to     proceed     to     Swinenuinde,   a 

216 


Prussian  port,  higher  up  in  the  Baltic,  for 
orders,  off  which  she  arrived  and  lay  off  and 
on.  The  master  was  instructed  to  return  to 
Carlsham  because  it  was  unsafe  to  land  at 
Swinemunde.  She  arrived  at  Carlsham,  hav- 
ing sustained  heavy  sea  damage,  and  was 
obliged  to  procure  repairs  at  Carlsham; 
while  there,  her  papers  and  cargo  were  seized. 
Held,  no  deviation.  Hellish  v.  Andrews,  2 
Mau.  &  Sel.,  27 ;  ailirmed,  Andrews  v.  Mellish, 
5  Taunt.,  496 ;  see  Mellish  v.  Andreics,  15  East, 
4;  16  id.,  312. 

(c)  Of  involuntary  deviation. 

35.  "  At  and  from  New  York  to  the  Cape 
of  Good  Hope,  with  liberty  to  proceed  to  and 
trade  at  the  Isle  of  France,  and  any  other  port 
or  ports  in  the  Indian  Seas,  and  at  and  from 
the  ports  she  may  go  to  and  back  to  New 
York,  with  liberty  to  touch  and  trade  as  usual 
on  the  outward  and  homeward  voyages."  She 
touched  at  the  Isle  of  France  and  Trincomala, 
proceeded  to  Madras  and  sold  part  of  her 
cargo,  thence  to  Tranquebar,  where  she  took 
in  cargo  and  proceeded  to  Batavia,  sold  every- 
thing except  goods  taken  at  Tranquebar;  in- 
vested proceeds  in  cargo  there  and  sailed. 
After  she  sailed,  all  the  officers  died;  but  be- 
fore the  captain  died,  he  directed  one  of  the 
seamen,  ignorant  of  navigation,  to  take  the 
ship  to  the  Isle  of  France  and  deliver  her  to 
the  consul,  where  she  arrived  and  was  dis- 
patched under  command  of  a  British  sub- 
ject for  New  York,  but  w;is  lost  on  the  vov- 
agp.  Held,  no  deviation;  if  the  consul  acted 
irregularl}',  the  rights  of  the  insured  could  not 
be  prejudiced  thereby.  Winthrop  v.  Union 
Ins.  Co.,  2  Wash.  C.  C,  7. 

36.  On  ship  at  and  from  Boston  to  St. 
Thomas  and  a  market  in  the  West  Indies,  and 
at  and  from  thence  to  port  of  discharge  in  U. 
S.  She  arrived  at  St.  Thomas,  dischafged  a 
third  of  her  cargo,  received  a  quantity  of 
mackerel  for  ballast,  necessary  for  her  safety; 
she  proceeded,  and  when  off  Ponce,  Portv> 
Rico,  was  compelled  by  the  government  to 
enter  that  port,  although  there  was  no  market 
there  for  the  cargo,  where  she  landed  some  of 
the  mackerel  to  secure  payment  of  port  dues. 
She  proceeded  to  Guayama,  a  port  of  the  same 
island,  sold  part  of  her  cargo,  took  part  of  her 
return  cargo,  returned  to  Ponce,  sold  balance 
of  outw.ird  cargo,  and  completed  return  cargo^ 


433 


DEVIATION. 


434 


What  is  not. 


Slie  was  lost  on  the  homeward  vo3'age.  Held, 
no  deviation.  Dehlois.  v.  Ocean  Ins.  Go.,  IG 
Pick.,  303. 

37.  Ship  laden  for  an  American  port  to  re- 
turn with  a  cargo  of  timber,  entered  the  port 
during  an  embargo  under  wliicli  slie  was  per- 
mitted to  return  witli  cargo  on  board  or  to 
discharge  it,  and  return  in  ballast.  Slie  dis- 
charged cargo,  and  remained  there  eighteen 
months  until  the  embargo  was  taken  off,  then 
shipped  her  homeward  cargo,  and  was  lost 
upon  the  vo3'age.  Ileld,  the  insurers  were 
liable.  Schroder  v.  Thompson,  7  Taunt.,  403; 
1  Moore,  1C3. 

38.  From  Bristol  to  Newfoundland.  The 
crew  opposed  the  master's  directions,  and  com- 
pelled him  to  put  back.  Held,  not  a  devia- 
tion.    Elton  V.  Brogden,  2  Strange,  12G4. 

39.  At  and  from  Pillau  to  Loudon,  dated 
May  15, 1800.  She  had  arrived  at  Pillau,  May 
13th,  in  need  of  repairs,  which  were  made,  but 
she  was  not  ready  to  take  in  the  cargo  till 
June  27th.  Held,  the  delay  was  not  voluntarj', 
therefore  the  policy  was  valid.  Smith  v.  Sur- 
ridge,  4  Esp.,  25. 

40.  She  was  about  to  sail  from  Lisbon  to 
Madeira,  then  to  Saffl  in  ballast,  then  back  to 
Lisbon  with  a  cargo  of  wheat.  The  broker 
was  directed  to  make  three  insurances,  one  on 
the  ship,  for  the  round  voyage;  one  on  the 
freight,  from  Lisbon  to  Madeira,  and  one  on 
freight  from  SafH  to  Lisbon.  The  broker 
stated  that  he  had  received  intelligence  other 
arrival  at  Madeira;  that  she  was  about  to  pro- 
ceed on  her  voyage  immediately,  and  insur- 
ance was  made  on  the  voyage  from  Saffl  to 
Lisbon.  She  arrived  at  Madeira,  where  the 
crew  became  alarmed  by  a  report  that  there 
were  Moorish  cruisers  oil'  Saffi.  They  quitted 
the  ship  and  refused  to  return  unless  the  mas- 
ter would  sail  immediately  for  Lisbon.  Under 
these  circumstances  she  sailed  for  Lisbon,  and 
on  her  arrival  there,  charterers  insisted  on  her 
going  to  Saffi,  which  was  done;  on  her  return 
from  Saffi  to  Lisbon  she  was  captured.  Held, 
the  representation  was  true,  that  subsequent 
events  not  brought  about  by  the  misconduct  of 
the  insured  would  not  discharge  the  insurer; 
that  the  insurer  knew  that  all  was  e.\ecutor3', 
and  that  an  alteration  might  arise  which  might 
increase  the  risk.  DriscoU  v.  Passmore,  1  B. 
&  P.,  200;  DriscoU  v.  BoHll,  id.,  313. 

41.  On  goods  from  A.  to  B.,  against  sea  and 
fire  risks  only.    The  king's  ship  carried  her 


out  of  the  course  of  her  voyage,  and  aftei  wards 
released  her,  when  she  proceeded  on  the  voy. 
age  and  sustained  loss.  Held,  a  deviatioa 
never  puts  an  end  to  the  insurance  unless  it 
be  the  voluntary  act  of  those  who  have  the 
management  of  the  ship.  Scott  v.  Thompson, 
4  B.  &  P.,  181. 

(d)  Of  intention  to  demate. 

42.  From  New  York  to  Gottenburg,  thence 
to  one  port  in  the  Baltic.  At  Gottenburg  she 
elected  St.  Petersburg,  and  sailed,  but  was 
driven  back  by  stress  of  weather  to  Carlsham, 
where  she  was  compelled  to  winter.  There 
she  determined  to  go  to  Stockholm  instead  of 
St.  Petersburg,  and  sailed,  but  before  she 
reached  the  point  to  turn  off  for  Stockholm, 
and  while  on  a  course  to  both  places,  the  loss- 
occurred.  Held,  she  was  not  bound  to  elect  at 
New  York  the  Baltic  port;  that  it  was  a  mere- 
intention  to  deviate  from  the  voyage  to  St. 
Petersbtirg;  that  intention  to  deviate  is  not  de- 
viation, hence  insurers  were  liable.  Lawrenc* 
V.  Ocean  Ins.  Co.,  11  Johns.,  240. 

43.  If  the  vessel  is  lost,  the  insurer  is  lia- 
ble, notwithstanding  there  was  an  intentiou 
to  deviate:  prodded,  the  loss  occurs  before 
she  has  arrived  at  the  dividing  point.  An  in- 
tention to  deviate  is  not  deviation.  New  Fork 
■Firemen's  Ins.  Co.  v.  Lawrence,  14  Johns.,  46. 

44.  Term  polic}-,  warranted  not  to  use  cer- 
tain  ports,  including  ports  in  British  North 
America,  between  August  15th  and  May  15th. 
September  2Dth  she  sailed  from  Boston,  bound 
for  Lingau,  Cape  Breton,  for  the  purpose  of 
taking  a  cargo  of  coal.  She  was  lost  (^n  the 
coast,  wiihiu  sight  of  Louisburg  light,  about 
fifty  miles  from  the  port  of  Lingan.  Held, 
the  intention  to  enter  a  prohibited  port  was 
no  breach  of  the  warranty;  that  sailing  along 
the  coast  of  the  North  American  British  Prov- 
inces was  not  prohibited,  hence  the  insurer.'* 
were  liable.  Snotc  v.  Columbian  Ins.  Co.,  4S 
N.  Y.,  624. 

45.  Time  policy,  on  the  bai'k  Cora,  prohib- 
ited from  using  the  river  Min,  in  China.  She 
sailed  from  Shanghai  to  New  Chang,  at  the 
mouth  of  the  river  Lian  Ho,  in  northern 
China.  In  entering  the  river  she  was  dam- 
aged, but  not  to  such  an  extent  as  to  make  her 
unseaworthy.  She  took  a  cargo  for  Fu-chau- 
fu,  a  port  on  the  river  Min,  and  sailed,  but 
sustained  more  serious  injury  at  'he  mouth  o£ 

217 


435 


DEVIATION. 


436 


What  is  not. 


the  river  Lian  Ho.  Slie  arrived  at  Pagado, 
ten  miles  above  Kimpai  Pass,  on  the  river 
Min,  at  which  place  a  survey  was  held,  and  it 
was  decided  to  dismantle  and  sell  her.  It 
was  admitted  that  all  of  her  injuries  were  re- 
ceived prior  to  her  entering  the  river  Min. 
Held,  insurers  were  liable,  because  she  sus- 
tained the  damages  before  she  entered  the 
•waters  prohibited.  Bearm  v.  Columbian  Ins. 
€o.,  48  Barb.,  445. 

46.  An  intention  to  deviate  does  not  avoid 
the  policy,  and  if  the  loss  occurs  before  the 
intention  is  carried  into  effect,  the  insurer  is 
liable.    Thellusson  v.  Fergusson,  1  Doug.,  360. 

47.  On  goods  from  Heliogolund  to  Memel, 
•with  liberty  to  touch  at  any  ports,  and  seek, 
join  and  exchange  convoys.  She  sailed,  with 
orders  to  go  to  Gotteuburg,  there  to  ascertain 
whether  she  should  proceed  to  Anbolt  or 
Memel.  While  she  was  in  the  track  for 
Memel  or  Anbolt,  before  she  reached  the 
point  to  turn  off  for  Gottenburg,  she  was  cap- 
tured. Held,  there  was  an  inception  of  the 
■v.oyage  insured  under,  a  fluctuating  purpose ; 
that  the  master's  orders  amounted  to  an  unex- 
ecuted intention  to  deviate,  which  did  not  dis- 
charge the  insurers.  Heselton  v.  Allnutt,  1 
Mau.  &  Sel.,  46. 

48.  The  master  sailed  with  an  intention  to 
touch  at  a  place  not  permitted  by  the  policy; 
but  before  he  turned  off  she  was  lost.  Held, 
an  intention  to  deviate  is  not  deviation,  and 
does  not  affect  the  policy.  Kewley  v.  Ryan,  8 
H.  Black.,  343. 

49.  On  cargo  from  Liverpool  to  London. 
She  took  cargo  for  Southampton  as  well  as 
London,  intending  to  go  first  to  Southamp- 
ton. She  sustained  great  damage  before  she 
reached  the  dividing  point,  and  in  pumping 
the  water  seemed  to  hold  the  goods  insured 
(pcarlash)  in  solution  ;  but  there  was  no  heavy 
weather  after  she  turned  off  for  Southampton, 
nor  was  there  any  after  she  left  Southampton 
for  London.  The  loss  was  sixty  per  cent,  on 
the  pearlash.  Held,  the  insurer  was  liable  for 
the  damage  which  occurred  before  she  devi- 
ated. Hare  v.  Travis,  7  B.  &  C,  14;  5  L.  J. 
K.  B.,  348;  9D.  &  R.,  748. 

50.  From  Carolina  to  Lisbon,  thence  to 
Bristol.  Tlie  master  took  in  salt  for  Fal- 
mouth, intendins  to  deliver  it  there  before 
she  went  to  Bristol,  but  the  ship  was  taken  in 
the  direct  line  to  both,  before  she  reached  the 
roint  to  turn  off  for  Falmouth.    Held,  an  in- 

218 


tention  to  deviate  is  not  deviation,  hence  the 
insurers  were  liable.  Foster  v.  Wilmer,  2 
Strange,  1249.  ' 

(e)  Of  custom  or  usage. 

51.  Stipulated:  "  If  at  sea  at  the  expiration 
of  the  year,  the  risk  to  continue  at  the  same 
rate  of  premium  until  her  arrival  at  port  of 
destination  in  the  United  States."  She  was  in 
the  river  Maese  before  the  j-ear  expired,  wait- 
ing to  sail,  but  was  prevented  by  head  -winds 
and  a  heavy  sea.  She  proceeded  to  Newcastle, 
took  a  cargo  for  the  United  States,  and  was 
damaged  on  the  voyage.  Held,  going  to  New- 
castle was  not  such  a  deviation  as  would  dis- 
charge the  insurer,  if  the  master  was  governed 
by  the  exigencies  of  the  trade  in  which  she 
was  engaged.  Union  Ins.  Co.  v.  Tysen,  3  Hill, 
118. 

52.  From  Callao  to  the  Chincha  Islands, 
and  from  thence  to  New  York.  She  loaded 
with  guano  and  returned  to  Callao  for  her 
cleaiance,  and  sailed  thence  on  the  home 
voyage,  upon  which  she  was  lost.  Held,  if  her 
return  to  Callao  was  warranted  by  the  usage 
and  custom,  it  was  no  deviation.  Parsons  v. 
Manufacturers  Ins.  Co.,  16  Gray,  463. 

53.  For  a  fishing  voyage  to  the  Banks  and 
back  to  a  port  of  discharge  in  the  United 
States.  Two  of  the  crew  left  the  vessel  at  the 
port  of  departure,  but  she  sailed  with  a  sufli- 
cient  crew ;  two  additional  men  were  needed 
for  the  purposes  of  fishing.  She  proceeded  to 
Isle-au-Haut  for  the  purpose  of  completing 
the  fishing  crew,  conforming  to  a  usage  in 
that  respect.  Held,  no  deviation.  Folsom  v. 
Merchants  Ins.  Co.,  88  Me.,  414. 

54.  On  cargo  from  New  Orleans  to  Vera 
Cruz.  She  sailed  from  one  of  the  basins  in 
that  city,  from  the  lake  end  of  the  Pontchar- 
train  railroad,  passed  through  Lake  Borgue, 
calling  at  bay  St.  Louis  for  the  purpose  of 
procuring  a  pilot  to  conduct  vessel  through 
Pass  Christian.  Held,  no  deviation.  Pouverin, 
i>.  Louisiana  State  Ins.  Co.,  4  Rob.  (La.),  234. 

55.  On  slaves  from  Richmond  to  New  Or- 
leans. She  stopped  at  different  places  in  de- 
scending the  river  to  take  cargo  and  passen- 
gers, but  this  was  in  accordance  with  usage. 
Held,  no  deviation.  Lockett  v.  Merchants  Ins. 
Co.,  10  Rob.  (La.),  339. 

56.  The  commodore  signaled  ships,  await- 
ing convoy,  to  prepare  for  sailing,  and  about 


43i 


DEVIATIOX. 


433 


What  is  not. 


an  hour  after  he  signaled  them  to  weigh  an- 
chor; before  the  last  signal  was  given  a  boat 
came  alongside  the  ship  insured  with  eleven 
email  boxes  and  two  parcels  of  indigo,  which 
were  taken  on  board  about  the  time  the  last 
signal  was  given.  She  got  under  way  and 
was  amongst  the  foremost  of  the  fleet,  about 
seventy-six  sail.  Held,  it  did  not  afl'ect  the 
policy.    Laroche  n.  Oswiii,  13  East,  131.  • 

57.  Ou  the  William  Galley  from  Bremen  to 
London,  '•  Warranted  to  depart  with  convoy." 
She.  sailed  with  convoy  to  the  Elbe,  thence  to 
the  Texel,  where  she  found  a  squadron  of 
English  men  of  war,  from  which  she  was  sep- 
arated by  heavy  weather  and  was  subsequently 
captured.  Held,  the  voyage  ought  to  be  ac- 
cording to  usage,  and  as  there  was  no  convoy 
direct  for  ships  from  Bremen  to  London,  her 
going  to  the  Elbe  was  no  deviation.  Bond  v. 
Gonsales.  Holt  K.  B.,  469;  2  Salk.,  445. 

58.  "  At  and  from  her  loading  port  or  ports 
in  Amelia  Island,"  which  lies  near  the  mouth 
of  the  river  St.  ALirys.  There  was  no  port 
there.  She  took  in  her  cargo  at  Tiger  Island, 
paid  the  duties,  obtained  her  clearance  at 
Amelia  Island,  and  was  lost  cm  her  way  home ; 
but  it  was  proved  that  the  loading  was  accord- 
ing to  custom.  Held,  the  loss  was  within  the 
policy.    Moxon  v.  Atkins,  3  Camp.,  200. 

59.  "From  London  to  New  South  Wales, 
thence  to  the  ship's  loading  port  or  ports  in 
the  East  Indies,  Persia,  China  or  elsewhere, 
forwards  and  backwards  and  backwards  and 
forwards,  as  well  on  the  other  as  on  this  side 
of  the  Cape  of  Good  Hope,  in  ports  and  at 
sea,  at  all  times  and  in  all  places,  on  all 
services,  until  her  safe  arrival  at  her  final 
port  of  discharge  in  Great  Britain;  and  that 
it  should  be  lawful  for  her  in  the  voyage  in- 
sured, to  proceed  and  sail  to,  and  touch  and 
slay  at,  any  ports  or  places  whatsoever,  etc." 
She  carried  convicts  to  New  South  AVales,  pro- 
ceeded in  ballast  to  Batavia,  took  iron  there, 
discharged  it  at  Sourabaya,  and  took  a  full 
cargo  of  rice  there  for  the  Mauritius,  where  it 
was  ascertained  she  had  sustained  serious  in- 
jury in  the  course  of  the  voyage.  Held,  as  it 
■was  proved  that  the  mode  of  trading  was  usual 
in  voyages  of  that  description,  there  was  no 
deviation.  Armet  v.  Innes,  4  Moore,  150; 
Leathley  v.  Hunter,  7  Bing.,  517;  a.  c,  10  B.  & 
C,  858;  8  L.  J.  (K.  B.),  274;  affirmed,  9  L.  J. 
Ex.,  118;  s.  c,  5  M.  &  P.,  4.")7;  1  Tyrw.,  355. 

60.  "  On  ship,  freight  and  cargo,  lost  or  not 


lost,  from  Newfoundland  to  one  port  of  dis- 
charge in  Portugal,  or  to  any  port  of  discharge 
in  the  U.K."  She  was  employed  in  fisliing 
until  October  13th,  off  the  banks,  took  in  lier 
cargo,  sailed  for  England  December  23d,  and 
foundered.  Tiie  established  usage  showed 
that  ships  in  the  Newfoundland  trade,  after 
their  arrival  on  the  coast,  were  either  em- 
ployed  in  banking,  that  is  fishing  on  the 
banks,  or  upon  an  intermediate  voyage  to 
some  of  the  adjacent  settlements,  till  they 
begin  to  take  in  their  homeward  cargo;  and 
that  during  banking  or  the  intermediate  voy- 
age, the  custom  was  to  cover  the  sliip  by  a 
separate  insurance.  Held,  the  custom  must 
be  presumed  to  be  equally  in  the  knowledge 
of  both  parties,  that  the  employment  of  the 
ship  in  banking  was  no  deviation.  Vallance 
V.  Deicar,  1  Camp.,  503;  Ougier  v.  Jennings,  id., 
505,  n. ;  Kingston  v.  Knibbs,  id.,  508,  n. 

61.  "On  ship  from  Swan  River  to  Mauritius, 
and  for  thirty  days  after  arrival."  January 
14,  1857,  she  came  to  anchor  off  Port  Louis, 
at  the  Bell  Buoy,  about  a  quarter  of  a  mile 
from  shore,  where  the  master  awaited  the  ar- 
rival of  money  to  discharsre  a  bottomry  bond. 
On  the  28th  a  change  of  weather  was  signaled 
from  the  shore,  and  while  she  was  putting  out 
to  sea,  she  struck  a  coral  reef  and  became  a 
total  wreck.  It  was  usual  for  vessels  to  anchor 
at  the  Belle  Buoy  w'hether  about  to  enter  Port 
Louis  or  not,  but  it  was  dangerous  to  remain 
there  during  the  hurricane  months  —  Decem- 
ber to  April.  Held,  whether  a  vessel  has  ar- 
rived  -within  a  harbor  is  purely  a  question  of 
fact,  for  it  involved  an  inquiry  as  to  time  and 
place.  The  jury  found  that  she  had  arrived  at 
the  Mauritius,  hence  the  insurers  were  liable. 
Lindsay  V.  Janson,  4  H.  &  N.,  699;  28  L.J. 
Ex.,  315. 

(f)  Of  delay  at  port  of  sailing. 

62.  She  was  delaj-ed  at  the  port  of  lading. 
Held,  whether  that  was  a  deviation  was  a  ques- 
tion for  the  jury,  who  were  to  say  whether  it 
was  done  in  good  faith  and  sound  discretion, 
and  by  necessity,  or  for  a  reasonable  cause. 
Foster  v.  Jackson  Marine  Ins.  Co.,  Edra.  S.  0. 
N.  Y.,  290. 

G'i.  Whether  the  ship  remained  an  unrea- 
sonable  time  at  a  particular  place  is  a  ques- 
tion  of  tact  for  the  jury.  Bain  v.  Case,  3  0.  db 
P.,  490;  Moo.  &M.,  202. 

219 


439 


riEVIATION. 


440 


What  is  not. 


(>4.  After  the  master  had  obtained  his  man- 
ifest and  custom  house  clearances,  goods  of 
the  insured  were  put  on  board  by  the  paclier. 
Held,  no  defense  to  the  policy.  Carruthers  v. 
Gray,  15  East,  35 ;  3  Camp.,  143. 

65.  The  policy  was  effected  in  August,  1789, 
but  she  did  not  sail  until  the  ]ilarch  follow- 
ing. Held,  mere  lapse  of  time  between  the 
sailing  and  the  underwriting  was  not  of  itself 
sufficient  to  avoid  the  policy,  but  was  subject 
to  explanation;  and  whether  there  was  an 
abandonment  of  the  original  adventure  was  to 
be  decided  hy  the  jury,  from  all  the  existing 
circumstances.     &rant  v.  King,  4  Esp.,  175. 

(g)  Of  construction. 

66.  It  was  represented  that  she  would  stop 
at  Matanzas  to  know  if  there  were  any  men-of- 
war  off  Havana,  and  the  policy  was  made  on 
ship  and  freight  "  At  and  from  Teneritfe  to  Ha- 
vana, and  at  and  from  thence  to  New  York, 
with  liberty  to  stop  at  Matanzas."  She  put 
into  Matanzas  to  avoid  British  cruisers,  who 
were  then  off  Havana,  and  while  there  she 
unladed  her  cargo,  under  order  from  the 
Spanish  authorities,  proceeded  to  Havana, 
whence  she  sailed  for  New  York,  and  was  lost 
by  perils  of  the  seas.  Held,  there  was  no  suffi- 
cient excuse  for  discharging  the  cargo;  but 
unlading  it  there  caused  no  delay,  and  there- 
fore did  not  amount  to  a  deviation,  for  the 
stopping  and  delay  at  Matanzas  was  permitted 
by  the  policy.  Hughes  v.  Union  Ins.  Co.  3 
Wheat.,  159. 

67.  When  different  ports  are  to  be  visited 
for  the  purpose  of  selling  the  cargo,  the  owner 
has  the  right  to  limit  the  price  to  a  reasonable 
extent,  and  a  delay,  bona  fide,  for  the  purpose 
of  procuring  the  price  does  not  constitute  a 
deviation.  Columbian  Ins.  Co.  v.  Catlett,  12 
Wheat,  883. 

68.  She  had  been  detained  a  long  time  at 
Bayonne  to  obtain  leave  to  unload  her  outward 
and  take  in  homeward  cargo.  The  master  ap- 
plied to  the  American  minister  and  obtained 
from  him  a  letter  of  marque,  increased  his 
armament  from  four  to  fourteen  guns,  and  his 
crew  from  twenty-five  to  seventy  men,  for  pur- 
poses of  defense  only.  She  sailed  for  the 
United  States,  and  when  three  days  out,  a 
vessel  was  seen  standing  for  her.  Slie  made 
an  attempt  to  avoid  her.  but  as  the  two  ap- 
proached near  to  each  other,  the  master  ascer- 

220 


tained  that  the  supjiosed  enemy  had  but  a 
small  force.  He,  therefore,  wore  ship  and 
demanded  a  surrender,  which  was  immediately 
made  and  sent  her  to  France  as  a  prize,  wliere 
she  arrived  and  was  subsequently  condemned. 
The  ship  insured  was  afterwards  captured, 
carried  into  Halifax  and  condemned  as  prize 
of  war.  Held,  if  when  she  wore  round  to  at- 
tack  the  other,  it  was  for  the  purpose  of  self 
defense,  to  intimidate  the  enemy  and  to  repel 
a  meditated  attack  before  she  should  herself 
be  disabled,  then  the  act  was  not  a  deviation; 
but,  if  it  was  wholly  unnecessary,  and  not 
done  in  self  defense,  but  for  the  mere  pur- 
pose of  making  a  prize,  then  it  was  a 
deviation;  if  the  capture  was  made  in  self 
defense,  the  master  had  a  right  to  take  pos- 
session of  the  prize;  and,  if  without  weak- 
ening his  own  crew,  he  could  man  her,  then 
he  had  a  right  to  do  so,  and  a  delay  for  that 
purpose  was  not  a  deviation,  for  the  right  to 
capture  drew  to  it  all  the  incidents  necessary 
to  make  the  capture  effectual.  Hanen  v.  Hol- 
land, 2  Ma=on,  230. 

69.  A  memorandum  indorsed,  "The  ship 
having  returned  to  the  Isle  of  France  from 
Calcutta,  and  from  thence  proceeded  again  ta 
the  coast  of  India,  it  is  agreed  that,  in  con- 
sideration  of  an  additional  premium  of  teu 
per  cent,  received,  the  same  shall  not  preju- 
dice this  iusurance."  Held,  it  covered  all  pre- 
vious deviations.  Croieningshield  v.  New  Tvrk 
Ins.  Co.,  3  Johns.  C,  143. 

70.  On  vessel  from  "  New  York  to  Barba- 
dos and  a  market."  Held,  the  vessel  might 
go,  6o«/7  _^rfe,  from  island  to  island  until  her 
cargo  was  disposed  of.  Mancell  -d.  Hobinson, 
1  Johns.,  333. 

71.  On  ship  and  cargo.  New  York  to  An- 
tigua, thence  to  Curacoa.  There  was  the  usual 
memorandum,  as  to  corn,  meal,  etc.  One  of 
the  owners  was  supercargo  and  consignee. 
In  very  bad  weather,  while  attempting  to  beat 
up  to  the  island,  she  sprung  her  fore  mast, 
and  ran  to  Santa  Croix,  the  nearest  port  of 
safety,  to  relit,  where  she  arrived  December 
22d.  It  was  necessary  to  procure  a  new  mast. 
The  corn,  damaged  by  sea  water,  was  very 
much  boated,  which,  with  meal,  flour  ami 
some  onions,  more  than  one-half  the  cargw 
were  sold  there  without  any  delay,  bringing 
gross  $3,000.  The  disbursements  for  repair.i 
were  $408.  She  sailed  January  olh  for  Cur- 
acoa.   The  reason  assigned  for  not  going  lo 


441 


DEVIATION. 


442 


What  is  not 


Aiiligua  was,  that  it  was  impracticable  witli 
tliat  vessel  to  beat  up  against  the  winds  and 
currents  which  then  prevailed.  She  was  cap. 
tured,  carried  to  Jamaica  with  the  remnant 
of  the  cargo,  and  ixU  was  then  condemned  on 
the  ground  of  a  breach  of  the  blockade  at 
Curacoa.  The  master  knew  nothing  of  a  block- 
ade in  fact;  there  were  some  rumors  to  that 
effect,  which  were  not  credited.  Held,  going 
directly  from  Santa  Croi.x  to  Curocoa  was  not 
a  deviation ;  that  she  was  not  bound  to  go  to 
all  the  ports  mentioned;  that  she  might  pro- 
ceed directly  to  any  one  of  them,  Ildd,  also, 
that  sellinir  the  cargo  at  Santa  Croix  occa- 
sioned  no  delay,  and  that  it  was  the  duty  of 
master  not  to  keep  the  corn  on  board  and 
allow  it  to  spoil.  Kane  v.  Columbian  Ins.  Co., 
2  .Tohus.,  2(1.'). 

72.  At  and  from  Santa  Martha  on  the  Main 
to  New  York,  with  liberty  to  touch  at  two 
other  ports.  Insurers  subsequently  agreed  for 
an  additional  premium:  "The  brig  may  have 
the  privilege  of  performing  a  voyage  from 
Santa  Martlia  to  Chagres  and  back  to  Cartha- 
gena;"  also  for  an  additional  premium,  "  Said 
brig,  or  any  other  ve.^sel  or  vessels,  may  use 
three  additional  ports  from  the  Spanish  Main 
to  New  York."  Slie  touched  and  staj'ed,  dis- 
charging and  taking  in  cargo,  at  Rio  Hacha, 
Santa  Martha,  Carthagena,  Chagres,  again  at 
Carthagena,  Savonilla,  then  again  at  Rio 
Hacha,  whence  she  sailed  for  the  home  port. 
ffeld,  the  privilege  to  visit  three  additional 
ports  did  not  mean  ports  on  the  homeward 
voyage  after  leaving  the  Spanish  Main,  hence 
there  was  no  deviation.  VePcysier  v.  Sun 
Mut.  Ins.  Co.,  19  N.  Y.,  272 ;  s.  c,  17  Barb.,  306. 

73.  "At  and  from  Warren,  July  30,  1843,  at 
noon,  on  a  whaling  voyage,  and  to  continue 
(hiring  her  stay  and  cruising  and  until  her  re- 
turn to  Warren,  with  liberty  to  stoj)  at  all 
ports  and  places  for  trade,  r<:freshments  and 
recruits."  Held,  liberty  to  stop  at  ports,  etc., 
did  not  deprive  her  of  the  right  to  enter  bays 
or  touch  and  stay  at  islands  for  the  proper 
purpose  of  a  whaling  voyage,  nor  did  it  limit 
her  to  the  taking  of  whales  only ;  that  if  in 
the  usual  course  of  a  whaling  voyage,  sea  ele- 
phants  were  taken,  then  the  policy  gave  the 
right  to  take  them  in  the  manner  usually  pur- 
sued.    Child  V.  Sun  Mut.  Ins.  Co.,  3  Sand.,  26. 

74.  "On  cargo,  from  Boston  to  port  of  dis- 
charge in  Europe,  against  all  risk  of  every 
name  and  nature,  bad  debts  and  illicit  trade  j 


excepted."  She  escaped  the  British  blockade 
of  Holland,  and  went  so  far  up  the  Maese  that 
she  might  have  gone  to  Rotterdam.  But  the 
master  being  informed  he  would  not  be  per- 
mitted to  land  his  cargo  there  or  in  any  port 
in  Holland,  proceeded  for  Gottenburg  to  ascer 
tain  wliether  he  could  sell  the  cargo  there,  or 
to  what  market  in  the  north  of  Europe  it 
would  be  best  to  carry  it.  He  left  Gottenburg 
for  a  market  in  the  Baltic,  and  was  captured 
by  a  Dani.sh  privateer  and  libeled  as  a  prize  in 
Copenhagen.  Held,  that  getting  into  Holland 
must  be  understood  as  getting  in  for  the  sale 
and  delivery  of  the  cargo.  Held,  also,  when 
property  is  insured  to  a  port  of  discharge,  the 
insured  has  a  right  to  obtain  advice  at  the 
port  of  arrival  respecting  the  markets,  and 
may  proceed  thence  to  such  port  as  promises 
the  best  sales,  and  is  not  obliged  to  discharge 
his  cargo  at  the  first  port  he  makes.  Coolidge 
V.  Gray,  8  Mass.,  527. 

75.  Liberty  to  cruise  and  capture  does  not 
carry  with  it  liberty  to  convoy;  but  if  it  ap- 
pears that  she  did  not  go  out  of  her  way  to 
convoy,  and  that  she  was  not  delayed  thereby, 
and  that  the  risk  was  not  increased  by  the  act 
of  convoying,  there  is  no  deviation.  Ward  v. 
Wood,  13  Mass.,  539. 

76.  "On  ship  and  cargo  from  Boston  to 
port  or  ports  beyond  Cape  of  Good  Hope,  one 
or  more  times  to  the  same  port  for  the  purpose 
of  selling  outward  and  procuring  return  cargo, 
and  at  and  from  thence  to  port  of  discharge 
in  Europe  or  United  States."  She  went  to 
Cochin  China  with  gold  coin  only,  with 
which  she  could  not  trade;  thence  to  Manilla, 
and  having  sold  the  gold  there  for  silver,  re- 
turned to  Cochin  China  and  purchased  about 
one-eighth  cargo.  Finding  she  could  not 
complete  the  cargo  there,  she  went  to  Batavia, 
where  she  found  sugar  scarce  and  dear;  but 
she  might  have  proceeded  to  Sara.arang,  and 
there  completed  her  lading.  A  law  of  Java 
prevented  her  going  to  Samarang  with  sugar 
brought  from  Cochin  China,  so  it  was  sold  at 
Batavia,  to  enable  her  to  go  to  Samarang,  at 
which  place  she  procured  a  caj-go  and  sailed 
for  a  port  of  discharge  in  Europe.  Held,  that 
neither  going  to  Manilla  and  returning  to 
Cochin  China,  nor  the  transactions  at  Java, 
constituted  a  deviation.  Thorndike  v.  Bord- 
man,  4  Pick.,  471. 

77.  Ship  insured  to  "  Kingston  and  a  mar- 
ket in  Jamaica."    She  sailed  with  orders  to 

221 


443 


DEVIATION. 


444 


What  is  not. 


proceed  to  Jamaica,  and  wlicn  off  tlie  cast  end 
of  tlie  island,  if  in  season,  to  fulfill  a  contract 
to  deliver  goods  at  Port  Maria,  to  proceed 
there  direct,  but  otherwise  to  proceed  to 
Kingston,  and  there  sell  so  much  of  the  cargo 
as  should  be  salable,  and  then  go  with  the 
residue  to  Port  Maria.  She  went  to  Port 
Maria  but  not  to  Kingston,  and  on  her  return 
voyage  was  lost.  Held,  no  deviation ;  that  the 
sailing  orders  were  not  material  to  be  com- 
municated to  the  insurer.  Houston  v.  New 
England  Ins.  Co.,  5  Pick.,  89. 

78.  On  goods  from  Boston  to  Terceira,  and 
at  and  from  thence  to  port  of  discharge  in  the 
United  States,  with  one  quarter  of  one  per 
cent,  to  be  added  to  the  premium,  for  every 
other  port  used  in  the  Western  Islands.  She 
went  directly  to  Graciosa,  one  of  the  "Western 
Islands,  and  was  lost.  Held,  no  deviation. 
Hale  V.  Mercantile  Mar.  Ins.  Co.,  6  Pick.,  172. 
'  79.  At  and  from  Boston  to  all  ports  and 
places  on  the  globe,  and  until  her  return  to 
Boston,  not  exceeding  two  j-cars.  She  arrived 
in  Boston  Bay,  below  the  harbor,  within  the 
two  years,  and  the  owner  ordered  her  into 
Salem  for  repairs.  Subsequently,  while  being 
hauled  on  a  marine  railway,  to  be  repaired 
partly  on  land,  she  was  damaged  by  the  vio- 
lence of  the  wind.  Held,  the  loss  was  covered 
by  the  policy;  that  putting  into  Salem  was 
not  a  deviation.  Ellery  v.  New  England  Ins. 
Co.,  8  Pick.,  14. 

80.  On  ship  from  a  foreign  port  to  a  port  of 
discharge  in  the  United  States.  She  called  at 
Savannah  to  ascertain  the  state  of  the  market, 
made  some  repairs  and  sailed  for  Boston ;  but 
before  she  sailed,  she  took  a  deck  load  of  forty 
bales  of  cotton  for  Boston.  Held,  the  master 
had  a  right  to  stop  at  Savannah,  to  obtain 
necessary  repairs  and  supplies,  or  to  make  in- 
quiries as  to  the  state  of  the  market,  and  to 
form  his  judgment  deliberately,  whether  he 
would  discharge  there  or  proceed  to  another 
port;  that  taking  a  deck  load  of  cotton  would 
not  discharge  the  insurer,  unless  the  risk  was 
thereby  increased,  or  the  voyage  thereby  de- 
layed. In  determining  whether  the  risk  was 
increased,  the  jury  were  to  take  all  the  advan- 
tages and  disadvantages  into  consideration; 
that  the  policy  was  not  vacated,  though  the 
risk  was  increased  in  one  particular  if  it  was 
diminished  in  another  in  an  equal  or  greater 
degree.    Lapham  n.  Atlas  Ins.  Co.,  24  Pick.,  1. 

81.  "On  vessel  from   Baltimore    to    New 
222 


York  via  Chesapeake  and  Delaware  canal  to 
Delaware  Bay,  and  from  tlienceb}-  sea  to  New 
York."  On  her  return  to  Baltimore,  insurers 
indorsed  the  policy:  "  It  is  hereby  understood 
that  the  policj-  shall  cover  $2,500  on  steamer 
E.  J.  D.,  from  Baltimore  to  New  York,  at  one 
and  a  half  per  cent.,  subject  to  steamboat 
clause  On  vessel  valued  at  $6,000."  It  was 
proved  that  the  steamboat  clause,  referred  to, 
exempted  the  company  from  loss  by  breakage 
or  derangement  of  the  engine,  or  bursting  of 
the  boiler  or  anj'  of  the  parts  thereof,  or  for  the 
effects  of  fire  from  any  cause,  connected  with 
tlje  operation  of  repairs  to  the  engine  or  boiler, 
unless  occasioned  and  made  necessary  by 
stranding  or  sinking  after  the  engine  or  boiler 
should  have  been  put  in  successful  operation. 
She  went  down  the  Chesapeake  Bay  to  the 
Atlantic.  Held,  the  effect  of  the  indorsement 
was  a  new  contract  subject  to  the  teims  and 
stipulations  mentioned  in  the  policy,  except  so 
far  as  they  were  varied  by  the  words  of  the  in- 
dorsement, that  the  indorsement  described 
merely  the  terminus  a  quo  and  the  terminus 
ad  quern,  without  restricting  the  voyage  to  any 
particular  route ;  she  was  not  bound  to  pro- 
ceed by  the  way  of  the  Delaware  and  Chesa- 
peake canal,  and  there  was  therefore  no  devia^ 
tion.  Commonwealth  Ins.  Co.  v.  Cropper,  21 
Md.,  311. 

8  a.  From  Charleston  to  the  Cape  de  Terds, 
thence  to  the  coast  of  Africa.  She  proceeded 
directly  to  the  coast  of  Africa.  Held,  no  devi- 
ation.     Cross  v.  Shutliffe,  2  Bay.,  220. 

83.  "On  such  shipments  as  maybe  made 
and  indorsed  hereon  from  Lexington,  or  any 
landing  on  the  Missouri,  to  St.  Louis,  Pitts- 
burg, etc."  The  shipment  was  made  from 
Dover  and  Waverly  per  steamboat  Amelia  to 
St.  Louis.  It  was  transhipped  at  Jefferson 
City'to  the  Kit  Carson,  who  brought  it  to  St. 
Louis,  at  which  place  it  was  burned  before  it 
passed  from  the  possession  of  the  carrier.  The 
policy  gave  permission  to  reship  at  all  times 
and  places.  Held,  the  reshipment  was  not  a 
deviation  under  the  contract.  Fletcher  v.  St. 
Louis  Mar.  Ins.  Co.,  18  Mo.,  193. 

84.  At  and  from  Leith  to  Slietland,  and 
from  thence  to  Barcelona,  at  and  from  thence 
and  two  other  ports  in  Spain  to  a  port  in  Great 
Britain,  and  it  shall  be  lawful  for  the  said  ship 
in  this  voyage  to  proceed  and  sail  to  and  touch 
and  stay  at  any  ports  and  places  whatsoever, 
without    prejudice  to  this    insurance.     She 


445 


DEVIATION. 


445 


What  is  not. 


sailed  from  Leith,  took  a  cargo  of  fish  in  Ler- 
wick Bay,  aud  arrived  off  Barcelona  when 
there  was  a  contagious  fever  at  that  place, 
which  prevented  her  entering  the  port.  She 
was  therefore  directed  to  proceed  to  Tarragona 
to  discharge  cargo,  and  from  thenoe  to  Saloe, 
round  the  head  of  land  about  ten  miles  from 
Tarragona,  there  to  take  her  home  cargo. 
She  arrived  at  Tarragona,  discharged  cargo, 
proceeded  thence  and  cast  anchor  off  Saloe 
aud  commenced  loading  nuts  and  brandy. 
She  was  moored  in  the  ro.idslead,  the  usual 
station  for  vessels  of  her  burthen,  and  while 
there  a  very  heavy  gale  drove  every  vessel 
ashore,  and  they  were  all  wrecked.  Saloe  was 
frequented  as  a  port,  and  usually  designated 
as  such,  and  the  Spanish  nation  considered  i'. 
such,  and  conferred  upon  it  the  diguities  and 
privileges  of  a  port.  Held,  affirming  the  de- 
cision of  the  court  of  session,  that  she  was 
protected  by  the  policy  at  the  time  of  the  loss. 
Sen  Im.  Co.  v.  Gavin,  2  Dow.  &  C,  129;  4  Bli. 
(N.  S.),  578. 

85.  She  had  liberty  to  touch  at  the  Cape  de 
Verds.  She  took  in  some  cargo  at  Buena 
Vista,  where  she  touched.  A  letter  was  offered 
and  admitted,  which  showed  that  insurer 
granted  permission  to  touch  for  the  purpose 
of  loading  salt.  Held,  the  letter  was  admissi- 
ble to  explain  the  permission,  and  taking  both 
together,  there  was  no  deviation.  Urquharl  v. 
Barnard,  1  Taunt.,  450. 

86.  At  aud  from  Martinique,  aud  all  or  any 
of  the  West  India  Islands  to  London.  She 
sailed  from  Martinique  for  San  Domingo,  took 
in  her  cargo  there,  sailed  thence  for  London, 
and  was  captured.  IIeld,the  insurer  was  lia- 
ble.   Bragg  v.  Anderson,  i  Taunt.,  229. 

87.  "At  and  from  Pcrnambuco  or  any  other 
port  or  ports  on  the  coast  of  the  Brazils  to 
London."  Held,  if  she  could  not  get  a  cargo 
at  P.,  she  might  go  to  any  other  port  or  ports 
till  she  got  one,  and  she  was  not  restricted 
to  those  ports  that  were  in  the  direct  course 
from  P.  to  L.  Lambert  v.  Liddard,  5  Taunt.,  480. 
8.  c,  1  Marsh.,  149. 

88.  She  had  liberty  to  touch  and  stay  at  all 
ports  for  all  purposes  whatsoever.  She  sailed 
for  Carlsham,  at  which  place  she  arrived  and 
stayed  two  months.  She  sailed  for  Swine- 
munde,  where  she  was  afterwards  captured. 
Held,  no  deviation.  Langhorn  v.  Allnutt,  4 
Tauct.,  511. 

89.  "To  any  port  in  the  Baltic."    She  was 


destined  to  Revel,  and  taken  while  in  the  Gulf 
of  Finland.  Held,  it  was  competent  for  plaint- 
iff to  prove  that "  the  Baltic  "  is  nomen  gen^ralc, 
comprehending  in  common  understanding  the 
gulfs  and  inlets  which  communicate  with  the 
sea;  that  if  the  Gulf  of  Finland  was  considered 
within  the  Baltic,  the  insurers  were  liable. 
Uhde  v.  Walters,  3  Camp.,  IG. 

90.  At  and  from  Antigua  to  England,  with 
liberty  to  touch  at  all  or  any  of  the  West  India 
islands,  Jamaica  included.  Held,  she  might 
touch  without  any  regard  to  their  geographi- 
cal order,  that  she  might  go  from  island  U> 
island  for  the  purpose  of  seeking  freight. 
Metcalfe  v.  Parry,  4  Camp.,  123. 

91.  At  and  from  Liverpool  to  Palermo, 
Messina,  Naples,  and  Leghorn,  "provided 
the  French  should  not  be  at  Leghorn."  She 
cleared  for  Naples  only,  and  was  captured  in 
the  Bay  of  Biscay.  Held,  she  was  at  liberty 
to  drop  any  of  the  places  named;  that  if  she 
went  to  more  than  one,  she  must  take  them  in 
the  order  named  in  the  policy;  that  sailing  for 
Naples  onlv,  was  a  voyage  within  the  policy. 
Marsden  v.  lieid,  3  East,  572. 

92.  At  and  from  Stockholm  to  New  York- 
She  had  a  cargo  of  sheep;  but  understanding 
that  she  was  to  touch  at  Elsinore,  sufficient 
provender  was  not  taken  for  the  voyage ;  she 
touched  at  Elsinore  for  convoy  and  to  pay 
sound  dues,  where  sufficient  provender  was 
put  on  board,  before  the  sound  dues  could  be 
paid.  Putting  in  the  provender  did  not  cause 
any  detention.  Held,  the  omission  to  take 
enough  provender  affected  the  safety  of  the 
cargo  only,  and  as  it  was  laid  in  without  de- 
laying the  voyage,  there  was  no  deviation. 
Cormack  v.  Gladstone,  H  East,  347. 

93.  On  goods  from  H.  to  B.  She  was  not 
at  H.  when  it  was  made,  but  she  arrived  at  H. 
some  days  after,  and  took  in  the  cargo  for  B., 
sailed  on  the  voyage  and  was  lost.  Held,  it 
has  never  been  understood  that  the  ship  must 
be  at  the  place  at  the  very  time  of  making  the 
insurance;  the  insurer  had  a  right  to  expect 
that  she  was  there,  or  would  soon  be  there, 
and  the  jury  were  to  determine  whether  the 
intervening  period  materially  changed  the 
risk.    Hull  v.  Cooper,  14  East,  479. 

94.  "From  London  to  any  port  or  place  or 
places  in  the  Baltic,  backwards  and  forwards, 
with  le.ave  to  touch  and  st.ay  at  any  ports  and 
places,  for  all  purposes  whatsoever."  Held, 
she  might  wait  at  any  port  for  information  a»- 

233 


447 


DISCOA'ERY. 


448 


Miscellaneous. 


to  what  port  in  the  Baltic  she  might  safely 
proceed  to  discharge  her  cargo,  nor  was  that 
liberty  abrid,!,'ed  by  subsequent  special  "  leave 
riven  to  wail  for  information  off  any  ports  and 
places."    liuckcr  v.  Allnult,  15  East,  278. 

95.  From  "llelstone  ti'  Cork,  with  liberty 
to  touch  and  stay  at  any  port  or  place."  She 
hailed  a  fishing  boat  near  Coverack  Cove,  and 
sent  a  man  ashore  to  Coverack  for  a  barrel  of 
fish,  and  to  ascertain  whether  insured  was 
there.  The  wind  was  ahead;  she  put  into 
Gauves  Lake  in  Mount's  Bay,  and  lay  there  to 
a  single  anchor  for  the  night.  Supercargo 
sent  a  letter  ashore  by  one  of  the  crew,  and  in- 
sured came  aboard  the  nest  day,  the  master 
and  supercargo  going  ashore  to  transact  some 
business.  Slie  put  to  sea,  and  very  soon  after 
took  fire  and  was  burned.  Held,  no  deviation. 
Thomas  v.  Royal  Exchange  Ass.  Co.,  1  Price, 
195. 

96.  If  the  ship  deviates,  the  insurers  are  dis- 
charged at  the  commencement  of  the  devia- 
tton ;  but,  for  any  loss  within  the  policy  which 
occurred  prior  to  the  deviation,  they  are  lia- 
ble.    Oreen  v.  Young,  2  Ld.  Kaym.,  840. 

97.  "On  ship  at  and  from  Liverpool  to 
ports  and  places  in  China  and  Manilla,  all  or 
any,  during  the  ship's  stay  there  for  any  pur- 
poses, and  from  thence  to  her  port  or  ports  of 
calling  and  discharge  in  the  United  King- 
dom, with  liberty  to  call  and  stay  at  all  or 
any  ports  or  places  on  either  side  of  or  at  the 
Cape  of  Good  Hope."  She  sailed  from  Liv- 
erpool  to  Lintin  (in  China)  and  Manilla.  Slie 
■was  prevented  from  entering  Lintin,  but  per- 
mitted to  go  to  Tongkoo,  a  place  in  sight  of 
Lintin,  discharged  part  of  cargo,  proceeded  to 
Manilla,  discharged  the  remainder  there,  and 
took  230  chests  of  opium  for  Tongkoo  and 
sailed,  intending  to  seek  freight  at  Manilla 
for  the  United  Kingdom,  but  was  lost  before 
she  reached  Manilla.  Held,  no  deviation; 
that  the  word  "thence"  referred  to  ports  and 
places  in  China  and  Manilla,  and  that  it  did 
not  refer  to  Manilla  only ;  that  the  policy 
should  be  read  to  ports  or  places  in  China  or 
Manilla,  all  or  any,  during  the  ship's  stay 
there,  and  from  the  ports  and  places  in  Chiua 
and  Manilla  to  her  ports  of  calling  and  dis- 
charge in  the  United  Kingdom.  Held,  also, 
tlie  sailing  to  Tongkoo  to  procure  freight, 
for  a  purpose  connected  with  the  homeward 
voyage,  was  sailing  within  the  liberty  given 
by   the   policy.     AsJiley  v.  Pratt,  16  Mecs.  & 

224 


"W.,  471 ;  affirmed,  1  E.\ch.,  257;  17  L.  .1.  Ex., 
135. 

98.  On  a  voyage  from  London  to  Bombay, 
thence  to  China,  thence  to  anj-  port  of  dis- 
charge in  England,  with  liberty  to  touch,  stay 
and  trade  at  any  port  on  this  or  the  other  side 
of  the  Cape  of  Good  Hope.  Slie  sailed  from 
London,  January  29,  1842,  arrived  at  Bombay, 
June  3d  following,  unloaded,  and  found  that 
she  needed  repairs.  Her  mainmast  was  taken 
out  June  24th  and  repairs  completed  Septem- 
ber 2d.  She  was  not  advertised  till  that  day. 
Owing  to  a  large  number  of  vessels,  seventy 
or  eighty,  seeking  freight  at  Bombay,  the 
scarcity  of  produce  and  the  depressed  state  of 
trade,  the  rate  of  freight  was  extremely  low. 
She  was  a  "seeking  ship,"  and  the  master,  a 
part  owner,  abandoned  the  original  intention 
of  proceeding  to  China  and  waited  at  Bom- 
bay for  a  cargo  at  a  remunerating  rate  of 
freight,  with  which  she  commenced  loading 
January  10, 1843,  and  sailed  March  2d  follow- 
ing. She  suffereol  sea  damage  in  April,  and 
was  obliged  to  put  into  the  Mauritius,  where 
she  was  found  unworthy  of  repairs.  She  was 
thereupon  abandoned.  Iield,  the  detention  of 
the  ship  for  a  reasonable  time,  for  the  pur- 
poses of  the  adventure,  was  lawful ;  what  was 
a  reasonable  time,  for  that  purpose,  must  be 
determined,  not  by  any  arbitrary  rule,  but  by 
the  circumstances  of  the  particular  case;  the 
delay  in  this  case  did  not  amount  to  a  devia- 
tion, nor  was  it  sufficient  to  vitiate  the  policy. 
Phillips  V.  Irving,  13  L.  J.  C.  P.,  145 ;  7  M.  & 
G.,  325;  8  Scott  (N.  R.),  3. 

99.  On  cargo  from  Cronstadt  to  Leith.  She 
towed  the  Agincourt  out  of  the  ice  ijit,)  Revel. 
Held,  a  question  of  fact  whether  it  was  a  de- 
viation, and  whether  the  defender  undertook 
the  obligation  with  knowledge  that  she  had 
pcrfoi-med  the  service.  Goarock  Hope  Work 
Co.'V.  Flemviing,  5  C.  C.  S.  (3d  ser.),  501. 


DISCOVERY. 

1.  This  was  a  bill  for  discovery;  but  there 
was  no  allegation  that  the  complainants  were 
not  able  to  prove  their  case  at  law  without  tlie 
benefit  of  the  discovery  sought.  Held,  it  was 
not  necessary  to  so  allege,  for  a  defendant 
may  file  his  bill  for  the  purpose  of  rebutting 


449         DIVORCE  — DOUBLE  INSURANCE  OR  PRIOR  INSURANCE  CLAUSE.         450 


Miscellaneous. 


the  evidence  necessary  to  sustain  tlie  plaints 
iffs  action,  and  is  entitled  to  discovery  for 
tlie  purpose  of  attack  on  the  case  of  liis  ad- 
veisary.  Allaniic  In».  Go.  v.  Lunar,  1  Sand. 
Ch.,  91. 

2.  Tlie  bill  charged  that  since  the  loss  of 
the  ship,  the  Brazilian  government  had  paid 
the  insured  for  the  goods  lost,  according  to  a 
contract  subsistinsr  between  assured  and  the 
Brazilian  government,  and  praj-ed  a  discovery 
as  to  the  contract  and  as  to  the  moneys  paid, 
to  which  there  was  a  demurrer,  which  w.-xs 
overruled.  ITt'lls  v.  Campbell,  2  You.  &  Coll., 
889. 

H.  The  bill  stated  that  the  defendant  R.  ef- 
fected  in  his  own  name,  with  the  complainants, 
a  policy  of  insurance  upon  certain  cargo  in  a 
certain  ship,  and  that  K.  claimed  all  benetit  to 
be  derived  from  the  policy;  that  R.  and  K. 
had  produced  certain  papers  in  support  of  a 
claim  for  the  full  amount  insured.  It  alleged 
fraud,  and  prayed  a  discovery  against  R.  and 
K.  The  action  at  law  was  in  the  name  of  R., 
but  the  interest  was  alleged  in  K.  Held,  K-. 
was  not  a  party  to  the  action  though  he  was 
interested  in  it;  and  that  a  bill  of  discovery 
would  not  lie  against  a  person  not  a  party  to 
the  record  though  he  were  interested  in  the 
action.    ICcrr  v.  Itew,  5  Myl.  &  Or.,  154. 


DIVORCE. 

(See  Insukable  Interest;  Wipe's  Policy.) 

Policy  made  upon  the  life  of  A.  for  the  use 
of  his  wife.  She  applied  for  and  obtained  a 
divorce  on  the  ground  of  desertion,  and  in- 
surer refused  to  receive  the  premiums.  She 
brought  suit  to  recover  all  that  had  been  paid 
and  damages,  to  which  the  defendant  de- 
murred. Held,  the  demurrer  must  be  over 
ruled.  McEee  v.  Phmnix  Life  Ins.  Co.,  28  Mo., 
383. 


(See 


D0CU3IENTS. 

Evidence  ;    Illicit 


Captcre   and    Seizure 
Trade.). 


DOMICILE. 

(See  Citizens.) 


15 


DOUBLE  INSURANCE  OR  PRIOR  IN- 
SURANCE CLAUSE. 

(See  Other  Inscbanob.) 

1.  One  of  two  companies  insured  |1,000  ou 
fixtures  and  |3,000  on  stock.  At  the  time  of  tho 
loss  there  was  stock,  $2,996.25,  and  on  it  there 
was  a  loss  of  12,094.01.  The  fixtures  were  worth 
$9,894.91,  and  there  was  a  loss  of  |5,918.76  on 
them.  Held,  it  was  not  double  insurance; 
that  insured  was  entitled  to  recover  of  the  first 
insurer  without  regard  to  the  second  policy. 
Howard  Ins.  Co.  v.  Scribner,  5  Hill,  298. 

2.  Time  policy,  $20,000,  on  lawful  goods 
and  merchandise  laden  or  to  be  laden,  upon 
all  voyages  in  ports,  rivers  and  at  sea,  with 
liberty  to  touch  and  trade,  etc.  "  If  prior  in- 
surance, then  this  insurer  to  be  answerable  for 
so  much  only  as  shall  be  deficient  towards 
ftiJly  covering  the  premises  insured."  Held, 
it  was  in  the  nature  of  a  new  insurance  upon 
the  new  cargo  or  goods  remaining  at  risk 
every  time  the  cargo  was  increased  or  dimin- 
ished,  otherwise  than  by  Ihe  perils  insured 
against;  but  the  total  amount  for  which  this 
insurer  was  liable  during  the  whole  term  was 
$20,000,  exclusive  of  general  average  or  other 
expenses  incurred  for  the  benefit  of  the  In- 
surer in  preserving  or  attempting  to  recover 
the  property  insured;  e.  g.,  if  one-half  of  first 
cargo  was  lost  by  perils  insured  against  and 
the  insurer  became  liable  to  pay  $10,000  oa 
that  account,  upon  the  next  change  of  cargo, 
this  insurer  would  insure  to  the  extent  of  the 
other  half  of  the  original  subscription. 
American  Ins.  Co.  v.  Oriswold,  14  Wend.,  399. 
Nor  can  such  an  insurer  claim  contribution 
from  subsequent  insurers,  although  there  was 
ailment  for  all  the  policies  at  the  time  they 
were  subscribed.    Ibid. 

3.  Policy  in  the  names  of  A.,  B.  &  C,  on 
merchandise  owned  by  them.  A.  owned  five- 
eighths,  B.  two-eights,  and  C.  one-eighth.  A. 
afterwards  effected  insurance  in  his  name 
alone.  Held,  A.  had  a  right  to  appropriate  the 
several  policies  so  as  to  cover  the  property  in- 
sured to  the  whole  concern,  and  that  the  in- 
surer was  not  entitled  to  any  allowance  based 
upon  the  policy  made  to  A.  alone.  Welles  v. 
Gray,  10  Mass.,  42. 

4.  On  ship,  at  and  from  Boston  to  Charles- 
ton, etc.,  stipulated  :  "  In  case  of  other  insur- 
ance  prior  m  date,  this  insurer  shall  be  charge- 

225 


451 


DOUBLE  INSURANCE  OR  PRIOR  INSURANCE  CLAUSE. 


452 


Miscellaneous. 


able  only  for  so  much  as  the  amount  of  the 
prior  insurance  may  be  deficient  towards  fully 
covering  the  properly  at  risk."  At  the  mak- 
ing of  this,  there  was  another  policy  upon  the 
^hip,  fully  insuring  her,  which,  by  its  terms, 
expired  two  days  afterwards.  Held^  this  pol- 
icy attached  when  the  elder  expired.  Kent  v. 
Manufacturers  Ins.  Co.,  18  Pick.,  19. 

5.  In  case  of  a  double  insurance,  the  insured 
may  elect  to  consider  each  insurer  as  liable 
for  a  proportionate  share  of  the  loss,  and  re- 
cover accordingly;  or  he  may  require  the 
whole  of  either;  in  which  latter  case,  the  in- 
surer who  pays  the  loss  will  have  a  remedy 
against  the  other  for  contribution.  Wiggin  v. 
Suffolk  Ins.  Co.,  18  Pick.,  14.5.  And  if  the  in- 
sured begins  an  action  against  both,  and  one 
brings  into  court  his  proportion  of  the  loss, 
and  the  insured  takes  it  out  of  court,  that  is 
evidence,  prima  facie,  of  his  election.    Ibid. 

6.  Policy  for  $10,000  on  the  cargo  and  catch- 
ings  of  a  ship  on  a  whaling  voyage,  com- 
mencingMay  1,1841, stipulated:  "The  insurer 
shall  be  liable  only  for  so  much  of  the  loss  as 
prior  insurance  shall  be  deficient  towards 
fully  covering  the  property  at  risk."  August  1, 
1839,  |;20,000  was  insured  on  her,  which  was 
canceled  May  20,  1843.  August  7,  1839,  $7,500 
was  insured  on  the  ship,  and  $7,500  on  her 
outfits.  On  the  7th  of  June,  1842,  she  -was 
lo.st  by  stranding.  Intelligence  of  the  loss  re- 
ceived November  10,  1842,  and  an  abandon- 
ment immediately  tendered.  Held,  the  prior 
policy  could  not  be  canceled  without  the  con- 
sent of  this  insurer,  because  to  do  so  was  to 
throw  upon  him  new  responsibilities  and  ad- 
ditional burdens,  and  it  was  immaterial  that 
the  first  policy  was  canceled  prior  to  a  loss; 
that  as  between  the  parties  to  this  suit,  for  the 
purpose  of  ascertaining  what  this  insurer 
sliall  pay,  the  first  policy  was  to  be  treated  as 
in  full  force.  Macy  v.  Whaling  Ins.  Co.,  9 
Met.,  354. 

7.  Two  policies,  differing  in  one  respect, 
namely:  one  made  June  6,  1808,  and  the  other 
June  8,  1808;  both  provided :  "  If  said  insured 
shall  have  made  any  other  insurance  upon  the 
premises  .aforesaid,  prior  in  date  to  this  policy, 
then  insurers  shall  be  answerable  only  for  so 
much  as  the  amount  of  such  prior  insurauce 
may  be  deficient  in  covering  the  premises 
herebj'  insured."  The  cargo  shipped  did  not, 
in  value,  exceed  the  sum  named  iu  the  policy 
dated  June  6th.    Held,  double  insurance ;  and 


that  the  makers  of  the  second  policy  were  not 
liable.  Peters  v.  Delaware  Ins.  Co.,  5  S.  &  R., 
473. 

8.  Two  policies  upon  the  same  property  by 
different  persons,  each  for  the  benefit  of  differ, 
ent  persons.  Held,  not  double  insurance,  and 
not  afl'ected  by  the  clause  known  as  "  prior  in- 
surance."  Wells  v.  Philadelphia  Ins.  Co.,  9  S. 
&  R.,  103. 

9.  On  ship,  $7,300.  Stipul.ated:  "If  in- 
sured shall  have  made  any  further  insurance 
upon  the  premises  aforesaid,  prior  in  date  to 
this  policy,  then  this  company  shall  be  an- 
swerable only  for  so  much  of  the  amount  as. 
such  prior  insurance  may  be  deficient  toward* 
fully  covering  the  premises  hereby  insured, 
without  any  deduction  for  the  insolvency  of 
any  or  all  of  the  underwriters."  She  was  in- 
sured by  two  other  policies,  one  for  $7,300, 
and  one  for  .^7,400;  one  made  before,  and  the 
other  after  this  policy;  valued  in  all,  $22,000. 
Held,  this  second  insurer  was  not  exempt  from 
liability;  the  insured  was  entitled  to  recover 
isViiV  "f  the  amount  of  the  partial  loss.  Whit- 
ing V.  Independent  Mut.  Ins.  Co.,  15  3Id.,  297. 

10.  Policies  to  11.  C.  &  Co.;  loss,  if  any. 
payable  to  the  Baltimore  Warehouse  Co.,  who 
had  made  large  advances  on  the  goods  insured. 
There  were  two  other  policies  to  the  Balti- 
more "Warehouse  Co.,  direct,  on  goods  their 
own  or  held  in  trust.  Held,  the  policies  sued 
on,  having  been  made  payable  to  the  ware- 
house company,  must  be  considered  as  on  the 
same  interest,  in  the  same  subject,  and  against 
the  same  risks,  as  the  policies  issued  direct  to- 
Warehouse  Co.,  and  are  bound  to  contribute- 
their  respective  proportions  of  the  loss. 
Hough  V.  People'.^  Fire  Ins.  Co.,  36  Md.,  398. 

10.  Plaintiff  had  double  insurance.  Heldy 
he  was  entitled  to  judgment  on  both  policies, 
but  not  to  satisfaction  upon  both;  that  he 
might  have  satisfaction  from  either,  leaving 
the  other  to  pursue  his  coinsurer.  Nmcby  c. 
Reed,  1  W.  Bl.,  416. 

1 1.  On  goods  from  the  Sound  to  London. 
They  were  shipped  by  J[.  who  indorsed  the 
bills  of  lading  to  T.  the  real  plaintiff,  who 
directed  insurance  upon  the  whole,  to  cover 
his  advances;  there  was  other  insurimca 
made  by  A.,  a  creditor  of  the  shipper.  The 
shipper  promised  to  send  the  bills  of  lading 
to  his  creditor  but  never  did  so.  Held,  it  T. 
was  not  to  have  the  benefit  of  both  policies,  it 
was  not  a  case  of  double  insurance;  that  a* 


453 


DUE  AND  PAYAliLH- ESTOPPEL. 


454 


What  is. 


signing  tlie  bills  of  lading  to  T.  did  not  carry 
to  liini  tlie  interest  which  \ya3  insured  by  A; 
that  T.  could  never  come  against  A's  insurers 
forliis  own  use,  and  therefore  T.  was  entitled 
to  recover  the  whole  amount  insured  by  him. 
Godin,  V.  London  Asa.  Co.,  1.  Burr.,  489;  1  W. 
Bl.,  103. 


DUE  AND  PAYABLE. 

(See  Action.) 

1.  Payable  at  such  times  as  the  directors  of 
said  company  may,  agreeably  to  their  act  of 
incorporation,  require.  Ileld,  it  was  duo 
when  the  directors  required  payment  to  be 
made,  for  that  which  was  uncertain  then  be- 
came fi.xed  and  certain.  Oaytes  v.  Sibbard, 
5  Biss.,  90. 

2.  Where  the  amount  due  upon  a  policy  is 
ti.xed  by  a  resolution  of  the  company,  and  the 
money  is  declared  to  be  payable  in  sixty  days 
thereafter.  Held,  the  money  became  due  then, 
and  payable  sixty  days  thereafter.  Utica 
Ins  Co.  B.  American  Mutual  Ins.  Co.,  16  Barb., 
171. 

3.  The  preliminary  proofs  were  furnished 
and  demand  matle  for  payment.  Insurers 
admitted  the  loss,  but  disputed  tlie  amount  of 
their  liability.  Held,  the  condition  as  to  the 
time  of  payment  was  thereby  waived,  and  the 
sum,  for  which  insurers  became  bound,  was 
then  due,  and  interest  commenced  to  run  from 
that  time.  Baltimore  Ins.  Co.  v.  Loney,  30 
Md.,30. 


DWELLING  HOUSE. 

(S«e  Description  ;  Nosoccupancy;  Use   and  Occu- 
pation.) 

1.  The  conditions  required  that  houses  and 
places  where  goods  are  deposited  and  kept 
shall  be  truly  and  accurately  described,  and 
for  a  failure  to  do  so,  the  policy  to  be  void. 
This  policy  was  written  "on  goods  in  a  dwell- 
ing house."  Insured  occupied  but  one  room 
as  a  lodger.  Held,  no  misdescription.  Fried- 
lander  V.  London  Ass.  Co.,  1  M.  &  Rob.,  171. 

2.  The  owner  of  a  store  and  his  clerk 
slept  in  a  small  room  back  of  the  store.    Held, 


the  premises  were  not  a  dwelling  and  the  in- 
sured could  not,  under  permission  given  in 
the  policy  to  light  dwellings  with  kerosene, 
keep  a  lamp  burning  during  the  night  after 
the  gas  was  turned  off.  Cerf  v.  Home  Ins.  Co., 
U  Cal.,  320. 


ESTOPPEL. 

(See  Evidence  ;  Principal  and  Aoent.) 

I.  What  is. 

(a)  Of  the  acts  and  conduct  of  tliA-prinei- 

pal. 

(b)  Of  the  acts  and  conduct  of  tlie  agent. 
II.  What  is  not. 

(a)  Of  the  acts  and  conduct  of  the  princi- 

pal. 

(b)  Of  the  acts  and  conduct  of  the  agent. 


I.  "What  is. 

(a)  Of  the  acts  and    conduct  of  the 
principal. 

1 .  The  issue  was  whether  the  person  in- 
sured was  in  good  health  at  the  time  the  pol- 
icy was  made.  Certificates,  made  by  the  com- 
pany's  physcians,  certifying  the  examination 
and  the  good  health  of  the  person  insured, 
were  introduced  on  behalf  of  the  plaintiff. 
Held,  the  defendant  was  estopped  from  deny- 
ing their  sufficiency  unless  Uie  defendant 
could  show  that  the  physicians  were  deceived 
by  ftilse  statements  or  by  suppression  of  facts 
which  could  not  have  been  discovered  upon 
the  usual  examination.  HoUoman  v.  Life  I/is. 
Co.,  1  Woods,  674. 

2.  Insured  warranted  that  there  were  no 
buildings  within  ten  rods  of  the  premises  in- 
sured,  which  was  not  true  in  fact.  Insurers 
were  informed  that  the  application  did  not 
fully  describe  all  buildings  within  that  dis- 
tance, and  after  this  knowledge,  insurers  con- 
tinued to  make  assessments  against  the  policy 
and  to  collect  them.  Held,  insurers  must  be 
estopped  to  say  that  the  policy  was  never 
valid.  Frost  v.  Saratoga  Mut.  Ins.  Co.,  5 
Dcnio,  154. 

,3.  Stipulated:  "  If  the  mill  or  machinery 
be  run  or  operated  within  the  term  insured, 

227 


455 


ESTOPPEL. 


456 


What  is. 


the  policy  shall  be  void."  Shortly  after  it 
was  made,  a  latlie  was  run  in  a  machine  shop 
in  the  basement ;  but,  after  insurers  had  knowl- 
edge  of  the  fact,  and  after  they  had  rejected 
tl\is  claim,  tliey  made  an  assessment  on  the 
liremium  note,  for  general  losses,  and  collected 
it.  Held,  they  were  estopped  to  say  that  the 
contract  was  void,  for  they  were  not  at  liberty 
to  declare  themselves  entitled  to  enforce  the 
plaintiff's  part,  and  also  insist  that  it  was 
void  immediately  after  it  was  made;  having 
taken  its  fruits,  they  must  not  be  relieved 
from  its  obligations.  (See  Frost  v.  Saratoga 
Mut.  Ins.  Co.,  5  Denio,  154.)  Viall  v.  Genesee 
Mat.  Im.  Co.,  19  Barb.,  440. 

4.  The  goods  were  shipped  in  the  name  of 
J.  G.,  who  became  insurer  of  them.  They 
were  the  property  of  L.  F.  &  Co.,  but  the 
agreement  to  insure  distinctly  recognized  the 
fact  of  ownership.  Held,  no  defense  to  an 
action  brought  for  a  loss  by  capture.  Levy  v. 
MeH-ill,  4  Me.,  180.  The  vessel  belonged  to 
G.,  the  insurer  of  the  cargo.  She  had  on 
board  articles  contraband  of  war.  Vessel  and 
cargo  were  captured.  Held,  they  must  have 
been  received  with  the  privity  of  the  owner  or 
the  master  appointed  by  him,  and  this  was  no 
defense  to  the  action.    Ibid. 

5.  J.  was  the  secretary  of  the  company.  It 
was  his  duty  to  attend  to  the  execution  and 
delivery  of  policies;  and  to  him  application 
was  made  for  the  purpose  of  ascertaining 
where  a  lost  policy  was,  in  order  to  determine 
what  form  of  action  should  he  instituted.  J. 
stated  that  he  had  sent  the  policy  to  plaintiff 
cither  b}'  mail  or  hy  private  hand.  Held,  on  llie 
question  whether  there  had  been  an  execution 
and  legal  delivei'y  of  the  instrument,  the  dec- 
laration of  J.  was  conclusive  against  the  com- 
pi\ny  (citing  Chapman  v.  Searle,  3  Pick.,  38; 
Harding  v.  Carter,  1  Park  on  Ins.,  7th  ed.,  4; 
First  Baptist  Church  v.  Brooklyn  Fire  Ins. 
Co.,  18  Barb.,  69).  Sussex  Count;/  Ins.  Co.  v. 
Woodruff,  36  N.  J.,  541. 

G.  Stipulated:  "The  aggregate  amount  in- 
sured in  this  and  other  companies  shall  not 
exceed  two-thirds  the  estimated  cash  value. 
There  was  other  insurance  exceeding  that 
limit,  but  the  company  had  notice  of  it,  and 
did  not  elect  to  cancel  the  policy.  Held,  the 
condition  was  waived.  Lycoming  Ins.  Co.  v. 
Slockbomer,  26  Penn.  St.,  199. 

7.  The  evidence  tended  to  show  that  after 
in.^urers  had  notice  that  a  condition  of  the 
23B 


policy  had  been  violated,  they  continued  to 
treat  it  as  an  existing  contract.  Held,  it  was 
proper  to  tell  the  jury  insurers  could  not  set 
up  the  violated  condition  in  discharge  of 
their  contract  if  they  treated  it  as  existing; 
for  though  knowledge  was  not  equivalent  to 
notice,  the  knowledge  was  followed  by  a 
recognition  of  the  contract  which  dispensed 
with  the  necessity  of  proving  notice.  Eureka 
Ins.  Co.  V.  Sobinson,  56  Penn.  St.,  256. 

8.  On  cargo  from  B.  to  A.,  in  the  island  of 
Cuba,  warranted  American.  She  cleared  for 
C,  Soutli  America,  but  sailed  for  A.,  in  Cuba. 
She  had  a  regular  clearance  for  C,  bills  of 
lading,  invoice  and  manifest  of  the  cargo,  and 
affidavit  to  'prove  property,  letter  of  instruc- 
tions, passport,  voyage  and  sea  letter,  in  all 
of  which  the  voyage  was  described  as  from  B. 
to  C,  South  America.  There  was  a  loss  by 
capture.  Held,  if  the  insurer,  at  the  time  of 
making  the  polic}-,  knew  that  the  brig  had 
cleared  for  C,  in  South  America,  and  had  on 
board  the  documents  describing  the  voyage  as 
from  B.  to  C,  then  the  clearance  for  C.  and 
the  documents  mentioned  could  not  affect  the 
right  of  the  insured  to  recover.  Baltimore 
Ins.  Co.  V.  M'Fadon,  4  H.  &  J.,  31.  But  if  the 
master  was  to  leave  her  at  A.,  and  proceed  to 
a  port  within  the  French  territory,  and  there 
to  sell  or  dispose  of  the  cargo,  and  there  pur- 
chase return  cargo,  with  intent  to  carry  it  as 
return  cargo,  the  insured  could  not  recover. 
Ibid. 

9.  G.  procured  a  policy  August  4,  1857,  for 
six  years;  and  in  June,  1858,  mortgaged  the 
property  to  D.,  at  which  time  insurers  inserted 
in  the  bodj'  of  the  policj',  "  In  case  of  loss  pay- 
able to  D."  In  November,  1860,  G.  conveyed 
absolutely  to  D. ;  in  August,  18G1,  D.  conveyed 
to  B.,  and  by  separate  instrument,  assigned  his 
interest  in  the  policy  to  B,  who  conveyed  ab- 
solutely in  August,  1862,  to  H.,  and  by  a  sep- 
arate instrument,  assigned  his  interest  in  the 
policy  to  H.,  at  which  time  insurers  received 
notice  of  all  the  conveyances  and  assignments, 
and  indorsed  their  consent  to  said  assign- 
ments. Held,  G.  had  a  right  to  recover  for  the 
use  of  H.,  notwithstanding  a  by-law  of  the 
company  prohibited  an  assignment  of  the  pol- 
icy  or  of  the  property  insured,  "unless  con- 
sented to  by  the  company  in  writing,"  and 
notwithstanding  the  same  by-law  prohibited 
any  transfer  or  termination  of  the  interest 
of  the  insured,  by  sa!e  or  otherwise,  without 


457 


ESTOPPEL. 


458 


What  is. 


Buoli   consent.     Oilliat  v.  Pawtucket   Mutual 
Fire  Ilia.  Co.,  8  R.  I.,  282. 

10.  It  is  the  duty  of  the  insurer  wlien  fully 
apprised  of  the  subject  expected  und  intended 
to  be  insured,  so  to  frame  the  policy  as  to 
cover  the  intended  subject  and  to  furnish  the 
expected  indemnity  against  loss  upon  that 
subject.  And  if  the  description  given  by  the 
ai)plicant,  though  sufficient  by  its  comprehen- 
siveness to  cover  all  the  property  of  the  kind 
and  in  the  situation  described,  and  which  it 
may  bo  his  right  and  interest  to  insure,  yet 
b^'  the  usage  of  insurance  or  by  the  effect  of  a 
condition  annexed  to  the  policy,  may  be  sub- 
ject, for  want  of  particular  words,  to  a  restric- 
tioll  by  wliich  a  portion  of  the  property  may 
be  excluded,  go(>d  faith  requires  the  insurer  to 
apprise  the  applicant  of  the  ambiguity  or 
other  defect,  or  by  inquiry  ascertain  the  real 
intention.  Per  M.\rsh.\ll,  C.  J. ;  Jackson  v. 
uElua  In3.  Co.,  16  B.  Mon.,  2-12. 

1 1.  On  cargo  per  the  Swedish  ship  Crown 
Prince,  from  Charleston  to  Portsmouth.  The 
revenue  laws  of  Great  Britain  proliibited  the 
importation  of  all  produce  grown  in  foreign 
countries,  unless  carried  in  British  bottoms, 
or  in  vessels  of  the  country  where  produced. 
This  was  cotton,  a  product  of  the  United  States. 
She  was  lost  by  perils  of  tho  sea.  Jleld 
the  defendants  undertook  to  insure  a  voyage 
which  they  must  have  known  was  prohibited 
by  the  laws  of  Great  Britain,  and  wliatever 
the  risks  of  that  voyage,  they  undertook  them 
and  cannot  be  heard  to  say  that  the  voyage 
was  illegal.  McFee  v.  South  Carolina  Ins.  Co., 
2  McCord,  503. 

12.  The  policy  prohibited  the  keeping  of 
certain  articles  in  stock.  Insurer  knew  that 
such  articles  were  embraced  in  the  stock  in- 
sured and  were  kept  by  insured  for  sale  as 
part  of  their  regular  business.  Held,  the  pro- 
hibition was  waived  (citing  Bryant  ».  Pough- 
keepsie  Mut.  Ins.  Co.,  21  Barb.,  154;  Delon- 
guemere  v.  Tradesmen's  Ins.  Co.,  2  Hall,  589; 
Moore  v.  Protection  Ins.  Co.,  29  Me.,  92;  Leg- 
gett  V.  iEtna  Ins.  Co.,  10  Rich.  Law,  202). 
riiccnix,  I)i».  Co.  v.  Lawrence,  4  Met.  (Ky.),  9. 

18.  The  policy  was  burned,  and  insurer  on 
request  furnished  a  copy  not  sealed;  but  upon 
the  trial,  insurer  claimed  the  right  to  show 
that  the  original  policy  was  under  seal.  Held, 
b_v  furnishing  the  copy  insurer  impliedly  said 
it  was  a  true  copy,  and  was  therelbre  estopped 


to  say  upon  the  trial  it  was  not;  to  permit  that 
would  be  to  aid  insurer  to  successfully  per- 
petrate  a  fraud.  Bockford  Ins.  Co.  v.  Nelson, 
65  111.,  415. 

14.  Stipulated:  "  Any  use  of  the  premises 
increasing  the  hazard  shall  annul  the  policy 
so  long  as  tiie  same  shall  be  so  used."  Held, 
if  subsequently  to  a  violation  of  the  condition, 
with  a  full  knowledge  thereof,  the  company 
treated  the  contract  as  continuing  and  sub- 
sisting, that  will  operate  as  a  waiver  of  tho 
violation.  Kecnan  v.  Missouri  State  Mut. 
Ins.  Co.,  12  Iowa,  126;  Same  v.  Dubuque  Mu- 
tual Fire  Ins.  Co.,  13  Iowa,  375. 

15.  If  the  insurer  receives  the  premiums 
with  full  knowledge  ol  fticts  constituting  a 
breach  of  one  of  the  conditions  of  the  policy, 
the  right  to  insist  that  the  policy  is  forfeited, 
for  that  cause,  is  gone.  Mershon  v.  National 
Ins.  Co ,  34  Iowa,  87. 

16.  The  defendant  had  become  a  member 
of  the  association,  signed  an  undertaking  to 
be  bound  by  the  rules  of  it,  and  insured  his 
ship  in  it.  He  .asked  for  a  copy- of  the  rules, 
but  they  were  not  given.  He  stated  that  his 
ship  was  mortgaged  ;  but  he  was  not  informed, 
that  by  the  rules  of  the  association  a  member 
was  not  entitled  to  recover  on  a  mortgaged 
ship,  unless  the  mortgagee  covenanted  to  pay 
to  the  association  all  sums  which  might  be- 
come  due  from  the  mortgagor.  This  bill 
prayed  the  court  to  declare,  that  the  plaintiff 
was  not,  under  the  circumstances,  bound  by 
the  rules  of  the  association;  also,  to  declare, 
that  he  was  entitled  to  be  paid  the  loss.  The 
defendant  demurred  for  want  equity.  Held, 
the  demurrer  must  be  overruled.  Turnbull  v. 
Woolfe,  3  Giff.,  91. 

17.  Stipulated:  "In  case  the  said  assured 
has  been  guilty  of  fraud  in  obtaining  the 
policy,  it  shall  be  void,  and  all  moneys  paid 
ill  respect  of  it  shall  be  forfeited  to  the  com- 
pany ; "  who  pleaded,  that  at  the  time  of 
effecting  the  policy,  the  person  insured  was 
suffering  from  paralysis,  the  result  of  au  acci- 
dent,  all  knowledge  of  which,  insured  and  the 
company's  agent  withheld  and  concealed. 
The  plaintilf  replied,  that  after  the  company 
had  knowledge  of  the  facts  slated  in  tlie  plea, 
they  accepted  a  second  premium,  and  thereby 
elected  to  affirm  the  contract.  Held,  the  repli- 
cation was  a  good  answer  to  the  plea.  Arm- 
strong V.  Turquand,  9  Ir.  C.  L.  R.,  32. 


239 


459 


ESTOPPEL. 


460 


What  is. 


(b)  Of  the  acts  and  conduct  of  the 
a(jent. 

1 8.  The  printed  terms  of  the  policy  stipu- 
lated: "All  applications  for  insurance  shall 
be  in  writing,  and  shall  specify  all  incum- 
brances on  the  property,  and  shall  be  deemed 
a  part  of  the  policy  and  a  warranty  by  the 
insured,  whctlier  he  sign  it  or  not."  Insurer's 
agent  filled  up  the  printed  form  of  application, 
sent  it  to  the  company,  filled  up  one  of  a 
number  of  blank  policies  which  he  had  in 
his  possession,  countersigned  it,  and  delivered 
it  as  the  contract.  There  was  an  incumbrance 
on  the  property  of  which  no  mention  was 
made  in  the  application;  but  the  agent  had 
verbal  notice  of  its  existence.  Reli,  the  de- 
livery of  the  policy  without  the  plaintilTs 
written  application  was  a  waiver  of  the  printed 
condition ;  that  the  defendants  were  estopped 
to  resist  the  claim  on  the  gound  that  they  had 
no  written  notice  of  the  incumbrance,  be- 
cause the  agent  who  made  and  delivered  the 
policy  had  verbal  notice  of  it.  Ames  o.  New 
York  Union  las.  Co.,  14  N.  Y.,  253. 

19.  The  contract  warranted  that  buildings 
other  than  those  mentioned  in  the  application, 
were  not  witliiu  ten  rods  of  the  building  in- 
sured; but  insured  sought  to  show  that  the 
insurer's  agent  who  wrote  the  application,  was 
well  acquainted  with  the  premises  and  all  the 
buildings  within  the  prescribed  distance. 
Held,  if  the  doctrine  of  estoppel  were  invoked 
to  aid  the  insured,  it  would  entirely  revoke  the 
rule  that  parol  evidence  is  not  admissible  to 
contradict  or  vary  a  written  conti'act,  hence 
the  evidence  was  inadmissible.  Brown  v.  Cat- 
taraugus Mut.  Ins.  Co.,  18  N.  Y.,  385.  The 
following  case  was  exactlj'  like  the  former, 
except  there  was  no  point  made  upon  the  trial 
or  upon  this  appeal,  as  to  whether  the  agent 
who  filled  out  the  application  had  authority 
lo  write  it.  Held,  the  question  of  power  be- 
ing out  of  the  case,  it  was  the  same  as  if  an 
individual  insurer  had  assumed  to  make  the 
survey  and  measurements,  fill  up  a  blank 
application,  and  represent  to  the  applicants 
that  it  was  correct.  In  such  a  case  he  would 
be  estopped  to  deny  wliat  he  had  once  asserted 
as  true.  Plumb  v.  Cattaraugus  Ins.  Co.,  18  N. 
Y.,  392. 

20.  On  ship  for  account  of  A.,  loss,  if  any, 
payable  to  B.,  warranted  free  fiom  all  liens. 
Slie  was  mortgaged  to  B.     There  were  two 

230 


other  mortgages  against  her.  Held,  a  bread 
of  the  express  warranty.  Bidwell  t.  Norths 
western  Ins.  Co.,  19  N.  Y.,  179.  But  npou  a 
second  trial,  it  appeared  that  insured  commu- 
nicated to  insurer's  agent  the  existence  of  the 
prior  mortgages,  and  that  the  policy  was 
wanted  to  secure  his  interest  as  mortgagee. 
Held,  to  allow  the  company  to  take  the  pre- 
mium without  taking  the  risk,  would  be  to 
encourage  a  fraud;  hence  insurers  were 
estopped,  and  insured  had  judgment,  s.  c,  31 
N.  Y.,  302. 

21.  The  printed  terms  prohibited  other  in- 
surance. The  application  stated  :  "  I  own  the 
property;  there  is  no  incumbrance."  But 
there  was  a  mortgage,  and  other  insurance 
made  by  the  mortgagee,  of  which  insurer's 
agent  had  notice.  He  presented  a  blank  ap- 
plication to  insured,  who  signed  it,  and  he 
subsequently  filled  it  up,  falsely  setting  forth 
there  was  neither  incumbrance  nor  other  in- 
surance. Held,  insurers  were  estopped  to  set 
up  the  incumbrance  or  other  insurance  as  a 
defense  to  the  action.  Rowley  v.  Empire  1  ns. 
Co.,  42  If .  Y.  (3  Keyes),  557 ;  s.  c,  4  Abb.  Dec, 
131 ;  86  N.  Y.,  550 ;  Maher  v.  Hibernian  Ins. 
Co.,  6  Hun.  (N.  Y.),  353. 

22.  The  application  was  prepared  by  thij 
company's  agent,  and  signed  by  the  insured. 
In  it  this  question  was  prop(>unded:  "  Occu- 
pation—  For  what  purposes  is  the  building 
used,  and  how  many  tenants  are  there  ?  "  An- 
swer. "Dwelling."  The  policy  stipulated: 
"  Any  person  other  than  the  insured,  who  may 
have  procured  this  insurance,  shall  be  deemed 
to  be  the  agent  of  the  insured  and  not  of  this 
company,  in  any  transaction  relating  to  this 
insurance."  Tlie  house  was  unoccupied  at 
the  time  of  the  insurance,  and  so  remained 
until  it  was  consumed.  Insurer's  agent  knew 
that  the  premises  weie  unoccupied  at  the  time 
he  filled  up  the  application.  Held,  the  knowl- 
edge of  the  agent  was  the  knowledge  of  his 
principal,  who  must  be  estopped  to  defend  on 
the  ground  that  the  premises  were  unoccu. 
pied.  Alexander  v.  Germania  Fire  Ins.  Co.,  2 
Hun.  (N.  Y.),  655;  s.  c,  5  N.  Y.  S.  C,  208;  re- 
versed, Ct.  of  App.,  13  Alb.  L.  J.,  247. 

23.  Defendant's  agent  authorized  to  receive 
applications,  filled  out  the  application  in 
question  bj'  writing  the  answers  of  the  plaint- 
iff opposite  the  printed  inquiries.  Plaintiff 
answered  that  tlie  buildings,  farm  and  persona! 
property  were  worth  the  sum  of  $14,000,  but 


40)1 


ESTOPPEL. 


4G2 


What  is. 


11k'  agi'iit  wrotp  tli.at  tlie  farm  ami  buildings 
were  worth  $14,000.  The  plaintill' signed  the 
a]iplicalion  without  discovering  the  mistake. 
Jlcld,  the  mistalcc  was  the  defanclaut's,  and 
■within  the  priiiciple  decided  in  Rowlej'  v. 
Empire  Ins.  Co.,  36  N.  Y.,  550.  Owens  v.  Hol- 
Kind  Furchase  Ins.  Co.,  56  N.  Y.,  565;  s.  c,  1 
N.  Y.  S.  C,  285 

24.  Stipulated  :  "  If  the  applicant  make  any 
misrepresentation,  concealment,  or  misstate 
his  own  interest  in  the  property,  the  insurance 
shall  be  void."  The  application  signed  by 
insured  stated:  "The  above  property  is  owned 
and  occupied  by  me."  The  words,  "owned, 
and  occupied  by  me,"  were  inserted  by  de- 
fendant's agent,  after  plaintifl'  had  informed 
him  as  to  the  particular  nature  of  his  title 
and  interest,  which  was  a  contract  for  the 
purchase  of  the  land  and  for  wltich  a  deed 
was  not  demandable  at  the  time  the  fire  oc- 
<urred.  Held,  the  knowledge  of  the  agent 
w-as  the  knowledge  of  liis  principal;  hence, 
insurers  were  estopped  to  defend  on  the 
ground  that  the  interest  was  misstated.  Hodg- 
■kins  V.  Montgomery  County  Mutual  Ins.  Co.,  34 
Barb.,  213. 

25.  B.  was  defendants'  agent,  and  by  them 
supplied  with  policies  and  renewal  receipts 
signed  by  the  president  and  secretary,  to  be 
■filled  up  and  by  him  issued,  but  not  to  be 
Talid  till  countersigned  by  B.  Held,  he  had 
general  power  to  renew  old  and  make  new 
policies,  to  receive  notice  of  other  insurances, 
and  his  acceptance  of  a  premium  after  he 
had  notice  of  a  breach  of  one  of  the  condi- 
tions contained  in  the  policy,  was  a  waiver  of 
that  condition.  Carroll  v.  Charter  Oak  Ins. 
Co.,  40  Barb.,  292;  s.  c,  38  id.,  402;  1  Abb. 
Dec,  316. 

26.  The  policy  prohibited  any  increase  of 
'isk  whatever,  by  any  means  whatever,  within 
The  control  of  the  insured,  whether  by  oocii- 
oancy  or  otherwise.  At  the  time  of  the  fire, 
there  were  stored  in  the  same  building  with 
the  property  insured  (cider)  about  twenty-five 
barrels  of  native  wine,  prohibited  by  the  pol- 
icy. But  it  appeared  the  agent  of  the  compa- 
ny knew  that  the  wine  and  cider  were  in  the 
building.  Held,  if  insurer's  agent  had  full 
knowledge  that  the  wine  was  stored  with  the 
cider,  and  that  he  had  possession  of  the  policy 
and  opportunity  to  indorse  the  fact  upon  it, 
and  failed  to  do  so,  then  the  defendant  could 
aot  set  up  the  omission  as  a  defense  to  the  ac 


lion.   Iiat?tbone  v.  City  Fire  Ins.  Co..  31  Conn., 
193. 

27.  A  sizing  apparatus  was  in  the  premises, 
which  was  not  disclosed  in  the  application. 
Insuicrs  subsequently  sent  an  agent  to  exam- 
ine them,  and  received  the  premium  after  they 
were  examined.  Held,  if  the  contract  was  ob- 
tained by  a  fraudulent  concealment,  taking 
the  premium  did  not  confirm  it,  unless  the 
agent  had  knowledge  of  the  sizing  apparatus, 
and  that  question  must  be  left  to  the  jury. 
Allen  V.  Vermont  Mutual  Fire  Ins.  Co.,  12  Vt., 
360. 

28.  Insurers  defended  on  the  ground  that 
the  property  was  misdcscribcd,  and  that  the 
rate  of  premium  was  thereby  allected.  Held, 
it  was  proper  to  prove  the  statements  made  by 
insured  to  the  company's  secretary,  and  that 
the  latter  then  wrote  the  description  to  suit 
himself.  Hence  the  misdescription,  if  there 
were  one,  was  no  defense  to  the  action. 
MoUere  v.  Pennsylvania  Ins.  Co.,  5  Rawle,  342. 

29.  The  policy  w.as  based  upon  a  survey 
and  description  of  the  building;  and  among 
the  conditions  annexed,  a  false  description  of 
tlie  building  or  its  contents  by  the  insured 
should  vitiate  the  policy.  The  description 
and  sur\ey  were  made  a  part  of  the  policy,  and 
a  warranty  on  the  part  of  the  insured.  Tha 
application  failed  to  disclose  one  mortgage  for 
.I'j.OOO,  and  another  for  |1,000.  It  stated,  the 
works  are  operated  by  the  proprietor,  and 
lighted  by,  closed  lamps.  The  proof  showed 
that  an  open  light  was  generally  used  to  light 
up  the  others,  antl  that  the  works  were  not  ex- 
clusively operated  on  account  of  the  proprie- 
tor; that  he  rented  portions  of  the  building, 
and  supplied  steam  power  to  the  renters;  but 
it  was  proved  that  a  person,  acting  for  insurers' 
agents,  surveyed  the  building,  knew  how  it 
was  occupied,  and  that  the  insured  signed  the 
application  in  blank,  delivered  it  to  this  per- 
son  who  afterwards  filled  it  up  from  memory, 
and  it  was  not  afterwards  shown  to  the  insured. 
One  of  the  insurers'  agents  testified  that  he 
knew  the  building  and  as  to  how  it  was  occu- 
pied; that  he  knew  of  the  mortgage  not  men- 
tioned in  the  policy  or  in  the  application. 
Held,  the  application  was  not  the  act  of  the 
insured,  although  he  signed  it;  that  it  was  a 
description  by  insurers' agents,  and  though  it 
were  false,  could  not  aSect  the  piaintitPs  right 
to  recover.  Howard  Fire  Ins.  Co.  v.  Brunner, 
2?.  V'uu.  St.,  50. 

231 


463 


ESTOPPEL. 


464 


What  is. 


30.  Insurers'  agent  examined  the  premises 
and  wrote  the  description  in  the  application 
upon  which  the  policy  was  issued.  Insured 
resided  in  the  house,  using  a  part  of  it  as  a 
fancy,  variety,  confectionery  store,  mineral 
water  manufactory,  and  bath  house.  The  ap- 
plication did  not  state  anything  about  an  oven 
and  bakery,  but  there  was  one  in  the  premises. 
Mdd,  an  inadvertent  omission  to  state  facts 
material  to  the  risk  did  not  avoid  the  policy, 
unless  the  insui'ed  knew  that  the  fact  was  ma- 
terial. !Nor  would  it  avoid  the  policy  if  the 
material  matter  was  open  to  view,  or  insurers' 
agent  had  notice  of  it.  Cumberlund  Valley 
Mutual  Protection  Co.  ii.  Schell,  29  Penn.  St., 
31. 

31.  Policy  to  B.  &  S.,  copartners,  on  a 
■woolen  factory,  assigned  to  F.  &  M.,  and  ap- 
proved by  the  company.  Assigned  by  F.  <& 
M.  to  P.,  and  approved  by  the  company.  P. 
assigned  to  H.,  also  approved  by  the  compau}'. 
B.  &  S.  paid  the  premiums  regularly  for  eight 
years,  they  dissolved,  and  S.  conveyed  to  B.  all 
his  interest  in  the  premises  insured,  after  which 
B.  paid  the  premiums  regularly  for  seven 
years.  Stipulated:  "Any  person  selling  or 
transferring  the  property  or  any  part  thereof, 
this  policy  shall  be  void  so  far  as  relates  to  the 
part  sold,  unless  the  policy  be  also  transferred 
to  the  purchaser,  and  the  transfer  accepted  by 
the  president  or  secretary  within  twenty  days 
after  sale,  or  before  a  fire  happens,  such  assign- 
ment to  be  indorsed  on,  or  annexed  to,  such 
policy."  It  was  proved  that  the  treasurer  of 
the  company  knew  of  the  dissolution  of  the 
firm  of  B.  &  S.,  and  of  the  sale  by  S.  to  B.,  for 
about  seven  years  before  the  lire  took  place, 
and  that  he  continued  to  take,  annually,  the 
premiums  that  became  due  from  B.  Seld,  the 
company  was  estopped  to  insist  upon  the  for- 
feiture.   Buckley  v.  Gamtt,  47  Penn.  St.,  204. 

32.  Certain  questions  set  forth  in  a  printed 
application,  among  which  was  the  following: 
"What  incumbrances  on  the  property?"  An- 
swer, "Kone.  The  building  and  machinery 
are  leased  to  J.  Hughes,  of  Philadelphia." 
The  policy  was  made  subject  to  the  applica- 
tion, which  provided:  "If  any  agent  of  this 
company  in  the  transaction  of  their  business 
shall  assume  to  violate  these  conditions,  such 
■violation  shall  be  construed  to  be  the  act  of 
the  insured,  and  shall  render  void  this  policy." 
Held,  evidence  was  admissible  to  show  that 
insured  stated  to  the  agen*  that  there  were 

233 


judgments  against  the  real  estate,  but  he  sup. 
posed  they  were  not  liens  against  the  property 
insured,  as  that  ■svas  personal  property;  that 
the  agent  stated  he  was  of  the  same  opinion, 
and  in  filling  up  the  answer  as  to  whether  there 
■ft'ere  any  incumbrances,  the  agent  wrote  the 
word  "  None,"  after  he  had  concurred  in  the 
opinion  expressed  by  insured.  Hence,  the 
companj-  could  not  treat  the  policy  as  void,  on 
the  ground  that  the  answer  was  untrue.  Co- 
lumhia  Ins.  Co.  i'.  Cooper,  50  Penn.  St.,  .331. 

33.  On  stock  of  barlej-,  malt  and  hops; 
stipulated:  "The  risk  shall  not  be  increased 
without  consent  of  insurers."  Insured  used 
the  premises  for  the  purpose  of  distilling  whis- 
k}',  which  was  an  increase  of  risk.  Insurers' 
agent  examined  the  premises  before  the  con- 
tract was  made.  Held,  a  question  of  fact  for 
the  jury  to  determine  whether  the  agent  ought 
to  liave  known  from  the  examination  lie  made, 
or  was  told,  that  the  premises  would  be  used 
for  distilling,  and  if  he  did  know  it,  the  com- 
pany must  be  held  to  have  taken  the  risk  with 
their  eyes  open  to  the  fact  that  distilling  whis- 
ky, as  well  as  brewing  ale,  would  be  carried 
on.in  the  premises.  People's  Ins.  Co.  t.  Spencer^ 
53  Penn.  St.,  353. 

34.  The  court  instructed  the  jury  that  if  the 
agent  saw  fit  to  renew  the  policy  after  he  ob- 
tained accurate  knowledge  of  the  risk,  the 
company  would  be  bound  by  the  policy,  not- 
■n'ithstanding,  the  plaintiff's  representations  as 
to  distances  were  not  correct.  Held,  a  proper 
instruction,  because  the  agent's  knowledge 
and  action  was  the  knowledge  and  action  of 
the  company.  WMerell  v.  Maine  Ins.  Co.,  i9 
Me.,  200. 

35.  Policy  to  insured  as  the  absolute  owner 
of  tiie  property;  the  fact  was,  he  had  nothing 
but  the  interest  of  a  mortgagee;  but  insurers' 
agent  was  fully  cognizant  of  the  state  of  the 
title  and  of  the  interest  of  insured.  Held,  the 
neglect  of  the  defendant's  agent  to  describe 
the  interest  properly  would  be  corrected  in  a 
court  of  chancery  and  the  insurers  held  re. 
sponsible,  and  the  same  rule  must  prevail  at 
law  under  the  act  of  March  15,  1861,  ch.  84, 
sec.  2.  Emery  v.  Piscataqua  Fire  and  Marine 
Ins.  Co.,  52  Me.,  322. 

36.  The  application  for  insurance  was  writ- 
ten by  the  company's  agent,  who  knew  all  the 
facts  about  the  ownership  and  occupancy. 
The  statute  of  18G1,  ch.  34,  sec.  2,  provides 
that  an  application  so  drawn  shall  be  conclu- 


465 


ESTOPPEL. 


4CG 


^\^u^t  is. 


sive  on  Oie  company.  Held,  a  misdescription 
in  the  application  was  no  defense  to  tlie  ac- 
tion. Canton  V.  Monmouth  Mutual  Fire  Ins- 
Co.,  54  Me  ,  170. 

37.  The  insurer's  agent  -wrote  tlie  apjjlicii- 
tion,  anil  insured  signed  it.  A  steam  boiler 
was  in  the  building,  a  fact  well  known  to  the 
agent,  but  he  made  no  statement  of  it  in  the 
application.  The  rules  rif  the  company  pro- 
hibited  insurance  on  property  in  any  building 
in  which  lliere  was  a  steam  boiler.  Held,  the 
rules  of  the  company  could  have  no  higher 
effect  than  instructions  or  general  regulations; 
that  the  knowledge  of  the  agent  was  the 
knowledge  of  his  principal;  hence,  the  in- 
surers were  estopped  to  set  up  the  failure  to 
state  in  the  application  the  existence  of  the 
steam  boiler  (citing  Marshall  v.  Columbian 
Ins.  Co.,  27  N.  H.,  157).  Campbell  v.  Mer- 
chants and  Farmers  Mutual  Fire  Ins-  Co.,  37 
N.  H.,  35. 

38.  Insured  applied  to  L.,  defendant's 
agent,  for  insurance,  informed  liim  that  he 
could  not  particularly  describe  his  own  or  the 
surrounding  buildings,  and  agreed  to  pay  L. 
for  going  to  make  the  necessary  survey.  L. 
presented  a  blank  application,  which  insured 
signed.  L.  wrote  wlial  he  considered  neces- 
sary in  it,  sent  it  to  his  principals,  who  made 
a  policy  upon  it,  and  forwarded  it  to  insured. 
Tlie  by-laws,  part  of  the  contract,  made  the 
person  taking  the  application  the  agent  of  in- 
sured. Held,  L.  was  still  the  agent  of  the  in- 
surers, and  they  were  bound  b}'  his  acts;  that 
his  neglect  to  incorporate  in  the  application 
any  fact  essential  to  the  validity  of  the  policy 
could  not  be  set  up  as  a  defense  to  the  action. 
Clark  V.  Union  Mutual  Fire  Ins.  Co.,  40  N.  H., 
333 ;  Patten  v.  Merchants  and  Farmers  Mutual 
Fire  Ins.  Co.,  id.,  375. 

39.  The  application  described  the  property 
as  "  A  frame  steam  saw  mill,  situate,  etc.,  boil- 
er, engine,  machinery  and  belting,  contained 
therein."  There  was  a  planing  machine  in 
the  building,  on  the  same  floor  with  the  ma- 
chinery proper,  about  twenty  feet  distant  and 
attached  to  it  by  belting  and  plainl}-  visible. 
Insurer  pleaded  that  tlie  presence  of  the  plan- 
ing machine  was  c(mcealcd;  tliat  it  was  of  a 
class  or  kind  of  property  for  which  a  higher 
rate  of  premium  would  have  been  charged. 
Insured  replied  that  the  application  was  writ- 
ten by  the  defend.ant's  agent  after  an  inspec- 
tion of  the  property.    Held,  the  replication 


was  good.    James  River  Ins.  Co.  v.  Merritt,  Vt 
Ala.,  387. 

40.  Insurer's  agent  agreed  with  A.  for  tho  • 
erection  of  a  building  upon  land  belonging  to 
the  agent;  and,  in  consideration  thereof, 
agreed  to  give  A.  title  to  certain  realty.  A. 
entered  into  possession,  erected  a  building 
and  insured  it.  The  agent  made  the  policy, 
describing  the  building  as  owned  by  A.  Held, 
as  the  agent  knew  all  the  facts,  the  recital  of 
ownership  would  have  estopped  him  to  claim' 
title  to  the  property,  and  tlierefore  the  compa- 
ny could  not  take  advantage  of  the  fact  that 
the  insured  liad  not  at  the  lime  of  the  loss  the 
legal  estate.  Southern  Insurance  and  Trust 
Co.  V.  Lewis,  43  Ga.,  587. 

41.  "  On  a  steam  barrel  factory,  manufac- 
tured barrels  and  materials  for  the  same  con- 
tained therein."  Stipulated:  "Xot  liable  for 
damages  occasioned  by  the  use  of  camphene,. 
burning  fluid,  etc.,  unless  otherwise  speoially 
provided  for."  Insured  had  a  barrel  of  ben- 
zine in  a  building  contiguous  to  the  factoiy, 
used  by  him  for  storing  and  painting  empty 
barrels.  The  fire  originated  in  that  building. 
Held,  the  use  of  benzine  could  not  be  consid- 
ered an  incident  to  the  subject  insured,  because 
"  materials  for  the  manufacture  of  barrels  " 
necessarily  include  only  such  as  are  usually 
or  commonly  required  in  the  manufacture  of 
barrels.  But  if  insurer's  agent  knew,  at  the 
time  the  insurance  was  effected,  that  insured 
were  using,  paints  and  benzine  in  their  busi- 
ness, in  the  premises  insured,  the  company 
must  be  charged  with  that  knowledge,  and 
this  was  a  question  of  fact.  McFarland  v. 
Peabody  Ins.  Co.,  6  W.  Va.,  425 ;  Same  v.  ./Stna 
Fire  and  Marine  Ins.  Co.,  id.,  437. 

42.  Stipulated:  "The  interest  of  the  in- 
sured in  the  property  must  be  an  entire,  un- 
conditional and  sole  ownership ;  if  it  be  other 
than  that,  it  must  be  expressed  in  the  written 
portion  of  the  policy."  Held,  insured  had  the 
right  to  prove  that  after  the  policy  was  made, 
but  before  it  was  delivered  or  the  premium 
paid,  he  informed  the  company's  agent  that 
he  was  only  a  part  owner,  that  the  property 
was  incumbered,  and  that  the  agent  replied, 
"  It  will  make  no  difference;  that  is  all  right." 
If  this  was  established,  insurer  would  be  es- 
topped to  set  up  the  conditional  interest  as  a 
defense  to  the  action.  Franklin  v.  Atlantic 
Ins.  Co.,  42  Mo.,  456;  Combs  v.  Hannibal  Ins- 
Co.,  43  id.,  148. 

233 


4G7 


EsroJfPEL. 


46S 


What  is. 


43.  Stipulated:  "If  tlie  interest  in  the 
property  iusuretl  be  a  leaseliold  interest,  or 
other  interest  not  absolute,  it  must  be  so  rep- 
resented to  the  company  and  expressed  in  the 
liolicy  in  writing,  otherwise  the  insurance 
«hftll  be  void."  The  insured  was  not  the  abso- 
lute owner;  the  absolute  title  was  held  by 
trustees  for  the  use  of  his  wife,  which  was  not 
stated  in  the  policy;  but  the  particulars  of  the 
title  were  made  known  to  the  person  to  whom 
the  policy  was  entrusted  for  delivery  and  to 
whom  the  premium  was  paid.  Held,  the  com- 
pany was  estopped  to  contradict  the  descrip- 
tion stated  in  the  policy,  for  the  error  or  mis- 
take was  the  companj-'s.  Atlantic  Ins.  Co.  v. 
Wright,  23  111.,  463. 

44.  The  agent  of  insurer  made  the  survey 
and  application ;  and  in  the  application,  it  was 
stated  that  there  was  but  one  tenant  and  that 
the  building  was  occupied  for  hardware  onl3'; 
but  the  agent  was  fully  informed  as  to  its  sit- 
uation and  occupancy.  It  was  in  fact  occu- 
pied for  other  purposes  and  by  a  number  of 
tenants.  Held,  the  statement  in  the  applica- 
tion could  not  have  misled  the  insurer,  for  he 
was  informed  as  to  the  facts ;  that  the  agent's 
information  was  information  to  the  insurer. 
Howard  Fire  and  Marine  Ins.  Co.  v.  Cornick, 
24  111.,  455. 

45.  Insured  stated  to  insurer's  agent,  that 
machinery  for  making  rope  would  be  put  into 
the  premises,  which  was  done.  It  was  insured 
as  a  flax  factory.  Held,  the  description  was 
broad  enough  to  embrace  the  manufacture  of 
rope;  but  if  it  was  not,  the  company  could 
not  defend  on  that  ground  if  it  appeared  that 
the  agent  told  insured  that  the  term  "  flax 
factory  "  would  embrace  and  permit  the  man- 
ufacture of  rope.  Aurora  Fire  Ins.  Co.  v. 
Eddy,  55  III ,  213. 

46.  Stipulated:  "If  the  interest  in  the  real 
estate  be  less  than  a  fee,  it  must-be  stated  in 
the  policy."  The  insured  was  asked  what 
his  title  was,  and  he  said  it  was  a  fee  simple. 
The  agent  and  the  vice  president  of  the  com- 
pany knew  that  he  had  made  a  mortgage 
upon  the  premises  to  secure  $10,000,  and  the 
policy  was  made  payable  to  the  mortgagee. 
Held,  to  permit  the  company  to  defend  on 
th.at  ground  would  countenance  the  perpetra- 
tion of  a  gross  fraud.  Home  Mutual  Fire  Ins. 
Co.  V.  Garfield,  60  111.,  124. 

47.  Stipulated:  "Gunpowder  shall  not  be 
.kept  on  the  premises  without  permission,  and 

234 


nothing  but  a  distinct  agreement  indorsed 
upoa  the  polic}'  shall  be  considered  as  a  wai- 
ver of  any  condition  or  restriction  mentioned 
in  it."  .  At  the  lime  of  the  lire  insured  had  oa 
hand  a  few  pounds  of  gunpowder,  kept  wtth 
the  knowledge  and  express  permission  of  in- 
surer's agent,  who  renewed  tlie  policy,  ac- 
cepted the  premium  and  remitted  it  to  in- 
surer. Held,  the  forfeiture  was  for  the  ex- 
clusive benefit  of  insurer,  who  could  waive 
it  if  he  pleased,  and  he  could  so  do  by  writing 
or  verbally,  by  an  agent  authorized ;  and  that 
this  agent  must  be  held  as  authorized  to 
waive  it.  Reaper  City  Ins.  Co.  ■».  Jones,  63 
111.,  458. 

48.  The  agent  of  insurer  made  out  the  ap- 
plication for  the  insurance.  He  had  knowl- 
edge of  the  title  which  insured  then  had. 
Held,  insurer  was  bound  by  all  the  statements 
made  in  the  application  as  to  title  and  situa- 
tion of  jM-opert}-,  unless  it  appeared  that  the 
agent  and  the  insured  acted  in  collusion. 
Rockford  Ins.  Co.  v.  Nelson,  05  111.,  415. 

49.  The  application  was  written  by  insur- 
er's agent,  and  insured  signed  it  without 
knowing  its  contents,  the  agent  representing 
that  it  was  all  right.  It  required  a  record  to 
be  kept  of  the  watchman's  performance  of 
duty.  The  agent  knew  that  no  watch  clock 
was  kept,  and  it  was  an  established  fact  that 
without  one,  a  record  of  the  watchman's  per- 
formance of  duty  could  not  be  preserved. 
Held,  no  defense  to  the  action,  for  the  insurer 
must  be  deemed  to  have  issued  the  policy 
with  full  knowledge  that  no  record  of  the 
watchman's  performance  of  duty  would  be 
kept  (citing  Commercial  Ins.  Co.  v.  Span- 
knable,  53  111.,  55).  Andes  Ins.  Co.  v.  Shipman, 
77  111.,  189. 

50.  The  application  contained  an  untrue 
statement  as  to  incumbrances  upon  the  prop- 
erty insured;  but  the  agent  of  the  company 
knew  what  the  incumbrances  were,  mis- 
stated them,  and  insured  signed  the  applica- 
tion. Held,  the  insurer  was  estopped  to  urge 
the  untruth  as  a  defense  to  the  action,  unless 
there  was  collusion  between  insured  and  in- 
surer's agent.  Hartford  Protection  Int.  Co.  t. 
Harmer,  3  Ohio  St.,  453. 

51.  H.  solicited  the  plaintiff  to  insure,  ex- 
amined the  building,  made  a  survey  of  it, 
filled  out  and  delivered  a  policy.  Held,  the 
company  could  not  defend  on  the  ground  that 
there  were  openings  in  the  walls,  or  that  the 


469 


ESTOPPEL. 


470 


What  is. 


premises  were  used  for  purposes  prohibited 
by  the  teriu"  of  the  policy,  if  the  company's 
agent  iniyht  have  seen  the  openings  and 
knew  the  uses  to  wliioli  the  building  was 
put.  Beal  V.  Park  Fire  Ins.  Co.,  16  Wis., 
341. 

52.  A.  &  B.  as  partners  procured  a  policy 
on  their  mill,  etc.  Stipulated:  "  If  the  prop- 
erty insured  shall  be  sold  or  conveyed  without 
the  consent  of  this  company  obtained  in  wri- 
ting hereon,  it  shall  be  void."  A.  sold  his  in- 
terest to  B.,  who  desired  to  assign  the  policy 
as  security  for  a  debt  due  by  him  to  C.  There- 
upon B.  callfd  upon  the  agent  of  the  ccnii- 
pany,  informed  him  of  the  fact  that  he  had 
purchased  his  partner's  interest,  and  of  his  in- 
tention to  assign  the  policy  to  secure  the  debt 
to  C.  The  agent  wrote  across  the  face  of  the 
policy,  "Loss,  if  any,  payable  to  C,  mort- 
gagee." Held,  the  forfeiture  was  waived  and 
the  policy  continued  in  force.  Keeler  v.  Ni- 
agara Fire  Ins.  Co.,  IC  Wis.,  r)23. 

53.  Stipulated:  "If  the  property  be  sold  or 
transferred,  or  any  change  takes  place  in  the 
title  or  possession  by  legal  process,  .judicial 
decree  or  voluntary  transfer,  this  policy  shall 
be  void."  The  policy  was  made  to  R.  "Loss, 
if  any,  payable  to  H.  &  N.,  mortgagees."  In- 
surers' agent  knew,  when  he  renewed  the  pol- 
icy, that  the  legal  title  h.ad  passed  from  R.  to 
the  plaintifl'.  Keld,  insurers  were  estopped  to 
defend  on  the  ground  of  alienation  (citing 
Viele  V.  Germania  lus.  Co.,  2G  Iowa,  9).  Mi- 
ner v.  PlMtiix  Ins.  Co.,  57  Wis.,  G03;  Mechler 
V.  Phcenix  Ins.  Co.,  38  id.,  G6.5. 

54.  The  application  was  tilled  up  by  the 
company's  agent,  staling  the  title  in  the 
plaintifl".  Insurers  offered  a  warranty  deed, 
which  showed  that  the  property  was  not  in 
the  plainliifs,  but  in  JIcBride.  The  court 
permitted  proof,  showing  that  the  agent  was 
informed  that  the  building  was  on  the  land  of 
McBride,  "  who  furnished  the  store  and  the 
capital,  and  that  the  plaiutift"  was  to  have  half." 
Held,  if  the  agent  was  informed  in  regard  to 
the  title,  and  he  inserted  in  the  application  an 
untrutli  in  respect  to  it,  the  misrepresentation 
could  not  aflect  the  plaintiff's  right  to  recover. 
McBride  c.  Kepuhlic  Fire  Ins.  Co.,  SO  Wis.,  562. 

55.  Stipulated:  "Permission  is  granted  to 
light  the  pi-smises  with  g.asoline  gas  when  the 
generator  is  removed  thirty  feet  from  the 
building."  There  was  another  clause  in  the 
■contract,   as    follows:    "The    generating,  or 


evaporating,  or  using  within  any  building 
where  this  policy  may  apply,  or  contiguous 
thereto,  of  gasoline,  benzine,  naptha;  or  of  any 
substance  for  burning  gas  or  vapor  for  light- 
ing, other  than  the  ordinary  street  gas  or  kero- 
sene, is  prohibited  unless  permilted  in  writing 
hereon."  The  complaint  alleged  that  the 
building  was  lighted  with  gasoline,  and  the 
generator  was  within  thirty  feet  of  the  build- 
ing, which  facts  were  well  known  to  defend- 
ant's agent  when  the  policy  was  made;  that 
insured  was  then  engaged  in  removing  the 
burners  and  tixlures  and  putting  lamps  in 
their  places,  for  the  purpose  of  lighting  with 
kerosene,  and  that  the  agent  consented  that 
the  premises  might  be  lighted  with  gasoline 
till  the  change  could  be  efl'ected.  The  prem- 
ises were  consumed  before  completing  the 
change.  Held,  it  is  the  settled  law  of  this 
court  that  an  agent  of  an  insurance  company, 
authorized  to  take  risks  and  issue  policies 
against  fire,  may  waive,  by  parol,  any  condi- 
tion in  the  policy  issued  by  him.  Winans  v. 
Allemania  Ins.  Co.,  38  Wis.,  343. 

56.  If  the  agent  had  authority  only  to  re- 
ceive and  forward  applications,  parol  evidence 
is  not  admissible  to  show  that  he  failed  to  take 
down  the  applicant's  statements  correctlj-,  or 
that  he  changed  them ;  but,  if  the  agent  had 
power  to  pass  upon,  and  did  pass  upon,  the 
risk  without  submitting  it  to  his  principal, 
and  in  slating  the  facts  in  the  application, 
failed  to  stale  them  correctly,  the  applicant 
being  ignorant  of  the  mistake,  the  insurer 
would  be  estopped  to  object  that  he  was  mis- 
led by  the  statements  contained  in  the  appli- 
cation.  Agres  v.  Hartford  Fire  Ins.  Co.,  17 
Iowa,  176. 

57.  The  policy  described  the  interest  of  the 
insured  as  that  of  mortgagee.  L.  was  insurer's 
resident  agent,  and  was  fully  authorized  to  take 
risks  and  grant  policies.  He  was  informed 
by  the  applicant  of  the  nature  of  his  iulerest, 
that  it  was  a  mechanic's  lien;  but  F.  was  the 
partner  of  L.,  and  F.  drew  up  the  application, 
and  in  it  described  the  intei-est  of  insured  as 
that  of  mortgagee.  Insured  signed  the  appli- 
cation without  reading  it,  and  the  policy  was 
issued,  describing  tlie  interest  of  insured  as 
stated  in  the  application.  When  the  policy 
was  delivered,  insured  asked  why  it  was  so 
described,  and  L.  said  that  a  mortgage  and  a 
mechanic's  lien  were  the  same.  Held,  the 
mistake  was  the  result  of  the  agent's  ignor- 

233 


471 


ESTOPPEL. 


472 


What  is. 


ance  of  the  law,  for  which  insured  could  not 
suflFer,  and  equity  will  relieve  against  the  mis- 
take of  a  party  to  a  contract,  in  matter  of  law, 
when  it  is  produced  by  his  representations 
(citing  Evants  j).  Strode,  11  Ohio,  480;  Drew 
u.  Clark,  Cooke  (Tenn.),  'S14).  Lour/hurst  v. 
Star  Ins.  Co.,  19  Iowa,  304. 

58.  The  agent,  who  had  jiower  to  accept 
applications  and  issue  policies,  received  an 
application,  but  failed  to  state'  correctly  the 
facts  pertaining  to  the  title  and  interest  of  the 
insured,  and  it  was  misdescribed  in  the  policy. 
Held,  the  misdescription  was  no  defense  to  the 
action.  Ayers  v.  Hume  Ins.  Co.,  21  Iowa,  180; 
Ansun  V.  Winnesheik  Ins.  Co.,  23  id.,  84 ;  Bar- 
tholomew V.  Merchants  Ins.  Co.,  25  id.,  507. 

59.  The  application  was  made  part  of  the 
contract,  which  stipulated ;  "  Any  untrue 
statement  contained  in  the  application  will 
vitiate  the  policy."  In  it  the  person  was  repre- 
sented as  sober  and  temperate  —  that  he  hnd 
always  been  so.  Insurer's  agent,  in  answer 
to  a  question  propounded  in  the  application, 
stated,  that  he  was  a  fit  person  for  insurance, 
and  recommended  him  for  it.  The  agent  well 
knew  that  the  person  insured  was  addicted  to 
the  intemperate  use  of  intoxicating  liquors. 
His  death  was  caused  by  the  intemperate  tise 
of  intoxicating  liquors.  Held,  although  the 
statements  made  in  the  application  were  un- 
true, yet  if  the  insurer  was  informed  of,  and 
knew  the  truth  in  that  regard,  and  after  such 
knowledge  received  the  application  and  pre- 
mium and  issued  the  policy,  he  must  be  held 
liable;  and  the  knowledge  of  the  agent  who 
took  the  application  was  the  knowledge  of  the 
insurer.  Miller  v.  Mutual  Benefit  Life  Ins.  Co., 
31  Iowa.  216. 

60.  The  policy  prohibited  keeping  gun- 
powder without  permission  written  upon  the 
]5olicy.  Held,  if  the  agent  who  issued  the 
policy  knew  that  gunpower  was  kept  and  to 
be  kept,  the  contract  was  valid,  whether  per- 
mission was  indorsed  or  not,  notwithstanding 
a  printed  condition  in  the  contract  showing 
the  agent's  authority  was  limited,  for  the  com- 
pany must  be  regarded  as  having  known  that 
gunpowder  was,  and  would  be  kept  —  the 
knowledge  of  the  agent  being  the  knowledge 
of  the  principal.  It  would  be  a  fraud  to  per- 
mit the  company  to  make  a  policy  which  the3' 
intended  to  treat  as  void  in  case  any  loss  oc- 
curi'ed.  Peoria  Marine  and  Fire  Ins.  Co.  v. 
Hall,  12  Mich.,  202. 

23S 


61.  Applicant  was  required  to  state  what,  if 
anj',  incumbrances  were  upon  tlie  properly 
insured;  also  the  amount.  He  answered,  "Xo." 
There  were  then  two  mortgages  upon  it.  The 
company's  agent  admitted  that  he  knew  ot 
the  mortgiiges,  tliat  he  drew  the  application, 
wrote  the  answers,  requested  insured  to  sign 
it,  and  told  insured  it  would  not  make  any 
diiierence  if  the  mortgages  were  not  men- 
tioned. The  application  was  made  part  of  the 
contract,  and  the  answers  were  expressly  made 
warranties.  Held,  failure  to  disclose  the  mort- 
gages was  to  be  attributed  either  to  the  agent's 
ignorance,  negligence,  or  fraudulent  preten.se; 
he  was  giving  an  indemnity  when  he  knew  he 
was  giving  none;  the  maxim,  qui  facit  per 
alium,facit  per  se,  applied ;  that  it  was  a  fraud 
on  the  insured  to  take  the  premium ;  hence 
the  insurers  were  estopped  on  that  ground. 
uEtna  Life  Stock  Ins.  Co.  v.  Olmstead,  21 
Mich.,  246. 

62.  Stipulated:  "In  all  cases  of  application 
for  insurance,  the  applicant  shall  state  the 
whole  amount  of  Incumbrance  on  The  prop- 
erty, or  the  policy  shall  be  void.  There  shall 
be  no  waiver  or  evasion  of  the  terms  or  condi- 
tions of  this  policj',  and  no  agent  or  servant 
of  this  company  has  any  power  to  waive  or 
dispense  withanj-  of  the  conditions  printed  or 
contained  in  the  application  or  in  this  policy, 
except  by  the  concurrence  of  the  secretary  in- 
dorsed  hereon  or  otherwise  acknowledged  in 
writing  by  him.  In  case  of  any  transfer  or 
termination  of  the  interest  of  the  insured,  or 
any  part  of  his  interest,  by  sale,  contract  or 
otherwise,  or  any  mortgage,  lien  or  incum- 
brance shall  attach  thereto,  or  if  the  title  shall 
be  in  any  way  changed  or  affected  after  the 
date  of  this  policy,  without  such  consent.il 
shall  be  thenceforth  void."  Insured  stated 
the  amount  of  a  mortgage  and  the  accumu- 
lated interest  to  insurer's  agent,  who  wrote  the 
answers  to  the  questions  propounded  in  the 
application.  In  stating  the  amount  of  incum- 
brance the  agent  wrote,  "  Yes,  mortgage  near 
$.5,800."  The  mortgage  was  for  $5,325,  with 
seven  years  accumulated  interest  at  sever  per 
cent.,  of  which  there  h.ad  been  only  one  hundred 
dollars  paid.  Held,  tlie  question  was  not  one  of 
waiver  but  was  one  of  estoppel.  Insured  sim- 
ply accepted  such  papers  as  were  prepared  by 
defendant's  agent,  who  had  received  .all  ueces 
sary  information  to  enable  him  to  draw  thera 
correctly,  and  the  company  must  be  deemed  ta 


473 


ESTOPPEL. 


474 


What  is  not. 


}]!ive  acted  with  full  notice  of  the  facts,  and 
must  not  be  allowed  to  urge  I  he  error  or  fraud 
of  their  agent  as  a  defense  to  the  action. 
Michigiui  St'ite  Ins.  Co.  v.  Lewis,  30  Mich.,  41. 

03.  The  fee  of  certain  lauds  was  in  tlic 
wife  of  insured,  but  he  had  erected  upon  them 
a  dwellinjj;  hou.se,  occupied  by  the  family;  and 
he  insured  it  in  his  own  name.  Tin;  contract 
stipulated:  ''If  the  interest  of  the  insured  is 
not  one  of  absolute  ownership,  and  the  nature 
of  the  interest  is  not  clearly  defiued  in  writing 
hereon,  tlien  this  policy  shall  be  void."  The 
jury  found  specially,  "  That  tlie  true  nature  of 
the  interest  of  insured,  and  the  exact  coudi- 
tioD  of  the  title  were  stated  by  insured  to  in- 
surer's  agent,  and  that  the  agent  told  the 
insured  it  would  make  no  diiTerence  whether 
the  policy  was  made  to  him  or  to  his  wife." 
Held,  insured  was  cititled  to  recover,  notwith. 
standing  his  interest  was  different  from  that 
described  in  the  policy.  American  Central 
Ilia.  Co.  V.  McLanathan,  11  Kan.,  533. 

64.  D.  represented  himself  as  an  insurance 
agent,  solicited  risks  from  all  persons,  and 
effected  insurances  in  several  diflereut  offices, 
talving  the  premiums,  receiving  the  policies, 
and  paying  over  the  premiums  to  the  com- 
panies, upon  which  the  companies  allowed 
him  a  commission.  He  inspected  the  build- 
ings, had  free  access  to  all  parts,  and  commu- 
nicated the  particulars  to  the  company.  The 
policy  described  the  buildings  as  built  of 
brick,  and  slated.  It  however  ai)peared  upon 
the  trial,  that  one  of  them  was  not  slated,  that 
the  roof  was  of  tar  and  felt,  when  the  policy 
was  effected.  Held,  D.  was  not  the  agent  of 
the  insured,  but  the  agent  of  the  insurers;  that 
the  misdescription  was  not  material;  but  if  it 
was,  the  company  could  not  take  advantage  of 
it,  for  the  mistake  was  the  mistake  of  their 
own  agent.  In  re  the  Universal  Nontariff  Fire 
Ins.  Co.,  Forbes'  Claim,  19  L.  R.  Eq.,  485. 

II.  What  is  not. 

(a)  Of  the  acts  and  conduct  of  tlie 
2)nncipal. 

1.  Stipulated:  "To  be  void  in  case  the 
property  insured  shall  be  alienated."  Insured 
conveyed  the  property,  and  sulisequently  with 
knowledge  of  the  conveyance,  insurers  ex- 
acted  payment  of  the  deposit  note.  Held,  this 
did  not  revive  the  policy,  for  the  insured  was 


liable  upon  the  deposit  note  until  surrender 
of  the  policy.  Neely  v.  Onondaga  County  Mut. 
Int.  Co.,  7  Hill,  49. 

2.  The  policy  prohibited  any  sale  or  trans- 
fer of  the  properly  insured.  A  sale  was  made, 
and  insurers  made  assessments  against  the 
policy  after  the  sale,  and  collected  them. 
Held,  no  waiver  of  the  condition,  unless  the 
company  knew  of  the  change  of  ownership. 
Finley  v.  Lycoming  Ins.  Co.,  30  Penn.  St.,  311. 

3.  Defendants  pleaded  that  the  policy  was 
made  upon  condition,  "  If  the  interest  in  the 
property  insured  \vas  a  leasehold  or  other  in- 
terest not  absolute,  it  must  be  so  stated  in  the 
policy,  otherwise  it  should  be  void;  that  the 
interest  of  the  plaintiff  was  not  absolute,  and 
was  not  so  stated  in  the  policy.  To  which 
plaintiff  replied,  that  he  was  seized  of  an  ab- 
solute estate  in  the  premises  in  fee  simple,  in 
right  of  his  wife  at  the  time  the  policy  was 
made,  which  was  well  known  to  defendants, 
and  truly  described  to  them ;  that  the  descrip- 
tion of  his  interest,  as  set  forth  in  the  policy, 
was  made  by  the  defendants,  after  the  same 
was  disclosed  to  them;  without  this,  that  the 
condition  mentioned  in  the  plea  was  violated 
or  broken.  The  defendants  rejoined  reassert- 
ing the  breach  of  the  condition.  Held,  the 
issue  tendered  in  the  replication  was  no  an- 
swer to  the  plea,  for  knowledge  by  insurer 
that  a  warranty  has  been  broken,  at  the  time 
it  was  made,  does  not  relieve  insured  from 
the  consequences  of  the  breach,  nor  change 
the  warranty.  This  case,  the  court  siiys,  is 
distinguishable  from  Howard  Fire  Ins.  Co.  v. 
Bruuer,  23  Penn.  St.,  50.  State  Mutual  Fire 
Ins.  Co.  V.  Arthur,  30  Penn.  St.,  315. 

4.  The  company  defended  on  the  ground 
that  the  policy  was  forfeited  by  a  violation  of 
one  of  its  conditions.  The  insured  offered  to 
prove  that  insurers  assessed  and  collected  the 
assessment  after  the  forfeiture.  Held,  a  waiver 
never  occurs,  unless  the  act  relied  on  ought 
in  equity  to  estop  the  party.  There  was  no 
proof  that  the  insurers  had  notice  of  the  for- 
feiture  when  they  assessed  and  collected. 
Diefd  V.  Adams  County  Mut.  Ins.  Co.,  58 
Penn.  St.,  443. 

5.  The  charter  of  the  company  provided 
that  the  insured  should  be  deemed  a  member 
during  the  term  mentioned  in  the  policy. 
Held,  an  assessment  made  and  collected  from 
the  insured  during  the  term,  but  subsequently 
t;i  the  loss  of  the  property  insured,  was  not  a 


475 


ESTOPPEL. 


4Ta 


What  is  not. 


a  waiver  of  a  prior  forfeiture.  Philbrook  v. 
JV««!  England  JJut.  Ins.  Co.,  37  Me.,  137. 

B.  Oue  of  tlie  conditions  of  tlie  policy  was 
violated  and  afterwards,  but  in  ignorance  of 
that  violation,  insurers  made  assessments  up- 
on the  premium  note  and  collected  tliem. 
HeM,  they  were  not  estopped  from  setting  up 
the  condition  and  its  violation  as  a  defense  to 
the  action.  Hazard  v.  Franklin  Mutual  Fire 
Ins.  Co.,  7  R.  I.,  429. 

7.  Stipulated:  "  If  the  ship  insured  shall 
he  mortgaged  for  any  debt,  the  insured  shall 
not  have  anj'  claim  for  loss  unless  previously 
to  such  loss  the  insured  shall  have  delivered 
to  the  secretary  of  the  insurers  an  undertak- 
ing in  writing,  of  the  mortgagee  or  assignee, 
to  pay  all  sums  which  might  thereafter  be- 
come due  from  the  insured  to  the  insurers." 
The  defendant  pleaded  that  she  was  mort- 
gaged, and  that  plaintiff  did  not  previousl}-  to 
the  loss  deliver  to  insurers  an  undertaking  of 
the  mortgagees  to  pay  all  moneys  which  might 
thereafter  become  due  to  insurers  in  respect  of 
the  ship.  Keplication:  That  defendants  had 
notice  of  the  mortgage,  and  afterwards,  with- 
out requiring  the  undertaking,  demanded  and 
received  from  the  mortgagees  all  sums  of 
money  wliich  became  due  from  the  insured  in 
respect  of  the  ship.  Held,  the  replication  was 
not  sufficient,  because  it  did  not  state  matter 
enough  to  establish  a  waiver  of  the  condition. 
HugTies  v.  Tindall,  18  C.  B.,  98. 

(b)   Of  the  acts  and  conduct  of  the 
agent. 

S.  The  policy  was  based  upon  certain  de- 
clarations contained  in  an  application  made 
by  the  person  for  whose  benefit  the  policy  was 
obtained.  The  plaintitf  claimed  that  the  ap- 
plication was  not  filled  up  at  the  house;  that 
when  it  was  about  to  be  signed,  the  solicitor 
of  the  company  put  his  hand  over  the  paper 
and  directed  where  to  sign,  saying :  "  You  are 
to  sign  here.  This  is  only  a  matter  of  form, 
and  j'our  signing  indicates  only  that  you  de- 
sire to  be  insured."  Held,  if  the  answers 
stated  in  the  application  were  not  substantially 
true,  the  plaintiff  could  not  recover.  U.  S. 
Dist.  Ct.,  Cal. ;  Lee  v.  Guardian  life  Ins.  Co., 
5  Ins.  L.  J.,  26. 

9.  The  referee  found  that  the  application 
was  made  through  M.,  an  agent  of  the  defend- 
ant; that  the  policy  was  sent  by  mail  to  the 
238 


plaintiff;  that  the  agent  was  informed  the 
tenant  was  about  to  move  out  of  the  premises, 
and  the  house  was  about  to  be  vacant,  and 
that  insured  had  lost  the  policy;  the  agent 
said  he  had  a  record  of  it  at  home,  and  there 
would  be  no  trouble  about  it.  It  did  not  ap- 
pear that  the  agent  had  power  to  issue  policies, 
but  it  did  appear  he  had  authority  to  consent 
to  assignments,  make  surveys  and  take  appli- 
cations. The  policy  provided:  "  No  agent  is 
permitted  to  waive  any  stipulation  or  condi- 
tion in  the  policj'  named."  Held,  notice  to 
the  agent  that  the  premises  were  about  to 
be  vacant  was  not  sufficient  to  estop  the  de- 
fendant from  defending  on  the  ground  of 
nonoccupancy.  Thayer  v.  Agricultural  Ins. 
Co.,  5  Hun.  (N.  Y.),  566. 

10.  Stipulated:  "The  company  will  not  be 
answerable  for  a  loss  arising  from  the  use  of 
fires  in  buildings  unprovided  with  good  and 
substantial  stone  or  brick  chimneys."  The  ap- 
plication stated,  "  One  chimney,  one  stove. 
Stoves  well  secured ;  pipe  passed  through 
crock,  well  secured."  There  was  no  chimney, 
and  the  stovepipe  was  not  se'ured  by  crocks. 
The  agent  testified,  he  madt  the  exumination 
and  filled  up  the  applicatioL;  that  he  knew 
there  was  no  chimney  in  the  building,  nor 
crock  for  the  stovepipe.  Held,  the  agent  com- 
mitted a  fraud  upon  his  principal,  in  which 
the  insured  was  particeps  criminis;  hence  he 
could  not  profit  by  the  fraud.  This  case  is 
distinguishable  from  that  of  Howard  Ins.  Co. 
V.  Bruner,  23  Penu.  St..  30,  because  in  that  case 
the  agent  had  authority  to  make  the  contract 
and  issue  the  policy ;  but  in  this,  he  had  no 
authority  to  do  more  than  receive  applications 
and  transmit  them  to  his  principals,  who 
founded  their  contracts  upon  bona  fide  appli- 
cations. Smith  c.  Cash  Hut.  Ins.  Co.,  24  Penn. 
St.,  320. 

1 1.  One  person  acted  as  agent  for  two  com- 
panies. Both  issued  policies  on  the  same 
property.  Held,  not  sufficient  to  waive  com- 
pliance with  the  by-law  which  required  "sub- 
sequent insurance  "  to  have  the  consent  of  the 
directors  signified  bj-  statement  in  the  policy, 
or  by  indorsement  signed  by  the  secretary. 
Forbes  v.  Agaioam  Mutual  Fire  Ins.  Co.,  9 
Gush.,  470. 

12.  Insured  had  signed  a  blank  application 
and  transmitted  it  to  insurers,  for  them  to  fill 
in  the  answers  stated  in  a  former  application. 
Held,  insured   could  not  (in  the  absence   ot 


477 


EVIDENCE. 


47a 


Original  and  independent. 


fiaiid)  be  allowed  to  contend  that  the  applica- 
tion was  not  theirs ;  but  the  proper  question  for 
the  jury  was,  whether  the  insurers,  in  fiHing 
in  the  blanks,  had  exceeded  tlieir  authority. 
Liherty  Hall  Ass.  v.  Housatonic  Mut.  Ins.  Co., 
1  Gray,  261. 

in.  If  the  agent  liad  only  authority  to  so- 
licit, procure  and  forward  applications  to 
his  principal,  and  they  were  subject  to  his 
principal's  acceptance  or  rejection,  the  prin- 
cipal  is  not  chargenble  with  notice  of  any 
matter  not  stated  in  the  application,  though  it 
■were  communicated  lo  the  agent,  unless  the 
agent  communicated  the  fact  omitted  to  his 
principal.  Bartholomew  v.  Merelianta  Ins.  Co.. 
25  Iowa,  .507 ;  overruled  by  Miller  ®.  Mutual 
Benefit  Life  Ins.  Co.,  31  id.,  216. 

14.  If  the  description  of  the  property  was 
material  to  the  risli,  and  it  was  raisdescribed, 
insured  cannot  recover,  notwithstanding  in- 
surer's  agent  concurred.  Continental  Ins.  Co. 
V.  Kasey,  25  Grattan,  268. 


EVIDENCE. 

(See  Estoppel;  Master's  Protest;  Principal  and 
Agent.) 

I.    OniGINAL  AND  INDEPENDENT. 

II.  The  best  must  be  produceq 

III.  Parol. 

(a)  When  admissible  to  vary  writing. 

(b)  inadmissible  to  vary  writing. 

(c)  admissible  to  show  part  per- 

formance. 

(d)  admissible  to  shoie  intention. 

(e)  admissible   to  remove  latent 

ambiguity. 

(f )  admissible  to  estop,  or  correct 

mistakes. 

IV.  Declahations. 

(a)  Of  the  parties. 

(b)  agents. 

(c)  deceased  persons. 

(d)  res  gestw. 

V.  Res  inter  alios  act.s:. 
VI.  Confidential  comjutnications. 
VII.  Hearsay. 

VIII.  Chab.\.cter,  reputation   or   pedi- 
gree. 

IX.    CONTKNTS  of  books  and  P.VPERS. 


X. 


XI, 
XII. 

XIII. 

XIV. 
XV. 

XVI. 

XVII. 
XVIII. 

XIX. 

XX. 

XXI. 


Opinions. 

(a)  IKAe/i  admissible. 

(b)  inadmisiible. 
Immaterial  and  irrelevant. 
Weight  op  evidence. 

WlTHDRA^VlNG  OR  STRIKING  OUT. 

Objections  to. 

Usage  and  custom. 

Books,  papers,  letters  and  photo 

GRAPHS. 

Foreign  Laws. 

Impeaching    adversart's,  or  con- 
tradicting TOUR  OWN  ■witnesses. 
Leading  questions. 
Refreshing  memort. 
Reasons. 


I.  Original  and  independent. 

1.  On  stock  of  groceries.  There  was  no 
evidence  as  to  tlie  value  of  the  goods,  except 
that  given  by  the  insured  themselves.  There 
were  no  trustworthy  books  of  accounts,  and 
insurers  offered  to  show  by  witnesses  engaged 
in  the  same  business  a-t  the  same  place,  whose 
annual  sales  were  as  hvrge  as  those  of  the  in- 
sured ;  that  grocery  merchants  in  that  city,  for 
six  years  prior,  liad  not  carried  or  kept  on 
hand  at  any  one  time  more  than  one-fifth  of 
their  annual  aggregate  sales.  Held,  the  evi- 
dence was  admissible.  Insurance  Co.v.Weidc, 
11  Wall.,  439. 

2.  On  a  question  of  insurable  interest,  the 
witness  may  testify  that  he  saw  the  original 
register  in  the  name  of  the  owner,  when  the 
ship  was  about  to  sail ;  also  that  goods  were 
bought  by  the  insured,  and  that  he  saw  them 
go  on  board.  Peyton  v.  Hallett,  1  Caines,  363. 
Reputation,  domicile  and  employment  of  the 
insured  are  admissible  upon  the  question 
whether  the  insured  is  an  American  citizen. 
Ibid. 

3.  A  copy  of  a  sentence  pronounced  in  ad- 
miralty, under  a  seal  of  court,  signed  by  the 
actuary,  the  register  being  absent,  with  proof 
of  the  seal  and  signature  is  sufficient.  Oar- 
dere  v.  Columbian  Ins.  Co.,  7  Johns.,  Sl-l. 

4.  Action  for  .loss  of  goods.  A  witness  was 
introduced,  wlio  had  been  employed  in  the 
store  adjoining,  in  wliich  were  kept  goods  sim- 
ilar to  those  lost.  Both  stores  were  of  same 
size,  and  an  inventory  had  been  taken  of  the 
goods  in  that  store,    jffeld,  it  was  proper  to- 

239 


479 


EVIDENCE. 


4S0 


Origii>al  and  independent. 


show,  as  evidence  for  the  defendant,  tlie  value 
of  the  stock  contained  in  tlie  adjacent  store. 
Howard  t.  City  Fire  Ins.  Co.,  4  Denio,  503. 

5.  The  defendants'  agent  had  transmitted  to 
the  company  the  papers  upon  which  tlie  policy 
had  been  issued,  among  which  was  a  state- 
ment of  his  own  as  agent  or  attorney,  in  which 
he  stated  that  the  insured  did  not  in  his  opin- 
ion have  any  practices  or  habits  which  liad, 
or  would  impair  his  constitution  or  general 
health.  The  defendants  pleaded  this  in  their 
answer,  and  averred  that  it  was  false,  and  was 
known  to  be  so  to  the  person  insured,  as  well 
as  to  the  person  for  whose  benefit  the  policy 
was  obtained.  Held,  it  was  proper  to  call  the 
defendants'  agent  as  a  witness  for  the  plaintilf, 
to  sustain  the  statement.  Bawls  v.  American 
Mutual  Life  Ins.  Co.,  27  K.  Y.,  283 ;  s.  c,  36 
Barb.,  357. 

6.  The  master  was  a.sked  to  state  what 
caused  the  loss.  Held,  competent  evidence. 
Walsh  V.  Washington  Marine  Ins.  Co.,  33  N. 
T.,  427 ;  s.  c,  3  Rob.,  202. 

7.  The  examining  physician  was  asked 
whether  he  inquired  of  the  person  proposed 
as  to  his  pecuniary  circumstances,  what  re- 
sponse was  given,  and  how  far  he  deemed  the 
answer  material  in  deciding  to  advise  the  ac- 
ceptance of  the  risk.  The  question  and  an- 
swer were  excluded.  Held,  the  evidence  was 
admissible,  for  the  physician  had  the  right  to 
say  whether  the  pecuniary  circumstances  of 
the  life  proposed  were  deemed  bj'  liim  mate- 
rial, and  whether  he  would  have  advised  the 
acceptance  of  the  risk  if  it  had  appeared  that 
the  person  proposed  was  not  a  man  of  means. 
Valton  V.  National  Loan  Fund  Ass.,  40*  N.  Y. 
(1  Keyes),  21;  s.  c,  17  Abb.  Prac,  268;  4  Abb. 
Dec,  437;  20  N.  Y.,  33;  33  Barb.,  9. 

8.  The  defendant  offered  to  prove  that  the 
witness  sold  a  portion  of  the  goods  in  ques- 
tion, that  he  took  bonds  in  payment,  and  on 
that  account  charged  forty  per  cent,  more  than 
he  would  have  charged  for  cash.  Held,  ad- 
missible. Sturm  V.  Williams,  6  J.  &  Sp.  (N.  Y.), 
325. 

9.  Plaintiflf  offered  the  policy,  but  did  not 
offer  the  application  although  it  formed  part 
of  the  contract.  Held,  the  policj-  was  admis- 
sible without  the  application.  Cushman  v. 
United  States  Life  Ins.  Co.,  4  Hun.  (X.  Y.),  783. 

10.  Sailing  orders  are  competent  evidence 
to  prove  the  real  destination  of  the  ship,  not- 
withstanding  they  were  not  communicated  to 

340 


the  insurer.    Houston  v.  New  England  Ins  Co., 
5  Pick,,  89. 

11.  Evidence  that  a  newspaper,  taken  by 
the  insured,  ought,  in  due  course  of  mail,  to 
have  been  received  before  the  policy  was 
effected;  that  it  was  afterwards  found  on  file 
in  its  i^roper  place,  and  contained  the  same 
information  given  in  a  letter  of  the  insured 
to  his  agent,  is  admissible,  as  tending  to  prove 
that  the  insurer  before  executing  the  policy 
received  the  same  information  that  the  agent 
of  the  insured  had ;  and,  held,  if  it  was  so  re- 
ceived, the  circumstance  that  the  letter  was 
not  produced  to  the  insurer  was  immaterial. 
Green  v.  MercJinnts  Ins.  Co.,  10  Pick.,  402. 

12.  Evidence  tliat  the  damage  to  blankets 
was  peculiar  and  different  from  damage  by  salt 
water;  that  other  blankets  made  by  the  same 
manufacturer  had  given  evidence  of  damage 
in  the  same  way  nas  admissible  for  the  insurer. 
Bradford  v.  Boylston  Fire  and  Marine  Ins.  Co., 
U  Pick.,  163. 

18,  Insured  offered  the  certificate  of  a  ma- 
rine inspector  and  surveyor  made  in  the  course 
of  his  business,  for  the  purpose  of  showing 
that  the  vessel  was  seaworthy  before  she  left 
her  home  port.  The  surveyor  was  called,  who 
identified  the  certificate,  but  said  he  had  no 
recollection  of  the  examination;  that  the  state- 
ments contained  in  the  certificate  were  true 
when  he  made  them,  otherwise  they  would  not 
have  been  made.  Held,  although  the  witness 
had  no  independent  and  distinct  recollection 
of  the  facts  therein  stated,  it  was  admissibh; 
(citing  Smith  v.  Johns,  3  Gray,  517;  Critten- 
don  V.  Roger,  8  id.,  453).  Perkins  t.  Augusta 
Ins.  and  Banking  Co.,  10  id.,  313. 

14.  A  diagram  of  the  premises,  without 
date  or  signature,  was  accompanied  by  a  let- 
ter dated  and  signed,  written  by  the  insured. 
Held,  admissible.  Michmondcille  Seminary  v. 
Hamilton  Mut.  Ins.  Co.,  14  Gray,  459. 

15.  Public  documents  are  original  evidence. 
Whiton  r.  Albany  City  Ins.  Co.,  109  Mass.,  24. 

16.  The  insurer  offered  to  prove  an  extra- 
ordinary series  of  losses,  under  suspicious  cir- 
cumstances of  other  vessels,  the  property  of 
the  same  person,  and  mortgaged  to  insured. 
Held,  when  knowledge,  good  faith  or  intent 
are  in  issue,  any  other  transactions  from  which 
an)-  inference  respecting  the  quo  animo  may 
be  drawn  are  admissible;  and  where  fraud  is 
within  the  issue,  and  is  provable  1)3'  various 
circumstances,  a  wide  latitude  must  be  per- 


481 


EVIDENCE. 


485 


The  best  must  be  produced. 


mittcd  in  tlio  lulinission  of  evidence  (citing 
Benhara  v.  Gary,  11  Wend.,  83),  and,  tlierefore, 
the  evidence  tendered  ought  to  have  been  ad- 
mitted.   Hoxie  V.  Home  Ins.  Co.,  33  Conu.,  21. 

17.  Surveys  are  admissible  when  proved 
by  the  testimony  of  those  wlio  made  tliem. 
American  Ins.  Co.  v.  Francia,  9  Pcnn  St.,  300. 

18.  Where  the  question  was,  whether  the 
reinsured  had  an)-  interest  in  tlie  property 
reinsured,  it  was /j<;W,  the  original  policy  was 
admissible  to  prove  that  interest.  Philadel- 
phia Ins.  Co.  V.  Washington  Ins.  Co.,  23  Penn. 
St.,  250. 

19.  The  daughter  of  the  plaintiff  paid  the 
money  for  some  of  tlie  articles  insured,  and 
was  present  when  others  were  purchased. 
Held,  a  competent  witness  as  to  the  value  of 
the  goods  burned.  Continental  Ins.,  Co.,  v. 
Horton,  2S  Mich.,  173. 

20.  Invoices,  bills  of  purchase,  books  of 
account,  amount  of  sales,  inventories  of  stock, 
taken  immediately  after  the  loss,  are  com- 
petent evidence  in  a  claim  for  damage  sus- 
tained in  consequence  of  a  removal  of  goods 
from  a  store  threatened  by  fire.  Case  v.  Hart- 
ford Fire  Ins.  Co.,  13  111.,  GT6. 

21.  The  inquiry  was  as  to  a  fraudulent 
overvaluation.  Held,  it  was  competent  to 
prove,  for  what  the  insured  offered  to  sell  the 
property.  Hersey  v.  Merrimac  County  Mutual 
Fire  Ins.  Co.,  27  N.  H.,  149. 

22.  For  the  purpose  of  proving  an  insur- 
able interest,  the  plaintiff  offered  a  letter 
written  by  his  vendee,  in  which  the  vendor 
was  requested  to  insure  in  his  own  uamc,  as 
collateral  security  for  the  purchase  money. 
Held,  original,  independent  evidence.  Vairin 
V.  Canal  Ins.  Co.,  10  Ohio,  233. 

23.  A  bill  of  particulars  of  property  was 
made  after  the  fire  by  the  witness,  her  father 
and  mother,  who  put  down  all  the  missing 
•articles  which  they  could  then  remember. 
Held,  it  was  admissible  for  the  insured.  City 
Fire  Lis.  Co.  v.  Carrugi,  41  Ga.,  660. 

24.  A  copy  of  the  searclier's  report,  taken 
from  the  books  of  the  custom  house,  was 
offered  as  evidence  of  the  goods  on  board. 
Held,  it  was  unnecessary  to  call  the  searcher 
who  actually  searched  the  ship,  for  it  was  a 
paper  made  by  virtute  of  an  act  of  parliament, 
by  an  officer  appointed  for  the  purpose,  and 
lodged  in  the  custom  liouse  as  an  official 
dorunient.     Johnson  i\  Ward,  6  Esp.,  47. 

2i.  Stipulated:  "The  loss  shall  be  adjusted 
iU 


within  three  months  after  the  capture  of  the 
ship."  Held,  Lloyd's  book,  wherein  the  cap- 
ture  was  mentioned,  coupled  with  evidence, 
that  the  defendant  was  a  subscriber  to  Lloyd's, 
a  large  underwriter,  and  was  in  the  constant 
habit  of  examining  tlie  book  at  Lloyd's,  in 
which  captures  were  entered,  >vas  evidence 
of  notice  of  the  loss.   Abel  v.  Potts,  3  Esp.,  242. 

26.  It  became  material  to  ascertain  whether 
the  defendant  knew,  or  had  the  means  of 
knowledge,  that  the  vessel  insured  was  "  The 
confederate  steamer  Georgia."  He  admitted 
that  he  read  the  London  Times.  Held,  copies 
of  that  paper  containing  articles  on  that  sub- 
ject were  admissible  against  him.  Bates  v. 
Hewitt,  4  F.  &  F.,  1023;  s.  c,  2  L.  R.  Q.  B., 
595;  15  W.  R.,  1172;  30  L.  J.  Q.  B.,  283. 

27.  The  plaintiff  testified,  he  did  not  re- 
member having  entered  any  goods  at  any  port 
other  than  Toronto.  Held,  entries  of  goods  at 
the  custom  house  at  Toronto,  made  for  the 
insured,  were  competent  evidence  for  the  in- 
surers.  Lazare  v.  Phanix  Ins.  Co.,  8  U.  C.  C. 
P.  136. 

28.  The  shipping  list  at  Lloyd's  stated  the 
time  she  sailed.  Held,  it  was  prima  facie 
evidence  against  the  underwriter,  who  must 
be  presumed  to  have  a  knowledge  of  its  con- 
tents, because  he  had  access  to  it  in  the  course 
of  his  business.  Mackintosh  v.  Marshall,  11 
Mee.  &  W.,  116;  12  L.  J.  Ex.,  337.  But  the 
insured,  in  a  letter  ordering  the  insurance, 
made  an  untrue  statement  as  to  the  time  of 
her  sailing,  and  the  insurer,  relying  upon  that, 
did  not  examine  the  list.  Held,  the  insurer 
was  not  bound  by  the  contents  of  the  list;  that 
it  was  the  duty  of  tlie  judge,  before  whom  the 
case  was  tried,  to  have  drawn  the  attention 
of  the  jury  to  that  point.    Ibid. 

II.     The  best  must  be  pkoduced. 

1.  For  the  purpose  of  proving  that  she  was 
sequestered  at  Para,  in  conformity  with  the 
laws  of  Portugal,  two  edicts  and  the  judgment 
of  sequestration,  certified  by  the  U.  S.  consul 
at  Lisbon,  were  produced  and  admitted  in  evi- 
dence. Held,  they  were  inadmissible,  because 
they  were  not  verified  by  oath ;  the  consul  was 
not  sworn;  he  certified  only  that  they  were 
truly  copied  from  the  originals;  that  to  give 
the  certificate  the  force  of  testimony,  it  would 
be  necessary  to  show  that  the  act  of  the  consul 
was  one  of  Ihoie  consular  functions  to  which 

241 


483 


EVIDENCE. 


A?.^ 


The  best  must  be  produced. 


the  Jaws  of  this  country  attach  full  faith  and 
credit;  that  although  consuls  are  officers 
known  to  the  law  of  nations,  they  are  not  en- 
trusted with  the  power  of  authenticating  the 
laws  of  foreign  nations;  they  can  grant  no 
official  copies  of  them,  and  their  certificates  re- 
specting a  foreign  law  is  not  entitled  to  any 
higher  or  different  degree  of  credit  than  would 
be  accorded  to  their  certificates  of  any  other 
fact.    Church  v.  Hubbart,  2  Cranch,  165. 

2.  Foreign  judgments  are  authenticated  by 
exemplification  under  the  great  seal,  or  by  a 
copy  proved  to  be  a  true  copy,  or  by  the  cer- 
tificate of  an  officer  authorized  by  law,  which 
certificate  itself  must  be  properly  authenti- 
cated ;  but  a  certificate  of  the  proceedings  of  a 
foreign  court,  under  the  seal  of  a  person  who 
styles  himself  the  secretary  of  foreign  aflairs, 
is  not  evidence.  Church  o.  Eubbart,  2  Cranch, 
165. 

3.  The  property  was  neither  measured  nor 
■weiglied  when  thrown  overboard.  Held,  it 
was  similar  to  cases  of  injury  to  sails,  rigging 
or  spars,  by  tempest,  or  by  cutting  them  away 
in  cases  of  jettison,  the  value  of  which  was  to 
be  ascertained  by  the  jury  by  the  exercise  of 
a  sound  discretion  upon  lawful  evidence,  ab- 
solute certainty  in  cases  of  that  sort  being  un- 
attainable. Rogers  b.  Mechanics  Ins.  Co.,  1 
Story,  603 ;  2  id'.,  173. 

4.  A  court  of  admiralty,  upon  the  applica- 
tion of  the  master,  granted  a  warrant  of  sur- 
vey. Held,  a  judicial  proceeding,  and  the 
warrant  and  report  must  be  produced,  or  the 
loss  of  the  wan  ant  must  be  established  under 
a  commission,  in  the  manner  usually  adopted 
for  proving  other  facts,  and  not  by  a  certifi- 
cate of  the  clerk  of  the  court ;  that  the  statute 
or  written  law  of  another  country  must  be 
proved  by  the  law  itself,  as  written ;  the  un- 
written law  could  be  proved  by  witnesses  ac- 
quainted with  "it.  Robinson  v.  Clifford,  2 
AVash.  C.  C,  1. 

5.  She  put  into  a  foreign  port  for  repairs. 
The  .American  consul  ordered  a  survey.  Held, 
the  report  of  the  surveyors  was  not  evidence. 
Cort  r.  Delaware  Ins.  Co.,  2  Wash.  C.  C,  375. 

6.  It  is  not  competent  for  the  insured  to 
prove  by  the  testimony  of  one  surveyor  the 
declarations  and  opinions  of  another  surveyor, 
made  while  engaged  about  the  survej'.  Orrok 
V.  Commonwealth  Ins.  Co.,  21  Pick.,  456. 

7.  The  plaintitl"  offered  to  prove  the  contents 
of  a  newspaper.    Held,  not  admissible;  the 

243 


proper  way  was  to  produce  a  copy  <<1  i'  identi* 
fied  by  a  witness.  Washington  Coan/]/  ifuiual 
Ins.  Co.  V.  Dawes,  6  Gray,  376. 

8.  The  record  of  the  proceedings  of  a  for- 
eign court  of  admiralty  contained  various 
copies  of  documents,  and  recited  that  the 
originals  were  found  on  board  the  vessel  con- 
demned, at  the  time  of  her  capture.  Held,  the 
record  was  not  competent  evidence  of  the  ex- 
istence of  the  original  papers  mentioned  in  it, 
nor  that  they  were  on  board  at  the  time  of  her 
capture.  The  original  papers  should  have 
been  produced  or  the  testimony  of  witnesses 
procured  who  saw  the  papers  on  board.  Mary- 
land Ins.  Co.  V.  Bathurst,  5  G.  &  J.,  159. 

9.  The  agent's  disbursements  for  a  vessel 
cannot  be  proved  by  the  sworn  admissions  of 
the  master;  he  must  be  produced  and  exam- 
ined like  other  witnesses. '  ICewson  v.  Douglas, 
7  H.  &  J.,  417. 

1 0.  The  insurer  ofiered  a  copy  of  the  report 
of  the  surveyors.  Held,  inadmissible,  for  it 
was  nothing  but  a  declaration  or  opinion;  the 
seal  of  the  American  consul  did  not  give  it 
the  character  of  a  deposition,  nor  did  it  make 
the  copy  equal  to  the  original.  If  defendants 
wanted  to  avail  themselves  of  the  facts  stated 
in  the  survey,  they  should  have  taken  the  de- 
position of  the  surveyors.  Stephenson  v.  Pis- 
cataqua  Fire  and  Marine  Ins.  Co.,  54  3Ie.,  55. 

11.  On  cargo.  The  plaintiff  offered  a  doc- 
ument showing  the  value  of  the  goods  in  New 
Orleans,  the  port  of  destination.  Held,  it  was 
not  legal  evidence  of  their  value.  Wolf  v.  Nar 
tional  Marine  and  Fire  Ins.  Co.,  20  La.  An., 
583. 

12.  Insured  offered  a  duplicate  of  prelim- 
inary proofs  of  loss,  with  an  affidavit  indorsed 
thereon,  in  which  it  was  slated  that  affiant 
had  mailed  the  original  proofs  postpaid  to  the 
defendant.  Held,  not  competent  evidence. 
Guernsey  v.  American  Ins.  Co.,  17  ilinn.,  104. 

13.  The  plaintiff  gave  in  evidence  certain 
papers,  and  the  defendant  offered  duplicates. 
Held,  not  error  to  exclude  them.  Kansas  In*. 
Co.  V.  Berry,  8  Kan.,  159. 

14.  A  witness  who  testified  upon  a  former 
trial  was  absent  from  the  state.  Defendant 
proved  a  correct  transcript  of  former  testimo- 
ny; it  was  admitted  that  it  was  relevant  and 
material ;  but  the  court  refused  to  allow  it  to- 
be  read.  Held,  no  error,  for  the  absence  ot 
the  witness  from  the  state  was  not  equivalent 
to  her  death.    This   court  refused  to  folloiw 


485 


EVIDENCE. 


486 


Parol. 


McGill  V.  Kaufman,  4  S.  &  R.,  317.  Oerhamer 
V.  North  British  and  Mercantile  Ins.  Co.,  7 
Nev.,  174. 

15.  The  consignees  wrote  letters  stating 
ihal  the  master  had  -writen  to  a  house  in  Bre- 
men  that  the  deviation  was  caused  by  stress 
of  weather;  no  protest  was  produced,  nor  let- 
ter from  the  master.  Eeld,  the  court  would 
affirm  the  decision  of  the  Court  of  Session, 
notwithstanding  the  evidence  would  not  have 
been  admitted  in  England.  Smith  n.  MacNeil, 
2  Dow,  538.  (Tliis  case  is  imperfectly  re- 
ported and  entitled  to  little  weight.) 

1 6.  To  render  the  outward  or  homeward 
voyage  legal,  it  was  necessary  that  there 
should  be  a  license  from  the  King  in  council. 
The  master  swore  lliat  there  was  a  license  but 
that  it  was  lost  with  the  ship;  he  then  stated 
its  contents.  Held,  the  parol  evidence  was  not 
admissible,  because  it  was  not  doubted  that  a 
register  of  the  license  was  preserved,  or  that 
the  person  who  obtained  it  had  a  copy  of  it. 
Rhind  v.  Wilkinson,  3  Taunt.,  237. 

1 7.  The  certificate  of  the  British  vice  con- 
sul at  tlie  Brazils,  showing  the  amount  for 
which  the  goods  were  sold,  was  offered.  Held, 
it  was  inadmissible  for  the  purpose  of  show- 
ing the  sale.  Waldron.  v.  Coombe,  3  Taunt., 
162. 

18.  A  ship's  register  was  not  admitted  as 
evidence  of  ownership.  Pirie  v.  Anderson,  4 
Taunt,  653. 

19.  The  insured  sought  to  recover  in  conse- 
quence  of  a  decree  in  the  admiralty,  fixing 
certain  salvage  expenses.  Held,  he.  must  pro- 
duce the  proceedings  of  that  court.  Thellu- 
»on  V.  Shedden,  5  B.  &  P.,  228. 

20.  She  was  captured  and  the  burden  was 
upon  insuied  to  show  a  license  for  the  voyage. 
Held,  an  examined  copy  of  the  order  for  the 
license  (the  license  put  on  board  was  lost), 
and  an  examined  copy  of  the  license  in  the 
secretary's  office  must  be  proved.  Eyre  v. 
Palsgrave,  2  Camp.,  60.5. 

21.  A  certificate  of  damage  made  abroad 
by  Lloyd's  agent  is  not  evidence  of  the 
amount  of  damage,  though  the  insurer  was  a 
subscriber  to  Lloyd's.  Drake  v.  Marryatt,  1 
B.  &C.,  474;  2  D.  &  R,  696. 

22.  The  action  was  brought  to  recover  pre- 
miums paid  upon  the  policy.  Held,  the  pol- 
icy was  not  admissible  in  evidence  against 
the  defendant  without  producing  the  sub- 
scribing witnesses.    Barron  v.  Fitzgerald,  y  L. 


J.  (N.  S.)  C.  P.,  153;  6  Bing.  (N.  C),  201;  4 
Jur.,  88. 

2.S.  A  witness  referred  to  a  document  which 
he  identified  and  called  a  legalized  copy  of  a 
deposition  by  him,  made  before  the  British 
consul  eighteen  months  prior,  and  said  that 
any  discrepancy  between  that  and  his  present 
testimony  must  be  attributed  to  lapse  of  time. 
Held,  the  document  was  not  admissible.  AU 
cock  V.  Royal  Exchange  Ass.  Co.,  13  Q.  B.,  292. 

24.  The  notarial  copy  of  her  condemna. 
tion  was  produced,  in  which  was  stated  in 
what  respect  she  was  defective  and  out  of 
repair.  Held,  inadmissible,  for  it  was  not  un- 
der the  sanction  of  an  oath.  WrigJit  v.  Bar- 
nard,  2  Esp.,  700. 

III.  Parol. 

(a)    When  admissible  to  vary  writing. 

1.  The  rule  that  parol  testimony  may  not  be 
given  to  contradict  a  written  contract  is  ap- 
plied only  in  suits  between  the  parties  to  the 
instrument  or  their  privies,  but  it  does  not  ap- 
ply to  third  persons.  These  may  prove  the 
truth,  however  contradictory  to  the  written 
agreements  of  others  (citing  Badger  v.  Jones, 
12  Pick.,  371).  McMaster  v.  Insurance  Com- 
pany of  North  America,  55  N.  Y.,  222;  s.  c, 
64  Barb.,  536. 

2.  "On  stock  of  hides  and  on  tannerj'." 
Subsequent  insurance  prohibited.  At  the  trial, 
another  policy  issued  to  insured  by  another 
company,  on  hides  and  leather,  was  offered  in 
evidence.  Held,  insured  could  give  evidence 
to  show  that  it  was  made  by  mistake  of  an 
employe  of  the  insurance  company,  because 
this  was  a  collateral  fact  and  not  to  alter  or 
vary  the  terms  of  the  instrument  in  suit. 
Planters  Mut.  Ins.  Co.  v.  Deford,  38  Md.,  382. 

3.  Stipulated :  "  If  the  said  property  shall 
be  sold  or  conveyed  or  the  interest  of  the  par- 
ties therein  changed,  this  policy  shall  be  null 
and  void."  The  insured  executed  an  assign- 
ment of  his  interest  by  writing  absolute  upon 
its  face.  Held,  the  insured  might  give  parol 
evidence  to  show  that  the  assignment  was  col- 
lateral  security  for  money  to  be  advanced  by 
the  assignee  to  the  assignor.  Held,  also,  a 
mere  nominal  and  not  an  actual  change  of  in- 
terest did  not  avoid  the  policy.  Ayresv.Tlne 
Home  Ins.  Co.,  21  Iowa,  185 ;  Sam^  v.  Hartford 
Ins.  Co.,  id.,  193. 

243 


487 


EVIDENCE. 


488 


Parol. 


4.  On  cargo.  She  was  registered  in  the 
name  of  Nicliolson.  Brown  was  master. 
Nicliolson  swore  he  bouglit  lier  to  accommo- 
date Brown,  who  never  reimbursed  him  ;  tliat 
he  never  had  any  interest  in  her.  But  a  bill 
of  sale  was  produced  which  showed  that  the 
consideration  was  a  promissory  note  made  by 
Brown  to  the  order  of  Nicholson,  indorsed 
".and  for  that  consideration  all  the  title  and  in- 
terest in  tlie  schooner  was  convej'ed  to  Nicli- 
olson." Held,  the  proof  would  have  been 
inadmissible  if  ofi'ered  to  affect  the  rights 
of  the  parties  to  the  instrument;  but  the  rule 
did  not  apply  to  third  parties;  that  the  insurer 
had  the  right  to  show  that  the  deed  was  only 
intended  as  a  security  to  Nicholson  for  his 
indorsement;  he  was  not  in  fact  the  owner  of 
the  vessel;  that  Brown  was  owner  in  fact. 
Barry  v.  Louisiana  Ins.  Co.,  11  Martin  (La.), 
630. 

5.  The  plaintiff  assigned  the  policy  to  A., 
who  assigned  it  to  B.,  who  testified  that  he 
had  relinquislied  the  assignment  to  him,  and 
that  the  rights  under  the  policy  had  again 
become  vested  in  A.  Held,  the  plaintiffs 
could  show,  by  extrinsic  proof,  that  A.  had  no 
interest  in  the  policy;  that  it  was  the  prop- 
erty of  other  persons  at  the  time  suit  was 
brought.    Marsh  v.  Muir,  1  Brev.,  134. 

6.  Action  upon  the  following  instrument :  Re- 
ceived of  J.  R.  S.,  $37.5,  same  being  in  payment 
of  insurance  in  Cottton  States  Ins.  Co.  This 
receipt  being  binding  on  said  company  until 
policy  is  received.  Defendant  offered  to  prove 
by  the  agent  who  made  the  receipt,  that  it  was 
the  intention  and  imderstanding  of  the  par- 
ties that  the  premium  should  be  returned  if 
the  company  refu.sed  to  issue  a  policy,  and 
that  the  receipt  should  be  binding  until  the 
application  for  the  policy  should  be  acted  on 
by  the  company.  Objection;  because  one  of 
the  contracting  parties  was  dead,  and  because 
the  evidence  offered  would  contradict  the 
writing.  Held,  receipts  for  money  may  be 
explained  by  parol  (Code,  §  3807) ;  that  this  was 
not  the  whole  contract,  therefore  the  rule  that 
parol  evidence  is  inadmissible  to  affect  the 
writing  did  not  apply  (citing  Code,  §  2757). 
Scurry  v.  Cotton  States  Life  Ins.  Co.,  51  Ga., 
624. 

(b)  WTien  inadmisshle  to  vary  writing. 

7.  A  policy   was  renewed    January    15th. 
344 


The  vessel  was  lost  January  8th.  Held,  in- 
sured  could  not  be  permitted  to  prove  that  the 
contract  was  made  December  31st  preceding. 
Insurance  Co.  v.  Lyman,  15  Wall.,  664. 

8.  On  freight  in  the  name  of  one  person. 
She  was  owned  by  insured  and  another, 
proven  by  bill  of  sale  and  her  register.  In- 
sured  then  offered  to  prove  by  parol  that  the 
other  person's  name  was  inserted  by  mistake 
in  both  documents.  Held,  inadmissible,  for  a 
bill  of  sale  was  indispensable.  Ohl  v.  Eagle 
Ins.  Co.,  4  Mason,  172. 

9.  Stipulated:  "If  insurance  shall  have 
been  previously  made  on  the  property,  this 
shall  be  void  as  to  all  property  covered  by  the 
prior  insurance,  and  a  proper  proportion  of 
the  premium  shall  be  returned."  At  the  time 
the  policy  was  made,  the  president  of  the  com- 
pany signed  a  memorandum,  which  stated 
that  in  case  insurance  on  the  pro[3erty  is  made 
in  England,  it  shall  supersede  so  much  of  this 
insurance,  and  one  per  cent,  of  the  premium 
shall  be  retained.  Other  or  prior  insurance 
was  made  in  England  eight  days  after  this. 
Held,  the  policy  must  be  considered  as  the 
only  safe  evidence  of  the  intention  ot  the 
parlies,  because  the  memorandum  was  ambig- 
uous, for  if  might  have  been  intended  to  refer 
to  the  past,  the  present,  or  the  future.  Hogan 
V.  Delaware  Ins.  Co.,  1  Wash.  C.  C,  419. 

10.  Propositions  asking  the  rate  of  insur- 
ance for  a  voyage  other  than  that  mentioned 
in  the  policy,  which  is  clear  and  unambigu- 
ous, are  not  evidence  to  show  that  the  voyage 
insured  was  to  be  restricted  to  that  described 
in  the  propositions.  Yandenoort  v.  Smith,  2 
Caines,  155. 

11.  Where  the  contract  is  consistent  and 
explicit,  parol  evidence,  tending  to  show  that 
the -policy  was  to  be  void  in  case  of  double 
insurance,  is  not  admissible;  and  before  parol 
evidence  can  be  received  to  remove  a  latent ' 
ambiguity,  the  latent  ambiguity  must  be  made 
out  and  shown  to  the  court.  New  York  Ins. 
Co.  V.  Thomas,  3  Johns.  C,  1. 

12.  Upon  the  question  whether  certain  arti- 
cles  were  free  from  average,  evidence  tending 
to  show  that  tlie  agent  of  the  insured  repre- 
sented, as  a  ground  for  taking  the  risk,  that 
the  articles  would  be  free  from  particular 
average,  was  not  admissible.  Asior  v.  Union 
Ins.  Co.,  7  Cow.,  202.  Nor  could  it  be  prov. 
en  that  non-memorandum  arlicles  for  the 
same  voyage  obtained  a  higher  rate  of  pre- 


i89 


EVIDENCE. 


490 


Parol. 


niium  thau  was  charged  for  the  goods  insured. 
Ibid. 

13.  If  tlie  policy  is  m.ido  for  a  person 
n.'imed,  and  it  is  otherwise  explicit,  parol  evi- 
oence  shall  not  be  admitted  to  supply  blank 
places  found  in  the  policy.  Turner  v.  Bur- 
rows, 5  Wend.,  fill;  affirmed,  8  id.,  144. 

14.  The  use  of  campliene  was  prohibited 
oy  the  policy,  and  insured  was  permitted  to 
prove  an  agreement,  made  by  him  with  the 
defendant's  agent,  coteniporaueously  with  the 
execution  of  the  policy,  to  use  campliene  as  a 
light,  and  that  a  portion  of  the  premium  paid 
was  for  that  privilege.  Held,  error;  for  the 
case  could  not  be  taken  out  of  the  rule  which 
prohibits  parol  evidence  to  vary  the  term  of 
a  written  contract;  hence  the  judgment  must 
De  reversed.  Lnmatt  v.  Hudson  liiccr  Mut. 
Ins.  Co ,  17  N.  Y.,  199,  note. 

15.  The  policy  provided:  "Which  base- 
ment is  privileged  as  a  cabinet  shop."  The 
defendant  had  refused  to  insure,  unless  the 
«se  of  a  fire  place  should  be  discontinued. 
Tlie  plaintiff  promised  to  discontinue  it.  Held 
'reversing  the  judgment  of  the  court  below, 
1  Hill.,  510),  the  promise  of  the  plaintiff  to 
discontinue  the  use  of  the  fire  place  was  inad- 
missible to  control  the  legal  effect  of  the  pol- 
icy. Alston  V.  Mechanics  Mut.  Ins.  Co.,  4  Hill., 
S29;  1  id.,  .510. 

16.  Insurers  offered  to  prove  verbal  repre- 
sentations by  the  agents  of  the  insured,  to 
show  that  the  value  of  the  subject  insured,  in- 
tended to  be  placed  within  tlie  limits  pre- 
scribed by  the  policy,  would  not  e.xceed  a 
given  amount.  Held,  inadmissible  to  affect 
tlie  legal  construction.  Neio  York  Gas  Light 
Co.  V.  Methanici  Fire  Ins.  Co.,  2  Hall,  108. 

1  7.  The  defendant  otfered  to  prove  that  at 
the  time  policy  was  made,  plaintiffs  repre- 
sented that  the  premises  were  in  plaintiffs'  pos- 
session; that  they  were  not  to  be  used  for  jubilee 
exhibitions,  and  that  no  fire  was  on  the  prem- 
ises, etc.  Held,  the  evidence  was  inadmissible,' 
unless  the  defendant  could  show  that  they 
were  fraudulently  made,  and  then  they  were 
not  admissible  unless  set  up  in  the  answer  as 
SQ  afHrmative  defense.  Mayor  of  New  York 
V.  Brooklyn  Fire  Ins.  Co.,  43  N.  Y.  (4  Keyes), 
165 ;  s.  c  ,  3  Abb.  Dec,  251 ;  41  Barb.,  231 . 

18.  Policy  on  the  joint  lives  of  plaintiff 
and  his  wife,  payable  to  the  survivor.  Insur- 
ers read  in  evidence  the  written  application, 
which    stated   that    neither  the   parents,   the 


brothers  nor  the  sisters  of  the  wife  ever  had 
consumption;  but  it  was  proved  that  several 
of  the  brothers  and  sisters  had  died  of  con- 
sumption. The  plaintiff  offered  to  prove  that 
the  agent  of  the  insurers  was  told  that  they 
understood  one  of  the  brothers  of  the  wife 
had  died  of  consumption.  Held,  inadmissible. 
Bdker  t.  Home  Life  Ins.  Co.,ii  Hun.  (N.  Y.), 
402 ;  s.  c,  4  N.  Y.  S.  C,  r)82. 

19.  The  policy  required  insured  to  keep 
and  maintain  a  niglit  watch  on  the  premises. 
Held,  parol  evidence  could  not  be  received  to 
show  that  the  plaintiffs  agreed  that  the  person 
performing  duty  as  night  watch  should  not 
have  the  care  of  other  premises  at  the  same 
time.  Homy  v.  American  Mut.  Ins.  Co.,  2 
Duer,  554. 

20.  On  cargo,  from  Boston  to  Archangel 
and  back  to  Boston.  "There  was  no  return 
cargo.  It  was  proved  to  be  a  usage  at  Boston 
to  return  a  part  of  the  premium  in  all  such 
cases.  Held,  the  usage  could  not  be  received 
in  opposition  to  the  principle  of  law  which 
governed  this  case.  Homer  v.  Dorr,  10  Mass., 
26. 

21.  On  ship  and  freight,  procured  by  an 
agent,  who  delivered  to  the  broker  a  written 
memorandum,  stating  that  insured  was  owner 
of  one-half  of  both  and  that  the  policy  was 
to  take  effect  if  no  insurance  was  made  else- 
where by  the  owner.  Held,  the  memorandum 
was  not  evidence  to  control  the  contract. 
Higginson  v.  Dull,  13  Mass.,  96. 

22.  Statements  made  by  insured,  when  the 
policy  is  effected,  as  to  the  time  the  vessel  was 
to  sail,  and  that  the  insurer  said  he  would  not 
be  bound  unless  she  sailed  as  represented,  are 
not  admissible  to  control  the  contract,  not- 
withstanding she  did  not  sail  until  a  month 
after,  and  that  the  rate  of  premium,  on  similar 
risks  had,  within  that  time,  greatly  increased. 
Whitney  v.  Haven,  13  Mass.,  172. 

23.  It  was  stated  in  the  margin  of  a  policy 
that  the  ship  was  spoken  on  the  27th  of 
August.  Evidence  was  tendered  to  prove  that 
a  memorandum  was  left  with  the  insurer, 
wherein  it  was  stated  that  she  was  spoken 
on  the  20th,  and  that  it  was  intended  that 
the  policy  .should  conform  to  that  date;  and 
that  "27th"  was  inserted  by  mistake.  HeM, 
inadmissible.  Ewer  v.  Washington  Int.  Co.,  16 
Pick.,  502. 

24.  Statements  made  by  the  insured  at  the 
time  the  policy  was  made  as  to  his  intentions 

245 


491 


EVIDENCE. 


492 


Parol. 


merely,  are  not  representations  that  affect  the 
policy  unless  made  fraudulently.  Bryant  v. 
Ocean  Ins.  Co..  23  Pick.,  200. 

25.  Policy  insured  a  person  named,  and 
opon  it  an  action  was  brought  by  the  insured 
and  others.  Evidence  was  offered  to  prove 
■that  the  plaintiff  owned  the  vessel  at  the  time 
the  policy  was  made;  that  the  insured  had 
but  a  part  interest  in  her;  that  the  directors 
knew  of  the  ownership  of  the  plaintiffs,  and 
agreed  to  insure  for  all  the  owners ;  that  it 
was  the  intention  of  the  parties  in  making  the 
policy  as  it  was  made,  to  cover  the  interest  of 
all  the  owners.  Held,  the  evidence  was  inad- 
missible. Finney  v.  Bedford  C ommercial  Ins. 
Co.,  8  Jlet.,  348. 

26.  Evidence  tending  to  show  that  insurer's 
agent  authorized  insured  to  make  other  insur- 
ance, prohibited  by  the  policies,  was  held  inad- 
missible. Conway  Tool  Co.  v.  Hudson  River 
Ins.  Co.,  12  Cush.,  144. 

27.  The  application  represented  insured  as 
the  owner  of  the  property.  He  offered  to 
prove  that  the  officers  of  the  company  knew 
he  was  not  owner;  that  he  applied  orally  for 
insurance  on  his  interest  as  mortgagee.  Held, 
inadmissible,  because  it  would  materially 
vary  the  terms  of  the  written  agreement.  Jen- 
kins V.  Quincy  Mutual  Fire  Ins.  Co.,  7  Gray, 
370. 

28.  The  policy  was  founded  upon  a  written 
and  printed  application;  and  by  the  express 
terms  of  the  contract,  the  statements  in  it  were 
warranted.  Insured  offered  to  prove  that  in- 
surer's agent  knew  of  the  facts,  and  that  the 
statements  made  in  the  application  were  not 
correct.  Held,  the  evidence  was  inadmissible. 
Tebbetts  v.  Hamilton  Mut.  Ins.  Co.,  3  Allen,  569. 

29.  Insured  offered  to  prove  that  he  ex- 
plained to  the  agent,  who  took  the  application 
for  the  policy,  the  nature  of  his  occupation  of 
both  house  and  barn ;  that  they  were  used  oc- 
casionally while  the  plaintiff  and  his  servants 
were  cultivating  the  farm,  and  at  other  times 
unoccupied.  The  policy  stipulated:  "Build- 
ings unoccupied  are  uot  covered  by  this  policy 
unless  insured  as  such."  Held,  the  evidence 
was  inadmissible.  Ashworth  «.  Builders  Mutual 
Fire  Ins.  Co.,  112  Mass.,  422. 

30.  In  an  action  upon  a  premium  note,  the 
defendant  offered  to  prove  that  at  the  time  he 
insured,  the  agents  of  the  plaintiff  said  the 
comp.iny  was  not  insuring  in  Pittsburg  or 
other  large  cities.    Held,  Inadmissible.    Hack- 

246 


ney  v.  AllegJieny  County  Mut.  Int.  Co.,  4  Penn 
St.,  185. 

31.  "  On  refined  oil  in  barrels,  contained  in 
the  cellar  under  the  office,  and  in  the  yard 
attached  to  their  premises,  occupied  as  an  oil 
refinery  and  for  storing  oil.  Lot  in  the  ninth 
ward,  city  of  Pittsburg,"  etc.  "This  policy 
does  not  attach  to  oil  in  the  tanks."  Also, 
another  policy:  "  On  crude  petroleum  con. 
tained  in  three  wooden  tanks  under  ground." 
Held,  insured  could  not  be  permitted  to  prove 
that  the  exception,  "this  policy  does  not  at- 
tach to  oil  in  tauks,"  referred  to  the  oil  in  the 
tanks  insured  in  the  second  policy.  Weiien- 
herger  v.  Harmony  Ins.  Co.,  56  Penn.  St.,  442. 

32.  Policy  issued  upon  certain  statements 
made  in  the  application,  all  of  which  were 
warranted  true.  The  application  required 
applicant  to  state  whether  he  ever  had  bron- 
chitis, consumption,  spitting  of  blood,  or  any 
serious  disease,  which  was  answered:  "  None 
of  these."  He  was  also  required  to  state 
whether  he  had  had  any  severe  sickness  or  dis- 
ease during  the  last  seven  years,  to  which  was 
answered:  "No."  The  application  also  set 
forth  that  he  had  not  employed  or  consulted 
any  physician,  and  that  no  previous  examin- 
ation  or  application  had  been  made  for  insur- 
ance on  his  life,  and  that  no  company  had 
declined  to  issue  a  policy  on  it.  The  plaintiff 
offered  to  prove,  not  that  the  answers  set  forth 
in  the  application  were  true,  but  that  different 
answers  were,  in  fact  given,  that  they  were  un- 
truly written  by  defendant's  local  agent,  with- 
out the  knowledge  or  consent  of  the  plaintiff, 
or  of  the  life  insured.  Held,  inadmissible,  be- 
cause it  cannot  be  supposed  that  the  defendant 
intended  to  clothe  the  agent  with  authority  to 
perpetrate  a  fraud  upon  his  principal.  When 
an  agent  is  apparently  acting  for  his  principal, 
but  is  really  acting  for  himself,  or  third  per- 
sons, and  against  his  principal  in  respect  to 
that  transaction,  the  relation  of  principal  and 
agent  does  not  exist.  Held,  also,  the  fact  that 
the  plaintiff  signed  the  application  without 
reading  it,  was  no  ground  for  admitting  the 
evidence.  She  was  bound  to  know  what  she 
signed,  and  her  failure  to  ascertain  the  con- 
tents of  the  application  was  inexcusable  negli- 
gence. Byan  v.  World  Mutual  Life  Ins.  Co..  41 
Conn.,  168. 

33.  Policy  upon  "a  warehouse,"  described 
as  such,  prohibited  the  employment  of  fire- 
heat  in  the  processes  of  or  for  the  ptu'poses  of 


493 


EVIDENCE. 


494 


Parol. 


miinufacturing  any  article  of  commerce.  In- 
sured ofl'ered  to  prove  that  at  the  time  tlie 
policy  wa3  made,  insurer  knew  that  the  build- 
ing waa  to  be  used  for  the  purpose  of  manu- 
facturing candy,  and  that  fire-heat  was  essen- 
tial for  that  purpose.  Held,  the  evidence  was 
inadmissible,  because  its  effect  would  be  to 
change,  or  explain  by  parol,  the  clear  and 
signilicaujt  description  of  the  policy.  Elatner 
V.  Equitable  Ins.  Co.,  1  Disney,  412. 

34.  "  In  case  other  insurance  shall  exist 
upon  the  property  insured,  the  policy  shall  be 
void,  unless  consent  is  given  in  writing  by  in- 
dorsement hereon."  Held,  it  was  not  couipe- 
tent  to  prove  that  the  insurance  agent  had  no- 
lice  of  the  fact  that  other  insurance  existed  at 
the  time  he  made  the  policy,  for  if  the  writ- 
ing did  not  speak  the  agreement  of  the  par- 
ties, insured  should  have  proceede.l  to  have 
it  reformed.  Madison  Ins.  Co.  v.  Fellowes,! 
Disney,  217.  And  this  ruling  is  not  in  con- 
iiict  with  the  case  of  Harris  v.  Ohio  Ins.  Co., 
5  Ohio,  466.    Ibid. 

35.  On  schooner  trading  between  New  Or- 
leans and  any  port  in  the  West  Indies,  United 
Stales,  or  Gulf  of  Mexico,  except  Rio  Grand 
or  Brazos  of  San  Jago.  She  was  lost  on  a 
voyage  between  Matanzas,  Cuba,  and  Savan- 
tia,  Georgia.  The  plaintiff  introduced  his 
written  application  to  the  defendant  which 
asked  permission  to  trade  to  any  port  in  the 
West  Indies,  Gulf  of  Mexico  or  United  States. 
.Held,  it  was  inadmissible  to  control  the  terms 
of  the  policy.  If  througli  error  or  fraud  the 
contract  was  written  contrary  to  the  intention 
of  the  parties,  it  was  the  duty  of  the  party  re- 
lying on  that  fact  to  make  it  the  basis  of  the 
aqtion.  Lippincott  v.  Louisiana'  Ins.  Co., 
2  La.  (O.  S.),  399. 

36.  On  a  floating  dock,  called  the  "old  dry 
dock,''  stipulated:  "  This  insurance  is  against 
all  risks,"  The  dry  dock  received  a  ship,  and 
attempted  to  raise  her  by  throwing  off  the 
water  with  a  pump  attached  to  the  engine  of 
the  dock;  but  from  a  defect  in  the  dock  it- 
eelf  or  a  sudden  leak,  or  the  breaking  of  one 
of  the  pumps,  or  some  obstruction  in  the  val- 
ves, the  machinery  became  incompetent  to 
raise  the  dock.  The  ship  was  removed,  and, 
notwithstanding  every  reasonable  exertion, 
the  dock  sank.  The  fires  were  put  out  by  the 
■water  and  everything  went  down  and  became 
a  total  loss.  Held,  the  defendants  could  not 
he  permitted  to   prove  a  usage  that  harbor 


risks  and  river  risks  were  not  included  in  the 
policy,  for  thecontract  was  against  "  all  risks." 
ifarcy  v.  Sun  Mutual  Ins.  Co.,  11  La.  Aiu, 
748. 

37.  The  defendant  offered  to  prove  the 
statement  or  representations  of  insured  made 
to  insurer's  surveyor.  The  loss  occurred 
about  six  years  after  the  survey.  Held,  inad- 
missible. Kentucky  and  Louisville  Ins.  Co.  n. 
Southard,  8  B.  Mon.,  634. 

38.  Insured  was  permitted  to  prove  that 
when  she  received  the  policy,  she  told  the 
agent  she  would  leave  the  premises  tempo- 
rarilj-.  The  policy  stipulated  that  it  should 
cease  if  the  premises  should  become  vacant. 
Held,  the  evidence  was  inadmisible.  Ct.  of 
App.  Ky.  .j^tna  Ins.  Co.  v.  Buras,  5  Ins.  L.  J., 
69. 

39.  Neither  usage  nor  express  agreement 
can  be  admitted  to  explain,  modify  or  cou- 
trol  a  written  contract.  Illinois  Mutual  Fire 
Ins.  Co.  V.  O'Neil,  13  Ills.,  89. 

40.  The  policy  did  not  stipulate  against 
the  use  of  an  additional  fire  in  the  building, 
but  the  insurer  was  permitted  to  prove,  that 
the  insured  promised  verbally,  that  no  other 
fire  than  that  in  use  at  the  time  the  policy 
was  made  should  be  permitted  in  the  build- 
ing. Held,  improper,  for  it  was  incorporating 
a  verbal  agreement  into  the  contract.  Schmidt 
V.  Peoria  Marine  and  Fire  Ins.  Co.,  41  111.,  295. 

41.  Stipulated:  "  To  be  void  if  the  prem- 
ises be  vacated  by  removal  of  the  owner  or 
occupant  for  a  period  of  more  than  thirty  days 
without  immediate  notice  to  the  company  and 
consent  indorsed  hereon."  The  house  became 
Vacant  January  12th,  and  was  not  occupied  up 
to  the  time  of  its  destruction  by  fire  February 
18th.  The  plaintiff  alleged  that  the  agent  told 
him  at  the  time  the  policy  was  made,  it  would 
be  unnecessary  to  give  notice  in  case  the 
house  became  vacant.  The  court  below  in- 
structed the  jury  that  the  failure  to  give  the 
notice  would  not  afl'ect  the  policy,  if  the  de- 
fendant or  its  agent  waived  such  notice  at  the 
time  the  policy  was  made,  or  at  any  other 
time  before  the  loss.  Held,  error ;  for  what  was 
said  prior  to  or  at  the  time  the  policy  was 
made  was  inadmissible  to  enlarge,  modify  or 
contradict  the  words  of  the  policy.  Hartford 
Fire  Ins.  Co.  t.  Webster,  69  111.,  392. 

42.  The  policy  stipulated  for  an  annual  pre- 
mium of  158.04,  "to  be  paid  on  or  before  Oc- 
tober 25th,  in  each  and  every  year  from  the  date 

247 


4M 


EVIDENCE. 


49S 


Parol. 


of  and  during  the  continuance  of  this  policj-, 
which  annual  payment  is  to  be  made  in  man- 
ner following :  an  annual  loan  of  |29,  and  a 
cash  semi-annual  premium  of  $14.81,  to  be 
paid  on  October  25th  and  April  25th,  and 
for  these  considerations  the  company  agree 
to  pay  the  sura  insured,  the  balance  of  the 
year's  premium,  if  any,  and  all  notes  or 
credits  for  premiums  thereon,  and  all  other 
indebtedness  of  the  insured  to  the  company 
being  first  deducted."  The  agent  stated  that 
a,  failure  to  pay  promptly  at  the  time  named 
in  the  policy  would  make  no  diflerence,  pro- 
vided payment  was  made  in  a  short  time  after 
it  was  due.  The  insured  died  May  7th,  and  July 
20lh,  following,  the  agent  addressed  a  letter  to 
the  insured,  calling  attention  to  the  fact  that 
the  premium  was  in  arrear  since  April  25  th,  and 
requested  a  remittance  without  delay.  Held, 
neither  the  letter  nor  the  agent's  statements 
could  be  received  to  control  the  stipulations 
of  the  written  contract.  Sullivan  v.  Cotton 
States  Life  Ins.  Co.,  43  Ga.,  423. 

43.  A  policy  was  written  from  Archangel 
to  Leghorn ;  but  the  insurer  sought  to  show 
by  parol  that  the  adventure  was  to  begin  at 
the  Downs.  Held,  the  evidence  was  inadmis- 
sible.   Kaines  v.  Knightly,  Skin.,  54. 

44.  The  defendant  proposed  to  prove  that 
at  the  time  of  effecting  the  policy,  some  of  the 
insurers  objected  to  take  the  risk  "on  ship  or 
ships,"  and  that  the  broker  made  certain  state- 
ments restraining  the  effect  of  the  policy. 
Held,  inadmissible.  Weston  v.  Ernes,  1  Taunt., 
115. 

45.  Stipulated:  "In  case  the  insured  shall 
depart  beyond  the  limits  of  Europe,  the  policy 
shall  cease  and  determine.  Proviso:  he  shall 
be  at  liberty  to  visit  Tangiers  or  any  other 
port  within  the  Mediterranean.  Plea;  he  de- 
parted beyond  the  limits  of  Europe  otherwise 
than  by  visiting  Tangiers,  or  anj'  other  port 
within  the  Mediterranean.  Plaintiff"  sought 
leave  to  reply  on  equitable  grounds,  namely, 
that  at  the  time  the  policy  was  made,  it  was 
agreed  between  the  parties  that  he  might  visit 
ports  and  places  out  of  Europe.  Held,  it  could 
not  be  allowed;  that  there  was  a  plain  dis- 
tinction between  this  case  and  Wood  ».  Dwar- 
ri.s  11  E.\chr.,  493;  25  L.J.  Ex.,  217.  Reis 
V.  Scottish  EquitaUe  Life  Ass.  Co.,  2  H.  &  N., 
10:  3  Jur.  (N.  S.),  417;  26  L.  J.  Ex.,  279. 

46.  Policy  effected  in  Glasgow  with  defend- 
ers' agents,  G.  and  B.    A  loss  happened.     The 

248 


policy  showed  an  indorsement  of  £400  on  ac- 
count. The  pursuers  offered  to  prove  that  no 
moncj'  was  in  fact  ]):iid,  but  that  an  arrange- 
ment had  been  entered  into  by  the  agents  ot 
the  respective  parties  for  the  payment  of  t^hat 
sum.  Held,  the  evidence  was  inadmissible, 
there  being  no  allegation  of  fraud  on  the  part 
of  the  defenders.  Anderson  v.  Forth  Mari/iA 
Ins.  Co.,  7  C.  C.  S.,  268;  17  Scot.  Jur.,  133. 

(c)    W/ie?i  admissihle   to    show   part 
jperformance. 

47.  Life  company  for  an  extra  premium  to 
be  paid  annually  on  or  before  January  22d,  per- 
mitted life  insured  to  pass  by  sea  in  decked 
vessels  from  any  port  in  the  United  States 
north  of  latitude  36,  to  and  from  any  port  in 
North  or  South  America  (Chagres  excepted), 
and  to  reside  in  California  and  the  country  ad- 
jaceut.  He  went  across  the  country  via  Vera 
Cruz,  remained  there  eight  or  ten  days,  thence 
through  Mexico  to  the  port  of  San  Bias  on  tho 
Pacific,  remained  there  three  weeks,  thence  by 
sea  to  San  Francisco,  where  he  resided  for 
about  three  years  before  he  died.  Held,  evi- 
dence  was  admissible  to  show  that  when  the 
policy  was  made,  the  company  knew  that  he 
intended  to  take  the  route  which  he  did  take; 
and  that  after  he  resided  in  California,  the  com- 
pany, with  that  knowledge,  received  the  pre- 
miums, thereby  inducing  the  insured  to  be- 
lieve that  the  breacli  of  warranty,  if  any  it  was, 
had  been  waived.  Bevin  v.  Connecticut  Mutual 
Life  Ins.  Co.,  23  Conn.,  244. 

48.  Stipulated:  "Not  binding  until  uctur.l 
payment  of  premium."  Held,  insurers  may 
waive  the  condition,  and  parol  testimony  is 
admissible  to  establish  the  waiver.  Pino  f. 
Merchants  Mut.  Ins.  Co.,  19  La.  An.,  214. 

'  49.  The  policy  prohibited  all  increase  of 
risk,  and  the  insured  admitted  that  the  risk 
was  increased;  but  proof  was  given  to  show 
that  the  agent  of  the  insurer  consented,  and 
this  proof  consisted  of  the  agent's  declarations 
which  recognized  the  conditions  of  the  con- 
tract after  he  knew  the  risk  was  increased, 
and  his  admission  that  the  contract  was  in 
force  after  ho  had  knowledge  of  the  faet« 
Held,\.\\e  evidence  was  admissible;  for  the  rule 
which  excludes  parol  testimony  does  not  ap- 
ply to  evidence  offered  to  prove  that  the  con. 
tract  has  been  discharged,  or  that  part  per- 
formance  of  it  has  been  dispensed  with  (cit- 
ing <Greenleaf's  Ev.,  302,  304;  Starkie's  Ev.„ 


iOl 


EVIDENCE. 


■IPS 


Parol. 


574;  Fleming  v.  Gilbert,  3  Johns.,  598;  Mer- 
rill V.  Itliaca  &  O.  R.  K.  Co.,  10  Weiul.,  586; 
Phil.  Ev.,  Coweu  and  Hill's  and  E.iwards' 
notes,  3d  vol.,  093,  and  note  505;  Williams  r. 
Bank  of  U.  S.,  2  Pet.,  90;  Bevinj).  Connecticut 
Mutual  Life  Ins.  Co.,  23  Conn.,  344;  Rath- 
borne  V.  City  Ins.  Co.,  31  id.,  193).  Viele  v. 
Germania  In$.  Co.,  26  Iowa,  9. 

(d)    Wlien  admissihle  to  show  inten- 
tion. 

.50.  If  any  doubt  arise  on  a  -written  contract, 
the  acts  of  the  insured,  although  not  known  to 
the  insurer,  may  be  admitted  to  show  that  the 
intentions  of  the  insured  were  different  from 
what  afterwards  he  pretends  they  were.  Law- 
rence V.  Sebor,  2  Caines,  203. 

51.  Policy  in  the  name  of  the  agents  on  ac- 
count of  the  owners.  ITcld,  insured  not  being 
named  in  the  policy,  extrinsic  evidence  was 
admissible  for  the  purpose  of  showing  the 
persons  for  whom  the  contract  was  made. 
Gatlett  v.  Pacific  Ins.  Co.,  1  Wend.,  561.  And 
that  the  term  "  owners "  was  equivalent  to 
"whom  it  may  concern."  Ibid.  And  that  it 
■was  competent  to  show  by  extrinsic  evidence 
that  the  word  "  owners  "  was  not  intended  to 
embrace  all  the  owners,  but  such  of  them 
only  as  caused  the  insurance  to  be  effected ; 
that  such  evidence  did  not  contradict  the  con- 
tract, but  made  certain  that  which  was  uncer- 
tain  by  the  general  phraseology  of  the  policj'. 
Ibid;  affirmed,  4  Wend.,  75. 

52.  Insured  otjered  evidence  to  show  that 
defendants  had  insured  the  property  for  years, 
and  knew  the  purpose  for  which  the  building 
was  erected,  the  manner  in  which  it  was  occu- 
pied, the  general  character  of  its  contents,  and 
the  nature  and  extent  of  the  risk.  Held,  ad- 
missible for  the  purpose  of  showing  that  the 
policy  was  intended  to  cover  the  h.azards  inci- 
dent to  the  occupation  of  the  building.  Mayor 
of  New  York  v.  Exchatige  Fire  Ins.  Co.,  43  N. 
Y.  (3  Keyes),  430;  s.  c,  9  Bo;i.,  424;  8  Abb. 
Dec,  261 ;  34  How.  Pr.,  103. 

53.  The  language  used  to  specif}^  the  pur- 
poses for  which  the  building  insured  might  be 
occupied  was  ambiguous.  Held,  it  was  proper 
to  give  evidence  tending  to  show  that  the  in- 
surnrs  knew  of  the  use  and  occupation,  be- 
cause  that  was  a  circumstance  to  be  consid- 
ered in  determining  the  intention  of  the  parties. 
Heyaolda  v.  Commerce  Fire  Ins.  Co.,  47  N.Y.,  597. 


54.  On  dwelling  house  and  wood  house.  A 
building  had  been  erected,  covered  by  one 
roof,  divided  by  a  loose  partition,  two-thirds 
of  which  was  u.sed  for  wood,  the  other  part  as 
a  carriage  house.  Ileld,  evidence  was  admis- 
sible to  show  that  the  whole  building  was 
called  by  the  tenants  and  neighbors,  "The 
wood  house."  White  v.  Mutual  Fire  Ant.  Co., 
8  Gray,  560. 

55.  Where  insured  represented  that  there 
are  in  each  room  casks  kept  full  of  water: 
Held,  it  was  competent  to  prove,  tliat  in  the 
general  use  of  language  among  manufacturers, 
the  whole  of  one  loft  or  story  appropriated  to 
a  particular  department  was  called  a  room, 
although  divided  by  partitions  with  doors  in 
them.  Daniels  v.  Hudson  liioer  Fire  Ins.  Co., 
12  Cush.,  416. 

66.  Facts  and  circumstances  delwrs  the  in- 
strument are  admissible,  in  order  to  discover 
the  intention  of  the  parties.  Stacey  v.  Frank- 
lin Fire  Ins.  Co.,  2  W.  &  S.,  500. 

57.  Policy,  "For  whom  it  concerns."  Held, 
it  was  competent  for  the  plaintiff  to  show  who 
had  the  insurable  interest  and  the  authority 
the  insured  had  for  procuring  the  insurance, 
and  evidence  of  statements  made  by  the  owner 
to  the  person  who  procured  the  insurance  wos 
admissible,  because  it  tended  to  prove  author- 
ity to  make  the  insurance.  Stephenson  v.  Pis- 
cntnqua  Fire  and  Marine  Ins.  Co.,  54  Me.,  55. 

58.  Insured  in  their  application,  stated: 
"We  want  an  insurance  of  $3,000,  in  addition 
to  $4,000  now  in  city  companies."  Held,  the 
language  did  not  state  clearly  that  the  insur- 
ance was  in  the  interest  of  the  plaintiffs  or  of 
parties  having  liens  upon  the  property;  hence 
evidence  was  admissible  to  show  for  whom 
that  insurance  had  been  made.  Planters  Mut. 
Ins.  Co.  V.  Deford,  38  Md.,  382;  Frederick 
County  Mut.  Ins.  Co.  v.  Same,  id.,  404. 

59.  Policy  to  J.  on  bulk  sides,  contained  in 
Magill  &  Lanes'  brick  pork  house.  Another 
company  made  their  policy  in  favor  of  Magill 
&  Lane,  on  bulk  meat,  hams,  lard  and  mess 
pork  in  the  same  building.  Subsequently, 
and  while  the  former  policy  was  in  force,  au 
indorsement  was  made  upon  the  second,  .hs 
follows:  "The  above  risk  is  transferred  ti> 
sides  and  shoulders  belonging  to  J."  Held, 
parol  testimony  was  admissible  to  show  that 
the  property  embraced  by  the  second  policy 
was  not  to  be  insured  by  the  first.  Moots  tr 
Cincinnati  Ins.  Co.,  1  Disney,  138. 

249 


499 


EVIDENCE. 


600 


Parol. 


60.  Policy  to  "  Mrs.  E.  W.  B,  Executrix," 
•who  was  executrix  of  tlie  will  of  her  late  hus- 
band. The  property-  insured  had  been  devised 
by  him  to  herself  and  children.  The  person 
who  applied  for  the  insurance  handed  to  in- 
surer's agent  a  slip  of  paper,  upon  which  was 
written:  "Elizabeth  W.  Boyle,  Executrix," 
find  stated ;  "  It  is  wanted  to  cover  the  estate 
of  the  late  S.  S.  Boyle."  Held,  upon  an  appli- 
cation to  reform  the  instrument,  it  was  proper 
to  prove  the  conversation  of  the  parties,  both 
at  the  time  the  policy  was  made  and  after  the 
Joss  occurred,  for  by  that  the  court  would  be 
informed  whether  the  in«trument  was  made 
according  to  the  intention  of  the  parties. 
■^Globe  Ins.  Co.  v.  Boyle,  31  Ohio  St.,  119;  af- 
firming s.  c,  1  Cin.  S.  C,  444. 

61.  On  account  of  whom  it  may  concern. 
Held,  evidence  to  show  who  was  intended  to 
be  benefited  by  the  policy  does  not  alter,  vary 
nor  add  to  the  written  contract.  Bell  «.  West- 
ern Marine  and  Fire  Ins.  Co.,  5  Rob.  (La.), 
423 ;  Same  v.  Firemen's  Ins.  Co.,  id.,  446. 

62.  The  person  insured  was  prohibited  by 
the  terms  of  the  policy  from  passing  south  of 
the  36th  degree  of  north  latitude  in  the  Uni- 
ted States,  between  June  Ist  and  November 
1st,  without  consent  indorsed  upon  the  policy. 
October  2d  the  company's  agent  gave  a  receipt 
for  the  extra  premium  required  for  a  residence 
in  the  prohibited  territory,  and  October  10th 
insurers  issued  the  permit  necessary  to  com- 
ply with  the  terms  of  the  policy,  but  it  was 
post  dated  November  1st.  Held,  post  dating 
the  permit  did  not  prevent  it  from  operating 
according  to  the  intention  of  the  parties. 
Walsh  V.  ^tna  Life  Ins.  Co.,  30  Iowa,  133. 

63.  The  memorandum  or  slip  of  paper 
upon  which  the  particulars  of  the  risk  were 
written  was  delivered  to  insurers  and  was  ad- 
mitted in  evidence.  Held,  while  it  was  to  be 
regarded  as  a  nullity,  if  offered  for  the  pur- 
pose of  establishing  a  contract,  it  was  still 
admissible  for  many  other  purposes,  one  of 
■which  was  for  the  purpose  of  showing  the  in- 
tention  of  the  parties.  lonides  v.  Pacific  Fire 
and  Marine  Ins.  Co.,  6  L.  R.  Q.  B.,  674 ;  25  L. 
T.  (N.  S.),  490;  affirmed  in  Ex.  7  L.  R.  Q.  B., 
517;  41  L.  J.  Q.  B.,  190;  21  "W.  R.,  22;  26  L.  T. 
<N.  S.),  738. 

(e)  When  admissihle  to  remove  latent 
ambiguity. 

64.  Warranted  to  sail  with  sea  letter  and 
.250 


without  a  register.  BeM,  parol  evidence  was 
admissible  to  explain  what  was  meant  by  the 
terra  sea  letter.  Slegkt  v.  Bhinelander  2  Johns., 
532;  reversing  s.  c,  1  id.,  193. 

65.  On  their  three  and  a  half  story  brick 
building,  slate  roof,  coped,  occupied  as  a 
patent  cordage  manufactory,  situate  No.  west 
corner  of  First  and  South  Eighth  streets, 
Williamsburgh,  etc.,  and  on  main  shafting 
and  fixtures,  $1,000;  and  on  lignum  vitae  in  the 
cellar  of  said  building.  $1,000.  The  evidence 
showed  that  at  the  time  the  insurance  was 
made,  insured  owned  two  brick  buildings,  each 
on  the  opposite  corners  of  South  Eighth  and 
First  streets,  one  of  which  was  occupied  as  a 
patent  cordage  factory,  the  other  as  a  block 
factory.  Both  were  on  westerly  corners  of 
South  Eighth  and  First  streets.  The  cord- 
age factory  was  the  southwesterly  corner,  the 
block  factory  on  the  northwesterly  corner. 
The  building  which  contained  the  lignum 
vitae  and  shafting  was  burned ;  the  block  fac- 
tory was  saved.  The  defendant  contended 
that  the  two  letters  "No.,"  preceding  the 
words  "  West  corner  of  First  and  South 
Eighth  streets,  were  an  abreviation  of  the 
word  north,  and  being  so  read,  the  block  fac- 
tory was  the  building  insured.  Held,  a  latent 
ambiguity  raised  by  extrinsic  evidence,  pre- 
sented by  the  fact  that  there  were  two  build- 
ings on  west  corners  of  First  and  South  Eighth 
streets,  alike  in  every  respect  except  the  cel- 
lars, both  the  property  of  the  insured ;  hence 
extrinsic  evidence  was  admissible  to  remove 
the  ambiguit}',  and  for  that  purpose  it  was 
proper  to  prove  what  took  place  between  the 
person  who  made  the  application  and  look 
the  answers ;  th.at  the  word  "  No."  could  not 
be  regarded  as  an  abbreviation  for  either  num. 
ber  or  north.  Burr  v.  Broadway  Ins.  Co.,  16 
N.  Y.,  267. 

66.  On  stock  of  fancy  goods,  toys,  and  other 
articles  in  his  line  of  business.  Held,  evidence 
was  admissible  to  show  whether  fireworks 
were  in  his  line  of  business,  but  it  was  not 
proper  to  call  witnesses  as  experts  to  state 
their  opinions  on  the  question.  They  must  be 
confined  to  the  fact  whether  fireworks  consti- 
tuted a  part  of  the  trade.  Steinhach  v.  La  Fay- 
ette Fire  Ins.  Co.,  54  N.  T.,  90. 

67.  The  policy  described  the  property  in- 
sured  as  in  barn  number  one,  and  barn  num- 
ber two,  now  occupied  by  applicant.  Held, 
it  was  competent  to  show,  by  extrinsic  evi- 


501 


EVIDENCE. 


502 


Parol. 


dence,  what  barns  the  parties  intended  should 
be  within  the  description.  Bowman  v.  Agri- 
cuUu'il  Im.  Co.,  3  N.  Y.  S.  C,  201. 

68  The  policy  described  the  subject  in- 
eured,  "  contained  in  McIIeury's  yard,  situa- 
ted on  the  south  side  of  Dickerson  street,  east  of 
Front  street,  between  Mead  and  Arcli  streets, 
Philadelphia."  Tlie  street  east  of  McHenry's 
yai'd  was  kuDwn  as  Arcli  street.  Front  street 
was  immediately  west  of  the  yard,  and  Arch 
street  was  about  two  miles  north  of  McHen- 
ry's yard,  running  parallel  with  Dickersou 
street.  Held,  the  intention  of  the  parties,  and 
surrounding  circumstances  can  always  be 
heard  to  identify  the  subject  insured.  Tank- 
ers Ins.  Co.  V.  Uoffinan  Fire  Ins.  Co.,  6  Rob. 
(N.  Y.),  31G. 

69.  The  policy  was  written,  "  From  August 
1,  1854  to  August  1,  1854."  It  was  indorsed  : 
"  Date  August  1,  1854.  E.Kpires  August  1, 
1859."  Held,  it  was  a  question  for  the  jury  to 
determine  by  all  the  facts  properly  in  proof, 
at  what  time  the  policy  was  to  expire,  whether 
in  1854  or  1859.  Liberty  Hall  Association  v. 
Housatonic  Mutual  Ins.  Co.,  7  Gray,  2G1. 

70.  The  policy  contained  no  description  of 
the  subject  insured,  but  referred  to  an  appli- 
cation for  that  description,  and  the  applica- 
tion described  it  as  "A  stock  of  household  and 
kitchen  furniture,  owned  by  Daniel  Beatty, 
contained  in  a  frame  building  owned  by  ap- 
plicant and  occupied  as  a  boarding  house  and 
grocery."  The  evidence  showed  that  the 
goods  burned  were  owned  by  insured  in  a 
house  at  Duncansville,  Blair  county.  Held, 
the  court  had  not  the  right  to  say,  as  matter  of 
law,  that  the  goods  were  not  burned  in  the 
house  described  in  the  application.  Beatty  v. 
Lycoming  County  Ins.  Co.,  53  Penn.  St.,  456. 

71.  "  On  hay  and  grain  in  the  hay  house  in 
the  meadow."  There  were  two  buildings  in 
1he  meadow  in  which  hay  was  kept,  one  usu- 
ally called  "  The  hay  house,"  and  the  other 
"  The  barn."  Held,  evidence  was  admissible 
to  show  which  was  intended,  for  an  ambiguity 
Taised  by  extrinsic  evidence  may  be  removed 
"iy  proof  of  the  same  character.  Lycoming 
Mut  Im.  Co.  V.  Sailer,  67  Penn.  St.,  108. 

72.  Insured  procured  a  policy  upon  goods 
and  merchandise  contained  in  a  building  des- 
ignated. Subsequently  he  procured  another 
policy  upon  a  stock  of  merchandise  in  the 
chambers  of  the  same  building.  Held,  a  lat- 
«nt  ambiguity,  and  evidence  was  admissible 


to  prove  that  the  goods  in  the  chambers  were 
not  intended  to  be  included  in  the  first  policy; 
and  that  intention  being  proven,  the  defendant 
here  was  held  liable  for  the  whole  loss  of 
the  goods  in  tlie  chambers.  Storer  v.  Elliot 
Fire  Ins.  Co.,  45  Me.,  175. 

73.  If  there  is  any  uncertainty  as  to  the 
meaning  of  the  language  used,  parol  proof  is 
admissible  to  put  the  court  in  the  place  of  the 
parties  and  to  ascertain  their  intentions  (citing 
1  Greenleaf's  Ev.,  sec,  382).  Lancey  v.  Phxnix 
Fire  Ins.  Co.,  56  Me.,  562. 

74.  "  On  charter  |G50,  on  primage  $2,650, 
on  property  on  board  ship  $1,500,  at  and  from 
New  York  to  San  Francisco.  She  was  lost 
on  the  outward  voyage,  and  was  then  under 
two  charters,  one  requiring  her  to  carry  coal 
and  the  other  merchandise  from  New  York  to 
San  Francisco,  and  another  to  carry  a  cargo 
of  guano  from  Chincha  Islands  to  Hamburg 
or  Rotterdam.  Held,  charter  party  was  in- 
sured ;  that  extrinsic  evidence  proved  the  e.x- 
istence  of  two  charters,  either  of  which  an- 
swered the  call  in  the  policy,  and  this  was  a 
case  of  latent  ambiguity,  to  remove  which  ex- 
trinsic evidence  was  admissible.  Melcher  v. 
Ocean  Ins.  Co.,  59  Me.,  317. 

75.  D.  &  Co.  applied  for  insurance  on  tan- 
nery, and  stated,  "  We  propose  an  insurance 
of  $3,000  in  addition  to  $4,000  on  the  same  in 
city  companies,  and  $1,000  on  bark  in  addi- 
tion to  $500  now  on  same."  There  was  no  in- 
surance to  D.  &  Co.,  but  there  was  insurance 
of  $3,000  in  the  names  of  D.  &  A.,  as  trustees, 
who  had  a  lien  upon  the  property  for  pur- 
chase money,  and  another  for  $500  on  the 
bark.  Held,  evidence  was  admissible  to  de- 
termine whether  it  was  the  interest  of  D.  & 
Co.,  or  tliat  of  D.  &  A.,  which  was  referred  to 
in  the  application.  Planters  Mutual  Ins.  Co. 
V.  Deford,  38  Md.,  383 ;  Frederick  County  Mu- 
tual  Ins.  Co.  v.  Same,  id.,  404. 

76.  The  complaint  was  founded  upon  an 
oral  agreement,  to  insure,  and  to  execute  and 
deliver  a  policy  on  tobacco  owned  and  held 
by  him  ia  store.  Held,  such  a  policy  would 
be  construed  to  protect  the  interest  of  persons 
who  had  tobacco  stored  with  insured;  that  if 
such  would  not  be  the  unaided  construction 
of  the  words,  they  would  be  of  "such  doubtful 
meaning  as  to  let  in  extrinsic  evidence  to 
show  for  whose  benefit  the  insurance  was  in- 
tended. Strohn  v.  Hartford  Fire  Ins.  Co.,  33 
Wis.,  648. 

251 


503 


EVIDENCE. 


504- 


Parol. 


77.  D.  and  W.  were  general  partners  under 
the  firm  name  of  D.  &  Co.,  who,  with  three 
others,  were  interested  in  a  paiticuhir  adven- 
ture, of  which  D.  &  Co.  had  the  control  and 
management.  Insurance  was  made  upon  it 
in  the  name  of  D.  &  Co.  Held,  the  evidence 
raised  a  latent  ambiguity,  hence,  evidence 
was  admissible  for  the  purpose  of  showing 
whether  the  insurance  made  was  for  D.  and 
W.  only,  or  for  all  who  had  an  interest  in  the 
adventure.  Carruthers  v.  Shedden,  6  Taunt., 
13 ;  s.  c,  1  Marsh.,  416. 

78.  The  policy  was  effected  in  the  name  of 
Gray,  Wilson  &  Co.,  as  agents ;  but  the  firm 
who  effected  it  was  known  as  the  house  of 
"  Gray  &  Co."  Held,  proper  to  show  that  the 
persons  composing  the  firm  of  Gray,  Wilson 
&  Co.  also  conducted  business  at  another 
place  in  the  name  of  Gray  &  Co.  Dickson  v. 
Lodtje,  1  Stark.,  336. 

70.  On  ship  Minerva.  Neither  her  mas- 
ter's nor  lier  owner's  name  w-as  mentioned. 
There  were  two  ships  of  the  same  name.  Held, 
insured  could  not  recover  unless  he  could 
prove  that  the  ship  lost  was  intended  by  both 
parties  as  the  ship  insured.  Lester  v.  Scott, 
Faculty  Dec,  1808  to  1810,  p.  483. 

( f )  When  admissible  to  estoj),  or  cor- 
rect mistakes. 

80.  On  the  life  of  the  wife  of  the  insured, 
predicated  upon  an  application,  partly  printed, 
in  which  the  following  questions  and  answers 
were  inserted :  "  Has  the  party  ever  had  anj' 
serious  illness,  local  disease  or  personal  in 
jury ;  if  so,  of  what  nature,  and  at  what  age  ?" 
Answer  —  "  No."  And  as  to  the  ages  of  parents 
when  they  died,  these  questions  were  inserted: 
"  Mother's  age  at  death  ? "  Ans.  —  "  Forty." 
"Cause  of  her  death?"  Ans.  —  "Fever." 
The  mother  died  at  twenty-three,  not  of  fever, 
but  of  consumption.  Held,  the  insured  had 
the  right  to  prove  that  the  application  was 
filled  up  by  the  company's  agent;  that  in  re- 
ply to  the  questiims  quoted,  he  was  told  that 
nothing  was  known  about  the  cause  of  the 
mother's  death,  or  her  age  when  it  occurred ; 
that  the  wife  was  too  young  to  know  or  re- 
member anything  about  it,  and  the  husband 
had  never  known  her;  that  there  was  an  old 
woman  present  when  the  application  was 
made,  and  the  agent  questioned  her  as  to  the 
252 


matters  referred  to,  and  from  information  ob- 
tained from  her,  he  filled  in  the  answers, 
which  were  untrue  in  fact.  And  it  being  so 
proven,  insurers  must  be  estopped  to  insist 
upon  the  untruth  as  a  defense  to  the  action. 
Insy ranee  Co.  v.  Wilkinson,  13  Wall., 223;  8.  c, 
2  Dil.  Cir.  C,  570. 

81.  Evidence  is  admissible  to  show  that  the 
answer,  as  written  down  by  the  companj-'s 
agent,  when  he  took  the  application  for  insur- 
ance, was  not  the  anr.wer  given  bj'  the  appli- 
cant, notwithstanding  the  application  was 
signed  by  the  applicant.  Insurance  Co.  v. 
Mahone,  21  Wall.,  152. 

82.  W.,  an  agent  for  the  company,  accepted 
the  risk.  The  blank  application  was  filled  in 
by  W.  and  signed  by  insured,  in  which  it  was 
stated  that  the  distance  between  an  adjacent 
sawmill  and  the  house  insured  was  about  fifty 
feet;  it  was,  in  fact,  five  feet  nearer.  There 
was  nothing  said  in  the  application  about  the 
occupancy  of  contiguous  buildings,  but  it  was 
stated  that  buildings  were  on  each  side  of  the 
dwelling  house,  from  sixty  to  seventy  feet. 
The  agent  who  filled  up  the  application  w.as 
well  acquainted  with  the  risk  and  its  sur- 
roundings. Insured  was  an  ignorant  person, 
but  slightly  acquainted  with  the  English 
language,  and  relied  upon  the  agent  to  make 
the  description.  The  policy  provided  that  it 
was  made  and  accepted  in  reference  to  the 
proposals  and  conditions  annexed.  Held,  if 
the  agent  who  made  the  survey  was  as  well 
acquainted  with  the  premises  as  was  the  in- 
sured, the  latter  was  not  responsible  for  con- 
cealment or  misrepresentation  made  with 
reference  to  the  premises.  The  employment 
of  the  agent,  and  the  circumstances  under 
which  the  survey  was  made,  were  matters  of 
of  fact  for  the  jury.  Moth  v.  City  Ins.  Co.,  6 
McLean,  324. 

83.  In  the  application  signed,  this  question 
was  asked  :  "  What  incumbrances,  liens  and 
mortgages  are  upon  the  property '?  "  Answer  — 
"None."  There  was,  at  the  date  of  the  policy, 
a  $3,000  mortgage  on  the  property.  Held,  a 
defense  to  the  action ;  but,  insured  had  a  right 
to  show  that  the  company's  agent  filled  up 
the  application  in  the  absence  of  the  plaintiti', 
and  that  application  and  policy  were  brouglit 
by  the  agent  to  insured,  who  signed  without 
reading  it,  being  assured  by  the  agent  that  it 
was  all  right;  that  the  company's  agent  made 
no  inquiries  about  incumbrances,  and  insured 


305 


EVIDENCE. 


MO 


Parol. 


made  no  statement  in  respect  to  them.     Oeih  v. 
International  Tns.  Co.,  1  Dil.  Cir.  C,  443. 

84.  The  application  or  slip  delivered  by 
tlie  insured  to  the  insurer  is  not  evidence  to 
show  the  intention  of  the  parties  different 
from  tliat  e.^cpressed  in  the  policy.  Dew  v. 
Whetten,  8  Wend.,  160.  But  it  is  proper  for 
the  purpose  of  establishing  a  misrepresenta- 
tion; and  in  equity  it  may  be  used  to  correct 
the  policy.    Ibid. 

85.  Policy  stipulated  for  a  perfect  and  un- 
incumbered title;  and  if  incumbered,  to  be 
disclosed  and  specified  in  the  policy.  Two 
persons  made  joint  application  to  insurer's 
agent  for  insurance  upon  a  building  used  as  a 
tannery,  and  the  stock  therein;  separate  simis 
on  each.  One  was  the  owner  of  the  building, 
the  other  of  the  stock.  Insurer's  agent  knew 
the  precise  interest  which  each  had  in  tlie 
property.  He  accepted  and  approved  the  ap- 
plication, and,  at  his  own  suggestion,  filled 
up  a  policy  purporting  to  insure  them  as  joint 
owners  of  the  tannery  and  stock.  Held,  it 
was  competent  to  prove  that  the  persons  in- 
sured stated  to  the  agent  at  the  time  the  policy 
■was  made,  that  one  was  the  owner  of  the 
building  and  the  other  of  the  stock,  and  that 
the  policy  was  made  to  both  jointly  at  the 
agent's  suggestion  ;  and,  tliat  the  insured  were 
entitled  to  recover.  Peck  v.  New  London  Coun- 
ty Hut.  Inf.  Co.,  23  Conn.,  584. 

86.  The  application  and  policy  described 
the  property  insured  as  "  his  house,"  aud  the 
policy  stipulated:  "To  be  void  if  the  interest 
of  the  assured  is  not  absolute."  Insured  had 
nothing  but  an  equitable  estate.  Held,  insured 
had  the  right  to  prove  that  insurer's  agent  was 
informed  of  tlie  particulars  of  the  title,  and 
that  in  filling  out  the  application  he  used  his 
own  language.  Held,  also,  the  parol  matter 
was  not  merged  in  the  writing,  for  if  the 
parol  matter  was  true,  then  the  writing  was 
not  the  contract;  and  it  was  admissible  on  the 
ground  that  upon  the  statement  of  title,  the  in- 
surer considered  and  described  tlie  property 
as  tlie  property  of  the  iilaintill".  Hough  v.  City 
Fire  Ins.  Co.,  29  Conn.,  10. 

87.  The  application  was  made  part  of  the 
policy.  It  did  not  state  certain  mortgages 
tliat  were  upon  the  property,  nor  did  it  state 
truly  how  the  Iniilding  was  used  or  occupied. 
Held,  evidence  was  admissible  to  prove  that 
insurer's  agent  knew  of  the  mortgages  and  as 
to  how  the  buildings  were  used  and  occupied; 


that  insured  signed  the  application  in  blank, 
and  insurer's  agent  afterwards  filled  it  up  from 
memory,  and  it  was  never  afterwards  shown 
to  insured.  Howard  Ins.  Co.  v.  Bruner,  23 
Penn.  St.,  50. 

88.  The  declarations  of  the  insurer's  agent 
giving  a  construction  to  the  written  portion 
of  the  policy  are  admissible,  and  the  company 
is  estopped  to  contradict  that  construction. 
Aurora  Fire  las.  Co.  v.  Eddy,  55  111.,  313. 

89.  One  Holmes,  familiar  witli  the  property 
and  title,  had  been  asked  by  insured  to  get  in- 
surance up(m  it.  He  wrote  about  it  to  Folsom, 
insurer's  general  agent,  who  issued  policies 
in  ordinary  cases.  Folsom  replied,  "  You  make 
out  an  application  for  Ives  Bros,  in  the  Com- 
mercial, give  a  correct  diagram  and  full  de- 
scription of  the  mill,  etc.,  also  how  tlie  fur. 
nace  is  situa'ed,  and  I  will  forward  it  to  the 
company  for  approval  or  rejection."  Holmes 
made  the  application,  set  forth  the  title  as  fee 
simple  without  incumbrance,  signed  the  name 
of  insured  to  it,  sent  it  to  Folsom,  who  trans- 
mitted it  to  insurers,  who  issued  the  policy. 
Insured  had  no  estate  but  a  bond  for  a  deed. 
Held,  insured  liad  the  right  to  prove  that  lie 
never  signed  the  application,  and  knew  noth- 
ing of  its  contents,  and  that  Holmes  was  fa- 
miliar with  his  title  and  the  condition  of  the 
property.  Held,  also,  if  Holmes  did  know  the 
condition  of  the  property  and  the  true  state  of 
the  title,  insurer  was  estopped  to  contradict 
the  title  stated  in  the  application,  because  the 
statements  were  the  statements  of  insurer's 
agent,  notwithstanding,  by  the  terms  of  the 
policy.  Holmes  was  to  be  regarded  as  the 
agent  of  insured.  Commercial  Ins.  Co.  v.  Ives, 
50  111.,  402. 

90.  Tlie  companj-  agreed  to  be  answerable 
for  mistakes  in  tlie  survey  made  by  its  agents. 
There  was  error  in  the  application  written  by 
insurer's  agent.  Held,  evidence  was  admissi- 
ble to  show  whether  the  agent,  in  filling  out 
the  application,  had  accurately  stated  the  an- 
swers of  the  insured.  May  v.  Buckeye  Mut. 
Ins.  Co.,  25  Wis.,  291. 

9  I .  Insurer  defended  on  the  ground  that  tlie 
title  was  misrepresented  in  the  written  appli- 
cation; but  insured  offered  and  was  permitted 
to  prove  that  insurer's  agent  was  informed  as 
to  tlie  exact  state  of  llie  title ;  that  he  wrote  the 
application  ami  misstated  the  fact.  Held,  the 
evidence  was  admissible  for  the  purpose  of 
establishing  a    mistake    in    the   application, 

253 


507 


EVIDENCE. 


50S 


Parol. 


which  occurred  through  the  carelessness  or 
fraud  of  the  company's  agent,  and  for  which 
insurers  were  answerable;  for  the  mistake  of 
the  agent  is  the  mistake  of  the  principal.  3Ic- 
Bride  v.  Republic  Fire  Ins.  Co.,  30  Wis.,  562. 

92.  The  policy  was  written  upon  a  steam 
saw  mill,  boiler,  engine,  machiner3'  and  belt- 
ing contained  therein.  There  was  in  the  saw 
mill  a  planing  machine.  Insured  offered 
proof  to  show  that  insurers'  agent  was  told 
that  the  policy  was  required  to  cover  the  saw 
mill  and  machinery;  that  the  agent  visited  it 
and  inspected  it;  that  he  saw  the  planing  ma- 
chine, and  made  inquiries  about  it.  Held.,  the 
evidence  was  admissible;  that  it  was  proper 
for  the  juiy  to  determine  from  it  whether  the 
parties  intended  to  insure  the  planing  machine. 
James  Miver  Ins.  Co.  v.  Merritt,  47  Ala.,  387. 

93.  The  policy  set  out  recited  that,  "  It  had 
been  issued  upon  a  proposal  whereby  it  was 
declared  that  J.  (the  person  whose  life  was  in- 
sured)  had  not  had  any  fit  or  convulsion  since 
childhood,  or  any  disease  of  the  hmgs  or  heart, 
or  any  other  disease  or  disorder  tending  to 
shorten  life."  Defendant  pleaded;  that  said  J., 
since  childhood,  and  before  making  the  policy, 
had  epileptic  fits,  and  also  a  disease  tending 
to  shorten  life,  to  wit,  delirium  tremens.  Held, 
a  good  plea.  But  the  plaintiff  replied,  equit- 
ably, that  plaintiff'  had  been  induced  to  effect 
the  policy  in  consequence  of  the  defendant 
undertaking  that  all  insurances  should  be  un- 
questionable except  where  fraud  was  prac- 
ticed in  obtaining  them,  and  that  no  fraud  had 
been  practiced  by  plaintiffs  in  obtaining  this 
policy.  Held,  a  good  replication ;  and,  that  a 
prospectus,  issued  by  authority  of  the  com- 
pany, although  it  did  not  appear  that  plaintiff 
had  seen  it  before  the  policy  was  made,  was 
admissible  to  support  the  replication,  if  it 
stated  that  all  insurances  should  be  unques- 
tionable e.xcept  for  fraud ;  for  it  was  addressed 
to  all  customers  and  applied  to  all  insurances. 
Wheelton  v.  Hardisty,  8  El.  &  Bl.,  333;  36  L.  J. 
Q.  B.,  265. 

94.  Plea  that  the  policy  was  made  upou  the 
express  condition  that  if  any  statement  or  alle- 
gation made  in  the  declaration  upon  which 
the  pc.icy  was  based  were  untrue,  or  if  the 
insurance  should  have  been  obtained  through 
any  misrepresentation,  concealment,  or  untrue 
averment,  tlien  the  policy  should  be  null  and 
void.  Averment;  that  the  declaration  did  con- 
tain  false  and  unti-ue  statements  in  this,  that  a 

25i 


proposal  to  insure  the  same  life  had  been  made 
to  and  accepted  by  the  Commercial  A.ssurance 
Company,  w-hereas  in  truth  and  in  fact,  none 
had  been  made  or  accepted.  Replication  upon 
equitable  grounds;  that  before  the  policy  was 
entered  into,  defendants  publislied  to  plaintiff 
and  others  their  intention  to  carry  on  the  busi- 
ness of  insurance  upon  lives,  and  that  the  de- 
fendants therein  stated  and  represented  to  per- 
sons who  should  effect  insurance  with  them,  and 
to  the  plaintiff,  that  all  insurance  which  should 
be  effected  by  such  persons,  or  by  the  plaintiS 
with  the  defendants,  and  among  others,  the 
policy  in  the  declaration  mentioned  should  be 
indisputable,  except  in  cases  of  fraud;  that 
the  policy  was  made  to  the  defendants  in  con- 
sequence of  and  in  the  faith  of  that  statement, 
and  by  reason  of  the  promises,  it  was  in  equity 
indisputable  except  in  cases  of  fraud ;  that  the 
alleged  false  and  untrue  statement  in  the  plea 
mentioned  was  not  fraudulent,  and  that  there 
was  not  in  the  declaration  and  statement  men- 
tioned,  any  fraudulent  allegation.  Rejoinder 
repeated  substantially  what  was  stated  in  the 
plea,  and  continued,  that  the  policy  was  made 
upon  the  basis  of  the  proposal  and  declaration 
and  not  otherwise,  and  upon  the  condition  in 
the  plea  set  forth;  that  at  the  time  the  policy 
was  made  there  was  no  promise  or  undertak- 
ing by  the  defendants  that  the  policy  shJuUl 
be  indisputable,  except  in  cases  of  fraud;  nor 
was  there  before  the  making  of  the  policy  any 
such  representation  or  statement,  except  what 
was  contained  in  the  prospectuses  to  the  pub- 
lie,  in  which  it  was  stated  that  all  policies 
effected  with  the  society  should  be  indisputa- 
ble except  in  cases  of  fraud."  Held,  the  re- 
joinder  was  bad,  that  the  court  under  the  com- 
mon law  procedure  act  of  1854  would  deal 
with  the  policy  as  if  the  terms  of  the  prospec- 
tus had  been  embodied  in  it.  That  the  repli- 
cation was  a  good,  equitable  answer  to  the 
plea,  and  that  the  plaintiff  was  entitled  to 
judgment.  Wood  v.  Dwarris,  11  Exchr.,  493; 
35  L.  J.  Ex.,  129. 

9.5.  The  defendant's  agent  made  and  trans- 
mitted a  diagram  of  the  buildings  to  the  head 
office.  They  were  described  in  it  as  detached. 
But  they  were  connected  with  other  build- 
ings. Held,  the  plaintiff  was  entitled  to  show 
that  the  company's  agent  visited  the  premises 
and  had  full  knowledge  of  their  situation  in 
respect  to  adjacent  buildings.  Somers  v.  Alhe- 
ni£um  Fire  Ins.  Co.,  9  L.  C,  61. 


509 


EVIDENCE. 


510 


Declarations. 


IV.  Declarations, 

(a)  Of  the  parties. 

1.  Offers  of  settlement  are  admissible,  unless 
it  appears  that  they  were  confidential  over- 
tures of  paciticatioD,  or  expressly  stated  to  be 
made  without  prejudice.  Townsend  v.  Mer- 
chants Ins.  Go.,  4  J.  &  Sp.  (N.  Y.),  172;  s.  c, 
45  How.  Pr.,  501 ;  s.  c,  affirmed,  56  K.  Y.,  C55. 

2.  Where  the  question  was,  whether  the 
person  insured,  and  who  had  recovered  of  his 
insurer,  intended  to  cover  the  interest  of  a 
person  not  named,  it  was  held,  his  account 
current,  charging  the  person  not  named  in 
the  policy  with  the  premium,  was  evidence 
against  himself  to  prove  the  intention.  Mil- 
tonherger  v.  Beacom,  9  Penn.  St.,  198 ;  Fleming 
V.  Insurance  Co.,  13  id.,  391. 

3.  Letters  authorizing  and  directing  a  per- 
son to  effect  insurance  are  admissible  for  the 
pui'pose  of  proving  that  the  person  who  ef- 
fected ii  did  so  in  the  capacity  of  an  agent. 
Newson  d.  Dovglass,  7  H.  &  J.,  417. 

4.  It  appeared  tliat  appellant  had  offered 
appellee  $500  for  a  settlement  of  the  case, 
proof  of  which  was  given  before  the  jury. 
Seld,  error;  but  as  tlie  court  was  satisfied 
•with  the  judgment,  it  would  not  reverse. 
111.  tj.  C.  Teutonia  Life  Ins.  Co.  v.  Beck,  7 
Chi.  Leg.  News,  190. 

5.  Printed  matter,  containing  the  rules  of 
insurer,  with  respect  to  the  transaction  of  its 
business,  distributed  generally,  is  admissible 
against  the  company ;  and,  the  fact,  that  the 
policy  holder  was  not  aware  of  the  existance 
of  such  printed  matter,  at  the  time  the  cause 
of  action  arose,  is  imraateri.^l.  Walshv.  .^tna 
Life  Ins.  Co.,  30  Iowa,  133. 

6.  Policy  to  the  wife  for  the  benefit  of  her- 
self and  child,  stipulated:  "The  statements 
and  declarations  of  insured,  made  in  the  ap- 
plication, are  hereby  made  a  part  of  this  con- 
tract, and  if  any  of  said  declarations  or  state- 
ments are  found  untrue,  the  policy  shall  be 
void."  The  application  stipulated  :  "  The 
bbovo  are  true  and  fair  answers  to  the  fore- 
going questions,  and  any  untrue  or  fradulent 
answers  or  suppression  of  facts,  in  regard  to  the 
above  named  person's  health,  will  render  the 
policy  null  and  void."  The  suit  was  brought 
by  the  widow  and  child  jointly,  and  the  de- 
fendant offered  to  orove  certain  admissions 


made  by  the  widow,  which  were  rejected  by 
the  court  below.  Held,  error;  for  there  i» 
nothing  in  sec.  3784  of  the  code  which 
changes  the  old  rule  governing  this  question. 
If  the  parties  have  a  joint  interest  in  the 
matter  in  suit,  whether  as  plainlitts  or  de- 
fendants, an  admission  made  by  one  is,  in 
general,  evidence  against  all.  Greenl.  Ev.,  1, 
174;  Phillips  Ev.,  1,  378.  Soutliern  Life  Ins. 
Co.  V.  Wilkinson,  53  Ga.,  535. 

7.  A  letter  in  which  the  writer  speaks  of  a 
ship  as  his  own  is  not  conclusive  against  him 
as  to  ownership.  Evidence  m.iy  be  given  to 
prove  who  were  the  owners.  Tulloch  v.  Boyd, 
1  Holt,  N.  P.,  487 ;  s.  c,  7  Taumt.,  473 ;  1  Moore, 
174. 

8.  Action  was  brought  for  the  use  of  R., 
whose  declarations  were  offered  in  evidence 
in  the  cause,  and  rejected  on  the  ground  that 
he  could  be  called  and  sworn  as  a  witness. 
Held,  error;  for  he  was  tlie  real  plaintiff  in 
the  cause;  hence,  his  delarations  were  admis- 
sible. Boss  V.  Commercial  Union  Ass.  Co.,  2ft 
U.  C.  Q.  B.,  559. 

(b)  Of  agents. 

9.  The  plaintiff  was  allowed  in  the  crosa 
examination  of  one  of  the  defendant's  wit- 
nesses to  ask,  whether  D.,  the  general  travel- 
ing agent  and  supervisor  of  the  defendant's 
business  in  the  southern  states,  did  not,  after 
the  death  in  question,  and  after  he  had  made 
an  examination  into  the  claim,  express  an 
opinion  that  it  should  be  paid.  Held,  the 
opinion  o£  an  agent,  based  on  past  occur- 
rences, ought  not  to  have  been  received  as  the 
admission  of  his  principal  (citing  Packet  Co. 
V.  Clough,  20  Wall.,  538).  Insurance  Co.  v. 
Mahone,  21  Wall.,  152. 

10.  Testimony  was  given,  that  the  master 
had  signed  a  bill  of  lading.  An  invoice  was 
produced  for  the  voyage  insured;  but  the  tes-  - 
tamentary  declaration  of  the  master,  taken  at 
Chagres,  dated  the  day  after  the  invoice  and 
bill  of  lading,  stated  that  there  was  no  in- 
voice or  bill  of  lading  made.  Held,  it  was 
admissible,  for  it  was  the  declaration  of  the 
plaintifl''s  agent  in  relation  to  the  business 
under  his  management,  and  was  evidence 
against  the  principal.  Blagg  d.  Phanix  Ins. 
Co.,  3  Wash.  C.  C,  5.  The  rule  in  the  case  of 
Walton  ».  Shelly,  1  Term,  293,  is  not  authority, 
in  the  United  Slates.     Ihid. 

255 


511 


EVIDEXCE. 


512 


Declarations. 


11.  Evidence  of  what  the  broker  said  to 
the  insurer,  when  he  delivered  the  order  for 
insurance,  is  admissible.  Livingston  v.  Dela- 
field,  I  Johns.,  522. 

1 2.  The  defendants  alleged  that  by  mutu.il 
■consent  the  policy  was  cauccled;  and  it  was 
proved  that  the  insured  referred  the  insurers 
to  \V.,  as  a  person  who  would  settle  the  mat- 
ter. Held,  it  was  competent  to  prove  conver- 
sations subsequentl3'  had  between  W.  and  the 
officers  of  the  company  on  that  subject,  and 
evidence  th.at  W.  agreed  to  cancel  the  policy 
at  a  particular  time,  was  admissible.  Bedell 
«.  Commercial  Mut.  Ins.  Co.,  3  Bos.,  147. 

13.  The  defendant's  agent  emplo3-ed  C.  as  a 
subagent  to  deliver  the  policy  and  receive  the 
premium.  He  was  interested  to  earn  his  com- 
jnissionsas  a  broker,  and  sent  to  the  plaintiff  to 
notify  him  that  the  policy  was  read}-.  The 
plaintiff  went  to  C.'s  office  to  procure  a  change 
in  the  policy,  and  found  him  unwell  in  an 
adjoining  otlice.  C.  directed  another  person 
to  receive  the  plaintiff's  communication,  who 
took  the  memorandum  and  put  it  in  the  pol- 
icy, where  it  was  seen  by  C.  Held,  all  which 
occurred  between  the  parties  at  that  time  was 
admissible  against  the  defendant.  Kelly  v. 
C ommomoealth  Ins.  Co.,  10  Bos.,  83. 

■J4.  The  plaintiff  offered  to  prove  that  the 
defendant's  secretary  acknowledged,  the  morn- 
ing after  the  fire  occurred,  that  the  building 
was  insured  at  the  time  of  the  fire.  Hdd,  it 
was  not  independent  evidence,  because  it  was 
not  res  gesta;  nor  was  it  evidence  contradict- 
ing the  secretary's  statements,  because  upon 
that  point  his  statements  were  not  material. 
First  Baptist  Church  v.  BrooMyn  Fire  Ins.  Co., 
28  N.  T.,  15y;  s.  c,  23  How.  Pr.,  448. 

15.  Evidence  was  admitted  tending  to  show 
that  defendant's  agent  admitted  that  proof  of 
loss  had  been  received.  Held,  the  admissions 
of  an  asent  are  receivable  only  .when  they  are 
a  part  of  the  res  gesim.  If  they  do  not  accom- 
pany the  transaction  in  which  the  agent  is  en- 
gaged within  the  scope  of  his  authority,  they 
are  not  admissible.  These  declarations  were 
narrations  of  a  preceding  fact.  It  was  there- 
lore  error  to  receive  them,  and  for  this  error 
only  the  judgment  was  reversed.  N.  T.  C.  of 
App.  Bean  v.  JEtna  Life  Ins.  Co.,  5  Ins.  L. 
J.,  185;  s.  c,  2  Hun.  (X.  Y.),  858;  4  N..Y.  S. 
C.,497. 

16.  Action  on  a  premium  note.  Defense: 
■"  It  was  procured  througli  false  and  fraudu- 

256 


lent  representations."  Proof:  "D.  was  agent 
to  solicit  risks,  receive  and  transmit  applica- 
tions, take  policies  and  deliver  them,  and  to 
receive  cash,  and  premium  notes,  for  which  he 
was  paid  a  commission  on  the  premiums  re- 
ceived. He  solicited  defendant  to  insure  his 
vessels,  and  assured  him  that  the  company's 
capital  was  $200,000,  all  paid  in,  and  invested 
according  to  law.  Relying  upon  these  repre- 
sentations, defendant  made  the  applications, 
accef)ted  the  policies,  and  delivered  the  pre- 
mium  notes."  Held,  evidence  of  the  represen- 
tations of  D.  were  admissible;  it  was  clearly 
within  the  scope  of  his  authority  to  answer 
inquiries  concerning  the  condition  and  prop- 
erty of  the  corporation,  and  its  ability  to  fulfill 
contracts  with  those  who  were  about  tu  accept 
policies:  and  if  defendants  were  injured  by 
his  misconduct  or  fraud,  they  could  resort  for 
redress  to  th6  persons  who  clothed  him  with 
power  to  act  in  their  behalf,  and  who  received 
the  benefits  resulting  from  his  agency  (citing 
Poster  B.  Essex  Bank,  17  Mass.,  479 ;  Fuller  ». 
Wilson,  3  Q.  B.,  58;  Story  on  Agency,  sec. 
308).     Fogg  v.  Oriffln,  2  Allen,  1. 

17.  The  declaration  of  an  agent  made  while 
engaged  in  the  transaction  of  the  business  of 
the  principal,  and  relating  thereto,  are  admis- 
sible in  evidence  (citing  Hays  xi.  Hynds,  28 
Ind.,  31).    Heller  v.  Craicford,  37  Ind.,  279. 

18.  A  witness  was  permitted  to  testify  that 
G.  said  he  was  the  agent  of  the  insurance  com- 
pany; that  he  tendered  the  policy  to  G.  and 
demanded  the  repayment  of  the  premium; 
that  G.  refused  the  policy  and  refused  to  pay 
the  money;  that  G.  said  he  had  filed  no  certifi- 
cate, as  required  by  the  statute,  at  the  time  the 
policy  was  issued,  but  that  one  was  after- 
wards filed;  that  G.  further  stated  that  he 
countersigned  the  policy.  Held,  whatever  the 
agent  does  in  the  lawful  prosecution  of  the 
business  of  the  agency  is  the  act  of  the  prin- 
cipal whom  he  represents ;  and,  when  the  acts 
of  the  agent  are  admissible,  his  declarations 
and  admissions,  respecting  the  subject  matter, 
will  also  bind  the  principal,  if  they  are  made 
at  the  time;  but,  the  dechu-ations  or  admissions 
of  an  agent  bind  the  principal  only  in  regard 
to  a  transaction /(;rw/  opus  (citing  1  Greenlcaf 
Ev.,  sec.  113).  Union  Central  Life  Ins.  Co.  v. 
Thomas,  46  Ind.,  44. 

19.  The  agent  of  the  company,  it  seems, 
made  oral  statements  about  the  subject  matter 
in  controversj-.    Held,  his  declarations  were 


513 


EVIDENCE. 


514 


Declarations. 


admissible  in  evidence.    Mutual  Benifit  Life 
fns.  Co.  B.  Gannon,  48  Ind.,  304. 

20.  A  witness  testified :  "I  wrote  tlie  letter, 
of  wliicli  this  is  a  copy,  by  direction  of  tlie 
solicitor  of  tlie  company."  Held,  tlie  dnift 
was  evidence  of  an  act  done  by  the  company, 
and  the  answer  to  the  letter  was  not  admissi- 
ble. Rawlins  v.  Deshorovgh,  8  C.  &  P.,  321 ;  s. 
c,  2  M.  &  Rob.,  328. 

21.  The  agent  wrote  letters  to  his  principal 
in  which  he  rendered  an  account  of  the  trans- 
action performed  for  his  jnineipal.  Held, 
the}'  were  not  admissible  as  evidence  against 
the  principal.  Langhorn  v.  AUnutt,  4  Taunt., 
611;  Kahl  v.  J  amen,  id.,  565;  Reyner  v.  Pear- 
ton,  id.,  662. 

22.  The  defendant  had  moved  to  defer  the 
trial  on  an  affidavit  made  by  D.,  in  which  it 
was  stated  that  D.  subscribed  llie  policy  in 
question  for,  and  on  account  of,  the  defendant. 
Jleld,  the  aftidavit  was  evidence  upon  the  trial 
for  the  plaintiff  to  support  the  execution  of 
the  instrument;  that  the  mere  affidavit  of  an 
agent  would  not  be  evidence  of  itself,  but 
when  produced  by  the  defendant  and  used  for 
the  purpose  of  putting  off  the  trial,  he  must 
be  presumed  to  adopt  its  contents.  Johnson 
«.  Ward,  G  Esp.,  47. 

(c)  Of  deceased  persons. 

23.  Tlie  defendant  offered  to  prove  that  the 
plaintiff's  husband,  the  person  whose  life  was 
insured,  had  declared,  subsequently  to  the 
making  of  the  policy,  that  for  several  years 
prior  to  his  application  he  had  been  subject 
to  very  severe  headaches,  and  that  when  so  af- 
flicted he  used  large  quantities  of  laudanum. 
Jleld,  inadmissible,  notwithstanding  the  de- 
ceased died  from  an  overdose  of  laudanum., 
taken  to  relieve  headache.  Mvlliaer  ii.  Guar- 
dian  Mutual  Life  Jns.  Co.,  1  N.  Y.  S.  C,  448. 

24.  Life  policy  assigned  November  4,  1869. 
Insured  died  March  21,  1871.  The  defendant 
offered  the  acts  and  declarations  of  the  in- 
sured  made  prior  to  the  effecting  of  the  policy. 
Held,  not  admissible,  for  this  question  hi» 
been  conclusively  settled  in  this  state  and 
cannot  now  bo  regarded  as  open  to  discussion 
(citing  Rawls  v.  American  Mututal  Life  Ins. 
Co.,  27  N.  Y.,  283;  Swift  v.  Massachusetts 
Mutual  Life  Ins.  Co.,  3  N.  Y.  S.  C,  303;  Bliss 

,  Life  Ass.,  Sec.  362).    Edington  v.  Mutual  Life 
Jnt.  Co.,  5  llun.  (N.  Y.),  1. 
17 


2.5.  Defendant  offered  the  declarations  of 
the  deceased  made  shortly  before  the  issuing 
of  the  policy  to  show  the  cause  of  the  party's 
lameness.  Held,  they  were  admissible  (re- 
versing s.  c,  2  N.  Y.  S.  C,  802).  Swift  v.  Mass- 
aehusetta  Mutual  Life  Jns.  Co.,  5  Ins.  L.  J.,  53. 

26.  The  wife  had  made  certain  written 
statements  in  the  application  in  respect  to  her 
good  health.  The  policy  was  made  for  the 
benefit  of  the  husband.  Held,  letters  written 
and  declarations  made  by  her  totliird  persons 
shortly  before  the  application  were  evidence 
against  the  plaintilF.  Kehey  v.  Universal  lAft 
Jns.  Co.,  35  Conn.,  225. 

27.  Policy  on  the  life  of  A.  to  his  wife,  for 
her  use  and  benefit.  The  application  was 
signed  by  her  husband.  The  defendant,  for 
for  the  purpose  of  contradicting  the  state- 
ments made  in  the  application,  offered  to 
prove  certain  declarations  made  by  the  hus- 
band while  he  negotiated  a  surrender  of  the 
irolicy.  Jleld,  inadmissible,  unless  the  hus- 
band acted  as  the  wife's  agent  in  making  the 
surrender;  that  in  absence  of  proof  upon  that 
point,  they  were  mere  hearsay,  and  the  fact 
that  the  person  who  spoke  the  words  was 
dead  did  not  affect  the  rule  of  law.  Frater. 
nal  Mutual  Life  Jns.  Co.  v.  Applegate,  7  Ohio 
St.,  292. 

28.  "  Warranted  insured  does  not  now  ex- 
ceed the  age  of  fifty-nine  years."  Held,  the 
declarations  of  the  person  insured  were  not 
evidence,  nor  could  the  declaration  of  in- 
surer's agent,  expressing  himself  satisfied  in 
respect  to  the  age,  be  received.  Wesl^opp  o. 
Bruce,  Batty,  155. 

(d)  Bes  gestce. 

29.  Policy  against  death  by  accident  only, 
stipulated:  "  No  claim  shall  be  made  in  re- 
spect of  an  injury  unless  the  same  shall  be 
caused  by  some  outward  and  visible  means, 
of  which  proof  satisfactory  to  the  company 
can  be  furnished."  It  was  alleged  that  the 
person  whose  life  was  insured,  accidentally 
fell  down  stairs,  was  severely  injured  and 
died  from  the  effects  of  the  fall.  No  witness 
saw  him  fall,  but  some  days  prior  to  his  death 
he  told  his  wife  and  son  that  he  had  fallen, 
down  the  back  stairs  and  hurt  himself  very 
badly,  that  he  had  hit  the  back  of  his  head 
in  falling.  Held,  the  evidence  was  admis- 
sible  and  sufficient  to  make  the  insurer  liable. 

3o7 


515 


EVIDENCE. 


516 


Res  inter  alios  acta;. 


Dissenting,  Clifford  and   Nelson,  JJ.    Insur- 
ance Co.  v.  Mosely,  8  Wall.,  397. 

30.  In  coming  from  the  room  occupied  by 
the  deceased,  Burns  said  the  man  had  shot 
himself.  The  death  of  Burns  was  proved  up- 
on the  trial.  Held,  following  the  reasons  and 
principles  of  the  decision  of  the  supreme 
court  in  the  case  of  Insurance  Co.  v.  Mosely, 
8  Wall.,  397,  the  declaration  of  Burns  was 
part  of  the  res  gestce,  and  as  such  it  was  ad- 
missible. Newton  v.  Insurance  Co.,  2  Dil.  Cir. 
C,  154. 

31.  Duplicate  receipts  given  by  the  receiv- 
ing  ofBcer  of  the  vessel,  for  the  goods  laden, 
are  part  of  the  res  gestm;  and,  upon  proof  of 
his  handwriting,  are  admissible  for  the  pur- 
pose  of  showing  the  number  of  cases  taken  on 
board.  Sturm  v.  Atlantic  Mut.  Ins.  Co.,  0  J.  & 
S.  rN.  Y.),  281. 

32.  Policy  against  death  by  accident.  In- 
sured was  at  work  in  a  foundry  August  10th, 
when  he  became  suddenly  sick,  imable  to 
work,  and  so  remained  till  October  9th,  when 
he  died.  HehJ,  it  was  competent  to  prove,  for 
the  purpose  of  establishing  an  accidental  in- 
JU17,  that  deceased  stated  to  a  physician,  called 
to  prescribe  for  him,  that  he  had  received  an 
injury  to  his  back  and  side  by  a  fall,  notwith- 
standing the  physician  testified  he  could  not, 
without  the  statements  of  deceased,  have  de- 
termined the  cause  of  his  sickness  (citing 
Barber  v.  Merriam,  11  Allen,  333;  Fort  v. 
Brown,  46  Barb.,  360).  Dahhert  ■».  Travelers 
Ins.  Co.,  3  Cin.  Sup.  Ct.,  98. 

33.  The  defendant  insured  the  life  of 
plaintiff's  wife  for  the  benefit  of  plaintiff. 
The  policy  was  made  July  12,  1869.  She  died 
April  13,  1870.  A  witness  was  called,  who 
tcstilied  that  she  knew  the  wife  for  five  years 
next  preceding  her  death ;  that  about  .July 
20,  1869,  one  of  the  witnesses'  family  died  of 
consumption,  and  the  deceased  wife  referring 
to  that  death  said :  "  This  is  the  way  I  ex- 
pect to  go."  The  witness  was  then  asked: 
"What  did  the  plaintiff's  wife  say  was  the 
matter  with  her?"  Held,  the  wife  was  not  a 
jiarty  to  the  record  and  therefore  her  declara- 
tions could  not  be  admitted  on  thatgrciund; 
that  she  was  not  a  party  in  interest,  and  so 
they  were  not  admissible  on  that  ground; 
she  was  not  her  husband's  agent  and  therefore 
they  were  not  admissible  on  that  ground;  and 
this  case  is  to  be  distinguished  from  the  case 
of  Avesou  V.  Lord  Kinnaird,  6  East,  188,  for 

258 


the  declarations  in  that  case  were  made  be- 
tween the  making  of  tlie  application  and  the 
delivery  of  the  contract.  It  is  also  to  be  dis- 
tinguished from  the  case  of  Kelsey  v.  Univers- 
al Life  Ins.  Co.,  35  Conn.,  225;  for  in  that  case 
the  declarations  tendered  were  made  shortly 
prior  to  the  application;  and  in  both  cases 
the  declarations  were  considered  so  near  the 
application  that  they  were  regarded  as  res 
gestm.  Washington  Life  Ins.  Co.  v.  Maney,  10 
Kan.,  525. 

34.  "  On  the  life  of  a  woman  warranted  iu 
good  health."  She  was  found  in  bed  at 
eleven  o'clock  in  the  day  time  shortly  prior 
to  the  issuing  of  the  policy;  she  then  stated 
that  she  was  "  very  poorly ;  that  she  had  beea 
to  Manchester  the  Tuesday  before ;  her  hus- 
band had  been  insuring  her  life;  that  she  was- 
not  fit  to  go  to  Manchester;  tliat  it  would  be 
ten  days  before  tlie  policy  could  be  returned^ 
and  she  was  afraid  she  could  not  live  till  it 
was  made  and  then  her  husband  could  not  gel 
the  money."  lleld,  the  evidence  was  admis- 
sible though  the  declarations  were  not  rnado 
to  a  physician.  Aveson  v.  Kinnaird,  6  East, 
188. 

V.    HeS  INTEE  alios  ACT-E. 

1.  Representations  made  to  one  insurer  are 
not  evidence  for  another  Insurer  upon  the 
same  risk.    EUing  v.  Scott,  3  Johns.,  157. 

2.  The  survey  of  a  ship  is  not  evidence  in 
chief  for  the  insured  upon  the  question  of  sea- 
worthiness. Saltus  V.  Commercial  Ins.  Co.,  10- 
Johns.,  487. 

3.  Plaintiffs  sought  to  recover  back  money- 
paid  upon  an  accident  policy  to  the  admin- 
istrators of  H.,  and  alleged  that  the  policy 
was  issued  in  pursuance  of  a  fraudulent  com- 
bination between  the  company's  agent,  the 
defendant  W.,  and  L.,  after  the  death  of  H. 
Held,  the  declarations  of  the  agent,  W.  and 
L.  were  not  competent.  Railway  Passengers- 
Ass.  Co.  v.  Warner.  1  N.  Y.  S.  C,  21.    Add. 

4.  The  defendants  offered  to  prove  by  en- 
tries made  in  their  books,  that  the  policy  was 
canceled.  Held,  properly  rejected,  because 
entries  made  by  defendants  in  their  owa 
books  could  not  affect  the  plaintiff's  rights. 
Dean  v.  uEtna  Life  Ins.  Co.,  2  Hun.  (N.  Y.), 
358;  s.  c,  4N.  Y.  S.  C,  497. 

5.  The  declarations  of  the  administrator, 
made  prior  to  his  appointment,  are  not  admii. 


517 


EVIDENCE. 


518 


Confidential  commmucations. 


sible  in  an  action  brought  by  hira.  Cushman 
V.  United  States  Life  Ins.  Co.,  4  llun.  (N.  Y.), 
783. 

•  0.  The  defendants  oflered  to  show  the  quan- 
tity of  goods  kept  by  other  dealers  at  the  same 
time  and  in  the  same  town.  Held,  inadmissi- 
ble (citing  Phoeni.x  Fire  Ins.  Co.  v.  Philip,  13 
Wend.,  81).  Toionsend  v.  SferchantH  Ins.  Co., 
4  J.  &  Sp.,  173;  s.  c,  45  How.  Pr.,  501 ;  Same 
V.  Narragansett  Ins.  Co.,  4  J.  <&  Sp.,  170;  S.  c, 
46  ITow.  Pr.,  40.    Affirmed,  56  N.  Y.,  655. 

7.  Tlie  declarations  of  the  purchaser  and 
mortgagee,  though  in  possession  of  the  prem- 
ises at  the  time  of  tlie  fire,  are  not  admissible 
against  tlie  insured.  Kingsley  v.  New  Eng- 
land Mutual  Fire  Ins.  Co.,  8  Ciish.,  393. 

8.  Insurer,  for  the  purpose  of  showing  a 
fraudulent  loss,  proved  that  insured  had  pro- 
cured nine  other  vessels  to  be  insured,  eight 
of  which  had  been  lost;  and  insured  then  ten- 
dered proof  that  insurers  of  those  eight  vessels 
had  paid  the  claims,  without  raising  any 
question  on  the  ground  of  fraud.  Ileld,  in- 
admissible. Hoxie  v.IIome  Ins.  Co.,  33  Conn., 
471. 

9.  S.  was  appointed  by  insurers  to  investi- 
gate the  loss.  He  made  a  report  to  the  com- 
pany, and  appended  to  it  an  affidavit  of  tjie 
plaintiff.  Held,  neither  the  contents  of  the 
affidavit  nor  of  the  report  were  evidence  for 
the  plaintiff  generally.  Lycoming  County  Ins. 
Co.  V.  Schreffler,  44  Penn.  St.,  269. 

10.  Policy  for  account  of  plaintiff.  The 
defendant  ofTcred  to  prove  the  declarations  of 
W.,  made  while  he  was  in  charge  of  the  boat, 
that  he  was  an  owner;  also,  his  subsequent 
declarations  that  he  burned  the  boat.  Held, 
not  admissible.  Eureka  Ins.  Co.  v.  liohinson, 
56  Penn.  St.,  256. 

11.  The  declaration  of  a  stockliolder,  a 
director  of  the  company,  not  made  while  act- 
ing in  the  business  of  the  company,  cannot  be 
received  as  evidence,  because  it  does  not  come 
from  the  agent  of  the  company,  but  from  a 
person  who  was  not  acting  in  that  character. 
Polleys  V.  Ocean  Ins.  Co.,  14  Me.,  141. 

1 2.  The  insurance  company  offered  a  pam- 
HhU't,  containing  private  instructions  to 
agents,  for  the  purpose  of  showing  that  tlie 
agent  had  not  authority  to  act  in  the  premises. 
SM,  inadmissible.  Mississippi  ValleifLife 
Ins.  Go.  V.  Neyland,  9  Bush.,  430. 

13.  Two  policies,  payable  to  Cat  a  date  men- 
tioned iu  case  he  should  live,  but  in  the  event 


of  his  death  prior  to  that  time,  then  they  wero 
payable  to  the  plaintiff  as  trustee  for  certain 
persons  named  as  beneficiaries.  Held,  there 
was  no  joint  interest  between  C.  and  the  bene- 
ficiaries;  therefore,  the  admissions  and  dec- 
larations of  C.  were  not  admissible  as  evidence 
in  the  cause.  Evers  v.  Life  Association,  59 
Jlo.,  429. 

14.  A.  made  claim  against  the  defendants 
for  loss  of  his  own ;  he  also  made  proof  of  loss 
in  behalf  of  B.  The  defendants  sought  to  in- 
troduce in  B.'s  action  against  them  the  record 
between  them  and  A.,  for  the  purpose  of  show- 
ing  that  he  had  made  an  excessive  claim 
against  them  in  that  case.  Held,  inadmissi- 
ble, being  res  inter  alios  aetm.  Henderson  v. 
Western  Fire  and  Marine  Ins.  Co.,  10  Rob. 
(La.),  164.      , 

15.  The  auctioneer's  account  of  sales  is  not 
evidence  of  the  damaged  value  of  goods  sold, 
unless  the  sales  were  made  with  notice  to  in- 
surers. Hoffman  v.  Western,  Fire  and  Marina 
Ins.  Co.,  1  La.  An.,  216. 

16.  A  representation  was  made  to  insurer, 
whose  name  was  written  before  defendants, 
but  not  the  first  on  the  policy.  Held,  res  inter 
alios  actm.  Bell  b.  Carstairs,  2  Camp.,  543 ;  14 
East,  374. 

17.  Policy  to  P.  &  S.  referred  to  an  appli- 
cation, which  stated  tluat  the  property  be- 
longed to  P.  and  A.  (the  husband  of  S).  It 
appeared  that  the  agent  who  filled  up  the  ap- 
plication never  made  any  inquiries  about  the 
ownership,  but  assumed  to  fill  it  up  on  his 
own  knowledge,  without  consulting  insured, 
who  never  made  any  representations  of  any 
kind  about  the  ownership.  The  defendant 
called  the  agent  to  identify  the  application, 
and  asked  him  whether  the  policy  was  issued 
on  it.  Held,  the  evidenc  -sras  inadmissible, 
for  he  was  not  the  agent  of  insured.  Parker 
D.  Amazon  Ins.  Co.,  34  Wis.,  863. 

VI.  Confidential  communications. 

1.  The  defendant  offered  to  prove  by  certain 
physician.i,  who  had  attended  the  deceased  iu 
a  professional  character,  that  he  was  afflicted 
with  numerous  diseases,  the  knowledge  of 
which  they  obtained  liy  tlieir  attendance  on 
him  as  physicians.  Held,  the  evidence  was 
inadmissible,  for  the  Kevised  Statutes,  vol.  3, 
406,  sec.  73,  prohibits  a  disclosure  of  "  any  in- 
formation which  the  pliysician  may  have  ac- 

259 


519 


EVIDENCE. 


52C 


Hearsay —  Of  character,  reputation,  or  pedigree  —  Contents  of  books  and  papers, 


quired  in  attending  any  patient  in  a  profes- 
sional cliaraoter,  and  whicli  -was  necessary  to 
enable  him  to  prescribe  tor  such  patient  as  a 
physician,  or  to  do  any  act  for  hira  as  a  sur- 
geon (citing  Coveney  v.  Taanahill,  1  Hill,  35; 
Robson  V.  Kent,  5  Esp.,  53).  Edington  v.  Mu- 
tual Life  Ins.  Co.,  5  Hun  (N.  Y.),  1. 

2.  Communications  from  a  party  to  an  at- 
torney are  not  privileged,  unless  they  are  con- 
fidential and  made  to  him  in  his  character  as 
an  attorney.  To  establish  the  latter  it  must 
appear  that  the  attorney  was  acting  for  the 
time  being  in  the  character  of  legal  adviser,  or 
that  tlie  person  who  made  them  had  good  rea- 
son to  suppose  he  was  acting  as  such  when 
they  were  made.    Coon  v.  Stoan,  30  Vt.,  6. 

3.  This  bill  was  against  the  insured  and  his 
solicitor,  alleging  that  the  solicitor  was  pres- 
ent at  an  interview  between  insurer  and  in- 
sured, and  it  prayed  that  lie  should  give  cer- 
tain information,  or  state  what  passed  between 
the  parties  at  a  time  when  he  was  present.  He 
answered  that  he  was  present  at  the  time  re- 
ferred to  as  the  solicitor,  attorney,  professional 
and  contidential  adviser  of  the  insured;  that 
he  acquired  his  information  touching  the 
matters,  solely  from  the  fact  that  he  was  pres- 
ent in  the  capacities  mentioned,  and  that  he 
refused  to  answer  on  the  ground  that  the  com- 
raunications  and  information  were  privileged. 
Held,  his  answer  was  insufficient.  Deaborough 
<o.  Rawlins,  3  Myl.  &  Cr.,  515. 

VII.  Heaksat. 

A  brother  of  the  deceased,  upon  cross  exam- 
ination by  defendant's  counsel,  testified  as  to 
what  he  heard  his  brother  say  about  his  hav- 
ing stayed  away  from  home  all  night,  in  the 
month  of  August,  1873.  The  plaintiff's  coun- 
sel then  asked:  What  did  he  say  induced  him 
to  do  it?  Held,  the  answer  was  admissible 
although  it  was  hearsay,  for  it  was  explana- 
tory of  that  which  had  been  inquired  into  by 
the  defendant.  Jacobs  v.  National  Life  Ins. 
Co.,  1  MacArthur,  032. 

VIII.  Of  character,  reputation  or 

PEDIGREE. 

1.  In  determining  whether  the  insured  was 
guilty  of  fraud  in  producing  an  overvaluatinn 
of  the  property  insured,  his  good  characler  t 
260 


integrity  is  not  admissible.    Fowler  t.  .^tna 
Fire  Ins.  Co.,  6  Cow.,  673. 

2.  To  prove  a  house  is  a  brothel,  general 
reputation  is  not  competent  evidence.  Loeh- 
ner  v.  Home  Mut.  Ins.  Co.,  17  Mo.,  247 ;  19  id., 
628. 

3.  The  nephew  of  the  insured  was  exam. 
ined  for  the  purpose  of  establishing  the  dales 
of  the  births  of  his  uncles  and  aunts.  Held, 
the  question  was  one  of  pedigree,  and  might 
be  established  by  general  repute  in  the  family, 
to  be  proved  by  a  surviving  member  of  it; 
hence  it  was  error  to  reject  the  witness.  Amer- 
ican Life  Ins.  Co.  v.  Rosenagle,  77  Penn.  St.,  507. 

4.  A  bible  containing  the  registry  of  the 
family  in  the  possession  of  a  daughter,  the 
registration  being  in  the  handwriting  of  a  de- 
ceased daughter,  comes  within  the  terms  of 
the  code  respecting  the  declarations  of  a  de- 
ceased person  related  by  blood  or  marriage, 
and  is  admissible  as  evidence  upon  questions 
of  pedigree,  descent,  relationship,  birth,  mar- 
riage and  death.  That  it  is  not  in  the  hand- 
writing of  the  father  or  mother  presents  no 
valid  objection.  It  is  not  conclusive  evi- 
dence, however,  and  may  be  weakened  or 
strengthened  by  other  proof  attending  it 
Southern  Life  Ins.  Co.  v.  Wilkinson,  53  Ga. 
5H5. 

IX.  Contexts  of  books  and  papers 

1.  Evidence  that  a  subscribing  witness  to  i 
deed  has  been  diligently  inquired  for,  that  In 
had  gone  to  sea  and  had  been  absent  fom 
years  without  being  heard  from,  is  sufficient 
to  admit  secondary  evidence  of  his  handwrit- 
ing. Spring  v.  South  Carolina  Ins.  Co.,  8 
Wheat,  268. 

2.  A  memorandum  on  the  6y  leaf  of  the 
ledger  of  the  insured,  taken  from  inventories 
destroyed  by  fire,  was  offered  as  evidence  for 
the  insured.  Held,  the  inventories  would  have 
been  admissible,  and  being  lost,  parol  evidence 
of  their  contents  was  admissible;  hence,  a 
memorandum  taken  from  them  was  good  sec- 
ondary evidence  (citing  Merrill  v.  Ithaca  K.  R. 
Co.,  16  Wend.,  586;  Guy  v.  Mead,  23  N.  Y.. 
462).    Insurance  Co.  v.  Weide.  9  Wall.,  677. 

3.  Insured  offered  the  entry  of  footings 
upon  the  fly  leaf  of  a  new  ledger  accompan- 
ied by  proof  that  they  were  correctly  tran. 
scribed  from  the  inventory  book  or  from  the 
Hy  leaf  of  ^ul  exhausted  ledger,  and  Lhey  were 


521 


EVIDENCE. 


522 


Opinions. 


received.  Held,  it  lias  frequently  beeu  de- 
cided that  as  quantities  and  values  are  letuin- 
ed  iu  the  memory  with  great  difficulty,  if  the 
witness  testifies  tliat  when  tlje  entry  of  ag- 
gregate quantities  or  values  was  made,  he 
knew  it  was  made  correctly,  the  entry  is  ad- 
uiissihle.  Insurance  Companies  v.  Weide,  14 
Wall.,  375. 

4.  Where  the  seizing  officer  shows  that  all 
papeis  taken  from  the  vessel  were  delivered 
to  the  court  of  vice  admiralty,  and  the  sworn 
certificate  of  the  registrar  of  that  court  shows 
that  he  h.as  returned  copies  of  the  papers  and 
proceedings  in  that  court  and  the  paper  re- 
quired is  not  among  them,  the  presumption 
is,  that  it  is  not  in  the  court,  and  is  sufficient 
evidence  of  its  loss  to  admit  parol  proof  of  its 
contents.  Francis  v.  Ocean  Ins.  Co.,  6  Cow., 
404. 

5.  Notice  to  the  attorney  of  a  corporation  to 
produce  records  is  sufficient  to  admit  evi- 
dence to  show  an  election  of  directors.  Thay- 
er V.  Middlesex  Mutual  Fire  Ins.  Co.,  10  Pick., 
32G. 

6.  Copy  of  a  lost  policy  was  offered,  and 
objection  confined  to  a  want  of  proof  of  loss 
of  original.  Plaintiff  testified  :  "  The  policy 
liad  never  come  to  his  hands;  he  had  search- 
ed for  it  amoug  his  papers;  it  was  not  within 
his  custody  or  control."  The  secretary  of  tlie 
conijiauy  admitted  that  it  was  issued  and  sent, 
but  how  it  was  sent  he  was  unable  to  state. 
Held,  sufficient  to  establish  the  loss  of  the  pol- 
icy. Sussex  County  Ins.  Co.,  v.  Woodruff,  26 
N.  J.,  541. 

7.  Insured  was  permitted  to  prove,  that  he 
had  sent  by  mail  a  notice  of  the  loss  to  the 
secretary  of  insurer,  that  he  kept  a  copy  of  it. 
Held,  he  had  a  right  to  read  the  copy  of  the 
notice  to  the  jury  without  giving  insurer 
notice  to  produce  the  original  (citing  2  Phil. 
Ev.,  544).  Commonwealth  Ins.  Co.  v.  Monninyer, 
18  Ind.,  352. 

8.  The  pastor  of  a  church  in  a  foreign 
louulry  testified,  that  the  church  records  of 
mairiages,  births,  etc.,  had  beeu  kept  accord, 
ing  to  law,  and  he  was  the  proper  custodian  of 
them,  having  received  them  irom  his  prede- 
cessor. Held,  sworn  extracts  fjom  the  records 
were  admissible  in  eviilence.  American  Life 
Ins.  Co.  V.  liosenagle,  77  Penu.  St.,  507. 

9.  Stipulated:  "If  the  insured  shall  have,  or 
shall  hereafter  make,  any  other  insurance  on 
the  property  hereby  insured  without  tlie  con- 


sent of  this  company  written  hereon  ;  then,  and 
in  every  .such  case,  this  policy  shall  be  void." 
Indorsed,  "$4,000  additional  insurance  per- 
mitted." Tliere  was  $3,000  other  insurance 
made  at  that  date,  and  the  stock  was  increased 
by  a  knitting  machine,  and  another  policy  for 
$2,500  was  etfecled.  Insured  claimed  that 
tiiey  iiotitied  insurers'  agent  by  letter  of  this 
subsequent  policy,  to  which  no  objection  was 
made  by  the  company  or  its  agent.  The  agent 
denied  receiving  the  letter.  Held,  error  to 
allow  a  letter-press  copy  of  the  contents  of 
that  letter  to  go  to  the  jury  until  it  was  made 
to  appear,  by  proper  proof,  that  the  original 
letter  reached  the  hands  of  the  agent;  showing 
the  original  left  with  a  person,  in  the  office 
of  the  agent,  unknown  to  the  person  who  de- 
livered it,  was  not  evidence  sufficient  to  raise 
a  presumption  that  it  reached  the  hands  of 
the  agent.  Sunlns.Go.v.  Earle,'ZdW\c\\,  406; 
Earle  v.  Westehester  Fire  Ins.  Co.,  id.,  414. 

10.  The  witness  testified,  that  he  returned 
the  license  to  the  person  by  whom  it  was 
issued;  he  believed  it  had  been  thrown  aside 
with  the  waste  papers  of  the  office;  he  did  not 
know  what  had  become  of  it ;  he  had  searched 
but  could  not  recollect  whether  he  found  it  or 
not,  did  not  think  he  found  it;  that  he  kept  a 
memorandum  hook  in  which  he  made  entries 
of  such  papers;  did  not  know  where  the  book 
was ;  he  gave  it  to  the  governor  of  the  island 
who  was  in  the  East  Indies.  Held,  the  evi- 
dence  was  sufficient  to  let  in  proof  of  the  con- 
tents of  the  paper;  that  the  absence  of  the 
memorandum  book  did  not  affect  that  right, 
for  it  was  not  evidence  per  se,  but  could  only 
have  been  used  by  the  witness  to  rcfi'esh  his 
memory.    Kensington  v.  Inglis,  8  East,  373. 

X.  Opinions. 


(a)  When  admissible. 

1.  The  defendant's  counsel  offered  to  in. 
quire  of  certain  persons  experienced  in  the 
business  of  insurance,  whether  certain  facts, 
would  have  influenced  the  rate  of  premium, 
had  they  been  known  by  the  insurer.  Held, 
the  evidence  was  admissible.  Hawee  v.  Neto 
Enyland  Mutual  Marine  Ins.  Co,  2  Curtis,  229. 

2.  A  builder  may  be  asked  whether  a  house 
composed  of  brick  walls  in  front  and  rear, 
with  side  walls  of  brick  in  the  basement  and 
first  story  and  above  these  walls,  joists  filled 

2GI 


523 


EVIDENCE. 


524 


Opinions. 


in  with   Ijrick,   is  a  brick   house.     Mead  v. 
Nortliwestern  Ins.  Co.,  7  N.  Y.,  530. 

3.  The  testimony  of  experienced  navigators 
was  admitted  as  to  the  effect,  of  rolling  in 
heavy  seas,  upon  a  ship  laden  witli  grain  in 
bulk.  Held,  admissible.  Walsh v.Wimhington 
Marine  Ins.  Co.,  33  N.  Y.,  427 ;  s.  c.,'3  Kob.,  202. 

4.  The  court  cannot  judiciallj-  say  what  is 
meant  by  a  whaling  voj'age,  hence,  evidence 
of  experts  aud  persons  versed  iu  that  par- 
ticular brancli  of  trade  is  admissible  to  prove 
the  general  practice  or  course  of  the  trade. 
Child  V.  'Sun  Mutual  Ins.  Co.,  3  Sand.,  26. 

5.  The  defendant  asked  a  witness  to  state 
■what,  in  the  usage  of  underwriters,  is  the 
meaning  of  the  term  •'  invoice,  cost  aud  five 
per  cent,  added,"  also,  "  if  the  $213,000  was 
intended  by  you,  in  making  the  insurance,  to 
be  what  was  first  stated  iu  their  application 
as  invoice  cost,  was  it  not,  and  five  per  cent, 
added?"  Held,  the  questions  were  proper, 
aud  excluding  tlie  answers  was  error.  Sluiin 
V.  Williams,  6  J.  &  Sp.  (N.  Y.),  325. 

6.  Nautical  witnesses  may  give  their 
opinions  as  to  whether  a  risk  is,  or  is  not  in- 
creased under  a  given  state  of  facts.  Lapham 
V.  Atlas  Ins.  Co.,  24  Pick.,  1. 

7.  Upon  a  question  wliether  the  risk  was 
increased,  it  was  proper  to  ask  an  expert 
whetlier  a  partition  increased  tlie  risk,  or 
created  the  necessity  for  another  cask  of 
water.  Daniels  v.  Hudson  River  Fire  I?is.  Co., 
13  Cush.,  416. 

8.  Whether  insurer  wo\ild  have  charged  a 
higher  rate  of  premium,  because  the  house  was 
unoccupied  is  a  question  within  the  peculiar 
knowledge  of  persons  versed  in  the  business 
of  insurance,  and  was  therefore  admissible 
(citing  Merriam  v.  Middlesex  Ins.  Co.,  31  Pick., 
163 ;  Webber  v.  Eastern  R.  R.  Co.,  2  Met.,  147 ; 
Mulry  V.  Mohawk  Valle}-  Ins.  Co.,  5  Gray, 
541 ;  McLanahan  v.  Universal  Ins.  Co.,  1  Pet., 
170;  Hawes  c.  New  England  Ins.  Co.,  2 
Curtis  C.  C,  239).  Luce  v.  Dorchester  Mut.  Ins. 
Co.,  105  Mass.,  397. 

9.  An  experienced  and  practical  fireman 
can  give  his  opinion  whether  the  risk  was  in- 
creased bj'  certain  alterations  made.  Sehenck 
«.  Mercer  County  Mutual  Fire  Ins.  Co.,  34  N. 
J.,  447. 

10.  A  person  who  has  been  engaged  in  the 
business  of  life  insurance  may  testify  that  the 
business  of  a  farmer  was  considered  the  least 
hazardous  occupation.    Hartman  v.  Keystone 

263 


In3.  Co.,  21  Penu.  St.,  466.  And  tliat  slave 
catching  was  much  more  hazardous  than 
farming,  and  that  the  insurer  would  not  have 
insured  a  person  whose  occupation  was  that 
of  a  slave  catcher.    Ibid. 

1 1.  The  witness  was  asked,  "  From  3'our  ex- 
perience and  knowledge  as  an  insurance 
agent,  would  the  risk  be  increased  or  lessened 
by  the  change  of  occupation  from  that  of  a 
paint  shop  to  a  saloon  ?"  There  was  proof 
that  the  building  was  rented  for  a  saloon,  and 
that  the  lessees  had  commenced  moving  into 
it  the  ordinary  accompaniments  of  a  saloon. 
Held,  the  evidence  was  competent.  Mitchell 
V.  Home  Ins.  Co.,  33  Iowa.,  421. 

1 2.  The  defendant  asked  an  oflScer  of  an 
insurance  company  who  had  been  in  the  bus- 
iness tw  elve  years  and  was  familiar  with  the 
rates  of  insurance,  whether  in  his  opinion 
the  erection  of  the  boiler,  the  location  of  the 
engines,  and  the  erection  of  a  wooden  shed 
over  the  boiler,  increased  the  hazard  and  re- 
quired an  additional  premium.  Held,  error 
to  refuse  to  hear  the  witness'  answer.  Sern 
V.  South  St.  Louis  Mut.  Ins.  Co.,  40  Mo.,  19. 

13.  Insurance  brokers  were  permitted  to 
testify  as  to  the  general  opinion  and  under- 
standing of  persons  engaged  in  the  trade,  but 
thej'  knew  not  of  an_v  particular  instance  upon 
which  such  opinion  was  founded.  Held,  ad- 
missible.   Caviden  v.  Cowley,  1  W.  Bl.,  417. 

14.  Witnesses  were  called  who  testified  as 
to  the  state  of  the  ship  at  a  particular  time. 
Held,  competent  ship  surveyors,  who  bad  never 
seen  her,  might  testify  the  conditiim  in  which 
she  was  shown  to  have  lieen  was  not  seaworthy. 
Beckwith  v.  Sydebotluim,  1  Camp.,  116. 

15.  A  letter  shown  to  the  underwriter 
stated,  "  She  will  sail  in  the  month  of  Octo- 
ber." Held,  commercial  men  could  testify 
that  sailing  in  the  month  of  October  was  un- 
derstood to  mean  she  would  sail  "  between 
the  25th  of  that  month  and  the  1st  or  2d  of  the 
month  following."  Chaurand  v.  Angorstein, 
Peakes  N.  P.  C,  61. 

16.  The  witness,  an  underwriter,  was  asked 
whether  the  fact  not  mentioned  to  the  insurer 
was  one  which  in  his  judgment  was  a  fact 
material  to  be  communicated.  Held,  the  evi- 
dence was  proper,  for  it  is  impossible  to  ascer- 
tain the  materiality  of  matter  not  disclosed, 
except  by  the  testimony  of  skillful  persons 
conversant  with  the  subject  matter.  Richards 
V.  Murdoch;  10  B.  &  C,  527;  8  L.  J.  K.  E.,210; 


525 


EVIDENCE. 


52G 


Opinions. 


Ois.ipprovcd,  Campbell  v.  Richards,  %  L.  J.  K. 
B.,  20-i;  5  B.  &  Ad.,  840. 

17.  Tlie  opinion  of  the  officers  of  an  in- 
surance company  that  the  risli  would  not  have 
ibeen  taken  Iiad  they  beeu  made  acquainted 

ivitU  certain  facts,  not  disclosed  to  thoni, 
■when  they  accepted  tlie  risk  is  competent. 
The  declarations  of  tlie  plaintilF  to  the  insurers 
when  taking  out  the  policy,  descriljing  the 
nature  and  condition  of  the  projjcrty,  tliough 
similar  to  the  description  made  in  the  policy, 
are  admissible.  And  so,  too,  a  letter  written 
by  the  insurer's  agent,  at  the  dictation  of  the 
insured.  Quinn  v.  National  Assurance  Co.,  1 
Jones  &  Carey,  316. 

(b)    ^Vhen  inadmissible. 

18.  Insurers  offered  to  prove  that  the  secre- 
tary would  not  have  accepted  the  risk  liad  he 
known  th.at  certain  alterations  had  been  made 
ubout  the  buildings.  iZcW,  Inadmissible.  Jef- 
ferson Ins.  Co.  V.  Cotheal,  7  Wend.,  72. 

19.  The  plaintiff  introduced  accounts  of 
stock  in  trade,  purporting  to  have  been  made 
in  several  consecutive  years.  The  defendant 
offered  to  prove,  by  persons  skilled  in  hand- 
-writing,  that  the  writing  appeared  to  have  been 
<lone  at  one  and  the  same  time.  Held,  incom- 
petent. Phmnix  Fire  Ins.  Co.  v.  Philip,  13 
Wend.,  81. 

20.  Evidence  that  the  agent  of  the  insurer 
at  the  place  where  the  buildings  were  would 
not  have  insured  them  is  not  admissible. 
Lightbody  v.  North  American  Ins.  Co.,  33 
Wend.,  18. 

21.  Insurer's  medical  e.xamiuer  was  asked 
by  the  plaintiff  whether  he  believed  the  an- 
swers by  him  made  In  his  examination  of  the 
;person  insured  were  correct  at  the  time  he 
made  them ;  and,  on  the  cross  examination,  the 
-witness  was  asked  if  he  had  known  that  the 
person  insured  habitually  indulged  in  the  use 
of  intoxicating  drinks  to  excess,  would  he 
have  regarded  that  as  a  habit  or  practice  that 
would  impair  health  or  constitution?  field, 
the  question  was  incompetent,  for  the  opinion 
<jf  the  physician  in  certain  cases,  and  under  a 
■certain  state  of  facts,  was  immaterial ;  that  their 
opinions  cannot  be  received  except  on  matters 
of  science  connected  with  their  profession; 
that  the  question  called  for  the  views  of  the 
•witness  as  to  whetlicr  other  persons  would 
liave  been  influenced  if  certain  specified  facts 


had  existed.     Hatch  v.  American  Mutual  Life 
Ins.  Co.,  37  N.  Y.,  282;  s.  c,  30  Barb.,  357. 

22.  The  witness,  a  farmer,  had  been  in  the 
store  quite  frequently,  and  was  in  it  the  day  be- 
fore the  fire.  Held,  error  to  permit  him  to 
testify  to  the  amount  of  goods  there  was  in  the 
store  at  the  time  of  the  lire,  "according  to  his 
estimate."  Teerpenning  v.  Corn  Eitlmnge 
Ins.  Co.,  43  N.  Y.  (4  Hand),  379. 

23.  A  physician,  a  casual  acquaintance  of 
the  person  insured,  was  asked  whether  he 
knew  enough  from  what  ho  had  seen,  and 
from  the  information  received  from  the  de- 
ceased, to  determine  the  character  of  certain 
headaches  with  which  the  deceased  had  been 
afflicted.  He  answered,  that  he  had  an  im- 
pression sufficient  to  satisfy  his  own  mind 
with  regard  to  their  cause,  but  not  enough  to 
base  a  medical  opinion.  He  was  then  asked 
to  state  his  impression.  Held,  inadmissible, 
because  it  called  for  an  opinion  based  upon 
conjecture;  that  an  opinion,  to  be  admissible 
as  evidence,  must  be  based  upon  facts  ob- 
served by  the  witness,  or  proved  by  others, 
or  upon  an  hypothetical  state  of  facts,  perti- 
nent to  the  issue,  provided  evidence  has  been 
given  tending  to  establish  the  hypothesis. 
Higbie  v.  Guardian  Mutual  Life  Ins.  Co.,  53 
N.  Y.,  603. 

24.  Medical  witness  called  by  the  plaintiff 
and  asked:  "Assuming  that  a  person  had 
that  form  of  insanity  which  j'ou  denominate 
melancholia,  and  had  committed  suicide,  you 
would  attribute  that  suicide  to  the  disease?" 
Answer:  "Yes;  I  should  attribute  it  as  the 
result  of  insanity."  Held,  inadmissible,  be- 
cause the  question  did  not  call  for  facts  and 
information  peculiarly  within  the  knowledge 
of  an  expert,  but  for  the  inference  of  the  wit- 
ness from  a  fact  supposed,  which  inference 
the  jury  were  as  capable  to  draw  as  the  wit- 
ness, if  justified  by  the  facts  proven  without 
the  opinion  of  the  witness.  Van  Zandt  c. 
Mutual  Benefit  L'fe  Ins.  Co.,  55  N.  Y.,  169. 

25.  A  witness  cannot  testify  in  respect  to 
the  value  of  properly  —  a  saw  mill  —  which 
he  has  never  seen.  He  ma}-,  in  some  cases, 
express  an  opinion,  but  he  must  state  the  facts 
upon  which  his  opinions  are  founded.  WeBt- 
lake  V.  St.  Lawrence  County  Mut.  Ins.  Co.,  14 
Barb.,  306. 

26.  The  defendant  offered  two  witnesses  to 
testify  as  to  the  value  of  certain  buildings,  but 
■;'    mpcarcd    that    neither    had    a   sufficient 

26;^ 


527 


EVIDENCE. 


528 


Oirinions. 


knowledge  of  the  subject  and  of  tlie  facts  to 
render  their  opinion  of  any  value.  Ilelct, 
proper  to  exclude  the  evidence.  Kendall  ». 
Holland  Purchase  Ins.  Co.,  3  N.  Y.  S.  C,  375. 

27.  The  defendant  asked  his  agent:  "  Would 
you  have  taken  the  risk  at  the  amount  and 
valuation  at  which  it  was  taken,  if  you  liad 
known  that  the  valuation  was  based  in  part 
on  Mexican  bonds?"  Held,  inadmissible. 
Sturm  V.  Williams,  6  J.  &  Sp.  (N.  Y.),  325. 

28.  The  opinion  of  a  witness  that  the  claim 
against  the  insurer  is  a  legal  one  is  not  ad- 
missible. Rider  v.  Ocean  Ins.  Co.,  20  Pick., 
259. 

29.  The  defendant  offered  to  prove  by  the 
agents  of  certain  insurance  companies  that 
failure  to  occupy  the  building  increased  the 
risk,  and  was  material  thereto.  Held,  inad- 
missible, for  the  facts  proposed  to  he  proved 
were  as  well  within  the  knowledge  of  the  jury 
as  of  the  witnesses,  and  were  incompetent. 
Mulry  V.  Mohawk  Valley  Ins.  Co.,  5  Gray,  541. 

30.  A  nautical  witness  was  asked  to  state 
■whether,  if  the  foremast  was  sprung,  the  try- 
sail split,  and  standing  rigging  such  as  to  need 
replacing  at  Gibraltar,  the  master  would  prob- 
ably have  known  it.  Held,  inadmissible,  be- 
cause the  information  sought  did  not  depend 
(m  nautical  skill.  Perkins  v.  Augusta  Insur- 
ance and  Banking  Co.,  W  Gray,  313. 

31.  The  issue  was  whether  the  risk  had 
been  increased,  and  witnesses  were  allowed  to 
testify  that  in  their  opinion  it  was  increased. 
Held,  when  the  issue  depends  upon  facts  th.at 
involve  no  peculiar  science  or  information, 
but  are  within  the  common  knowledge  of  men, 
opinions  are  not  admissible.  Lyman  v.  State 
JUiiiual  Fire  Ins.  Co.,  14  Allen,  329. 

32.  The  house  was  unoccupied  at  the  time 
of  the  loss,  and  so  had  been  for  some  time 
prior.  Held,  incompetent  for  witnesses  to 
state,  as  their  opinions,  that  the  nonoccu- 
pancy  increased  the  hazard,  for  it  was  a  ques- 
tion for  the  jnrj'.  Luce  v.  Dorchester  Mut.  Ins. 
Co.,  105  Mass.,  397. 

33.  The  defendants  called  their  secretary, 
who  testified  that  he  had  not  any  notice  of  the 
additional  insurance.  He  was  then  asked 
whether,  as  executive  ofBcer  of  the  company, 
he  would  have  consented  to  an  additional  in- 
surance of  $6,000,  and  if  not,  why.  Held, 
inadmissible.  Eureka  Ins.  Co.  v.  Itobinson,  56 
Penn.  St..  256. 

34.  A  witness  was  called  and  asked  whether 
264 


or  not  a  boat  descending  tlie  river  could  be  run 
by  a  competent,  sober  pilot,  if  awake,  to 
the  place  where  this  boat  was  lost,  without 
criminal  neglect  and  fraud.  Held,  inadmissi- 
ble. Cincinnati  Ina.  Co.  ■».  May,  20  Ohio, 
211. 

35.  Insurers  called  their  secretary  as  an 
expert  in  insurance,  and  offered  to  prove  that 
the  prohibitory  clause  contained  in  their  pol- 
ic3%  respecting  the  employment  of  carpenters, 
was  generally  understood  in  the  office  of  the 
insurers,  to  refer  to  the  employment  and  work 
of  carpenters  in  erecting  or  adding  to  build- 
ings insured.  Held,  it  was  properly  rejected, 
for  what  was  understood  in  the  office  of  in- 
surers, without  proof  that  insured  knew  that 
such  was  the  understanding,  was  clearly  inad- 
missible. Washington  Fire  Ins.  Co.  v.  Davison, 
30  Md.,  91. 

36.  The  defendant  sought  to  prove  by  a 
person  expert  in  the  business  of  insurance, 
that  an  unoccupied  building  is  a  much  more- 
hazardous  risk  than  one  occupied.  Held,  it 
was  inadmissible  (citing  Joyce  v.  Maine  Ins. 
Co.,  45  Me.,  108).  Cannell  ■».  Phoenix  Ins.  Co., 
59  Me.,  583. 

37.  The  application  required  the  applicant 
to  state  the  name  of  his  own  or  family  physi- 
cian, or  of  the  medical  attendant  who  last  ren- 
dered him  professional  service,  to  which  he 
replied  that  he  had  none.  The  defendant 
asked  a  medical  witness  to  state  the  meaning 
of  the  phrase  "  family  physician."  The  ques- 
tion was  excluded.  Held,  the  ruling  of  the 
court  was  right,  because  the  phrase  had  no 
technical  signification,  and  was  not  a  subject 
for  the  opinion  of  an  expert.  To  the  same 
witness  the  question  was  propounded  whether 
at  the  time  the  application  was  made,  the  in- 
sured was  in  good  health  and  free  from  symp- 
toms of  disease.  Held,  inadmissible,  because 
the  question  called  for  a  conclusion  with  no- 
facts  for  its  foundation;  facts  should  have 
been  elicited  in  order  that  it  might  appear 
upon  what  ground  the  conclusion  was  predi- 
cated. Reid  ».  Piedmont  and  Arlington  Lift 
Ins.  Co.,  58  Mo.,  431. 

38.  Two  stores  had  been  put  into  the  build- 
ing. At  the  time  the  fire  occurred,  no  fire  had 
been  in  one  of  them  for  eight  days  past,  and 
as  to  the  other,  no  fire  had  been  in  it  for  near- 
ly two  days.  Held,  insurance  agents  could 
not  be  called  as  experts  to  testify  afi  to  whether 
the  risk  had  been  increased   by  tlie  stove* 


529 


EVIDENCE. 


530 


Immaterial  and  irrelevant. 


Schmidt  v.  Peoria  Fire  and  Marine  Ins.  Co., 
41  111.,  295. 

39.  A  witness  who  is  not  au  expert  cannot 
be  permitted  to  give  an  opinion,  unless  lie 
states  the  facts  upon  which  the  opinion  is 
founded.  Southern  Life  Ins.  Co.  v.  Wilkinton, 
53  Ga.,  535. 

40.  A  witness  was  allowed  to  state  his 
opinion  founded  upon  certain  facts,  "  that  by 
the  acceptance  of  the  order  the  insurance  was 
compl.  Mild  the  company  bound  for  the 
loss,  and  the  parly  who  ordered  it  bound  for 
the  premium."  Held,  it  was  deciding  the  very 
matter  in  controversy,  and  therefore  entirely 
incoiiiiietent.  Lindauer  v.  Delaware  Mutual 
Safety  Ins.  Co.,  13  Ark.,  461. 

41.  Except  iu  matters  of  science  and  skill, 
and  some  other  special  cases  resting  upon  pe- 
culiar circumstances,  the  understanding  and 
opinion  of  a  witness  is  not  to  be  received  as 
evidence,  because  a  party  might  be  rendered 
accountable  for  the  understanding  of  the  wit- 
ness  contrary  to  the  legal  interpretation  of  the 
contract  (citing  Gibson  v.  Williams,  4  Wend., 
820;  Robinson  «.  Drummoud,  24  Ala.,  174; 
Whetstone  c.  Bank  of  Montgomery,  9  id.,  875). 
Mobile  Marine  Dock  and  Ins.  Co.  v.  McMillan, 
31  Ala.,  711. 

42.  How  far  fal.se  statements  affected  the 
validity  of  the  contract,  if  any  there  were  in 
the  application,  is  a  question  of  law  for  the 
court  and  not  one  about  which  a  witness  can 
be  permitted  to  testify;  and,  any  statements 
made  by  a  witness  tending  to  show  that  he 
relied  upon  the  statements  made  in  the  appli- 
cation, and  that  he  would  not  have  issued  the 
policy  had  he  known  certain  facts,  not  stated 
in  the  application,  were  irrelevant.  Washing- 
ton Life  Ins.  Co.  v.  Haney,  10  Kan.,  525. 

43.  "Perils  of  the  seas"  are  to  be  construed 
by  the  court,  and  where  the  question  was 
whether  the  loss  was  by  leakage  or  by  perils 
of  the  sea,  a  witness  could  not  be  asked ; 
"  Where  the  cargo  has  not  been  shifted  nor  the 
casks  damaged,  the  running  out  of  the  liquid, 
is  it  in  practice  considered  as  leakage  or  as 
loss  by  perils  of  the  sea?"  But  it  would  have 
been  proper  to  ask:  "Suppose  the  casks  have 
not  been  shifted  nor  damaged,  but  the  liquid 
escapes,  to  what  do  you  attribute  it?"  Crofts 
«.  Marshall,  7  C.  &  P.,  597. 

44.  Agent  was  ordered  to  wait  thirty  days 
after  the  arrival  of  a  vessel  named,  and  then 
insure  goods  shipped  by  another,  the  latter 


having  sailed  before  the  former.  Held,  in  an 
action  against  the  agent  for  negligently  mak- 
ing  the  insurance,  antl  failing  lo  disclose  to 
insurers  the  time  the  vessel  sailed,  it  was  not 
competent  for  brokers  and  underwriters  lo 
testify  that  the  matter  not  disclosed  was  mate- 
rial.    Campbell  v.  Rickards,  5  B.  &  Ad.,  840. 

45.  Insurers  offered  to  prove  that  certain 
matters  not  communicated  were  material  to 
the  risk.  Held,  inadmissible,  for  it  was  noth- 
ing but  his  individual  opinion.  The  court  de- 
clined to  decide  whetlier  what  in  his  judgment 
would  have  been  the  opinion  of  underwriters- 
generally  as  to  the  materiality  of  facts  not  dis- 
closed. Scottish  Mutual  Ins.  Co.  i>.  Turner,  li> 
C.  C.  S.,  33. 

46.  The  issue  was,  whether  circumstaaoes 
material  to  the  risk  were  concealed  or  misrep- 
resented. Held,  it  was  not  proper  to  ask  the 
broker:  "If  you  had  known  that  the  vessel 
sailed  iu  September  under  charter  party,  the 
freight  of  which  was  to  be  insured,  would  you. 
have  communicated  the  fact  to  the  underwrit- 
ers, as  in  conformity  with  the  practice  of  in- 
surance brokers?"  What  a  man  or  class  of 
men  would  do  is  not  material.  Baker  v.  Scot- 
tish Sea  Ins.  Co.,  18  C.  C.  S.,  691 ;  28  Scot.  Jur., 
293. 

XI.  Immatekial  and  irkelevant. 

1.  Stipulated  to  be  void  if  the  life  insured 
shall  become  so  far  intemperate  as  to  impair 
his  health.  A  witness  was  offered  to  prove 
that  three  months  before  the  policy  was  issued, 
he,  acting  for  another  insurance  company,  ex- 
amined  the  person  insured;  that  he  gave  it  as 
his  opinion  to  that  company  that  the  deceased 
was  not  insurable;  and  he  was  also  asked  if 
he  was  acquainted  with  the  condition  and  state 
of  health  of  the  person  whose  life  was  insured 
at  the  time  referred  to.  Held,  the  evidence 
was  not  admissible,  because  it  did  not  relate 
to  the  time  the  policy  was  made,  or  to  any 
time  subsequent  to  the  issue  of  the  policy. 
Insurance  Co.  v.  Muhone,  21  Wall.,  152. 

2.  Defend.aut  offered  to  prove  the  value  of 
stock  carried  by  the  largest  dealer  in  the  citj', 
where  the  insured  conducted  his  business,  for 
the  purpose  of  raising  a  presumption  against 
the  amount  of  loss  claimed  by  the  plaintiff'- 
Held,  inadmissible.  Phoenix  Fire  Ins.  Co.  v. 
Philip,  13  Wend.,  81. 

3.  The  question  between   the  partiis  was 

885 


-531 


EVIDENCE. 


532 


Immaterial  and  irrelevant. 


■whether  the  deceased  had  committed  suicide, 
or  whctlier  the  cause  of  death  was  accidental. 
Held,  evidence  that  the  deceased  was  au  infidel 
■was  immaterial.  Oibson  v.  American  Mutual 
Ins.  Co.,  37  N.  Y.,  580. 

4.  Defendant  called  a  police  ofi5cer  as  a 
witness,  and  aslied  him  ■n'hat  character  of  per- 
sons frequented  the  plaintilFs  house.  Held, 
inadmissible.  Mussell  v.  St.  NicholasFire  Ins. 
Co.,  51  N.  Y.,  643;  Same  v.  Metropolitan  Ins. 
<7o.,  id.,  650. 

5.  "  On  merchandise,  hazardous  and  not 
hazardous."  He  had  in  tlie  store  at  the  time 
of  the  fire,  turpentine,  which  'was  classed  in 
the  policy  as  extra  hazardous;  the  keeping 
of  extrahazardous  goods  was  prohibited.  The 
plaintiff  offered  to  prove  that  a  policy  was 
sent  to  the  defendants,  which  insured  such 
goods  as  are  usually  kept  in  country  stores, 
and  that  defendants  -were  requested  to  issue 
tlieir  policy  on  the  same  stock  in  the  same 
store,  and  tliat  in  response  to  this  request  tlie 
policy  was  delivered.  Held,  inadmissible,  be- 
cause immaterial  so  long  as  the  defendant  did 
not  accept  the  risk  as  offered,  nor  insert  in 
the  policy  permission  to  keep  the  prohibited 
goods;  nor  could  the  fact  that  insured  did  not 
discover  the  defect  in  tiie  policy  in  suit,  till 
after  tlie  fire  occurred,  aid  the  insured,  for  lie 
was  bound  to  know  what  his  contract  was. 
Pindar  v.  Resolute  Fire  Ins.  Co.,  47  N.  Y.,  114; 
8.  c.  38  id.,  364. 

6.  A  nonprofessional  was  called  to  show 
the  mental  condition  of  the  mother  of  the  in- 
sured. Her  acts  and  declarations  were  de- 
tailed to  him,  and  he  was  asked  whether  she 
was  rational  or  irrational.  Held,  immaterial, 
because  there  was  no  representation  as  to  the 
sanity  of  tlie  mother,  nor  was  it  alleged  in  the 
answer  that  the  insured  inherited  his  mother's 
disease.  Ilighie  ».  Guardian  Mutual  Life  Ins. 
Co.,  53  N.  Y.,  G03. 

7.  A  condition  in  the  policy  restricted  the 
right  to  recover  not  more  Uian  two-thirds  of 
the  value  of  tlie  premises  insured.  Held,  error 
to  permit  the  plaintiff  to  prove  that  he  did  not 
discover  the  restriction  until  after  the  fire 
occurred.  Erein  v.  New  York  Central  Ins. 
Co.,  3  N.  Y.  S.  C,  213. 

8.  It  appeared  that  a  paper  had  been  drawn 
and  signed  by  one  of  defendants'  witnesses, 
and  was  in  possession  of  plaintiffs  counsel. 
Being  produced,  was  examined  by  plaintiff's 
counsel,  who  proposed  to  show^  by  the  witness 

206 


the  circumstances  under  which  he  signed  it. 
Held,  the  witness  having  admitted  the  exccu- 
tiou,  evidence  was  not  admissible  to  explaia 
it  until  it  was  put  in  evidence.  Hotchkiss  v. 
Gennania  Fire  Ins.  Co.,  5  Hun.  (N.  Y.),  90. 

9.  The  knowledge  the  insurer's  agent  has 
of  the  health  of  the  insured  is  immaterial  upon 
a  question  of  misrepresentation  or  conceal- 
ment. Vose  V.  Eagle  Life  and  Health  Ins.  Co., 
6  Cu.sh.,  43. 

10.  Evidence  was  given  tending  to  prove 
that  insured  deposited  ashes  in  -wooden  ves- 
sels after  date  of  policy,  contrary  to  its  stipu- 
lations; and  insured  called  witnesses  who  tes- 
tified, upon  cross  examination,  that  they  had 
never  known  ashes  to  be  so  deposited  since 
the  house  was  built,  in  1838.  Held,  evklence 
could  not  be  given  by  tlie  insurer  to  prove 
that  in  1844,  before  the  policy  was  made, 
ashes  were  so  deposited.  Underhill  v.  Aga- 
warn  Mutual  Fire  Ins.  Co.,  6  Cush.,  440. 

11.  Action  to  recover  for  a  loss  of  malt, 
hops,  etc.  Held,  evidence  that  insured  had 
not  taken  a  license  from  the  government  for 
distilling  whisky;  that  they  effected  insur 
ance  in  other  companies  as  brewers  and  malt- 
sters, without  disclosing  that  they  were  distil- 
lers, or  that  they  made  false  representations  to 
the  agents  of  other  insurers,  was  immaterial. 
People's  Ins.  Co.  v.  Spencer,  53  Pcnn.  St.,  353. 

1 2.  The  defendant  offered  to  prove  that  tliu 
person  insured  had,  within  two  years,  ob- 
tained insurance  to  the  amount  of  $30,000  on 
his  uncle's  life,  the  person  whose  life  was  in. 
sured.  i7«W,  not  admissible.  Mowry  v.Home 
Life  Ins.  Co.,  9  R,  I.,  346. 

13.  A  witness  was  called  to  testify  to  the 
amount  of  stock  carried  by  his  firm  in  New- 
ark,  and  the  amount  of  his  average  sales,  for 
the  purpose  of  raising  the  presumption  tliat 
plaintiff's  stock  and  sales  -were  not  in  the  usual 
proportion.  Held,  inadmissible,  for  if  such 
evidence  were  competent,  witness  ought  to 
have  been  engaged  in  trade  in  the  same  place 
with  insured,  Morristown ;  therefore  the  case 
of  Insurance  Co.  t\  Weide,  11  AVall.,  439,  -n-aa 
not  in  point  (citing  Greenl.  Ev.,  sec.  53,  p.  448; 
Roscoe's  N.  P.  Ev.,  38,  88).  Jones  v.  Me- 
chanics Fire  Ins.  Co.,  36  N".  J.,  29. 

14.  The  application,  made  part  of  the  con- 
tract, stated  "  That  the  property  had  not  been 
a  subject  of  litigation  since  in  present  hands." 
Upon  cross  examination,  defendant  asked 
plaintiff,  "  If  he  was  present  just  previous  to 


533    • 


EVIDENCE. 


534 


Weight  of  evidence  —  Withck-awing  or  shildng  out  —  Objections  to. 


obtaining  tliii  insurance,  when  Crosby  was 
ftttached  for  contempt  of  court  in  running 
this  distiller}'.  About  how  mauy  times  has 
this  distillery  been  seized  by  the  government  ?" 
HHd,  not  proper  cross  examination,  because 
the  question  did  not  tend  to  elicit  any  evidence 
tending  to  show  litigation.  Andes  Ins.  Co.  v. 
Shipman,  77  111.,  189. 

15.  Upon  the  question  wliether  the  insured 
was  sane,  evidence  of  a  rumor  that,  on  the 
night  preceding  his  death,  he  had  burned  his 
brother's  livery  stable,  was  admitted.  Held, 
the  evidence  was  incompetent  unless  it  also 
appeared  that  the  rumor  was  brought  home  to 
the  deceased.  St.  Louis  Mutual  Life  Ins.  Co. 
V.  Graves,  C  Bush.,  268. 

XII.  Weight  of  evidence. 

1.  Negative  testimouj'  is  ordinarily  of  less 
■weight  than  positive,  but  it  is  not  to  be  disre- 
garded ;  and  where  there  is  even  nothing  but 
negative  testimony  on  one  side  of  an  issue, 
tne  court  is  bound  to  submit  it  to  the  jury. 
Bradley  v.  Mutual  Benefit  Life  Ins.  Co.,  45  N. 
Y.,  422;  s.  c,  3  Lans.,  341. 

2.  Insured  took  the  goods  into  his  posses- 
sion, allowing  a  long  time  to  elapse  before 
making  claim  for  damage.  Held,  if  he  af- 
forded insurers  no  opportunity  to  examine 
them,  proof  of  his  claim  ought  to  be  very 
clear  and  satisfactory.  Merchants  Mut.  Ins. 
Co.  V.  Wilson,  2  Md.,  217. 

3.  Insured  stated  in  his  application  that  he 
never  had  bronchitis.  Two  phjsicians,  pro- 
<luced  on  the  trial,  testified  they  h.id  attended 
him  for  bronchitis ;  but  the  plaintiff  produced 
negative  testimony  tending  to  show  the  coa-~ 
trary.  The  defendants  requested  the  judge  to 
instruct  the  jury,  "When  a  specific  fact  is 
sworn  to  by  a  witness  of  fair  fame,  who  is 
imcontradicted  by  other  testimony  or  circum- 
stances, mere  negative  evidence  will  not  war- 
rant the  jury  in  disregarding  his  testimony;" 
which  the  court  refused.  Held,  uo  error,  for  it 
is  not  true,  as  matter  of  law,  that  negative  evi- 
dence may  not  be  sufficient  to  couuteTbalance 
positive  testimony.  Campbell  v.  New  England 
Life  Ins.  Co.,  98  Mass.,  381. 

XIII.    WnUDEAWING  OE  STRIKING  OUT. 

1.  Witness,  on  cross  examination,  gave  an 
a;iswer  not  responsive  to  the  question.    Held, 


the  party  who  put  the  question  had  the  right 
to  have  the  answer  excluded.  Bailway  Pas- 
sengers Ass.  Co.  V.  IFarncr,  1  N.  Y.  S.  C,  21,  Ad. 
2.  Plaiutifl'  gave  in  evidence  certain  letters, 
to  which  defendant  objected.  Overruled,  and 
exception  was  taken.  Subsequently  plaintill 
asked  leave  to  withdraw  that  evidence  from 
the  consideration  of  the;  jury,  to  which  defend- 
ant objected,  but  the  court  permitted  it  to  be 
withdrawn.  Held,  no  ground  for  complaint 
(citing  Boone  «.  Purnell,  28  Md.,  G07).  Provi- 
dence Life  Ins.  Co.  v.  Martin,  33  Md.,  310. 

XIV.  Objections  to. 

1.  A  witness  testified,  as  to  the  weight  of 
certain  wool,  from  a  copy  of  a  memorandum. 
The  defendant's  counsel  continued  the  exam- 
ination of  the  witness  on  that  and  other  sub- 
jects, and  then  made  a  motion  to  strike  out  the 
evidence  as  to  the  weights  because  he  testified 
from  the  copy.  Held,  too  late;  the  objectio.i 
should  have  been  made  as  soon  as  it  was  ascer- 
tained that  the  witness  testified  from  the  copy 
(citing  Quin  v.  Lloyd,  41  N.  Y.,  349).  Pitney 
D.  Glens  Falls  Ins.  Co.,  61  Barb.,  33.5. 

2.  The  insured  produced  an  account  of  ex- 
penditures on  the  machinery  destroyed,  which 
had  been  recovered  under  a  diligence  gj-anted 
in  the  course  of  making  up  the  record.  The 
insurer  objected  to  its  introduction.  Held,  it 
was  too  late  to  object  on  the  ground  that  it 
was  a  confidential  statement.  Hercules  Inn. 
Co.  V.  Hunter,  14  C.  C.  S.,  1137. 

3.  It  was  alkged  in  the  record  that  the  term 
insured  commenced  December  20th;  the  con- 
tract stated  it  commenced  on  the  30th.  A 
general  objection  was  made  to  the  introduc- 
tion of  the  contract.  HM,  insurers  could  not 
be  permitted  to  rais';  a  question  of  variance  in 
the  court  above,  for  i'  was  their  dutj'  to  point 
to  the  defect,  and  not  leave  the  court  to  discover 
it.     Troy  Fire  Ins.  Co.  v.  Carpenter,  4  Wis.,  20. 

4.  Insured  oflered  i^reliminary  proofs  in 
evidence,  to  which  a  general  objection  was 
made.  Held,  when  evidence  is  offered  which 
is  competent  for  some  purposes,  the  party  ob- 
jecting or  desiring  to  limit  its  eflect  must  dis- 
tinctly state  the  grounds  of  objection.  Bonner 
V.  Home  Ins.  Co.,  13  Wis.,  677. 

5.  If  a  partj'  permit  questions  to  be  put 
to  a  witness  without  objection,  he  takes 
his  chance  of  a  favorable  answer;  and  if  tho 
answer  is  adverse  to  his  wishes,  it  is  too  lata 

267 


EVIDENCE. 


636 


Usage  and  custom — Books,  papers,  letters  and  photographs. 


for  him  to  object  to  it.    Francis  v.  Ocean  Ins- 
Co.,  6  Cow.,  404. 

6.  If  tlie  evidence  offered  and  admitted  was 
incompetent,  and  no  objection  was  made  to  it 
at  the  trial  below,  the  court  above  will  not 
consider  the  question.  Witlierell  v.  Maine 
Ins.  Co.,  49  Me.,  200. 

7.  An  objection  was  made  to  certain  evi- 
dence offered  and  admitted,  but  no  specific 
ground  of  objection  was  stated.  Ileld,  no 
error  could  be  supported  upon  the  question. 
Bosenheim  v.  America  Ins.  Co.,  33  Mo.,  230. 

8.  Olyection  was  made  to  certain  evidence, 
but  the  party  complaining  against  it  consented 
that  the  objections  might  be  reserved  to  the 
argument  of  the  case,  to  be  then  pursued  if 
they  saw  fit;  but  they  were  not  referred  to 
again  at  the  trial.  Held,  they  were  waived. 
Hoxie  V.  Some  Ins.  Co.,  33  Conn.,  21. 

9.  The  defendant  objected  to  the  compe- 
tency of  a  witness  on  the  ground  of  interest. 
Held,  the  specific  objection  was  a  waiver  of 
every  other  ground  of  objection;  in  other 
words,  every  cause  of  objection  not  specific- 
ally stated  was  waived  (citing  Creagh  v.  Sav- 
age, 9  Ala.,  959).  Fulton  Insurance  Co.  v. 
Goodman,  32  Ala.,  108. 

10.  Witness  was  asked  a  question  and  an- 
swered it;  then  defendant  objected  to  the  ques- 
tion as  leading.  Held,  objection  came  too 
late,  for  a  party  cannot  stand  by  and  allow  an 
answer  to  be  made,  and  object  to  the  question 
when  the  answer  does  not  suit  him.  Wash- 
ington Fire  Ins.  Co.  v.  Davison,  30  Md.,  91. 

XY.  Usage  and  custom. 

1.  Whatever  is  common  and  usual  under 
given  circumstances  is  evidence  tending  to 
s!iow  what  is  reasonable.  Crocker  v.  People's 
Mutual  Fire  Ins.  Co.,  8  Cush.,  79. 

2.  The  practice  of  adding  premiums  to  the 
invoice  value  may  be  controlled  or  modified 
by  proof  of  a  different  custom,  a  knowledge 
of  wliich  has  been  brought  home  to  the  party. 
Merchants  Mutual  Ins.  Co.  v.  Wilson,  2  Md., 
217.  And  evidence  that  the  insured  had  re- 
ceived from  a  notary  statements  of  losses,  in 
•which  no  premium  was  added  to  the  invoice 
cost,  was  admissible  for  the  purpose  of  bring- 
ing that  custom  home  to  the  insured.     Hud. 

3.  Evidence  is  admissible  to  show  a  uniform 
and  established  usage  for  tlie  vessel  to  have  on 
board  a  bill  of  lading  and  invoice  of  cargo, 

2G8 


showing  its  prime  cost  and  value,  and  that 
insurers  were  in  llie  habit  of  demanding,  and 
the  insured  iu  the  habit  of  delivering  surjh 
papers  upon  the  settlement  of  partial  losses 
under  valued  policies.  Allegre  v.  Marylarud 
Ins.  Co.,  6  H.  &  J.,  408i  alBrmed,  2  G.  &  J., 
13G. 

XYI.    Books,   papeks,   letters,   axd 

PHOTOGRAPHS. 

1.  The  plaintiff  offered  and  read  iu  evi- 
dence  letters  testamentary  granted  upon  her 
husband's  estate,  as  evidence  of  the  death  of 
her  husband.  Held,  the  court  in  granting  tho 
letters  never  adjudicated  tliat  her  husband  was 
dead,  (or  death  was  not  the  res  presented  to  it. 
Shall  letters  testamentary  issue  was  the  res. 
Upon  that  only  the  adjudication  rests,  hence 
the  letters  testamentary  were  not  admissible 
for  the  purpose  of  proving  the  death  of  ber 
husband  (S.  U.  U.  S.).  Mutual  Benefit  Life  Ina. 
Co.  V.  Tisdale,  5  Ins.  L.  J.,  127. 

2.  The  u)aster  made  protest  in  .Jamaica,  and 
it  was  admitted  as  original  evidence.  Insured 
wrote  letters  to  the  master  of  the  vessel  in- 
sured, giving  him  instructions.  The  master 
testified  that  these  were  the  only  letters  he  re- 
ceived from  the  insured.  They  were  offered 
and  received  because  if  they  contained  no  or- 
ders to  purchase  her,  that  tended  to  show  that 
he  was  never  directed  to  purchase.  Story  v. 
Strettel,  1  Dall.,  13. 

3.  The  survey  is  not  evidence  of  any  of  the 
facts  stated  in  it.  Watson  v.  Ins.  Co.  of  North 
America,  2  Wash.  C.  C,  480. 

4.  A  paper  produced  upon  notice,  called  for 
and  inspected  on  the  trial,  is  evidence  in  the 
case.  A  party  will  not  be  permitted  to  specu- 
late through  the  forms  of  the  law,  and  obtain 
an  inspection  of  a  document  without  making 
it  evidence.  Lawrence  v.  Van  Home,!  Caines, 
276. 

5.  Letters  called  for  by  the  insurer  under  a 
rule  of  court,  produced  under  oath,  are  anala- 
gous  to  an  answer  in  chancery,  aiKl  the  ic- 
sured  is  entitled  to  have  the  whole  read  and  they 
are  prima  facie  evidence  of  the  facts  stated  in 
them.  Lawrence  v.  Ocean  Ins.  Co.,  11  Johns., 
245  n. 

6.  A  single  entry  in  a  memorandum  book 
was  read  by  a  witness  who  made  it,  also  a  let- 
ter written  by  the  plaintiffs,  who  demanded 
the  repayment  of  the  money.    The  defendant 


537 


EVIDENCE. 


538 


Books,  papers,  letters  aiid  photograplis. 


admitted  a  proper  demand  for  repayment. 
Held,  it  was  proper  to  exclude  the  wemoran- 
di:m  book  and  the  letter.  linilway  Passengers 
Ass.  Co.  V.  Warner,  1  N.  Y.  S.  C,  21  Ad. 

7.  Defeiidiint  ofl'ered  to  show  that  the  agent 
had  been  furnished  with  a  book  in  which  he 
■was  to  enter  contracts  made  by  him  for  de- 
feudauts,  and  that  the  contract  in  question  had 
not  been  entered.  Held,  it  was  not  evidence 
that  no  contract  had  been  made.  Sanborn  v. 
Fireman's  Ins.  Co.,  10  Gray,  448. 

8.  A  paper  signed  by  the  witness,  but  not 
written  by  him,  recited  that  the  repairs  on  the 
bark  were  completed  about  November  10, 
1855;  and  it  described  the  condition  of  the 
rudder  case  at  the  time  the  repairs  were  made. 
He  testified  he  had  no  recollection  of  the  rud- 
der case,  nor  any  recollection  of  signing  the 
paper,  but  that  seeing  his  signature  to  it,  he 
had  no  doubt  that  the  facts  were  as  stated  in 
the  paper.  He  testified  his  memory  was  not 
refreshed  by  seeing  the  paper.  Held,  the  pa- 
per was  properly  rejected.  Parsons  v.  Manu- 
facturers Ins.  Co.,  16  Gray,  403. 

9.  The  court  has  not  the  power  to  compel  a 
party  to  produce  evidence  against  himself; 
but  will  permit  a  party  claiming  the  benefit  of 
a  writing,  in  the  possession  of  his  adversary,  to 
give  notice  that  such  writing  is  needed  on  the 
trial,  and  if  not  produced  after  leasouable  no- 
tice, prove  the  contents  thereof.  Sage  v.  Mid- 
dletcwn  Ins.  Co.,  5  Day,  409. 

10.  Copies  of  entries  taken  from  books  are 
not  admissible  unless  they  come  within  sec. 
284  of  tlie  Practice  Act,  2  G.  &  H.,  184,  which 
l)rovides  "  That  the  deponent  must  state  that  he 
lias  the  legal  custody  of  the  books;  that  the 
copies  are  full  and  true  copies  of  the  original 
entries;  that  the  original  entries  have  re- 
mained unaltered  from  their  date  to  the  best 
of  deponent's  knowledge  and  belief  "  (citing 
Smith  V.  Ind.  Railroad  Co.,  13  Ind.,  01).  King 
V.  Enterprise  Ins.  Co.,  4.5  Ind.,  43.  And  every 
eutiy  made  in  the  books  of  a  corporation  is 
m)t  evidence  for  the  corporation,  though  they 
may  bo  evidence  against  it.    Ibid. 

11.  Insurers  notified  insured  to  produce  his 
ledger  upon  the  trial.  He  brought  it  into 
court  and  tendered  it  to  defendants,  upon  con- 
dition that  if  they  examined  it,  it  should  be 
put  in  evidence.  The  court  ruled,  "  If  defend- 
ants examined  it,  the  insured  will  have  the 
right  to  read  it  in  evidence."    Held,  no  error. 


Huckins  V.  Pe-iple's  Mutual  Fire  Ins.  Co.,  31  N. 
U.,  238. 

12.  A  paper,  exhibited  by  the  insured  to  the 
insurer  as  one  of  the  preliminary  proofs  of 
loss,  is  not  evidence  for  any  purpose,  if  it  was 
not  of  itself  evidence  between  insurer  and  in 
sured.    Thurston  v.  Murray/,  3  Binn.,  320. 

13.  The  court  admitted  a  photograph  of  the 
deceased,  taken  very  near  the  date  of  the  pol- 
icy. Held,  it  was  competent  evidence  from 
which  the  jury  could  judge  of  her  apparent 
bodily  condition.  Sehaible  v.  Washington  Life 
Ins.  Co.,  !>  Phila.,  130. 

14.  The  defendant  offered  to  prove  the  con- 
tents of  a  forwarding  book,  kept  by  a  railroad 
company  at  a  place  whence  the  insured 
claimed  to  have  shipped  a  large  quantity  of 
the  goods;  but  proof  of  the  custom  of  the 
company  and  of  the  general  accuracy  of  the 
book  was  not  ofiered.  Held,  properly  rejected. 
Bonner  v.  Home  Ins.  Co.,  13  Wis.,  077. 

1 5.  Writings,  tendered  for  the  purpose  of 
proving  handwriting  by  comparison,  are  inad- 
missible unless  submitted  to  the  opposite  party 
before  he  announces  that  he  is  ready  for  trial. 
Code,  §  3840.  Oeoi-gia  Masonic  Mutual  Life 
Ins.  Co.  V.  Gibson,  52  Ga.,  640. 

16.  Preliminary  proofs  were  made  and 
amended  on  two  diflerent  occasions.  Insured 
demanded,  in  vi'riting,  copies  of  all  papers  in- 
tended  to  be  used  at  the  trial ;  and  copies  of 
but  one  set  of  preliminary  proofs  were  fur- 
nished. Held,  the  others  were  not  admissible. 
See  Code,  sec.  309.  Kansas  Ins.  Co.  ».  Berry, 
8  Kan.,  159. 

17.  Plea:  The  defendant  did  not  become 
an  insurer  as  alleged.  The  main  issue  was, 
whether  a  policy  had  been  made.  Defendants 
were  notified  to  produce  the  original,  alleged 
to  be  in  their  hands,  and  upon  nonproduction 
of  it,  the  court  admitted  a  document  purport- 
ing to  be  a  copy,  which  the  plaintiff  had  re- 
ceived from  the  defendant's  broker.  The  de- 
fendant offered  to  put  in  proof,  before  the 
copy  was  read  to  the  jury,  tending  to  show- 
that  no  stamped  policy  had  been  issued,  which 
the  court  refused,  but  left  the  question  gener- 
ally, upon  all  the  evidence  in  the  case,  for  the 
jury  to  determine  whether  there  had  been  a 
stamped  policy  duly  executed.  Held,  no  error; 
for  to  hold  otherwise  would  be  getting  the 
court  to  decide  that  which  was  ])eculiarly  tlie 
province  uf  the  jury.    Stowe  v.  Quenier,  5  L. 

209 


539 


EVIDENCE. 


540 


Foreign  laws  —  Impeaching  adversary's,  or  contradicting  j'our  own  witness. 


I 


R.  Ex.,  155;  39  L.  J.  Ex.,  60;  18  W.  R.,  4G0; 
23  L.  T.  (N.  S.),  29. 

18.  The  defenders  were  employed  to  procure 
insurance  on  the  ship  Earl  of  Dalhousie.  In 
consequence  of  the  wording  of  the  policj',  the 
insurers  escaped  liability.  This  action  was 
lirought  against  them  to  recover  for  neglect 
of  duty.  Held,  the  pursuers  must  prove  that 
Ihey  were  the  owners  of  the  ship,  and  pro. 
duction  of  the  ship's  register,  made  in  their 
own  names,  was  not,  per  se,  evidence  of  the 
fact.  Scott  V.  Miller.  7  S.  &  D.,  56 ;  5  Scot. 
Jur.,  94. 

1  9.  The  insurers  were  required  to  produce 
the  policy  which  had  been  made  by  them  on 
tlie  ship  insured.  They  refused  on  the  ground 
that  they  had  not  been  paid  the  premium. 
Held,  they  could  not  be  compelled  to  give  it 
up  till  the  premium  was  paid.  Scott  v.  Sea 
Ins.  Co.,  3  C.  C.  S.,  467. 

XYII.  Foreign  laws. 

It  is  not  necessary  to  call  a  law'3-er  to  prove 
the  law  of  a  foreign  country.  Any  person 
who  has  been  in  a  position,  rendering  it  prob- 
able that  he  would  acquaint  himself  with  the 
law,  is  competent.  American  Life  Ins.  Co.  v. 
Rosenagle,  77  Penn.  St.,  507. 

XVIII.   Impeaching  adveesaet's,  oe 

CONTEADICTING  TOTTE  OWN  WITNESS. 

1.  The  plaintiif  read  some  of  the  proceed- 
ings in  admiralty  to  prove  tlie  libel  and  con- 
demnation ;  and  the  defendant  then,  to  dis- 
credit a  witness  sworn  in  this  cause,  selected 
a  deposition  that  had  been  read  in  the  admi- 
ralty courts  and  offered  to  read  it.  Held,  it  was 
inadmissible.  Marine  Ins.  Co.  v.  Hodgson,  6 
Cranch,  306. 

2.  Some  of  tlie  witnesses  had  signed  a  pro- 
test made  at  the  Isle  of  France.  Held,  the 
protest  could  be  read  to  impeach  them.  Win- 
throp  ».  Union  Ins.  Co.,  2  Wash.  C.  C,  7. 

3.  Tlie  plaintiffs  read  the  report  of  the  sur- 
veyors, and  the  defendant  read  the  deposition 
of  one  of  them.  Held,  the  plaintiff'  had  tl\e 
right  to  impeach  the  surveyor,  notwithstand- 
ing he  had  given  in  the  report  as  evidence. 
Watson  V.  Insurance  Co.  of  North  America,  3 
Wash.  C.  C.  480. 

4.  The  sentence  of  condemnation  was  read 
by  insured.    It  referred  to  an  invoice  found 

270 


on  board  at  the  time  of  the  capture,  and  men- 
tinned  by  tlie  captain,  a  part  owner,  in  his  an- 
swer to  the  standing  interrogatories.  Held, 
tlie  invoice  was  admissible,  as  well  as  the 
standing  interrogatories,  for  purposes  of  im- 
peachment.  Azuria  v.  Insurance  Co.  of  Penru 
syltania,  3  Wash.  C.  C,  177. 

5.  Tlie  credit  of  a  witness  may  be  im 
peached  either  by  cross  examination,  by  gen- 
eral evidence  affecting  his  character,  or  by 
proof  that  he  has  liefore  done  or  said  that 
which  is  inconsistent  with  his  testimony  given 
on  the  trial.  Hmoard  v.  City  Fire  Ins.  Co.,  4 
Denio,  503. 

6.  A  witness  obtained  papers  of  value  rela- 
ting  to  the  action,  and  refused  to  give  them  up 
till  paid  $16.  Held,  admissible,  because  it 
affected  his  credibility.  Raihcay  Passengers 
Ass.  Co.  V.  Warner,  1  N.  Y.  S.  C,  21  Ad. 

7.  The  insured  produced  the  sentence  and 
decree  of  condemnation  to  prove  that  by  the 
act  of  a  foreign  prize  court,  they  had  been  de- 
prived of  all  property  in  their  ship.  Tlie 
sentence  recited  that  "  She  was  condemned 
for  attempting  to  enter  the  port  of  La  Guira, 
now  a  blockaded  enemy's  port,  to  land  goods 
for  the  use  of  tlie  enemy."  The  insured  of- 
fered, and  was  permitted  to  prove,  that  at  the 
time  mentioned  in  the  sentence,  the  port  of  La 
Guira  was  not  blockaded.  Held,  the  insured 
was  not  to  be  deemed  as  offering  the  sentence 
as  evidence  of  the  truth  of  the  allegations  on 
whicli  it  was  professed!}'  founded.  To  sanc- 
tion the  objection  to  contradict  the  sentence, 
would  be  judicially  repealing  the  act  of  1813, 
and  giving  to  sentences  of  foreign  prize  courts 
that  conclusiveness  of  which  they  were  di- 
vested by  the  act  of  1813.  Maryland  Ins.  Co. 
V.  Bathurst,  5  G.  &  J.,  159. 

8.  The  defendant  sought  to  impeach  a  wit- 
ness by  sliowing  he  had  made  statements  dif- 
ferent  from  those  by  him  testified  on  the  trial, 
but  the  witness  was  not  interrogated  as  to  the 
fact  of  Ids  having  made  sucli  contradictory 
statements.  Held,  admitting  the  impeaching 
testimony  was  error.  Paradise  v.  Sun  Mut. 
Ins.  Co..  6  La.  An.,  596. 

9.  Tlie  master's  protest  was  given  in  evi- 
dence for  the  plaintitl".  A  witness  testified,  by 
deposition,  that  one  of  tlie  persons  who  signed 
the  protest  said  the  plaintiff  had  purposely 
run  the  vessel  ashore  and  burned  her.  The 
court  suppressed  that  evidence  as  hearsay. 
Held,  error,  for  it  was  competent  evidence  to 


541 


EXAMINATION  UNDER  OATH. 


541 


When  a  failure  to  submit  to,  is  a  defense  to  the  action. 


contr-idict  the  protest.    Church  ■».  Tensdale,  1 
Brev.,  255. 

10.  One  of  the  crew  was  examined  as  a 
witness  for  the  insurers.  Held,  his  statements 
made  in  the  protest  couki  be  read  in  evidence 
by  tlic  plaintiff  as  impeaching  testimonj-. 
Cudworlh  v.  South  Carolina  Ins.  Co.,  4  Kich., 
41G.  Plaintiff  took  the  deposition  of  a  wit- 
ness and  read  it  upon  the  first  trial.  On  the 
second,  he  did  not  read  it,  but  the  defendant 
read  it.  Held,  tlie  plaintiff  had  a  right  to  im- 
peach the  witness.    Ibid. 

11.  A  party  may  contradict  his  own  wit- 
ness, if  he  speaks  to  a  material  fact  in  the 
case,  against  the  interest  of  the  party  who 
called  him.  But  on  a  collateral  fact,  he  can- 
not be  contradicted.  Friedlander  v.  London 
Ass.  Co.,  4  B.  &  Ad.,  193;  1  Nev.  &  Man.,  31. 
The  plaintiff  called  a  witness,  who  testified  on 
cross  examination,  that  he  fiibricated  an  in- 
voice for  plaintiff,  in  tlie  presence  of  his  sou 
and  his  former  shopman.  Held,  a  material 
poiut  upon  which  plaintifi'  might  contradict 
him  by  calling  the  son  and  the  shopman.  Ibid. 

12.  A  witness  on  cross  examination  was 
asked  whether  he  had  not  said,  "Tliat  the  un- 
derwriters had  not  a  leg  to  stand  on,"  and  he 
denied.  An  offer  was  made  to  call  a  witness 
to  prove  he  had  said  so.  Held,  it  did  not 
come  within  the  rule  relating  to  matter  di- 
rectly connected  with  the  issue.  Elton  v.  Lar- 
kins,  8  Bing.,  108;  1  M.  &  Scott,  323;  5  C.  & 
P.,  86,  385. 

13.  Both  parties  put  in  evidence  respecting 
the  character,  proceedings  and  statements  of 
M.,  who  acted  under  the  insured  in  the  man- 
agement of  the  mill.  Insurer  now  proposed 
to  call  M.  as  a  witness  in  the  case.  Held,  the 
evidence  would  not  have  been  admitted,  had 
it  been  stated  that  M.  was  to  be  called  as  a 
witness.  Hercules  Ins.  Co.  v.  Hunter,  14  C.  C. 
8.,  1137. 

XIX.  Leading"  Questions. 

"Was  the  extra  privilege  referred  to  and 
the  cancellation  entered  upon  your  record  on 
the  auUiority  of  tliose  two  letters  ?  "  Held,  a 
leading  question,  and  all  answer  to  it,  beyond 
the  direct  response,  would  be  irresponsive. 
King  v.  Enterprise  Ins.  Co.,  45  Ind.,  43. 

XX.  Kefkeshing  memory. 

1.  A  few  days  after  the  fire,  tlie  witness  and 


his  father  made  from  memoiy  a  memorandum 
of  what  goods  were  in  the  store  at  the  time  ol 
the  fire.  The  witness  wrote  what  he  recol- 
lected on  a  slate,  and  his  fatlier  transcribed  it 
upon  paper,  to  wliich  the  fatiier  added  some 
articles  tlie  witness  had  omitted.  Held,  the 
witness  coidd  refer  to  the  paper  for  the  pur- 
pose  of  refreshing  his  memory.  Huckins  v. 
People's  Mutxial  Fire  Ins.  Co.,  31  N.  H.,  238. 

2.  Tlie  witness  was  not  released  at  the  time 
he  gave  his  evidence,  but  before  the  trial  wa» 
over  a  release  was  granted.  Held,  it  was 
proper  for  the  court  to  allow  him  to  be  reex- 
amined, and  for  that  purpose  it  was  suflJcient 
to  ask  him  if  the  testimony  already  given  by 
him  was  true.  National  Fire  Ins.  Co.  t).  Crane, 
16Md.,  2G0. 

3.  The  memory  of  witness  was  exhausted  as- 
to  the  contents  of  a  letter  not  produced.  He 
was  then  asked  if  it  contained  a  particular 
passage.  Held,  the  question  was  proper.  Cour- 
teen  v.  Touse,  1  Camp.,  43. 

XXI.  Keasons. 

A  witness  testified  that  she  asked  a  cer- 
tiiin  question,  and  she  was  then  asked  if  ther* 
was  any  particular  reason  in  her  mind  for  put- 
ting the  question.  Held,  competent.  Railway 
Passenger  Ass.  Co.  v.  Warner,  1  N.  Y.  S.  C, 
21  Add. 


EXA3IINATI0N  UNDER  OATH. 

(See  PBooF-i  OF  Loss.) 

I.  When  a  failtjue  to  submit  to,  is  a  db- 

PEKSE  TO  THE  ACTION. 

II,  When  a  failure  to  submit  to,  is  no  de- 
fense TO  the  action. 

I.  "When  a  failuee  to  submit  to,  is  a 
defense  to  the  action. 

1.  The  policy  required  insured,  if  required, 
to  submit  to  an  examination  under  oath.  In- 
sured filed  the  ordinary  proofs  of  loss,  and 
insurers  sought  examination  of  insured,  but 
were  unable  to  find  him,  notwithstanding  duo 
diligence  was  used  for  that  purpose.  A  cred- 
itor attached  the  claim.  Held,  the  creditor 
stood  in  no  better  position  than  the  insured,^ 

271 


543 


EXECUTION  —  EXPLOSION. 


544 


When  a  loss  witlmi  the  policy. 


and  no  recovery    could  he   had.      Harris  v. 
Phmnix  Ins.  Co.,  35  Conn  ,  310. 

2.  Stipulated :  "  Insured  shall,  if  required, 
submit  to  an  examination  under  oath  by  the 
agent  or  attorney  of  the  company,  and  answer 
all  questions  as  to  his  knowledge  of  anything 
relating  to  the  loss  or  damage,  and  subscribe 
it  if  reduced  to  writing.  Such  an  examina- 
tion was  demanded  and  part  of  it  reduced  to 
writing,  when  it  was  adjourned  for  three 
weeks,  to  be  then  completed,  to  which  insured 
consented.  At  the  expiration  of  that  time,  he 
refused  to  sign  that  which  had  been  completed, 
or  to  continue  the  examination.  Held,  the  re- 
fusal of  insured  was  captious  and  unwar- 
ranted;  that  the  court  should  have  dismissed 
the  actions,  because  they  were  prematurely 
■brought.  Bonner  v.  Home  Ins.  Co.,  13  Wis.,  677. 

II.  When  a  failure  to  submit  to,  is 

NO  DEFENSE  TO  THE  ACTION. 

1.  The  policy  bound  insured  to  furnish 
proofs  of  loss,  and  if  required,  to  submit  to  an 
examination  under  oath.  Held,  the  examina- 
tion contemplated  related  to  matters  pertinent 
to  the  loss;  that  the  amounts  for  which  the 
insured  had  settled  with  other  insurers  of  the 
same  property  were  impertinent,  and  insured 
were  not  bound  to  give  any  information  con- 
cerning them;  if  they  made  settlements  with 
fiome  of  the  insurers  for  less  than  the  sum  in- 
sured, no  inference  could  be  drawn  from  that 
fact  that  the  claim  was  exaggerated,  because  a 
compromise,  proposed  or  accepted,  is  no  evi- 
dence of  an  admissiim  as  to  the  amount  of  the 
debt.  Insurance  Companies  v.  Weides,  14 
Wall.,  375. 

2.  The  contract  conferred  the  right  upon 
the  insurer  to  require  the  insured  to  submit 
to  an  examination  under  oath,  and  answer  all 
questions  touching  any  thing  that  related  to 
the  loss  or  to  the  claim,  and  to  subscribe  it 
after  it  shall  be  reduced  to  writing.  Held,  if 
an  examination  was  once  made  and  com- 
pleted, insured  could  not  be  required  to  sub- 
mit to  a  further  examination  under  oath, 
although  he  promised  a  further  and  future 
examination.  Moore  v.  Protection  Ins.  Co.,  29 
Me.,  97. 

3.  Stipulated:  "Whenever  required  in  writ- 
ing, the  insured  sliall  produce  their  books  of 
accounts  and  other  vouchers  in  support  of 
their  claim,  etc. ;   also,  if  required,  submit  to 

372 


an  examination  under  oath.  Held,  if  a  de- 
mand was  made  for  books  of  accounts  or  for 
an  examination  under  oath,  after  the  loss  be- 
came  due  or  after  action  brought,  it  was  a 
mere  nullity.  Aurora  .Fire  Ins.  Co.  v.  Johnson, 
40  lud.,  315. 

4.  Insured  presented  a  p.aper  purporting  to 
be  preliminary  proofs,  and  insurers'  agent 
subsequently  notified  him,  that  he  must  pro- 
duce his  books  and  papers,  and  submit  to  an 
examination  under  oath.  The  ■  notice  was 
given  June  19th,  daring  a  prevailing  epi- 
demic; insured,  his  wife  and  child  being 
then  in  a  carriage  proceeding  to  tlie  steam- 
boat which  was  about  to  leave  that  evening. 
They  went  to  Boston  and  its  vicinity,  and  did 
not  return  till  September  12th.  Held,  the  court 
could  not  say,  that  there  was  or  was  not  suf- 
ficient excuse  for  his  failure  to  appear  and 
submit  to  the  examination.  It  was  not  in- 
cumbent upon  the  plaintiif  to  comply  under 
every  condition  of  circumstances  ;  that  the 
question  was  one  of  fact,  and  to  some  extent 
of  iutentiou,  for  the  jury.  Phillips  v.  Protec- 
tion Ins.  Co.,  14  Mo.,  220. 


EXECUTION. 

(See  Lett  op  ExEctmou.) 


EXPERTS. 

(See  Evidence  X.) 


EXPLOSION. 

I.  When  a  loss  within  the  policy. 

II.  KOT  A  LOSS  WITHIN  THE  POLICT. 

I.  When  a  loss  within  the  polict. 

1.  The  explosion  was  caused  by  fire.  Held, 
fire  was  the  proximate  cause  of  the  loss 
Waters  v.  Merch/ints  Louisnlle  I/u.  Co.,  11 
Pet.,  213;  1  McLean,  275. 

2.  The  municipal  autliorities  blew  up  ,<i 
building  for  the  purpose  of  staying  a  coiifla- 


545 


EXPLOSION. 


546 


Wlien  not  a  loss  within  the  policy 


gration.  Held,  a  loss  by  fire  and  not  by  ex- 
j)losion.  Oily  Fire  Ins.  Co.  v.  Corlies,  21 
Wend.,  307. 

3.  Stipulated:  "Insurers  shall  not  be  lia- 
ble for  an  explosion  by  guujiowder."  The 
building  was  blown  up  to  prevent  the  spread 
of  fire.  Held,  a  loss  within  llie  policy. 
Oreemoald  v.  Insurance  Co.,  3  Philadelphia, 
323. 

4.  Policy  on  sloamboat.  The  risks  assumed 
were  of,  "The  seas,  rivers,  fires,  enemies,  pi- 
rates, rovers,  assailing  thieves,  and  all  other 
misfortunes  whicli  sliall  come,"  etc.  Held, 
it  included  a  loss  caused  by  the  explosion  of 
her  boilers.  Perrin  v.  Protection  Ins.  Co.,  11 
Ohio,  147. 

5.  Stipulated :  "  Not  liable  for  damages  oc- 
casioned by  the  explosion  of  a  steam  boiler, 
nor  from  dara.agcs  resulting  from  sucli  explo- 
sion, nor  explosions  caused  by  gunpowder, 
gas  or  other  explosive  substances."  The  tire 
was  causfed  by  an  emission  of  gas  from  oil  in 
process  of  distillation,  which  settled  near  the 
floor  and  came  in  contact  with  the  lire  under 
the  stills.  The  fire  extended  into  the  receiv. 
ing  house,  where  gas  and  oil  were  ignited  and 
an  explosion  occurred.  Tlie  ignited  oil  be- 
spattered the  works  and  they  were  consumed. 
Held,  the  exemptions  were  confined  to  dam- 
age by  explosions,  but  insurers  were  liable  for 
losses  by  fire.  Boatman's  Fire  and  Marine 
Ins.  Co.  1).  Parker,  23  Oliio  St.,  85. 

6.  Stipulated:  "Not  to  be  liable  for  any 
loss  or  damage  by  fire  caused  by  means  of  an 
invasion,  insurrection,  riot,  civil  commotion, 
or  military  or  usurped  power,  nor  for  any  loss 
caused  by  the  explosion  of  gunpowder,  cam- 
phene,  or  any  explosive  substance,  or  explo- 
sion of  any  kind."  An  explosion  occurred, 
and  fire  eusued,  by  which  tlie  property  in- 
sured was  consumed.  Held,  insurer  was  ex- 
empted from  losses  caused  by  explosion  only; 
but  not  from  losses  by  fire  caused  by  explo- 
sion. Commercial  Ins.  Co.  v.  Robinson,  C4  III., 
265. 

7.  "On  steamboat,  against  perils  of  rivers, 
fires,  etc.,  and  all  other  perils,  losses,  and  mis- 
fortunes which  shall  come  to  the  hurt,  etc., 
according  to  the  general  laws  of  insurance." 
Stipulated:  "Not  liable  for  any  partial  loss 
or  particular  average,  unless  it  shall  amount 
to  ten  per  cent,  on  the  value  of  the  boat;  nor 
in  case  of  partial  loss  shall  tliej'  be  liable  for 
the  bursting  of  boilers  or  breaking  of  engines 

18 


unless  occasioned  by  external  violence."  She 
left  St  Louis  for  Now  Orleans  with  a  full  cargo, 
and  when  about  six  hundred  miles  out,  near 
Alexander's  wood  yard,  wliilc  she  was  under 
weigh,  tlie  middle  boiler  exploded,  and  the 
two  outside  boilers  were  tlirown  overboard, 
by  which  much  damage  was  done  to  the  en- 
gine, hull  and  cabin  furniture.  Coals  were 
thrown  out  from  the  furnaces,  which  set  fire 
to  the  boat,  and  she  commenced  leaking  very 
badly.  Tlie  steamboat  "  St.  Louis "  came 
alongside,  assisted  in  putting  out  the  fire, 
stopped  the  leaks,  her  cargo  was  readjusted, 
and  the  "Wilmington"  was  towed  back  to  St. 
Louis.  Held,  the  explosion  of  the  boiler  was 
one  of  the  perils  within  the  general  terms  of 
tlie  policy  (citing  Perrin  v.  Protection  Ins.  Co., 
11  Ohio,  147).  Held,  also,  the  words  external 
violence  were  to  be  confined  to  cases  of  par- 
tial loss  only,  and  they  had  no  application  to 
a  case  of  total  or  of  constructive  total  loss. 
Citizens  Ins.  Co.  v.  Glasgow,  9  Mo.,  400. 

II.  "When  not   a   loss   within    the 

rOLICT. 

t.  Cotton  stored  in  a  warehouse  was  insured 
against  fire,  but  stijjulated:  "Insurers  shall 
not  be  liable  for  loss  or  damage  that  may 
happen  by  means  of  any  invasion,  insurrec- 
tion, riot  or  civil  commotion,  or  any  military 
or  usurped  power,  explosion,  earthquake  or 
hurricane."  In  a  warehouse  directly  across  a 
street  fifty  feet  wide,  an  explosion  occurred, 
which  threw  down  the  walls  of  that  ware- 
house, and  scattered  combustible  materials  in 
the  street,  and  an  extensive  conflagration  re- 
sulted, in  which  the  warehouse  in  which  this 
cotton  was  stored  was  entirely  consumed. 
The  fire  was  not  communicated  to  it  directly 
from  the  building  in  which  the  explosion 
occurred,  but  from  another  building  fired  by 
the  explosion.  Held,  if  the  fire  happened  or 
took  place  by  means  of  the  explosion,  the  in- 
surers were  not  liable;  and  to  ascertain  that 
fiict,  it  was  necessary  to  determine  whether 
any  new  c.iuse  had  intervened  between  the 
fivct  accomplished  and  the  alleged  cause;  for 
if  a  new  force  or  power  had  intervened,  of 
itself  sufficient  to  stand  as  cause  of  the  misfor- 
tune, the  alleged  cause  must  be  considered  too 
remote.  The  fact  that  the  fire  was  carried  to 
the  cotton,  after  it  had  burned  another  build 
ing,  supplied   no   new  force  or  power,  an  J 

273 


5i: 


EXPLOSION. 


5iS 


When  not  a  loss  within  the  policy. 


therefore  no  new  cause  had  intervened.  The 
influence  of  the  breeze,  moving  in  a  direction 
toward  tlie  warehouse,  was  not  a  new  cause  of 
itself  sulTicieut  to  stand  as  the  cause  of  the 
misfortune,  and  the  insurer  was  discharged. 
Insurance  Co.  v.  Tweed,  7  Wall.,  44. 

2.  Policy  contained  an  exception  against 
loss  occasioned  by  explosion  of  steam  boil- 
ers. There  was  a  boiler  in  use  which  exploded 
and  fire  ensued.  Held,  the  insurer  was  not  li- 
able. St.  John  V.  American  Mutual  Fire  and 
Marine  Ins.  Co.,  11  N.Y.,  510;  1  Duer,  371. 

3.  Stipulated:  "Insurers  shall  not  be  li- 
able for  any  derangement  or  breakage  of  the 
machinery  or  bursting  of  the  boilers,  unless 
occasioned  by  stranding."  The  plaintiff  al- 
leged that,  while  she  was  on  a  voyage  on 
Lake  Michigan  the  boilers  thereof  burst,  and 
the  said  body,  tackle,  furniture,  cf  said  propel- 
ler, and  the  boilers  were  blown  to  pieces,  and 
she  sank,  was  destroyed,  and  thereby,  and  n  ot 
otherwise,  became  and  was  totally  lost.  Held, 
the  exception  covered  not  only  the  bursting 
of  the  boilers,  but  all  injuries  directly  pro- 
duced by  explosion.  Strong  v.  Sun  Mutual 
Ins.  Co.,  31  N.  Y.,  103. 

4.  Stipulated :  "  Not  liable  for  any  loss  or 
damage  by  fire  which  shall  happen  or  arise 
from  any  foreign  invasion,  *  *  *  or  by 
any  explosion."  One  of  the  boilers  exploded 
and  caused  the  fire.  Held,  insurers  were  not 
liable.  Hayward  v.  Liverpool  and  London 
Ins.  Co.,  43  N.  Y;  3  Keyes,  4.56;  s.  c,  3  Abb. 
Dec,  349;  7  Bos.,  385;  5  Abb.  Pr.  (N.  S.),  143. 

5.  On  ship,  "  Not  liable  for  loss  or  damage 
by  the  bursting  of  boilers,  collapsing  of  flues, 
or  breakage  of  machinery,  unless  occasioned 
by  some  unavoidable  external  cause,  or  fire 
ensues;  but  any  loss  or  damage  occurring 
subsequently  to,  and  in  consequence  of  the 
bursting  of  boilers,  etc.,  is  covered  by  the 
policy."  The  boiler  bursted,  steam  escaped  in- 
to the  body  of  the  vessel,  tearing  off  the  fore- 
quarter  of  her  bow,  through  which  water 
came  in.  She  filled  and  went  down  in 
ten  minutes.  Held,  the  loss  was  immediate, 
not  subsequent  to  the  bursting  of  the  boiler, 
hence,  the  insurers  were  not  liable.  Hunt,  J. 
dissenting,  whose  opinion  ought  to  be  read. 
Evans  v.  Columbian  Ins.  Co.,  44  N.  Y.,  146. 

6.  Stipulated:  "Not  liable  for  loss  by 
lightning  or  explosion  of  any  kind  unless  fire 
ensues,  and  then  for  damage  by  fire  only." 
A  vapor  evolved  from  the  material  in  process 

274 


of  manufacture  filled  the  room,  came  in  con- 
tact with  a  burning  lamp,  and  an  explosion  oc- 
curred, taking  off  the  roof,  tearing  down  a 
large  portion  of  the  walls  and  doing  great 
dam.age  to  the  macliinery.  A  fire  ensued,  but 
the  damage  by  it  was  slight.  Held,  insurer* 
were  liable  for  the  damage  caused  by  the  fire, 
but  not  for  that  caused  by  explosion.  Briggs- 
V.  North  American  Ins.  Co.,  53  N.  Y.,  446  j 
Same  v.  North  British  and  Mercantile  Ins.  Co., 
66  Barl),,  325 ;  Same  v.  People's  Ins.  Co.,  id.,  330. 

7.  Stipulated:  "Not  liable  for  any  loss  or 
damage  occasioned  by  or  resulting  from  any 
explosion  whatsoever,  whether  of  steam,  gun- 
powder, camphene,  coal  oil,  gas,  nitro-glycer- 
ine,  or  any  explosive  article,  or  any  sub- 
stance, unless  specially  insured  against,  and  a 
special  premium  paid  therefor."  Insured  had 
special  permission  to  rectify  by  steam  not 
generated  in  the  building.  A  very  inflam- 
mable vapor  was  evolved  from  the  process  of 
rectifying,  which  mixed  readily  with  the  at- 
mosphere, aud  if  brought  in  contact  with 
flame,  would  necessarily  explode.  This  vapor 
came  in  contact  with  two  jets  of  gas,  caused 
an  explosion  and  fire.  Held,  loss  by  fire, 
caused  by  explosion,  was  excepted.  United 
Life,  Fire  and  Marine  Ins.  Co.  v.  Foote,  32  Ohio 
St.,  340. 

8.  The  risks  assumed  were  of  rivers,  fires, 
enemies,  pirates,  assailing  thieves,  etc.  Stipu- 
lated :  "Not  liable  for  any  loss  or  damage 
which  may  arise  from,  or  be  occasioned  by,, 
the  said  boat  being  unduly  laden,  nor  froia 
any  loss  arising  from  the  explosion  of  gun- 
power,  the  bursting  of  the  boilers,  the  collaps- 
ing of  flues,  or  breaking  of  the  engine,  or  any 
p.irt  thereof,  except  from  unavoidable  external 
cause  or  causes.  Her  boilers  exploded,  un- 
covered the  fire  bed,  and  brought  the  timbers 
in  contact  with  the  flre.  Held,  insurer  wa» 
not  liable  for  a  loss  by  flre  caused  by  the 
bursting  of  the  boilers.  Montgomery  v.  Fire- 
men's Ins.  Co.,  16  B.  Jlon.,  437. 

9.  On  a  two  story  store  for  one  year.  A  flre 
broke  out  in  a  building  about  200  feet  distant, 
in  which  there  was  a  quantity  of  gunpowder, 
which  exploded  and  caused  tlio  walls  of  the 
building  insured  to  crack  open,  drove  in  the 
windows  and  blinds,  loosened  the  plastering 
and  slates,  doing  damage  to  the  amount  of 
$950,  but  the  fire  did  not  reach  the  building. 
Held,  insurers  were  not  liable.  Cabellero  in. 
Home  Mutual  Ins.  Co.,  15  La.  An.,  217. 


549      FALLING  BUILDINGS -FALSE  SWEARING,  OR  ATTEMPT  AT  FRAUD.      550 


What  is  cridence  of. 


1 0.  Stipulated :  "  Not  liable  for  any  damage 
or  loss  arising  from  the  bursting  of  boilers,  col- 
lapsing of  flues,  or  breaking  of  engines,  unless 
from  unavoidable  external  cause,  or  from  con- 
sequences  resulting  therefrom."  The  boiler 
burst  and  tore  away  the  stanchions  and  sup- 
ports of  the  upper  deck,  so  that  it  fell  dowu 
into  the  furnace  and  took  Are,  and  she  was 
scuttled  to  arrest  it.  Held,  insurers  were  not 
liable,  for  the  loss  was  within  the  excepted 
peril.  Jloe  v.  Columbus  Ins.  Co.,  17  Mo.,  301; 
McAllister  v.  Tennessee  Fire  and  Marine  Ins. 
Co.,  id.,  306. 

11.  A  gunpowder  magazine,  about  a  mile 
distant,  exploded  from  some  cause  unknown, 
and  damaged  the  premises  which  were  insured 
against  loss  by  fire.  Held,  not  a  loss  within  the 
policy.  Everett  v.  London  Ass.  Co.,  19  C.  B. 
(N.  S,),  126;  s.  c,  11  Jur.  (N.  S.),  .540;  34  L.  J. 
C.  P.,  299;-13  W.  R.,  863. 

12.  Stipulated:  "  The  company  will  not  be 
liable  for  loss  or  damage  by  explosion,  except 
for  such  loss  or  damage  as  shall  arise  by  rea- 
son  of  explosion  by  gas."  Insured  carried  on 
the  business  of  extracting  oil  from  shoddy, 
which  emitted  an  inflammable  and  explosive 
vapor.  It  ignited,  set  fire  to  the  premises, 
then  exploded,  and  caused  a  further  fire. 
There  was  damage  by  explosion  as  well  as  by 
the  fire.  Held,  the  word  "  gas  "  meant  ordinary 
illuminating  coal  gas;  that  insurers  were  not 
liable  for  any  of  the  consequences  of  cxplo- 
sion,  unless  it  was  an  explosion  of  illuminat- 
ing gas;  that  they  were  liable  for  all  damages 
caused  by  fire  not  the  result  of  explosion,  and 
for  all  damages  caused  by  exertions  made  to 
extinguish  the  fire,  whether  spoiling  goods  by 

.  water,  throwing  .articles  of  furniture  out  of  the 
window,  or  the  destruction  of  a  neighboring 
house  by  explosiou,  for  the  purpose  of  check- 
ing the  progress  of  the  fire.  Stanley  v.  Western 
Ins.  Co.,  3  L.  R.  Ex.,  71 ;  s.  c,  37  L.  J.  Ex.,  73 ; 
16  W.  R.,  369. 


FALLING  OF  BUILDINGS. 

1.  On  goods  contained  in  a  granite  store. 
One  3f  the  walls  gave  way  and  half  of  the 
store  and  the  adjoining  building  fell.  Before 
the  goods  could  be  taken  away  a  fire  occurred, 
in  consequence  of  which  the  goods  were 
greatly  damaged  by  fire  and  water.    Held,  a 


loss  within  the  policy.     Leins  v.  Sprimjfield 
Fire  and  Marine  Ins.  Co.,  10  Gray,  1.59. 

2.  Stipulated:  "  If  a  building  shall  fall  ex. 
cept  as  the  result  of  fire,  the  policy  shall  im- 
mediately  cease  and  determine."  This  was  a 
church  building  on  posts  or  blocks,  and  was 
blown  p;irtly  ofl"  the  posts,  greatly  damaged, 
rendered  unfit  for  occupancy,  and  most,  if  not 
all  the  movable  furniture  was  taken  out. 
Some  daj's  thereafter  it  took  fire  and  was 
burned.  Held,  so  loug  as  the  building  re- 
mained standing  there  could  be  no  exemption 
from  liability  under  this  clause  of  the  policy, 
no  matter  how  greatly  it  may  have  been  de- 
preciated in  v.alue  by  wind  or  other  causes. 
111.  S.  C.  Firemen's  Fund  Ins.  Co.  v.  Congre- 
gation of  Bodeph  Sholem,  8  Chi.  Leg.  News,  178. 

3.  On  building.  The  floors  were  heavily 
loaded  with  merchandise,  and  by  reason  of  tlie 
overloading,  or  some  defect  of  construction,  it 
fell;  a  fire  ensued,  and  the  fallen  materials 
were  consumed.  Held,  the  subject  insured 
had  become  a  mere  congeries  of  materials  be- 
fore the  fire  occurred,  caused  by  a  peril  not 
insured  against;  hence  the  fire  was  not  the 
immediate  cause  of  the  loss.  Nave  v.  Home 
Mvt.  Ins.  Co.,  37  Mo.,  430. 


FALSE  SWEARING,  OR  ATTEMPT  AT 
FRAUD. 

(See  Fraud.) 

I.   WH.4.T  IS  EVIDENCE  OF. 
II.  KOT  EVIDEKCE  OP. 

I.  What  is  evidence  of. 

1.  Under  the  defense  of  fraud  properly 
pleaded :  Held,  if  insured  exhibited  to  tlie 
company  books  of  accounts  containing  false 
entries  as  to  the  quantity  and  value  of  the 
goods  insured,  for  which  claim  was  made,  it 
would  be  fraud  or  an  attempt  at  fraud  within 
the  meaning  of  the  policy,  and  would  defeat 
recovery.  Under  a  plea  setting  up  the  defense 
of  false  swearing,  it  was  held,  false  swearing 
by  the  insured,  either  in  the  preliminary- 
proofs  or  in  the  preliminary  examination  on 
oath,  in  a  matter  material,  with  intent  to  mis- 
lead the  company,  would  work  a  forfeiture  of 
the  policy;  ii^  the  terras  upon  which  the  in- 


551 


FALSE  SWEARING,  OR  ATTEMPT  AT  FRAUD. 


652 


What  is  evidence  of. 


Bured  had  settled  with  other  companies  wlio 
had  insured  the  same  property  were  material, 
and  a  false  statement  in  respect  to  them  would 
defeat  the  iusured's  right  to  recover.  Weide  v. 
Oermania  Fm.  Go.  1  Dil.  Cir.  C,  441. 

2.  Stipulated:  "Any  fraud  or  attempt  at 
fraud  or  false  swearing  by  the  insured  shall 
make  this  policy  void."  Held,  if  insured,  in 
stating  his  loss  in  the  preliminary  proofs, 
knowingly  and  falsely  stated  an  over  valuation 
of  the  property  with  a  view  to  deceive  the 
company  and  to  induce  payment  for  more  than 
the  value  of  the  property  lost,  he  could  not  re- 
cover. Oeib  V.  International  Ins.  Co.,  1  Dil. 
Cir.  C,  443. 

3.  Stipulat<;d :  "  All  fraud  or  false  swearing 
shall  cause  a  forfeiture  of  all  claims,  and  be  a 
full  bar  to  all  remedies  on  the  policy."  The 
first  jury  found  the  damages  at  |2,0IX),  the  val- 
ue of  the  goods  being  staled  in  the  preliminary 
proofs  of  loss  at  |3,400.  The  second  jury 
found  a  verdict  (nearly  three  years  after  the 
loss)  for  fl.OfiO.  Held,  the  difference  between 
the  amount  claimed  as  lost,  and  that  allowed 
by  the  jury  was  so  great  that  it  raised  the  in- 
ference that  insured  had  attempte.1  to  defraud 
insurers,  and  he  thereby  forfeited  all  his  rights 
under  the  policy.  WaU  v.  Howard  Ins.  Co.,  51 
Me.,  33. 

4.  Stipulated :  "  Any  attempt  at  fraud  on  the 
part  of  the  insured  shall  cause  a  forfeiture  of 
all  claims  under  this  policy."  Held,  if  there 
was  any  evidence  tending  to  show  that  in 
sured,  by  not  complying  with  the  conditions 
of  the  policy,  attempted  to  defraud  the  insur- 
ers, the  court  should  have  instructed  that  no 
recovery  could  be  had.  Security  Ins.  Co.  v. 
Fay,  23  Mich.,  407. 

5.  Policy  made  January  2d,  on  household 
furniture,  etc.  Two  days  thereafter  the  hus- 
band of  insured  took  twenty-sis  pillows  and 
pillow  slips  from  the  house,  put  them  in  boxes 
and  sent  them  to  Huron  Station,  Wayne 
county,  to  one  Baumeister,  who  forwarded 
them  to  the  plaintiff,  but  they  were  in  her  pos- 
session when  the  fire  took  place  on  the  20th 
of  same  month,  and  were  included  in  the  pre- 
liminary proofs  of  loss.  Upon  the  trial,  for 
the  purpose  of  showing  that  they  were  not 
fraudulently  included  in  the  claim,  insured 
was  allowed  to  prove  that  insurer's  agent  said 
10  him,  put  in  all  the  plaintiff  had,  that  there 
was  a  deduction  to  be  made  by  the  company 
iuyway;   that  the   witness  told  the  agent  he 

"  276 


wanted  to  correct  the  proof;  that  the  agcot  said 
it  will  be  lime  when  you  make  the  deduction 
to  fix  that  all  right.  ZT^W,  the  evidence  was 
not  admissible,  because  it  did  not  lend  to 
prove  that  the  agent  knew  anything  about  the 
goods  that  were  taken  aw.ay.  Hanover  Fire 
Ins.  Co.  V.  Mannasson,  29  Mich.,  316. 

6.  A  fraudulent  over-valuation  avoids  the 
policy.  Hersey  v.  Merrimack  County  Mutual 
Fire  Ins.  Co.,  27  N.  H.,  149. 

7.  An  over-valuation  by  the  owner  is  a  cir- 
cumstance to  be  considered  in  connection  with 
others  tending  to  show  that  the  owner  des- 
troyed the  properly  with  the  purpose  of  de- 
frauding  the  company.  Insurance  Co.  of  North 
America  v.  McDowell.  50  111.,  120. 

8.  Stipulated:  "Unless  the  interest  of  the 
insured  be  truly  stated,  the  policy  shall  be 
void."  In  the  preliminary  proofs,  the  insured 
stated  that  his  title  was  exclusive  and  unin- 
cumbered.  The  only  title  he  had  was  incum- 
bered by  a  lien  for  the  whole  consideration 
which  he  had  bid  for  the  property  at  a  decre- 
tal sale,  and  it  was  also  incumbered  by  his 
wife's  dower  as  widow  of  a  former  husband, 
and  none  of  the  purchase  money  had  been 
paid.  IIeld,he  was  guilty  of  voluntary  fraud 
and  false  swearing,  in  violation  of  an  express 
condition  of  the  policy,  hence  the  policy  was 
absolutely  void.  Security  Ins.  Co.  v.  Bronger, 
6  Bush.,  146. 

9.  The  loss  by  fire  appeared  very  small,  and 
persons  who  first  entered  the  store  agreed  that 
it  was  almost  empty.  Insured  persisted,  how. 
ever,  in  claiming  a  large  amount  as  lost.  Held, 
these  were  circumstances  sufficient  to  prevent 
a  recovery.  Segnier  v.  Louisiana  State  Marint 
and  Fire  Ins.  Co..  12  La.  (O.  S.),  336. 

10.  The  property  insured  was  worth  about 
$8,000.  It  was  represented  as  worth  $12,000. 
Held,  a  fraudulent  over-valuation,  which  viti- 
ates the  contract.  Catron^  v.  Tennessee  Ins. 
Co.,  6  Humph.,  176. 

11.  On  goods  valued  at  £5,000.  There  was 
a  loss  and  the  insurer  had  signed  an  adjust, 
ment  ou  invoices  and  bills  of  lading  produced 
by  insured  representing  Uie  above  value;  but 
these  were  proved  fictitious  and  tlie  bills 
of  lading  interlopated.  There  were  goods 
shipped  and  lost  to  the  value  £1,400,  and  no 
more.  Held,  an  intent  to  cheat  the  insurers 
vitiated  the  conti'act.  Haigh  v.  De  La  Cour, 
3  Camp.,  819. 

12.  Insured  claimed  for  a  loss   amounting 


553 


FALSE  SWEARING,  OR  ATTEMPT  AT  FRAUD. 


554 


Wliat  is  not  evidence  of. 


to  £413.  The  court  instructed  the  jury  that 
although  insured  had  not  ciuised  the  fire,  yet 
if  he  made  a  fraudulent  claim  against  the 
company,  he  must  fail  in  the  iicUon,  because 
lie  had  altcmpted  to  perpetrate  a  fraud.  Chap- 
man  v.  Pole,  32  L.  T.  (N.  S.),  yOO. 

13.  Plea  of  fraud.  Held,  if  the  claim  was 
willfully  false  in  a  substantial  respect,  the  de- 
foudaut  was  entitled  to  the  verdict.  If  there 
was  no  fraud,  the  plaintiflF  was  entitled  to  a 
verdict  for  the  amount  he  had  been  damnified 
by  the  fire.  Oouhtone  v.  Itoyal  Ins.  Co.,  1 
F.  &  F.,  a76 ;  Britton  v.  Royal  Ins.  Co.,  4  id., 
905. 

14.  The  jury  rendered  a  verdict  of  £200  for 
loss  of  the  mill,  and  £300  for  loss  of  machine- 
ry. The  plaintiff  claimed  the  value  of  the 
former  was  £600.  Held,  it  was  a  question  for 
the  jury  to  determine  whether  the  valuation 
was  made  hona.Jide  or  mala  fide;  that  as  the 
verdict  was  for  the  claimant,  the  finding  re- 
pelled all  presumption  that  the  over-valuation 
was  mala  fide.  like  v.  Provincial  Ins.  Co.,  7 
U.  C.  C.  P.,  548. 

15.  The  issue  sent  to  trial  was,  whether  the 
insurance  was  efiected  by  the  defender  on  a 
fraudulent  over-valuation,  with  the  intention 
of  destroying  the  same  by  fire.  The  jury 
found  that  it  was  effected  on  a  fraudulent 
over-valuation,  but  not  with  the  intention  of 
destroying  the  same  by  fire.  Held,  a  verdict 
for  the  defender.  Hercules  Ins.  Co.  v.  Hunter, 
15  C.  C.  S.,  800. 

16.  Stipulated:  "Claimant  shall  forfeit  all 
benefit  under  the  policy,  if  there  appears  any 
fraud  in  the  claim  by  false  swearing  or  other- 
wise. Held,  the  court  will  reject  the  claim  if 
it  is  far  in  excess  of  the  actual  loss  to  the 
knowledge  of  the  insured.  Grenier  v.  Monarch 
Fire  and  Life  As.i.  Co.,  7  L.  C.  Jur,  100. 

17.  R.  S.  and  wife  conveyed  to  plaintiff  and 
wife  the  property  insured,  who  gave  a  bond  to 
support  R.  S.  and  wife  during  their  lives.  The 
husband  insured  the  property  in  his  own 
name,  and  in  making  proof  of  loss,  he  made 
oath  that  he  was  the  absolute  owner  at  the 
time  of  the  loss.  Held,  false  swearing,  which 
vitiated  the  policy.  lUason  v.  AgricvUural 
Ins.  Co.,  16  U.  C.  C.  P.,  493. 

18.  |1,100  on  buildings  valued  at  £750.  A 
few  days  before  this  policy  was  made,  he  pro- 
cured insurance  on  the  same  and  a  shed 
worth  $400,  valuing  them  at  $1,400.  The  jury 
found   a  verdict  for  the  plaintiff.    The  evi- 


dence as  to  their  value  conflicted.  PlaintiQ' 
did  not  explain  the  cause  for  the  difference  in 
his  valuations.  Held,  the  evidence  supported 
a  plea  of  fraudulent  overvaluation,  and  a,  new 
trial  was  granted.  Dickson  v.  Equitable  Ins. 
Co.,  18  U.  C.  Q.  B.,  240. 

19.  Insured  claimed  a  logs  of  $15,989.18, 
giving  items,  stating  upon  oath  that  there  was 
several  thousand  dollars  worth  of  goods  de- 
stroyed  by  the  fire,  besides  the  above  men- 
tioned  goods,  the  particular  description  of 
which,  "I  cannot  now  give."  The  jury  re- 
turned a  verdict  for  $12,043  and  interest.  The 
court  refused  to  instruct  that  the  plaintiff 
could  not  recover,  if  he  had  attempted  to  de- 
fraud the  insurer.  Held,  error.  Phanix  Int. 
Co.  V.  Munday,  5  Cold.,  547. 

20.  Suit  on  two  policies  both  stipulated. 
"  If  there  shall  be  fraud  in  the  claim  made  for 
such  loss  or  false  declaring  or  affirming  in  the 
proof  thereof,  the  claimant  shall  forfeit  all 
benefit  under  this  policy."  Held,  whether 
there  was  a  violation  of  this  provision  was  a 
question  for  the  jury;  it  was  the  duty  of  the 
court  to  instruct  if  there  was  a  false  declara- 
tion or  affirmation  made  by  the  insured,  the 
finding  must  be  for  defendant.  Oerhauser  o. 
North  British  and  Mercantile  Ins.  Co.,  6  Nev.. 
15. 

II.  "What  is  not  evidence  of. 

1.  If  there  is  a  material  discrepancy  be- 
tween the  statement  of  loss  and  the  statement 
testified  to  at  the  trial,  it  does  not  follow  that 
the  claimant  is  guilty  of  fraud  and  false 
swearing,  for  the  statements  made  in  the  proof 
of  loss  may  have  been  honestly  though  erro- 
neously made.  Insurance  Companies  v.  Weides, 
14  Wall.,  375. 

2.  If  the  insured  rendered  a  false  account 
of  the  amount  of  the  loss  for  the  purpose  of 
committing  a  fraud  on  the  insurance  company, 
he  cannot  recover;  but,  if  the  account  of  the 
loss  was  the  result  of  mistake,  without  fraud 
or  intent  to  defraud,  insured  is  entitled  to  re- 
cover  for  the  loss  actually  sustained.  HufA- 
berger  v.  Merchants  Fire  Ins.  Co.,  4  Biss.,  265. 

3.  The  defense  was  that  insured  presented 
and  insisted  upon  a  claim  much  greater  than 
was  actually  sustained.  Held,  the  onus  was 
upon  insurer  to  make  out  that  insured  know- 
ingly and  fraudulently  claimed  for  a  loss 
greater  than   they   had   sustained.    Tlie  law 

277 


555 


FALSE  SWEARING,  OR  ATTEMPT  AT  FRAUD. 


55G 


What  is  not  evidence  of. 


does  not  presume  fraud.  The  evidence  to  es- 
tablish it  must  be  direct  and  positive,  or  the 
circumstances  so  strong,  convincing  and  pre- 
ponderating as  to  admit  of  no  other  rational 
conclusion.  Huchberger  v.  Home  Ins.  Co.,  5 
Biss.,  106. 

4.  Stipulated:  "All  attempt  at  fraud  by 
false  swearing  or  otherwise  shall  cause  a  for- 
feiture of  all  claims  under  the  policy."  The 
plaintiffs  claimed  a  loss  of  $9,989.03,  and  so 
testified  at  the  trial.  The  referees  found  that 
it  amounted  to  $6,500  only.  Reld,  the  differ- 
ence between  the  finding  and  the  claim  was 
not  even  presumptive  evidence  of  fraud. 
ITnger  v.  People's  Fire  Im.  Co.,  i  Daly,  90. 

5.  If  the  over-valuation  was  by  mistake  or 
inadvertance,  the  jury  must  find  for  such  an 
amount  of  loss  as  had  actually  occurred;  but, 
if  the  ovcr-valuati(m  was  knowingly  made, 
with  a  fraudulent  intent,  the  jury  must  find 
against  the  plaintiff.  Hickman  v.  Long  Island 
Int.  Co.,  Edm.  S.  C.  (N.  T.),  374. 

6.  The  preliminary  proofs  stated  the  actual 
.value  of  the  goods  at  the  time  of  the  fire, 

$3,U2;  that  the  value  of  goods  totally  de- 
stroyed amounted  to  $3,933.34,  aud  the  damage 
to  those  not  actually  destroyed,  amounted  to 
$107.43.  The  whole  amount  insured  was 
$3,000;  $1,000  by  defendant,  and  $1,000  by 
another  company.  The  jury  found  a  verdict 
for  $412.37,  which,  in  etfect,  was  a  finding 
that  the  loss  did  not  exceed  $675.06.  Held, 
tlie  difference  between  the  loss  slated  in  the 
proofs  and  that  found  by  the  jury  was  not  evi- 
dence of  an  attempt  at  fraud,  because  the  jury 
were  instructed  If  they  believed  that  the  in- 
sured  in  making  his  claim  intended  to  attempt 
a  fraud  against  insurers,  to  find  a  verdict 
against  him ;  and  their  finding  in  his  favor 
was  an  express  negation  of  any  attempt  at 
fraud  on  his  part.  Wolf  v.  Qoodhue  Fire  Ins. 
Co.,  43  Barb.,  400. 

7.  Stipulated:  "All  fraud  or  false  swearing 
shall  cause  a  forfeiture  of  this  insurance." 
Held,  this  stipulation  did  not  apply  to  the 
original  conception  of  the  contract,  for  at  that 
time  the  least  want  of  good  faith  on  the  part 
of  insured  would,  at  common  law,  vitiate  it; 
hence  the  condition  must  be  taken  as  appli- 
cable to  the  preliminary  proofs  only.  Ferriss 
V.  North  American  Fire  Ins.  Co.,  1  Hill,  71. 

8.  Insured  made  claim,  but  before  suit  was 
brought,  corrected  the  statement.  Held,  he 
had  the  right  to  explain  and  correct,  and  these 

378 


did  not  in  themselves  establish  fraud  and 
false  swearing  (citing  Britton  t.  R.  Ins.  Co.,  4 
Fost.  &  Fin.,  905).  Jones  v.  Mechanics  Fire 
Ins.  Co.,  36  N.  J.,  29. 

9.  Insured  stated  the  amount  of  his  loss  at 
$2,800,  making  the  necessary  affidavit  in  con- 
uection  with  it.  The  jury  rendered  their  ver- 
dict for  $1,853.  Held,  not  evidence  of  fraud  and 
false  swearing.  Moore  v.  Protection  Ins.  Co., 
29  Me.,  97. 

10.  Two  policies,  one  on  stock  for  $1,000, 
and  one  on  furniture  for  $500.  There  were 
two  other  policies  on  the  stock;  one  for  $1,000 
and  the  other  for  $500.  The  claim  was  for 
$3,500  on  stock;  the  jury  found  a  loss  of 
$1,750.  Held,  the  difference  was  not  so  great 
as  to  raise  the  presumption  of  fradulent  in- 
tent  on  the  part  of  the  insured.  Williains  v. 
Phmnix  Ins.  Co.,  61  j\[e.,  07. 

11.  Stipulated:  "All  false  swearing  or  fraud 
shall  work  a  forfeiture  of  all  claims."  Held, 
the  swearing  must  not  only  be  false,  but  it 
must  be  willfully  and  knowingly  done,  with 
intent  to  cheat  the  company.  Franklin  Fire 
Ins.  Co.  V.  Updegraff,  43  Penu.  St.,  350. 

12.  The  policy  required  insured  to  deliver 
particlars  of  the  loss  —  a  bill  of  items.  He 
made  one  as  follows :  "  One  storj-  frame  house 
$200,  dry  goods  $1,000,  groceries  $150,  queens- 
ware  $25,  hardware  $25  — $1,400.  The  jury 
gave  a  verdict  for  $1,200.  Held,  not  evidence 
that  he  was  guilty  of  false  swearing  for  he  was 
not  guilty  unless  he  knowinglj- exaggerated  the 
loss.    Franklin  Ins.  Co.  v.  Culver,  0  lud.,  137. 

13.  Stipulated:  "In  case  of  1  )ss,  insured 
shall  deliver  a  particular  statement  of  it,  veri- 
fied by  his  oath;  and  an}-  fraud  or  false 
swearing  shall  cause  a  forfeiture  of  all  claims 
under  this  policy."  Held,  unless  the  false 
swearing  was  done  with  an  intention  to  de- 
ceive the  insurer,  it  did  not  affect  the  right  of 
insured  to  recover;  also,  the  false  statement 
must  be  willfully  made  in  respect  to  a  matter 
material.  Marion  v.  G-reat  Republic  Ins.  Co., 
35  Mo.,  148. 

14.  Wliere  the  jury  have  found  that  there 
was  no  fraud,  in  fact,  their  finding  cannot  be 
disturbed,  notwithstanding  insured,  in  mak- 
ing proof  of  loss,  included  property  not  within 
the  policy.     Sims  v.  State  Ins.  Co.,  47  Mo.,  54. 

15.  In  the  preliminary  proofs  insured 
cUiimed  for  388  hides  more  than  were  found, 
by  the  testimony  upon  the  trial,  to  have  been 
in  the  premises.    Held,  if  tlie  error  was  with- 


557 


FALSE  SWEARING,  OR  ATTEMPT  AT  FRAUD. 


55S 


What  is  not  evidence  of. 


«ut  intention  to  defraud,  it  diii  not  affect  the 
right  of  insured  to  recover.  Planters  Mut.  Ins. 
Co.  V.  Dcford  et  al.,  38  Md.,  382. 

16.  A  small  over-valuation,  such  as' miglit 
result  from  a  difference  of  opinion  will  not 
vitiate  the  policy;  but  if  the  over-valuatiou 
was  gross,  knowingly  made,  it  avoids  the 
policy.  Protection  Ins.  Co.  v.  Hall,  15  B.  JIou., 
411. 

17.  Stipulated :  "  If  there  shall  he  any  fraud 
or  false  swearing  ou  the  part  of  the  insured, 
the  claimant  shall  forfeit  all  claim  by  virtue 
of  this  policy.  The  action  was  brought  to  re- 
cover ou  a  slock  of  goods  for  which  the  loss 
was  stated  at  $15,549.  The  jury  found  a  ver- 
dict for  $8,000.  Held,  he  was  entitled  to  judg- 
ment. Marchesseau  v.  Merchants  Ins.  Co.,  1 
Rob.  (La.),  488. 

18.  The  policy  was  made  to  H.  as  agent, 
and  he  swore  to  the  statement  of  the  loss,  in 
which  he  described  it  as  his  loss.  Held,  his 
oath  necessarily  referred  to  the  character  in 
which  he  acted  and  was  recognized,  when  he 
effected  the  insurance.  Henderson  v.  Western 
ilwiiie  and  Fire  Ins.  Co.,  10  Rob.  (La.),  164. 

19.  There  was  a  large  difference  between 
the  amount  claimed  in  the  proofs  of  loss  and 
that  proven  at  the  trial.  Held,  it  was  proper 
for  the  court  to  tell  the  jury  that  they  must  de- 
termine whether  the  difference  was  to  be  fairly 
attributed  to  an  intention  to  defraud,  or  the 
result  of  innocent  error.  Hoffman  v.  Western 
Uarine  and  Fire  Ins.  Co.,  1  La.  An.,  216. 

20.  Insured  claimed  $2,600  as  the  amount 
of  his  loss.  The  jury  rendered  a  verdict  for 
$1,800  and  a  remittitur  was  entered  to  the 
amount  of  |800.  Held,  the  difference  be- 
tween the  finding  of  the  jury  and  the  amount 
claimed  was  not  necessarily  evidence  of  fraud 
and  false  swearing,  nor  did  it  impose  on  in- 
sured any  necessity  to  make  to  make  any  fur- 
ther explanation  of  the  discrepancy;  that  the 
remittitur  was  the  .act  of  the  attorney  and  not 
of  the  insured.  Beck  v.  Oermania  Ins.  Co.,  23 
La.  An.,  510. 

21.  Insured  made  the  application  and  in  it 
set  a  value  upon  the  premises.  Insurer's 
agent  made  a  survey  of  them,  and  the  local 
agent  who  issued  the  policies  also  made  an 
examination  of  them.  Held,  it  was  the  agent's 
duty  to  object  to  the  valuation  if  it  was  too 
high;  it  was  to  be  presumed  that  the  agent 
liad  some  knowledge  of  the  value  of  the  prop- 
erty and  that  though  the  valuation  was  higher 


than  it  ought  to  have  been,  that  would  not  of 
itself  vitiate  the  policy.  The  policy  did  not 
stipulate  against  an  over-valuation;  an  over- 
valuation would  not  of  itself  avoid  the  policy. 
Insurance  Company  of  North  America  v.  Me- 
Howell,  50  111.,  120. 

22.  Stipulated:  "An  over-valuation  will 
avoid  the  policy;  that  in  any  event  the  com- 
pany shall  not  be  liable  for  over  two-thirds  of 
the  cash  value  of  the  buildings."  There  was 
an  over-valuation  of  $100.  Tlie  value  of  the 
goods  lost  being  .$700  and  the  insurance  upon 
them  $800.  Held,  it  did  not  avoid  the  policy. 
Honluim  V.  loica  Central  Ins.  Co.,  25  Iowa,  328. 

23.  Proofs  of  loss  made  in  the  name  of  S. 
&  P.  were  written  by  insurer's  agent,  but  it 
appeared  that  the  property  really  belonged  to 
the  wife  of  S.  Held,  it  was  for  the  jury  to  say 
whether  the  error  was  an  innocent  mistake, 
and  if  it  was,  the  plaintiffs  right  to  cover 
could  not  be  defeated  on  tliat  ground.  Par- 
ker V.  Amazon  Ins.  Co.,  34  Wis.,  363. 

24.  Insurer  defended  on  the  ground  of 
fraud,  in  that  insured  claimed  a  much  larger 
sum  than  was  actually  due.  Held,  the  differ- 
ence between  the  estimate  of  the  loss  and  that 
actually  proved  at  the  trial  was  not  conclu- 
sive; that  if  it  could  reasonably  be  accounted 
for  on  the  score  of  opinion,  it  was  entitled  to 
no  weight;  before  a  jury  would  be  justified  in 
convicting  the  insured  of  fraud  and  perjury, 
they  must  be  satisfied  there  was  a  material 
and  intentional  over- valuation  on  the  part  of 
the  insured  (citing  Moore  v.  Protection  Ins 
Co.,  29  Me.,  97).  Clark  v.  Phmnix  Ins.  Co.,  36 
Cal.,  168. 

2.5.  The  jury  found  the  cash  value  of  the 
furniture  at  the  time  of  the  fire,  $3,000.  Its 
value  in  the  proofs  of  loss  was  $6,000.  Held, 
not  evidence  of  fraud  unless  there  was  proof 
of  a  willful  intent  to  defraud.  Gerhaiuer  v. 
North  British  and  Mercantile  Ins.  Co.,  7  Nev., 
174. 

26.  Insured  valued  her,  in  his  application, 
at  £6,000.  There  was  other  insurance  for 
£3,.500,  and  this  policy  was  for  £1,000.  The 
evidence  was  conflicting  upon  the  question  of 
value.  Witnesses  on  one  side  put  her  at 
£3,850,  and  on  the  other  side  she  was  said  lo 
liave  been  worth  £5,500.  Held,  a  question  of 
fact  for  the  jury  to  determine.  They  found 
for  the  plaintiff  the  sum  insured,  and  he  had 
judgment  for  it.  M'Qua.ig  r.  Unity  Ina.  Co^ 
9  U.  C.  C.  P.,  85. 

279 


559      FLOATING  POLICIES  — FOR  ACCOUNT  OF  WHOM  IT  MAY  CONCERN.      SCO 


Whose  interests  shall  be  included. 


27.  Stipulated:  "Insured  shall  deliver  a 
•written  account  of  the  loss,  the  value  of  the 
property  damaged  or  destroyed,  immediatly 
after  the  fire,  and  shall  verify  the  same;  and 
if  tliere  shall  appear  any  fraud  or  false  state- 
ment in  such  account  of  loss  or  damage,  or  if 
such  affidavits  shall  contain  any  untrue  state- 
ments, the  policy  shall  be  void."  Plaintiff 
stated  in  tlie  affidavit  that  he  was  the  absolute 
owner  of  the  buildings  insured :  but  the  proof 
showed  that  he  did  not  have  title  to  the  lands. 
Held,  the  condition  referred  to  the  account  of 
the  loss,  and  not  to  the  title.  Ross  v.  Conmer- 
cial  Union  Aae.  Co.,  26  U.  C.  Q.  B.,  552. 

28.  Plea:  The  plaintiff  had  sworn  falsely 
in  the  particular  account  of  the  loss.  Held, 
bad,  because  it  did  not  appear  before  whom 
the  oath  was  made,  when  it  was  made,  and  in 
what  respect  the  particular  statement  was 
false.  Ketcimm  v.  Protection  Ins.  Co.  1  Allen, 
N.  B.,  130. 


FLOATING  POLICIES. 

1.  On  merchandise,  in  transitu,  in  all  or 
any  of  the  brick  or  stone  warehouses,  in  all 
or  any  of  the  streets,  yards  or  wharfs  of  the 
cities  of  New  York,  Brooklyn  or  Jersey  City. 
Stipulated:  "As  to  goods  specifically  in- 
sured, the  policy  shall  attach  only  on  the  value 
whicli  may  exceed  the  specific  insurance, 
subject  to  average  as  follows:  In  case  the 
property  aforesaid,  in  all  the  buildings,  places 
or  limits  mentioned,  shall,  at  the  breaking  out 
of  any  fire  or  fires,  be  collectively  of  greater 
value  than  the  sum  insured,  then  this  company 
shall  pay  and  make  good  such  proportion 
only  of  the  loss  or  damage  as  the  sum  insured 
shall  bear  to  the  whole  value  insured." 
Plaintiff  liad  merchandise  in  a  warehouse  in 
New  York,  $386,026 ;  specific  insurance  tJiere- 
on,  $334,000,  and  there  was  a  loss  of  $274,193. 
Held,  defendant  was  not  liable  to  contribute  to 
any  portion  of  the  loss,  because  it  did  not  ex- 
ceed the  whole  amount  specifically  insured. 
fairchild  v.  Lii:erpool  and  London  Ins.  Co.,  51 
N.  Y.,  65;  s.  C,  48  Barb.,  420. 

2.  $5,000  on  stock  of  tools,  steam  engines, 
etc.,  in  the  premises  known  as  the  Southworth 
Foundry.  Stipulated:  "If  at  the  happening 
of  any  fire,  insured  shall  have  insurance  under 

280 


a  floating  policy  or  policies  not  specific,  but 
covering  goods  generally  in  places  not  desig- 
nated, and  yet  within  the  limits  that  include 
the  property  herein  insured,  sucli  policy,  as 
between  the  insured  and  tliis  company,  shall 
be  considered  as  covering  any  excess  of  sound 
value  of  the  subject  insured,  beyond  the 
amount  covered  by  the  specific  insurances 
thereon,  and  to  determine  the  amount  for 
which  this  company  is  liable  in  case  of  loss, 
such  floating  policies  shall  be  considered  an 
insurance  on  the  propertj-  to  the  extent  of  such 
excess."  There  were  other  insurances  on  the 
same  subjects  to  the  amount  of  $75,000.  There 
was  also  $10,000  in  another  company  on  ma- 
chinery in  the  erecting  shop  of  the  foundrj', 
and  further  insurances,  ^50,000  on  machinery 
made  and  being  made,  intended  for,  and  to  be 
placed  in,  a  certain  steamer,  in  varicms  build- 
ings upon  the  lot  known  as  the  Southworlh 
Foundry.  Held,  the  stipulation  did  not  limit 
insurers'  liability  to  the  excess  of  loss  not  cov- 
ered by  the  specific  insurances.  Hence  in- 
surers were  bound  to  contribute  ratably  on 
the  property  insured  by  the  specific  policies. 
Merrick cGemiania  Fire  Ins.  Co.,  54  Penn  St.» 
277. 


FOR  ACCOUNT    OF   WHOM 
CONCERN. 


IT   MAY 


I.  Whose  interests  shaix  be  es-clttded. 

II.  NOT  BE  INCLUDEIX 

1.  "WuOSE    rSTEEIBTS   SHALL   BE    IN- 

CLUDED. 

t.  The  policy  was  effected  by  L.  &  C.  for 
Le(mard,  "or  whom  the  same  may  concern." 
Held,  it  covered  the  interest  of  Leonard  or  of 
any  other  person  who  had  an  interest  in  the 
subject  iusured,  and  who  had  given  authority 
to  make  the  insurance.  Seamans  v.  Loring^ 
1  Mason,  127. 

2.  Time  policy  on  a  steam  vessel,  each  voy- 
age  to  bear  its  own  average,  made  to  the  Nor- 
wich &  Worcester  Railroad  Co.,  for  account  of 
whom  it  might  concern,  loss  payable  to  H., 
who  it  seems  had  no  interest  in  the  vessel 
when  Uie  policy  was  made,  but  acquired  hi» 


5C1 


FOR  ACCOUNT  OF  WHOM  IT  MAY  CONCERN. 


502 


Whose  interests  shall  be  included. 


interest  before  the  loss.     Held,  a  valid  policy. 
Hemhaw  v.  Muttml  Safety  Ins.  Co.,  2  Blatcli.,  99. 

3.  A  general  policy,  "as  well  for  the  parties 
named  as  for  .all  and  every  other  person  and 
persons  to  wlunn  the  vessel  did  or  might  ap- 
pertain." If  contained  no  warranty  of  neu- 
trality. Held,  it  included  property  of  belliger- 
ents as  well  as  the  property  of  Americans;  if 
insurer  intended  to  take  the  risk  of  neutral 
propertj'  only,  an  express  warranty  to  that 
effect  should  li.ave  been  inserted.  Hodgson  v. 
Marine  Ins.  Co.,  5  Gran.,  100. 

4.  When  the  policy  reads,  "  Every  other  per- 
son to  whom  the  property  doth,  may,  or  shall 
appertain,  in  whole  or  in  part,"  it  cannot  be 
confined  to  the  person  named,  or  to  the  amount 
of  his  interest  in  joint  property.  Lawrence  v. 
Sehor,  2  Gaines,  *2n3. 

5.  "  On  account  of  whom  it  may  concern,  for 
outward  shipments  and  homewards,  to  be  for 
account  of  themselves,  and  to  be  consigned  to 
them  for  sale  under  invoice  and  bill  of  lading, 
from  a  port  covered  by  the  policj-."  Plaint- 
iflCs  correspondents  made  shipments  of  coffee 
from  the  port  covered  by  the  policy  for  sale 
by  them  as  factors,  for  account  of  the  owner; 
and  application  was  made  to  defendants  to 
indorse  the  risk,  but  it  was  refused.  The 
vessel  was  never  heard  of  after  she  sailed. 
Held,  the  policy  should  be  read,  on  account 
of  whom  it  may  concern  for  outward  ship- 
ments, and  homeward  shipments,  consigned 
to  them  by  invoice  and  bill  of  lading,  hence  it 
covered  the  shipment  in  question.  Bolker  v. 
Greai  Western  Ins.  Co.,  42  N.  T.  (3  Keyes),  17; 
B.  c,  4  Abb.  Dec,  76;  8  Bos.,  222;  2  Sweeney, 
275. 

6.  Policy  to  G.  for  the  benefit  of  whom  it 
might  concern.  She  was  owned  by  four  per- 
sons,  one  of  whom  executed  a  sealed  instru- 
ment revoking  the  authority  of  C.  to  claim  in- 
demnity on  account  of  his  interest.  Held, 
that  did  not  prevent  0.  from  recovering  for 
the  interests  of  the  other  persons;  and  he 
might  recover  for  their  interests  averring  that 
the  policy  was  made  for  one  of  the  owners, 
and  that  he  was  interested  to  the  whole 
amount  insured.  Copeland  v.  Mercantile  Ins. 
Co.,  6  Pick.,  198. 

7.  When  the  person  insured  seeks  to  recover 
for  an  interest  which  he  alleges  is  covered  by 
the  policy,  he  must  show  a  previous  direction 
to  insure  or  a  ratification  of  his  act,  and  ex- 
trinsic  evidence  is  admissible  to  show  the  in- 


tention.   Foster  v.  United  States  Ins.  Co.,  11 
Pick.,  85. 

8.  The  by-laws  provided,  "  None  but  mem- 
bers of  the  company  shall  be  insured ;  "  but  a 
policy  was  granted  to  M.  &  C.  "  On  account 
of  whom  it  may  concern."  The  plaintifls 
were  the  owners  of  the  vessel  and  her  freight. 
Held,  tlie  plaintifls  could  recover  in  their 
own  names  upon  Ihc  contract  Cciting  2  Phil- 
lips on  Ins.,  19.58).  Sonnes  v.  Equitable  Siifdy 
Ins.  Co.,  12  Gray.,  531. 

9.  Policy  to  "P.  E.  Kingman  and  others  of 
Boston.  In  case  of  loss,  payable  to  the  Shaw- 
mut  Sugar  Refining  Co."  Kingman  assigned 
his  interest  in  the  policy  to  which  insurers 
assented.  Held,  the  plaintiffs  had  the  right  to 
prove,  if  they  could,  tliat  they  were  one  of  the 
contracting  parties  and  had  a  beneficial  inter- 
est  in  the  contract.  Shawmut  Sugar  Co.  v. 
Hampden  Mut.  Ins.  Co.,  12  Gray,  540. 

10.  She  was  owned  by  J.  C.  Rogers  who 
was  master;  and  the  policy  was  m.ade  to  S. 
&  B.  "  for  account  of  whom  it  concerns,"  on 
schooner  Arbutus  from  Portland  to  Cardenas, 
and  at  and  from  thence  back  to  a  port  of  dis- 
charge in  the  United  States,  lo.ss  payable  to  S. 
&  B.  The  above  is  to  cover  their  claim  for 
supplies  furnished  the  vessel."  Held,  it  was 
not  limited  to  the  claim  which  S.  &  B.  had 
against  the  vessel  for  supplies  furnished. 
Stephenson  v.  Piseataqua  Fire  and  Marine  Ins. 
Co.,  54  Me.,  55. 

11.  The  plaintiffs  declared  upon  a  contract 
to  G.,  M.  &  B.,  in  the  name  of  "  Sanders  and 
others."  The  contract  oflered  in  evidence 
was  made  to  "  Sanders  and  others."  Held,  a 
question  of  fact  for  the  jury  to  determine 
from  all  the  evidence,  whether  the  plaintiffs 
were  the  persons  intended  to  be  insured  under 
the  name  and  style  mentioned  in  the  policy. 
Sanders  v.  Hillsborough  Ins.  Co..  44  N.  H.,  238. 

12.  A.  agreed  to  load  her  with  lumber,  if 
he  could  get  insurance.  F.,  the  master,  and 
part  owner,  employed  an  agent  to  obtain  it, 
without  express  authority  from  A.,  nor  did  he 
know  that  it  was  made  till  after  the  policy  was 
issued  in  the  name  of  I.,  for  whom  it  concerns. 
A.  adopted  it  and  loaded  the  vessel.  Held,  a 
question  for  the  jury  to  determine  whether 
when  policy  was  obtained  it  was  intended  to 
cover  the  cargo  of  A. ;  that  the  court  erred  in 
withdrawing  that  question  from  jury.  Augusta 
Ins.  and  Banking  Co.  v.  Abbott,  12  Md.,  .348. 

1 3.  To  "  Mrs.  E.  W.  B.,  executrLx."    Held, 

281 


563 


FOR  ACCOUNT  OF  WHOM  IT  MAY  CONCERN. 


564 


Whose  interests  shall  not  be  included. 


the  addition  "executrix"  was  equivalent  to 
the  phrase,  "  for  the  benefit  of  tlie  parties  en- 
tilled  to  the  estate  of  which  insured  is  execu- 
trix." Globe  Ins.  Co.  v.  Boyle,  21  Ohio  St.,  119 ; 
affirming  s.  c,  1  Cin.  S.  C,  414. 

14.  Policy  issued  to  M.  &  Co.  Insurers 
were  afterwards  told  that  the  owners  of  the 
premises  were  not  doing  business  under  that 
name,  and  thereupon  insurers  indorsed :  "Loss, 
if  any,  payable  to  C.  E.  Matthews  and  James 
Marshal.  Held,  they  could  maintain  an  ac- 
tion in  their  own  name,  for  the  benefit  of  all 
the  owners  of  the  property.  Matthews  v.  Queen 
City  Ins.  Co.,  3  Cin.  S.  C,  109. 

15.  The  application  stated  that  insurance 
■was  required  in  the  name  of  A.,  for  account  of 
whom  it  may  concern.  Held,  notice  to  insur- 
ers that  interests  other  than  that  of  A.  were  in- 
tended to  be  covered;  if  insurers  wished  to 
know  whose  interests,  they  were  bound  to  in- 
quire, and  in  such  a  case  whether  insurance 
was  intended  for  A.'s  benefit  as  vendor,  mort- 
gagee or  privileged  creditor,  or  for  the  benefit 
of  A.'s  debtor,  the  policy  was  sufiicient.  Sell 
«.  Western  3tarine  and  Fire  Ins.  Co.,  5  Rob. 
(La.),  423 ;  Sa7ne  -v.  Fireman's  Ins.  Co.,  id.,  446. 

16.  Open  policy  to  J.  L.  "On  cotton  for 
account  of  whom  it  might  concern."  Cotton 
was  consigned  to  J.  L.  by  mistake,  who  re- 
ceived a  bill  of  lading  of  it  and  was  afterwards 
directed  by  the  owner  to  turn  it  over  to  R.  B. 
&  Co.,  but  before  that  was  done  the  property 
was  lost.  Held,  the  bill  of  lading  was  sufficient 
evidence  of  the  right  of  insured  to  receive  the 
cotton;  the  letter  requesting  him  to  turn  it 
over  to  another  house  was  not  inconsistent 
with  the  original  consignment,  and  the  policy 
included  the  loss.  Ballard  v.  Merchants  Ins. 
Co.,  9  La.  (O.  S.),  258. 

17.  Policy  to  A.,  B.  &  Co.,  for  account  of 
whom  it  may  concern,  on  ship  and  freight.  A., 
B.  &  Co.  had  advanced  their  credit  and  cash 
largely  upon  the  expected  earnings  of  the 
vessel,  and  the  owner  assigned  to  them  half 
interest  in  the  freight  and  ail  the  cargo  for 
them  to  receive  the  proceeds,  satisfy  their  ad- 
vances, and  pay  over  to  him  the  balance,  if 
any.  Held,  whether  the  policy  covered  interests 
of  A.,  B.  &  Co.,  and  the  interests  of  the  ship- 
owner was  a  question  of  intention,  to  be  ascer- 
tained by  the  facts  proven.  Paradise  v.  Sun 
Mutual  Ins.  Co.,  6  La.  An.,  596. 

18.  Insured  were  commission  merchants, 
jeceiving  consignments   from   India,  against 

283 


which  they  were  in  the  habit  of  accepting 
bills.  They  procured  two  policies,  each  for 
£5,000;  "  As  well  in  their  own  names  as  for  and 
in  the  names  of  all  and  every  person  and  per- 
sons to  whom  the  same  doth,  may  or  shall  apper. 
tain,  in  part  or  in  all,  on  cotton  from  Bombay 
to  London,  by  ship  or  ships."  As  insured  re- 
ceived advices  of  shipments,  they  indorsed 
the  value  of  the  goods  and  names  of  the  ves- 
sels in  the  usual  waj'  upon  the  policies.  A. 
shipment  of  250  bales  was  made  and  drawn 
against.  The  bill  was  negotiated  through  a 
banker  in  India,  with  whom  the  shipping 
documents  were  lodged  as  security,  and  was 
subsequently  accepted,  "Against  delivery  of 
shipping  documents."  The  shipment  was  de- 
clared upon  the  policies,  and  the  plaintiffs 
wrote  the  bank  that  they  would  hold  the 
amount  insured  at  the  bank's  disposal,  until 
payment  of  the  acceptance.  She  was  lost  at 
sea  June  11th.  Insured  paid  their  acceptance 
November  24th,  and  received  the  bills  of 
lading.  Held,  plaintiffs  had  an  equitable  in- 
terest in  every  part  of  the  cotton,  because  of 
their  liabilitj'  under  their  acceptance;  that  as 
consignees  they  were  entitled  to  insure  the 
whole  of  it  in  their  own  names,  to  its  full 
value,  and  were  entitled  to  recover  the  whole 
amount  upon  an  averment  of  interest  in  them- 
selves,  holding  the  moneys  so  recovered  and 
not  applied  to  their  own  lien,  as  trustees  for 
the  benefit  of  the  consignors.  Ebsworth  v.  Al- 
liance Marine  Ina.  Co.,  8  L.  R.  C.  P.,  596 ;  43 
L.  J.  C.  P.,  305;  29  L.  T.  (N.  S.),  479. 

II.  "Whose   interests  shall   not   be 

INCLUDED. 

1.  J.  had  funds  in  hand  at  Bergen,  Norway, 
which  he  desired  to  remit  to  L.,  at  Boston. 
The  Fame  and  her  cargo  had  been  captured 
and  carried  into  Bergen,  the  cargo  put  into 
government  stores  and  the  vessel  stripped  and 
moored.  J.  purchased  the  cargo,  reloaded  it, 
and  she  sailed  about  June  23,  1815,  for  Boston, 
consigned  to  Loring  &  Curtis.  The  policy 
was  effected  February  7,  1814,  for  "  L.  &  C, 
or  whom  it  might  concern."  In  the  autumn 
of  1814,  the  captor  made  a  contract  with  J.  to 
sell  the  vessel  to  him.  Held,  the  policy  in- 
cluded nothing  but  the  interest  of  J.  The 
captor  could  not  take  anj'  of  its  benefits.  At 
the  time  the  policy  was  made,  neither  J.  nor 
L.  &  C.  had  acquired  any  interest  in  the  sub- 


565 


FOR  ACCOUNT  OF  WHOM  IT  MAY  CONCERN. 


566 


Whose  interests  shall  not  be  included. 


ject  insured ;  a  lack  of  interest  at  the  time  pol- 
icy was  made  was  not  cured  by  an  interest 
acquired  subsequently.  Saimans  v.  Loriiig,  1 
Mason,  137. 

2.  Policy  to  S.  &  T.,  "  For  account  of  wliom 
it  might  concern."  Ileld,  insurers  agreed  to 
become  liable  to  sucli  persons  as  S.  &  T.  in- 
tended and  were  authorized  to  insure,  and 
that  entries  in  the  books  of  S.  &  T.,  showing 
the  accounts  of  the  parties  interested,  were 
evidence  to  prove  that  S.  &  T.  were  not  tlie 
parties  insured.  F»rgay  v.  Atlantic  Mut.  Ins. 
Co.,  3  Rob.  (N.  Y.),  79. 

3.  On  the  outfits  of  schooner  P.,  on  account 
of  whom  it  may  concern,  loss,  if  any,  payable 
to  the  insured.  The  insured  supplied  tlie  ves- 
sel with  the  outfits  which  were  to  be  used  on 
the  voj-age.  Ileld,  it  could  not  cover  the  in- 
terests of  the  owner  of  the  vessel ;  tliat  it  cov- 
ered  the  interests  of  the  insured  and  nothing 
beyond;  as  they  had  no  legal  insurable  inter- 
est in  the  subject,  no  recovery  could  be  had. 
Fohom  V  Merdianta  Ins.  Co.,  38  Me.,  414. 

4.  A  ship  master,  part  owner,  procured  a 
policy  upon  his  interest  "  On  account  of  whom 
it  mu}-  concern,"  loss,  if  any,  paj'able  to  him- 
self. Ship  and  all  hands  were  lost  on  the 
voyage.  The  plaintiff  proved  that  the  deceased 
ship  master  said  he  would  secure  a  loan,  made 
by  the  plaintiff  to  tlie  deceased,  by  a  policy  on 
the  vessel;  also  that  the  deceased  had  said 
thathe  had  secured  the  plairititf  by  procuring 
a  policy  for  his  benefit.  Held,  inadmissible, 
unless  the  plaintiff  could  show  that  when  the 
deceased  effected  the  insurance,  he  acted  as 
the  agent  of  the  plaintiff  in  procuring  it;  the 
declarations  of  the  deceased  were  not  suffi- 
cient for  that  purpose.  Sleeper  v.  Union  Ins. 
Co.,  61  Me.,  367. 

5.  Upon  a  question  whether  insurance  made 
"  For  account  of  whom  it  may  concern,"  was 
intended  to  include  property  of  particular  per- 
sons, evidence  that  it  was  generally  known 
tliat  insured  usually  made  insurance  for  tlie 
benefit  of  all  their  customers  is  not  sufficient. 
Steele  v.  Franklin  Fire  Iris.Co.,  17  Peun.  St.,  290. 

6.  "  For  whom  it  may  concern  "  embraces 
the  interests  of  such  person  or  persons  as  were 
contemplated  at  the  time  the  policy  was  made, 
and  not  any  and  every  person  who  might 
chance  to  have  an  interest  in  the  thing  in- 
sured; and  wliere  the  policy  does  not  contain 
the  words  "  for  wliom  it  ma}-  concern,"  or 
words  of  similar  import,  none  but  the  person 


named  in  it  can  claim  to  be  indemnified  by  it. 
Newson  v.  Douglass,  7  II.  &  J.,  417. 

7.  A.  purcliased  a  steamboat  at  sherifl's 
sale,  used  her  as  his  own  property  for  several 
years,  on  his  own  account,  and  insured  her 
freight  in  his  own  name  "  for  account  of  whom 
it  might  concern."  Held,  the  policy  was  Urn- 
ited  to  those  who  had  an  insurable  interest  in 
the  subject  insured,  and  to  the  interests  of 
those  who  were  in  fact  intended  to  be  insured, 
and  these  wore  those  who  had  previously  di- 
rected or  authorized,  or  subsequently  adopted 
in  due  season  the  insurance  so  made.  Frier- 
son  V.  Brenham,  5  La.  An.,  540. 

8.  Property  shipped  at  New  Orleans  fo-r 
Liverpool  was  insured  by  owners  in  London, 
about  the  time  of  shipment;  but  owing  to  an 
accident,  it  was  rclauded  and  stored  in  New 
Orleans,  and  there  again  insured  by  the  con- 
signors,  "  on  account  of  whom  it  may  con- 
cern." While  so  stored  it  was  destroyed  by 
fire.  The  London  insurers  paid  the  claim,  and 
brought  suit  against  the  second  insurers. 
Held,  the  persons  who  aided  in  obtaining  this 
policy  had  no  authority  to  act  for  the  plaint- 
ifl's,  nor  were  their  acts  sanctioned  before  the 
loss;  therefore,  so  far  as  plaintiU's  were  con- 
cerned,  the  contract  was  null  and  void.  Alli- 
ance Marine  Ass.  Co.  v.  Louisiana  State  Ins.  Co., 
8  La.  (O.  S.),  1. 

9.  Policy  in  the  name  of  D.  L.  S.,  "for  ac- 
count of  whom  it  may  concern,  to  cover  all 
shipments  made  to  the  address  of  insured, 
from  the  time  of  shipment,  risks  to  be  reported 
as  soon  as  known."  Held,  before  insured  can 
recover,  it  must  appear  that  the  goods  were 
shipped  to  his  address,  or  if  addressed  to 
another  person,  that  they  were  reported. 
Shearer  v.  Louisiana  Ins.  Co.,  14  La.  An.,  809. 

10.  "A."  had  a  policy  for  himself,  upon  any 
kind  of  goods  and  merchandise  as  interest 
might  appear.  He  was  instructed  to  eflfect  a 
policy  for  £5,000  against  jettison  only,  subject 
to  subsequent  declaration ;  and,  being  unable  to 
do  so,  he  procured  the  risk  to  be  indorsed  upon 
his  policy,  "  On  deck,  against  risk  of  jettison 
only."  The  person  for  whose  benefit  the  in- 
surance was  effected  was  the  owner  of  a  line 
of  steamboats,  and  according  to  the  custom  of 
the  trade,  was  liable  to  the  owners  for  goods 
sliipped  upon  deck.  They  were  jettisoned. 
Held,  the  contract  was  not  made  by  the  plaint- 
iff, nor  did  it  purport  to  be  made  on  his  behalf, 
for  it  was  made  by  "A."  on  his  own  behalf; 

283 


567 


FOREIGN  ADJUSTMENT  — FRAUD. 


56S 


What  is  evidence  of. 


that  no  person  can  take  the  benefits  of  a 
policy  of  insurance  but  those  who  were  con- 
templated at  the  time  the  policy  was  made; 
that  "  A."  could  not  appropriate  a  part  of  his 
own  contract  of  insurance  to  the  benefit  of  the 
plaintiif,  hence  a  plea  denying  that  the  policy 
was  made  for  the  use  and  benefit  or  for  ac- 
count of  the  plaintiff  was  sustained,  and  the 
defendant  entitled  to  judgment.  Watson  b. 
Swan,  11  C.  B.  (N.  S.),  756;  s.  c,  31  L.  J.  C. 
P.,  310. 


f  OREIGN  AD.TUST3rENT. 

(See  Genbrai  Ateraoe.) 


FOREIGN  JUDGMENT. 

Action  on  a  foreign  judgment.  Defendants 
pleaded  it  was  founded  upon  a  policy  of  in- 
surance which  provided  that  in  case  of  loss, 
the  same  should  be  paid  within  sixty  days 
after  proof  and  adjustment  of  the  claim,  and 
averred  that  no  proof  or  adjustment  was  ever 
made.  Replication;  defendant  refused  to  pay 
the  claim,  not  for  the  want  of  such  proof  and 
adjustment,  but  for  other  and  different  reasons 
which  the  law,  of  the  place  where  the  judg 
ment  was  obtained,  regarded  as  a  waiver  of 
proof  of  said  loss  and  adjustment.  Held,  a 
bad  replication,  for  the  same  defense  was  ad- 
missible against  the  judgment  record  that 
would  have  been  against  the  policy,  had  it 
been  sued  in  Canada.  Waydell  v.  Provincial 
Ins.  Co.,  21  U.  C.  Q.  B.,  613. 


FOREIGN  SENTENCE. 

(See  Sentence  op  Condemnation.) 


2S4 


FORFEITURE  OF  POLICY, 

(See  Ebtopi-el.) 


FRAUD. 

(See  PAiSE   SWEARTNG.) 

What  is  evidence  of. 

1.  In  an  action  for  the  loss,  insurers  have  a 
right  to  prove  gross  misconduct  of  insured,  on 
the  ground  that  crasaa  negligentia  is  proof  of 
frauil  or  equivalent  to  fraudulent  purpose  or 
design,  though  such  negligence  consists  in 
doing  nothing;  for  the  doing  of  nothiug  when 
the  slightest  care  would  prevent  great  injury, 
manifests  a  willingness  differing  little  in  char- 
acter from  fraudulent  and  criminal  purpose 
to  commit  the  injury.  Chandler  v.  Worcester 
Mutual  Fire  Ins.  Co.,  3  Gush.,  338. 

2.  The  officers  of  an  insurance  company  are 
not  bound  to  know  conclusively  whether  the 
company  is  insolvent;  yet  if  they  neglect  to 
use  proper  care  and  diligence  to  ascertain  the 
condition  of  the  company,  and  hold  it  out  aa 
solvent,  but  by  the  u.«e  of  proper  care  and  dil- 
igence  might  know  it  was  insolvent,  there  is 
good  reason  for  holding  them  guilty  of  fraud. 
Brown  v.  Donnell,  49  Maine,  431. 

3.  Stipulated:  "The  application  shall  be  a 
part  of  the  policy,  and  a  warranty  by  the  in- 
sured." Also,  "  any  omission  to  make  known 
any  fact  material  to  the  risk,  or  an  over  valu- 
ation  or  misrepresentation,  either  in  the  writ- 
ten  application  or  otherwise,  shall  make  the 
policy  void."  Insured  stated  that  his  title  was 
an  article  of  agreement,  and  he  was  asked 
whether  the  property  was  incumbered,  to 
which  he  answered:  "By  mortgage,  |4,000.'* 
He  was  asked  to  state  the  whole  value  of  the 
property,  including  buildings.  He  answered: 
"  $8,000  or  more."  Held,  the  question  of  over 
valuation  was  not  one  to  be  submitted  to  the 
jury,  for  the  statement  of  value  was  to  be 
treated  as  a  warranty,  and  any  substantial  over 
valuation  was  a  breach  of  it.  American  Int. 
Co.  V.  Gilbert,  27  Jlich.,  429. 

4.  Action  for  falsely  representing  the  affairs 
of  an  insurance  company,  whereby  the  plaint, 
iflf  was  induced  to  effect  an  insurance  in  it. 
The  declaration  set  forth  several  rules  and 
regulations  of  the  company,  and  averred  that 
the  defendant  fraudulently  represented  that 
these  rules  had  been  complied  with,  when 
they  knew  the  facts  were  otherwise.  Plea: 
"  The  rules  and  regulations  had  been  com- 
plied with  sufficient  for  the  maintenance  o£ 


soy 


FREE  FROM  AVERAGE  — FREIGHT. 


570 


What  cannot  be  insured  as  freight. 


tliu  company,  ami  such  insurances  as  then  had 
been  or  thorcaflw  might  be  efl'ccted."  Ileld, 
bad.  Pontifex  v.  Bigiiold,  3  M.  &  G.  63;  8 
Scott  (N.  It.),  390. 

5.  Tlie  court  left  it  for  the  jury  to  say, 
whether  the  valuatious  were  excessive,  and  if 
so,  whether  they  were  made  with  a  fraudulent 
intent  ;  and  whether  fraudulent  or  not,  was  it 
material  for  the  underwriter  to  know  whether 
the  valuation  was  excessive.  The  jury  an- 
swered that  the  valuatious  were  excessive,  that 
that  there  was  not  sufficient  evidence  to  show 
that  they  were  made  with  fraudulent  intent; 
but  whetlier  fraudulent  or  not,  it  was  material 
for  the  underwriter  to  know  that  they  were  ex- 
cessive, and  that  the  excessive  valuation  was 
concealed.  Held,  the  verdict  of  the  jury, 
which  was  for  the  defendant,  should  not  be 
disturbed.  lonides  v.  Pender.  9  L.  K.  Q.  B., 
531 ;  48  L.  J.  Q.  B.,  327 ;  33  W.  R.,  884 ;  30  L. 
T.  (N.  S.),  547. 

6.  The  plaintiffs  were  assignees  and  held 
the  policy  upon  the  life  of  the  bankrupt  as 
part  of  his  assets.  They  offered  it  for  sale  but 
no  purchaser  could  be  found.  The  bankrupt 
became  suddenly  ill,  and  the  defendant  and 
his  attorney  procured  the  assignee  to  sell  it  to 
the  defendant  for  si.xty  guineas,  without  in- 
forming the  assignee  of  the  bankrupt's  ex- 
treme illness.  The  policy  was  for  the  sum  of 
£999.  Held,  the  defendeut's  conduct  amount- 
ed to  a  legal  fraud,  from  which  he  could  not 
set  up  any  title  to  the  policy  (citing  Hill  «. 
Gray,  1  Starkie,  434;  Turner  v.  Harvey,  1 
Jack.,  1G9J.    Jones  v.  Keeiie,  2  M.  &  Rob.,  348. 


FREE  FROM  AVERAGE. 

(See  Wabkanted  Free  from  Average.) 


FREE  FROM  CAPTURE. 

(See  Captube  and  Ssizube.) 


FREE  FROM  SEIZURE  IN  PORT. 

(Sec  In  Poet.) 


FR03I. 

(See  At  ans  Fbox.) 


I. 

II. 

III. 

IV. 

V. 

VI. 

VII. 

VIII. 

IX. 

X. 

XI. 


FREIGHT. 

(See  Construction.) 

What  cannot  be  insdbed  as  fkeight. 
When  policy  does  not  attach. 

freight  ruo  kata  itineris  18 

DUE. 
FKEIGHT   PUG  RATA    ITENIBI8    IS 
NOT  DDE. 

What  is  not  a  loss  op. 
A  total  loss  op. 
partial  loss  op. 
When  insurers  of  ship  bhall  have 

freight  earned. 
When  insurers  of  ship  shall  mot 

HAVE   freight   E-IRNED. 

Abandonment. 

Me.^SURE  of  DAMAGE. 


I.  What  cannot  be  instjeed  as 

FEEIGHT. 

1.  Ship  was  sold  and  registered  in  the  name 
of  the  vendee;  but  he  agreed  that  the  vendor 
should  have  the  benefit  of  the  freight  for  a 
voyage  previously  contracted;  the  vendee  in- 
sured  ship,  and  the  vendor  insured  her  freight 
for  the  same  voyage.  Meld,  the  vendor  had 
not  the  right  to  insure  it  as  freight,  without 
disclosing  the  nature  of  his  interest.  liiley  v. 
Deliijkld,1  Johns.,  522. 

2.  On  freight  earned  or  not  earned,  $15i000, 
valued  at  $25,000,  from  San  Francisco  to  New 
York.  She  was  wrecked  on  the  New  Jersey 
coast.  Insured  abandoned  to  insurers.  Tlie 
crew  saved  rigging  sufficient  in  value  to  pay 
their  wages,  also  a  part  of  the  cargo  the  freight 
on  which  was  sufficient  to  p.^y  their  wages. 
Held,  insurers  were  liable  for  all  expenses 
properly  chargeable  against  it  after  it  was 
abandoned ;  but  wages  earned  prior  to  tlie 
abandonment  were  not  charges  against  freight. 
Daniels  v.  Atlantic  Mut.  Ins.  Co.,  24  N.  Y., 
447;  s.  c,  8  Bos.,  266. 

3.  Poliey  upon  freight.  Insured  was  as- 
signee  of  a  certain  charter  parly;  the  amount 
to  be  paid  by  the  charterers  was  not  to  become 


571 


FREIGHT. 


572 


When  the  policy  does  not  attach  —  When  freight  ^ro  rata  intineris  is  due. 


due  until  her  safe  arrival.  Held,  insured  liad 
no  interest  in  freight,  as  such;  that  he  could 
not  insure  it  eo  nomine,  but  that  an  actual  ad- 
vance on  account  would  be  covered.  Bobbins 
V.  New  York  Ins.  Co.,  1  Hall  (N.  T.),  SS.I. 

4.  "  On  freight,  earued  or  not  earned,  valued 
at  $15,000,  policy  to  be  proof  of  interest,  and 
recoverable  onlj'  upon  total  loss."  Tlie  in- 
sured were  charterers.  She  took  a  cargo  from 
Whampoa  to  Bombay,  the  freight  of  which 
amounted  to  |2,900.  She  took  a  return  cargo 
for  Whampoa,  on  which  the  freight  was  |1,800. 
The  charterers  were  to  pay  about  $3,100  a 
month  for  her  use.  Held,  the  plaintiffs  were 
not  entitled  to  recover,  for  the  charterer  can- 
not insure  freight  eo  nomine.  Huth  v.  New 
Vorh  Mut.  Ins.  Co.,  8  Bos.,  538;    Mellen  v. 

National  Ins.  Co.,  1  Hall  (N.  T.),  453. 

5.  "  $1,500  on  prepaid  freight,  for  account 
of  whom  it  may  concern,  valued  at  $1,.')00." 
P.  shipped  the  cargo,  on  which  he  paid  $2,700 
freight.  Cost  of  cargo  aud  freight  amounted 
to  $3,800.  He  sold  it  to  the  plaintiff,  freight 
prepaid,  for  $4,350,  and  assigned  the  bill  of 
lading.  Neither  P.  nor  his  assignee  had  any 
interest  in  the  vessel.  She  made  a  port  of  dis- 
tress, was  surveyed,  condemned,  and  sold  un- 
der circumstances  that  would  have  authorized 
insured  on  cargo  to  recover  for  a  total  loss  of 
it.  An  abandonment  was  offered  and  refused. 
Held,  insured  was  not  interested  in  the  earn- 
ings of  the  vessel,  for  they  were  not  pledged 
to  him  as  security  for  money  advanced,  nor 
had  he  any  lien  upon  them  for  reimbursement 
in  case  the  contract  of  affreiglitmenl  should 
not  be  fulfilled;  the  mnuey  advanced  for  the 
freight  of  the  cargo  whicli  belonged  to  him 
was  not  an  absolute  payment  of  freight,  for 
it  appeared  by  the  bill  of  lading,  notwith- 
standing the  prepayment,  freight  would  not 
be  earned  unless  the  cargo  should  be  carried 
and  delivered  at  the  port  of  destination ;  there- 
fore, if  for  any  cause,  not  imputable  to  insured, 
the  carrier  failed  to  deliver  the  cargo  accord- 
ing to  the  terms  of  the  bill  of  lading,  insured 
might  recover  back  the  sum  advanced  (citing 
Griggs  ,D.  Austin,  3  Pick.,  30;  Brown  ■v.  Harris, 
3  Gray,  59).  That  the  money  advanced  by  in- 
sured to  the  carrier  was  in  the  nature  of  a 
conditional  loan,  and  gave  him  no  insurable 
interest  in  freight  to  wliich  the  policy  would 
attach.  Minturn  v.  Warren  Ins.  Co.,  2  Allen, 
86. 

6.  Insurers  of  freight  are  not  liable  for  sca- 
286 


men's  wages  and  provisions  during  an  em- 
bargo. Insurance  Co.  of  North  America  v. 
Jones,  3  Biun.,  547. 

7.  The  memorandum  for  charter  stipulated: 
"  One-half  the  freight  to  be  paid  at  the  unload- 
ing and  right  delivery  of  the  c.argo,  and  the 
balance  by  bill  at  four  months  on  London;" 
also,  "  The  captain  to  be  supplied  with  cash 
for  the  ship's  use."  The  master  drew  a  bill 
for  £219,  which  was  paid,  and  she  was  lost  on 
her  homeward  voyage.  Held,  the  freighters 
had  no  insurable  interest  in  freight,  and  that 
the  money  advanced  was  not  a  part  payment 
of  the  freight.  Manjield  v.  Maitland,  4  B.  & 
A.,  583. 

II.  When  the  policy  does  not  attach. 

On  ship  and  freight,  at  and  from  Jamaica  to 
Bristol.  The  cargo  was  ready  to  go  on  board, 
but  a  sudden  tempest  arose  and  she  was  lost. 
Held,  insured  could  not  recover  for  loss  of 
freight,  because  none  of  the  goods  were  actu- 
ally on  board.  Tonge  v.  Watts,  2  Strange, 
1351. 

III.  When  freight  pro  rata  itineris 

IS  DUE. 

1 .  Twenty  thousand  bushels  of  wheat  were 
shipped  at  Chicago,  to  be  delivered  by  the  pro- 
peller at  Buffalo,  in  good  order  and  condition, 
the  dangers  of  navigation  excepted.  She 
grounded  on  the  St.  Clair  Flats  November 
7th,  and  in  an  effort  to  get  off,  burst  her  boiler, 
sunk,  aud  was  compelled  to  suspend  the  voy- 
age to  make  necessary  repairs.  The  whole 
cargo  was  damaged  in  consequence,  except 
1,100  bushels.  Insurers  accepted  an  abandon- 
ment, and  paid  a  total  loss;  they  took  posses- 
sion of  it  and  sold  the  damaged  portion  there 
for  .f  1,200,  and  delivery  began' the  same  day; 
but  hearing  that  the  master  intended  to  claim 
freight,  insurer's  agent  was  directed  to  have 
nothing  further  to  do  with  it,  unless  the  mas- 
ter would  relinquish  his  claim.  The  agent 
and  the  master  agreed,  as  the  sale  had  been 
completed,  the  freight  should  be  left  for  after 
consideration.  19,100  bushels  were  delivered 
to  the  purchaser  on  the  flats  in  a  damaged 
condition,  and  the  residue,  1,100  bushels,  were 
carried  by  the  propeller  to  Buffalo.  The  mas- 
ter claimed  freight  pro  rata  for  that  delivered 
on  the  flats,  and  freight  in  full  for  tliat  deliv- 


573 


FREIGHT. 


574 


When  freight  pro  rata  itineris  is  not  due. 


ered  in  Buffalo.  Held,  insurers  were  subro- 
gated to  all  the  rights  of  the  shipper,  who 
might  have  left  the  responsibilities  of  refitting 
the  vessel  or  procuring  another  to  forward  the 
cargo  to  the  port  of  destiuatioii,  upou  the  mas- 
ter; but  they  permitted  no  choice,  whether  to 
refit  or  to  send  the  cargo  on  in  another  vessel ; 
and  it  was  too  late  for  the  insurance  company 
to  countermand  the  order  of  sale,  for  the  wheat 
had  beea  turned  over  to  the  insurer's  agent, 
■who  had  sold  it,  which  amounted  to  a  rescis- 
sion of  the  contract  expressed  in  the  bill  of 
lading  that  the  acceptance  was  voluntary,  and 
therefore  the  master  was  entitled  to  freight 
pro  rata  itineris  on  it,  and  full  freight  on  that 
carried  to  the  port  of  destination.  Propeller 
Mohawk,  8  Wall.,  153. 

2.  Insured  was  master,  consignee  and  joint 
owner  of  cargo.  He  sold  cargo  at  port  of 
necessity,  where  the  voyage  was  broken  up. 
Held,  a  reception  by  cargo  owner  at  port  of 
necessity,  and  an  earning  of  freight  pro  rata 
itineris,  and  so  establishes  only  a  partial  loss, 
of  freight.     Williams  v.  Smith,  3  Caines,  13. 

3.  Wlten  goods  are  shipped  and  voyage 
commenced,  the  right  of  ship  owner  to  full 
freight  has  attached ;  and,  in  case  of  .accident  or 
detention,  either  by  putting  back  or  stopping 
at  an  intermediate  port,  more  or  less  distant 
from  the  port  of  destination,  the  shipper  has 
no  right  to  the  goods  -without  paying  full 
freight,  if  the  ship  can  be  refitted  or  another 
procured  within  a  reasonable  time  to  transmit 
the  cargo.  And  if  the  shipper  consents  to  re- 
ceive the  goods,  the  law  raises  a  promise  to  pay 
freight  pro  rata  itineris,  provided  there  has 
been  beneficial  service  rendered  by  the  ship 
to  the  cargo ;  but  there  is  none  if  the  cost  of 
transporting  the  goods  from  the  place  of  de- 
tention to  the  point  of  destination  is  equal  to 
the  freight  stipulated  to  be  paid.  M'Qaw  v. 
Ocean.  Ins.  Co.,  23  Pick.,  405. 

4.  "On  freight  from  Callao  to  the  Chincha 
Islands,  thence  to  Callao  for  a  clearance,  and 
thence  to  a  port  in  Europe  or  tlie  United 
States."  She  sprang  a  leak  and  returned  to 
Callao,  was  unladen,  and  it  was  found  neces- 
sary to  repair  her  at  a  cost  e.xceeding  her 
value.  For  the  want  of  money  to  make  the 
repairs  she  was  sold.  Tlie  shippers  took  the 
cargo  from  the  master  and  forwarded  it  by 
other  vessels.  Held,  where  the  ship  is  wrecked 
or  disabled,  and  the  shipper  himself,  or  by  his 
agent,  prefers  to  take  his  goods  at  an  inter- 


mediate port  rather  than  to  have  them  for- 
warded to  the  port  of  destination,  and  the  ship 
owner  liimself,  or  by  his  agents,  choose  to 
deliver  them  to  the  shipper  rather  than  to  re- 
ship  them  to  the  port  of  destination,  it  is  a 
case  of  freight  earned  pro  rata  itineris.  Mer- 
chants Mut.  Ins.  Co.  V.  Butler,  20  Md.,  41. 

IV.      "WUEN   FREIGHT   PRO    RATA    ITIN- 
ERIS IS  NOT  DUE. 

1.  Plaintiffs  were  owners  of  slap  and  cargo, 
and  effected  an  insurance  on  the  cargo  from 
Bordeaux  to  New  York  with  defendants, 
111,000  and  iflO.OOO  by  other  underwriters. 
$1,986  was  uninsured.  She  was  captured,  car- 
ried into  Halifax,  condemned  and  sold,  and 
plaintiffs  abandoned  to  the  underwriters,  and 
received  payment  as  for  a  total  loss.  The  sen- 
tence of  condemnation  was  reversed,  and  the 
proceeds  of  the  cargo  paid  over  to  insurers 
thereof,  in  proportion  to  the  sums  by  them  re- 
spectively underwritten.  This  suit  was  insti- 
tuted to  recover  freight  pro  rata  iteneris.  Held, 
as  between  insured  and  insurer  of  cargo,  the 
latter  is  in  no  case  responsible  for  the  pay- 
ment of  freight,  whether  there  be  or  not  ai» 
abandonment  of  cargo;  because  freight  is  a 
charge  upon  the  cargo  against  which  the  in- 
surer of  cargo  does  not  undertake  to  indemnify 
the  owner  (citing  Bailey  ®.  Modigliani,  Mar- 
shall, 728j.  Held,  also,  freight  was  not  due 
upon  this  cargo  at  Halifax,  because  there  was 
no  voluntary  acceptance  of  it  there;  that  a 
compulsory  receipt  of  the  proceeds  from  the 
hands  of  tlie  admiralty,  after  capture,  con. 
demnation,  and  ultimate  restoration  upon  ap- 
peal, was  not  a  voluntary  acceptance  of  cargo. 
Caze  V.  Baltimore  Ins.  Co.,  7  Craach,  358. 

2.  The  insurers  of  cargo,  after  paj'ing  a  total 
loss,  received  the  proceeds,  it  having  been  for- 
w.arded  from  the  point  of  distress  for  the  best 
interests  of  all  concerned,  and  without  preju- 
dice to  either  party.  Held,  there  must  be  a 
voluntary  and  unconditional  acceptance  by 
the  cargo  owner,  at  the  intermediate  port,  to 
form  the  basis  of  a  new  contract  to  pay  freight 
pro  rata,  and  that  this  was  a  mere  acceptance 
of  the  salvage,  or  the  remains  of  the  cargo. 
Marine  Ins.  Co.  v.  United  States  Ins.  Co.,  9 
Johns.,  186. 

3.  The  cargo  owner  procured  insurance.  The 
goods  were  damaged  and  surrendered  to  in- 
surers at  a  point  short  of  the  port  of  destina^ 

287 


575 


FREIGHT. 


576 


What  is  not  a  loss  of. 


tiou,  and  insurers  paid  a  total  loss.  Held,  the 
fact  that  the  cargo  was  insured,  aud  that  in- 
surers had  paid  a  total  loss,  gave  the  carriers 
DO  right  to  recover  freight.  McEibbin  v.  Peck, 
39  N.  Y.,  2G3. 

4.  She  was  wrecked  within  thirty  five  miles 
of  her  port  of  destination.  A  part  of  her 
cargo  washed  ashore  and  piled  on  the  beach. 
All  hands  were  lost.  The  owner  and  con- 
signee of  tlie  cargo  al^andoned  it  to  insurers, 
who  could  not  find  any  owner  or  pari  owner 
of  the  vessel,  nor  any  one  in  their  behalf 
They  contracted  with  a  thirii  person  to  deliver 
the  cargo  saved  at  its  port  of  destination  for  a 
specific  compensation,  and  it  was  forwarded 
and  sold.  Held,  the  ship  owner  was  not  enti- 
tled to  freight  pro  rata,  because  the  owner  of 
the  goods  did  not  elect  to  receive  them  at  the 
intermediate  place;  that  the  act  of  the  insurer, 
who  had  accepted  the  abandonment  and  paid 
a  total  loss,  could  not  be  regarded  as  a  volun- 
tary acceptance,  hence  the  insurer  was  enti- 
tled to  receive  the  whole  amount  of  proceeds 
less  the  expense  of  saving.  Atlantic  Mut. 
Ins.  Co.  V.  Bird.  2  Bos.,  195. 

5.  On  ship  and  cargo  to  one  person  —  Phil- 
adelphia to  Barbados.  The  ship  aud  cargo 
were  abandoned  at  a  port  of  necessity.  Held, 
insured  on  ship  had  no  right  as  against  the 
insurers  of  cargo  to  freight  pro  rata  itineris. 
Armroyd  v.  Union  Ins.  Co.,  3  BintL,  437. 

V.  "What  is  not  a  loss  of. 

1.  On  freight,  valued  at  $3,500,  frcm  Phila- 
delphia to  Surinam.  She  sailed  August  7lh 
and  arrived  September  17th.  The  commander 
^)f  the  British  fort  informed  the  master,  tliat 
the  colony  had  been  in  possession  of  the 
British  forces  about  twenty  days.  The  con- 
signee was  a  passenger  on  the  vessel.  The 
cargo  was  to  be  delivered  to  him  on  the  paj'- 
ment  of  $25,310,  in  pursuance  of  a  contract 
Ijetween  him  and  insured.  The  cargo  was 
tendered  at  the  town  of  Paramanto,  to  be 
paid  for  as  soon  as  possible  after  the  delivery. 
The  governor  gave  permission  for  her  to  pro- 
ceed to  the  town,  where  she  arrived  on  the 
19th  but  the  collector  would  not  allow  any- 
thing to  be  landed,  except  provisions  —  about 
one-eighth  of  the  cargo.  The  master  repeatedly 
oftered  to  deliver  the  cargo,  but  was  refused 
permission  to  land  it.  She  returned  witli  it 
to  Philadelphia,  where  an  abandonment  was 
288 


offered  and  refused.  Held,  the  obtaining  per- 
mission  to  land  tlie  cargo  should  be  ou- 
sidered  as  an  obligation  resting  on  the  cm- 
signee;  that  the  freight  was  therefore  earned 
and  the  insurer  released.  Morgan  v.  Insuranu 
Co.  of  North  America,  4  Dall.,  4.55. 

2.  The  ship  was  wrecked  and  a  large  part 
of  the  cargo  saved.  Ship  and  cargo  were  the 
property  of  the  ship  owner.  Held,  in  point  of 
law  it  makes  no  difference  wliether  the  cargo 
is  or  not  owned  by  the  ship  owner;  that  in- 
surers of  cargo  do  not,  iu  any  event,  whether 
of  abandonment  with  salvage  or  of  partial 
loss,  undertake  to  indemnify  the  owner  of 
cargo  for  freight  paid  by  him  in  order  to  get 
po.ssessiou  of  his  cargo.  Columbian.  Int.  Co. 
V.  Gatlett,  12  Wheat.,  383. 

3.  On  freight.  She  sailed  on  the  voyage 
insured  for  the  Isle  of  France,  which  was  not 
prohibited,  nor  was  the  place  blockaded  in 
fact.  She  was  warned  off  by  a  British  ship 
of  war,  and  her  papers  so  indorsed.  The 
master  was  informed  by  an  officer  of  the  ship 
of  war,  that  tlie  Isle  of  France  was  block  ^ided, 
and  his  vessel  would  be  a  good  prize  j ."  she 
proceeded  thither.  She  then  returned  to 
Philadelphia  where  she  was  prevented  by  an 
embargo  from  prosecuting  the  voyage.  Held, 
the  insurers  were  discharged.  King  c  Dclatcara 
Ins.  Co.,  6  Cran.,  71;  affirming  s.  c,  2  Wash. 
C.  C,  300. 

4.  In  going  out,  she  grounded  and  became 
leaky;  the  cargo  was  damaged  and  unladen. 
She  was  repaired  in  a  few  days  at  an  expense 
of  $150.  The  flour  was  sold  by  insurers  with 
the  ship  owner's  consent  for  about  half  its  cost, 
but  m(5re  than  double  its  freight.  Held,  the 
insurers  of  freight  were  not  liable,  for  the  ship 
owner  had  the  right  to  insist  upon  carrying 
the  cargo  or  to  be  paid  full  freight.  Griswold 
V.  Nivo  York  Ins.  Co.,  1  Johns.,  205 ;  s.  c.  3  id., 
321. 

5.  On  the  freight  of  goods.  •  Insured  was 
not  the  owner  of  the  vessel,  but  had  hired  her 
for  tlie  voyage  and  agreed  to  pay  a  certain 
sum  for  freight  on  the  delivery  of  the  cargo. 
He  was  the  owner  of  the  cargo.  Held,  the 
charter  party  was  a  mere  covenant  to  carry. 
The  cargo  was  not  delivered ;  no  freight  be- 
came due  from  the  insured  to  the  ship  owner. 
He  sustained  no  loss  and  his  insurer  was  not 
liable.     Cheriot  v.  Barker,  2  Johns.,  347. 

6.  Two  policies,  one  on  cargo,  the  other  on 
freight.    Insured  owned  both  ship  and  cargo. 


577 


FREIGHT. 


What  is  not  a  loss  of. 


Policy  on  cargo  w;is  open,  that  on  frcijrlit  val- 
ued. The  cargo  was  rye  flour  antl  Indian 
corn.  She  encountered  very  heavy  weather, 
in  which  it  became  necessary  to  cut  away  lier 
mainmast  and  fore-topmast;  she  heeled  so 
badly  that  it  became  necessary  to  throw  over- 
board  a  large  portion  of  the  cargo,  and  with 
jury  masts  she  reached  Newport,  wliere  all  the 
cargo  was  discharged,  most  of  it  greatly  in- 
jured, and  some  of  it  putrid.  It  was  not  in  a 
condition  to  bear  transportation,  required 
great  care  to  preserve  it,  was  sold  and  the 
vessel  repaired;  but  she  did  not  prosecute  the 
voyage.  Ileld,  the  insurers  on  freiglit  were 
not  liable,  because  the  ship  was  seasonably 
ready  to  prosecute  the  voyage  and  the  freight 
might  have  been  earned.  Saltus  v.  Ocean  Ins. 
Co.,  14  Johns.,  138. 

7.  On  freight  valued  at  $2,200.  from  New 
York  to  Havana.  She  sailed  January  20th; 
came  to  anchor  in  a  small  bay  near  Sandy 
Hook  and  was  driven  ashore  in  a  gale.  Cargo 
was  taken  out  by  the  insured  and  brought 
hack  to  New  York ;  she  was  also  brought 
back  in  three  or  four  days;  about  five  weeks 
after  she  first  sailed,  she  was  repaired,  but 
lier  hull  and  spars  were  not  in  as  good  repair 
as  when  she  first  put  to  sea.  Soon  after  she 
proceeded  on  a  dilferent  voyage.  Held,  there 
was  not  such  an  impediment  as  warranted  her 
in  abandoning  the  voyage;  that  as  between 
the  owner  of  the  ship  and  the  owner  of  the 
cargo,  no  loss  was  total  where  the  cargo  re- 
mained or  any  part  was  saved  and  taken  by 
tlie  owner  for  his  use ;  that  where  the  ship 
owner  delivers  up  the  cargo  to  the  shipper 
while,  he  has  a  right  to  retain  it  and  earn 
freight,  he  cannot  call  upon  the  insurer  of 
freight  for  the  loss.  Herbert  v.  Hallet,  3 
Johns.  Ca.,  93. 

8.  Where  the  ship  owner  has  made  a  valid 
contract  of  affreightment  and  the  ship  is  in 
the  proper  place  and  ready  to  receive  the  car- 
go, the  ship  owner  has  then  an  insurable  in- 
terest in  freight;  but  if  he  insures  it  and  the 
policy  provides,  "beginning  the  adventure 
upon  the  said  freight  from  and  immediately 
after  the  loading  thereof  upon  the  said  ves- 
sel," the  insurer  is  not  liable  for  a  loss  of 
freight  until  the  goods  are  on  board.  Oordo'n 
V.  Am^rieiin  Iiis.  Co.,  4  Denio,  300. 

9.  On  freight,  stipulated  :  "  Not  to  be  lia. 
ble  for  any  partial  loss  whatever."  She  re- 
turned to  .N'jw  York  in  distress,  having  jetti- 

19 


soned  a  part  of  her  cargo,  and  another  part 
could  not  be  reshipped  in  consequence  of 
damage.  Slie  was  repaired  and  took  anotlier 
cargo,  the  undamaged  cargo  having  been  sent 
forward  in  another  vessel  to  the  point  of  des- 
tination.  Held,  insurer  on  freight  was  not  lia- 
ble for  any  loss  of  freight.  Ogden  v.  Oerieral 
Mxit.  r»K.  Co.,  2  Duer,  204. 

1 0.  On  freight.  She  was  abandoned,  but 
the  cargo  was  carried  to  the  port  of  destina- 
tion. Held,  no  loss  of  freight  even  though  the 
ship  was  rightfully  abandoned  (citing  Scottish 
Marine  Ins.  Co.  •».  Turner,  4  H.  L.  Cas.,  311 ;  1 
JIacq.  H.  L.  Cas.,  334).  Fiedler  v.  New  York 
Ins.  Co.,  6  Duer,  282. 

11.  On  freight,  Cleveland  to  Ogdensburg. 
She  encountered  a  gale  and  was  stranded  on 
the  rocks  at  the  entrance  to  the  Welland 
canal,  November  25th.  The  cargo  consi.-ited 
of  wheat  and  flour.  1,500  bushels  of  wheat 
were  lost  overboard,  1,026  were  wet  and  very 
much  sW'Ollen,  2,474  bushels  uninjured.  All 
the  flour  was  wet  and  damaged.  Part  of  the 
cargo  was  put  into  lighters,  part  remained  on 
tlie  vessel,  and  all  taken  to  Buffalo.  The  ves- 
sel was  badly  injured  and  could  not  be  made 
ready  to  resume  her  voyage  till  December 
15th,  when  canal  and  river  were  frozen.  No 
vessel  could  have  reached  the  port  of  destina- 
tion till  tlie  following  spring,  nor  could  any 
vessel  have  been  procured  that  season  to  take 
the  cargo  from  the  place  of  disaster  to  the 
point  of  destination;  nor  could  it  have  beeri 
forwarded  by  railway  except  at  double  the 
original  freight.  Cargo  owners  abandoned, 
and  insurers  of  cargo  paid  a  total  loss  and  re- 
ceived the  property.  Held,  a  surrender  of  the 
cargo  without  payment  of  freight,  discharged 
insurers  of  freight,  for  tlicy  could  not  law- 
fully  take  it  from  the  carrier,  because  he  had 
a  right  to  keep  it  a  reasonable  time  to  repair  his 
vessel  and  complete  the  delivery,  under  the 
contract  of  freightment.  Allen  v.  Mercantile 
Mut.  Ins.  Co.,  44  N.  Y.,  437 ;  reversing  s.  c, 
46  Barb.,  642. 

12.  On  "freight."  Held,  it  does  not  in- 
clude loss  of  freight  by  detention  of  ship 
caused  by  sea  perils.  The  insurer  does  not 
contract  that  freight  shall  be  earned  within 
any  stated  time.  If  freight  has  been  earned, 
tlie  Insurer  is  discharged.  3Iaj/o  v.  Maine 
Fire  and  Slariiie  Ins.  Co.,  4  Mass.,  374. 

13.  Freight  insured  from  Richmond  to 
Nice.    She    put  into  Kennebunk   to  repair. 

289 


579 


FREIGHT. 


5S0 


What  is  not  a  loss  of. 


Two  months  would  have  been  required  for 
unloading,  repairing  and  reloading.  Owner 
of  cargo,  tobacco,  demanded  that  it  should 
be  sent  forward  in  another  vessel,  as  other- 
wise the  object,  which  was  to  get  the  to- 
bacco to  a  French  market  at  the  autumnal 
concours,  would  be  defeated.  Treight  from 
Kennebunk  would  have  been  as  high  or  high- 
er as  from  Richmond.  Ship  owner  declined 
to  hire  another  vessel;  offered  to  repair  bis 
own  and  proceed  on  the  voyage.  Shipper 
demanded  the  tobacco  to  be  delivered  to  him 
or  sent  forward  immediately,  otherwise  he 
would  abandon  it  to  ship  owner  and  look  to 
him  for  damages.  Shipper  also  stated  that 
freight,  if  any  were  due,  should  be  settled. 
Ship  owner  delivered  the  tobacco,  and  the 
shipper  forwarded  it  in  a  vessel  of  his  own. 
Insured,  upon  freight,  abandoned  it  to  in- 
surer.  Held,  the  ship  owner  might  have  de- 
tained the  cargo  until  repairs  were  made,  and 
that  the  insurer  of  freight  was  discharged. 
Clark  V.  Massachusetts  Fire  and  Marine  Ins. 
Co.,  3  Pick.,  104. 

14.  If  tie  master  can  repair  and  proceed 
in  a  reasonable  time,  he  may  retain  the  cargo, 
though  it  be  wet  and  damaged,  carry  it  to  its 
place  of  destination,  and  earn  full  freight.  If 
he  relinquishes  that  right,  the  insurers  on 
freight  are  not  liable.  M'Oaw  v.  Ocean  Ins. 
Co.,  23  Pick.,  405. 

15.  On  freight  from  New  York  to  Havre, 
valued  at  |6,000.  She  sustained  damage  and 
was  obliged  to  put  back  and  discharge  the 
cargo  to  make  repairs.  Owners  of  the  cargo 
declined  to  demand  it,  to  cause  it  to  be  dried, 
to  require  the  ship  owner  to  proceed,  or  to 
give  any  directions  on  the  subject.  The  mas- 
ter sold  the  goods  at  auction  and  refused  to 
pay  over  the  proceeds  unless  freight  was  al- 
lowed. Suit  was  brought  and  the  ship  own- 
ers defended  on  the  ground  that  freight  was 
due;  but  it  was  adjudged  that  none  was  due. 
This  action  was  brought  to  recover  of  insurers 
of  freight,  for  expenses  incurred  in  defending 
that  action.  It  was  conceded  that  the  sale  of 
cojgo  in  its  damaged  condition  was  for  the 
interest  of  tlie  owners  of  vessel  and  cargo ;  al- 
so, that  the  ship  obtained  a  higher  rate  of 
freight  on  Uie  new  voyage  than  she  would 
have  earned  on  the  old,  because  freight  had 
risen.  Held,  the  propriety  of  the  sale  of  the 
damaged  cargo  was  a  question  solely  between 
the  master  and  the  cargo  owner,  with  which 

290 


insurers  of  freight  had  no  concern;  if  the 
ship  owners  or  the  master,  acting  in  their  be- 
half, sold  the  cargo  while  it  remained  ia 
specie,  and  might  have  gone  to  its  destina- 
tion, they  lost  their  freight  not  by  any  peril 
insured  against  but  by  their  voluntary  prefer, 
ence  to  abandon  the  voyage  and  employ  the 
vessel  in  another  enterprise;  as  there  was  no 
plausible  ground  on  which  the  plaintiffs,  as- 
ship  owners  could  contend  that  they  had  any 
claim  against  the  cargo  owners  by  way  of 
lien,  setoff,  or  otherwise,  for  the  payment  of 
freight  on  the  cargo  sold  at  New  Tork,  insur- 
ers of  freight  were  not  liable  for  any  of  the 
expenses  incurred  in  defending  the  suit 
brought  by  the  cargo  owners.  Lord  v.  Nep- 
iutie  Lis.  Co.,  10  Gray,  109. 

16.  On  freight  valued  at  §4,000  from  Gib- 
raltar to  Bordeaux.  She  had  on  board 
120,000  in  specie  to  purchase  cargo,  but  could 
procure  none  at  Gibraltar.  She  was  lost  and 
one  keg  of  specie  witJi  her.  Held,  insurers 
were  not  liable.  Adamn  v.  Penneylvctnia  Ins. 
Co.,  1  Rawle,  97. 

17.  On  freight,  stipulated :  "The  insured 
shall  not  abandon  in  consequence  ot  the  port  of 
destination  being  blockaded,  but  in  such  case, 
shall  have  libertj'  to  proceed  to  another  port 
not  blockaded,  and  there  end  the  voyage  or 
wait  a  reasonable  time  for  the  blockade  of  the 
original  port  of  destination  to  be  raised. "^ 
She  was  preveqted  from  landing  her  cargo  by 
a  French  vessel  of  war.  She  returned  to  New 
Orleans  about  Hay  9th,  where  she  remained 
ten  da3's,  and  then  discharged  cargo.  Held., 
she  ought  to  have  insisted  on  tlie  payment  of 
her  freight  or  have  waited  for  the  raising  of 
the  blockade;  that  a  failure  to  do  so  released 
the  insurers.  MarV^  v.  LouUiarui  State  Ma- 
rine and  Fire  Ins.  Co.,  3  Rob.  (La.),  454. 

18.  "  On  the  freight  bill,  from  St.  Louis  to 
New  Orleans."  She  would  have  earned  #1,790, 
but  struck  a  snag  which  caused  her  to  leak 
very  badly,  and  it  became  necessary  to  dis- 
charge the  cargo.  She  was  taken  back  to  St. 
Louis  and  thoroughly  repaired  in  two  weeks. 
Insurers  con.sented  that  the  policy  should  be 
transferred  to  two  other  steamboats.  There 
was  no  consideration  other  than  that  paid  for 
the  original  insurance.  They  carried  tlie  cargo 
to  the  point  of  destination.  Held,  an  insur- 
ance on  the  freight  bill  was  an  undertaking 
that  the  vessel  should  earn  freight;  whether 
the  freight  was  lost  or  not.  was  to  be  deteiv 


581 


FREIGHT. 


582 


What  is  not  a  loss  of. 


mined  by  the  facts  of  the  case  namely:  the 
time  required  to  refit  the  boat,  tlie  opportuni- 
ties for  transhipping,  tlie  kind  of  goods, 
whether  it  was  important  for  tliem  to  be  car- 
ried forward  witliout  delay,  and  tliese  were  so 
fiilly  proven  that  tlie  court  determined  that 
the  master  would  not  have  had  the  right  to 
retain  this  cargo  until  he  could  refit  and  carry 
it  forward  in  his  own  boat;  but  the  transfer 
of  tlie  policy  from  the  disabled  boat  to  others 
which  completed  the  transportation,  entirely 
released  insurers.  Field  v.  Citizens  Ins.  Co., 
11  Mo.,  50. 

1 9.  She  was  repaired  at  an  expense  largely 
in  excess  of  the  value  of  ship  and  freight,  and 
the  master  gave  a  bottomry  bond,  charging 
ship,  freight  and  cargo  for  money  to  defray 
expenses.  She  earned  freight,  which  was  paid 
to  the  obligee  named  in  the  bond,  and  the  ship 
owner  sued  the  insurers  of  freight  for  a  total 
loss  of  it.  Held,  the  payment  of  the  freight 
to  the  obligee  named  in  the  bond  was,  in  law, 
a  payment  to  the  ship  owner;  hence  the  in- 
surer of  freight  was  released.  Benson  v.  Chap- 
man, 2  H.  L.  Cas.,  596;  5  C.  B.,  .330;  8  C.  B., 
050;  reversing  s.  c,  0  M.  .&  G.,  792. 

to.  On  freight.  She  was  greatly  damaged. 
Insurers  of  ship  accepted  an  abandonment, 
and  paid  a  total  loss  on  her;  but  she  arrived 
at  the  port  of  destination  and  earned  freight 
for  the  voyage,  which  was  paid  insurers  of 
ship.  Held,  the  fact  that  the  freigiit  was  paid 
to  the  insurers  of  ship  and  not  to  her  owners 
made  no  difference,  for  the  condition  of  the 
policy  that  freight  should  be  earned  was 
fulfilled,  and  therefore  insurers  of  freight  were 
discharged.  Scottish  Marine  Ins.  Co.  v.  Tur- 
ner, 4  H.  L.  Cas.,  311 ;  17  .Jur.,  631. 

21.  The  ship  was  insured  for  £750,  and  her 
freight  for  £1,500.  She  sustained  damage  in 
the  early  part  of  the  voyage,  but  reached  the 
port  of  destination,  having  sustained  further 
injury  on  the  last  day  out.  Insured  on  ship 
abandoned.  The  cargo  was  delivered  to  the 
consignees.  The  house  of  lords,  in  4  II.  L. 
Cas.,  159,  adjudged  that  the  freight  earned  be- 
longed to  insurers  of  ship,  and  this*  suit  was 
brought  to  recover  from  insurers  of  freight 
the  sum  insured.  Held,  no  recoverj'  could  be 
had.fortheciirgo  was  delivered  and  the  freight 
paid  (reversing  s.  c,  13  C.  C.  S.,  652,  989;  23 
Scot.  Jur..  294,  455).  Scottish  Marine  Ins.  Co. 
V.  Turner,  15  C.  C.  S.,  33. 

22.  On  freight.    She  was  injured  by  perils 


of  the  sea,  and  compelled  to  put  in  to  a  port  of 
necessity,  where  the  whole  of  her  cargo  was 
necessarily  landed,  and  part  could  not  be  re- 
shipped  without  danger  of  ignition  unless  it 
were  dried,  and  that  would  have  detained  her 
six  weeks,  and  have  incurred  an  expense  equ-al 
to  the  freight.  It  was  sold,  and  she  proceeded 
to  port  of  destin.alion  with  the  balance.  Held, 
insurers  of  freight  were  not  liable  for  the  loss, 
notwithstanding  the  master  acted  prudently. 
Mordy  ii.  Jones,  4  B.  &  C,  393 ;  3  L.  J.  K.  B., 
250;  OD.  &R.,  479. 

23.  On  specie  and  the  returns  thereof,  in 
any  description  of  merchandise,  with  liberty 
to  decl.are  and  value  thereafter,  at  and  from 
the  river  Plata  to  Canton  and  back.  Insured 
chartered  her  from  Buenos  Ayres  to  Canton 
and  back  for  $10,000,  to  pay  in  China  what 
ever  might  be  necessary  for  port  charges  and 
incidental  expenses,  not  exceeding  $2,000,  the 
balance  thirty  days  after  her  arrival  at  Buenos 
Ayres.  These  terms  were  not  communicated 
to  insurer.  Insured  sent  specie  to  an  agent  at 
Canton  who  advanced  the  necessary  port 
charges  and  incidental  expenses,  and  put  in 
goods  for  the  return  voyage  on  account  of  liis 
principal.  Held,  the  money  advanced  for  ac- 
count of  the  vessel  at  Canton  could  not  be 
treated  as  a  part  of  the  value  of  the  merchan- 
dise  shipped  there,  because  it  was  not,  proper- 
ly speaking,  freight.  Winter  t.  Haldimun,  3 
B.  &  Ad..  649;  9  L.  J.  K.  B.,  313. 

24.  "  On  passage  money  of  emigrants  sub- 
ject to  pay  a  loss  pro  rata,  and  to  the  clauses 
and  conditions  of  sees.  47  to  51  of  Pass.  Act 
of  1852,  compensation  clause  excepted,  and 
against  these  risks  onlj'."  She  was  driven  into 
a  port  of  distress  where  she  necessarily  re- 
mained for  six  weeks  to  repair  damages,  and 
while  there,  the  passengers  were  maintained 
by  the  insured  at  a  cost  exceeding  the  passage 
money.  She  afterwards  arrived  at  the  port  of 
destination.  Held,  insurers  were  not  liable. 
Willis  V.  Cooke,  5  El.  &  B].,  641;  s.  c,  1  Jur. 
(N.  S.),  1164;  25L.  J.  Q.  B.,  16. 

2,5.  "  On  freight  from  the  Cape  of  Good 
Hope  to  Ilondeklip  Bay,  there  to  load  a  cargo 
of  copper  ore,  and  thence  to  Swansea."  She 
arrived  at  Hondeklip  Bay.  The  whole  cargo 
was  ready ;  she  took  a  part  of  it,  wlien  a  storm 
came  on  and  she  was  compelled  to  put  to  sea 
with  the  loss  of  an  anchor  and  damage  to 
windlass.  She  beat  about  the  offing  for  some 
time,  and   it  was  then  deemed  expedient  t? 

291 


583 


FREIGHT. 


584 


What  is  a  total  loss  of. 


sail  for  St.  Helena,  where  she  failed  to  get  an 
addilional  anchor  or  the  requisite  repairs.  A 
portion  of  the  outward  cargo  was  still  on 
board.  It  was  discharged  at  St.  Helena,  and 
she  sailed  for  Swansea.  The  repairs  might 
have  been  made  at  the  Cape.  The  jury  found 
that  the  master  acted  throughout  as  a  prudent 
owner  would  have  done.  Held,  if  the  repairs 
could  have  been  made  at  the  Cape,  one  hun- 
dred and  eighty  milus  otf,  and  with  them  the 
freight  could  have  been  earned,  the  proximate 
cause  of  the  loss  was  the  course  which  the 
master  pursued ;  that  the  master's  acts,  though 
prudent,  could  not  cast  the  loss  upon  insurers 
of  freight.  If  he  was  not  prevented  by  perils 
of  the  sea  from  procuring  the  necessary  re- 
pairs, and  earning  of  full  freight,  insurers 
were  not  liable.  Philpott  v.  Swaiin,  11  C.  B. 
(N.  S.),  270;  s.  c,  7  Jur.  (N.  S.),  1291 ;  30  L.  J 
C.  P.,  358;  5  L.  T.  (N.  S.),  183. 

26.  Ship  insured  from  Valparaiso  to  Eng- 
land, valued  at  £12,000,  and  freight  at  £1,000. 
She  was  compelled  by  stress  of  weather  to 
put  back  for  repairs,  where  it  was  found 
it  would  have  cost  to  repair  her  more 
than  her  entire  earnings  for  the  voyage,  but 
less  than  her  repaired  value.  The  master  sold 
her.  Held,  if  she  could  have  been  repaired  so 
as  to  earn  freight,  at  an  expense  which  a  pru- 
dent owner,  uninsured,  would  have  incurred, 
the  insurers  must  be  discharged.  Moas  v. 
Smith,  9  C.  B.,  94 ;  19  L.  J.  (N.  S.),  C.  P.,  225 ;  14 
Jur.,  1003. 

27.  On  freight.  She  was  badly  damaged, 
and  so  much  delayed  that  she  could  not  take 
in  cargo  prepared  for  her,  and  it  was  sent  by 
another  vessel;  but  she  earned  full  freight  by 
carrying  other  goods.  Held,  there  was  no  par- 
tial loss  of  freight.  Brocklebaiik  t:  Siigrue, 
1  Moo.  &  R.,  103;  1  B.  &  Ad.,  81 ;  8  L.  J.  (K. 
B.),  371. 

28.  On  freight  valued,  from  R.  to  U.  K. 
She  was  chartered  out  to  R.  to  take  a  cargo 
home.  She  arrived  at  R.,  was  detained  by 
order  of  government  for  five  weeks,  and  load- 
ing prevented.  The  frost  set  in,  which  de- 
tained her  there  until  the  spring.  She  then 
procured  a  freight  and  returned  home;  but  the 
expenses  of  detention  exceeded  the  freiglit 
earned.  Held,  the  insurers  were  not  liable. 
Soerth  v.  Smith,  2  Mau.  &  Sel.,  378. 

29.  On  freight  ou  a  cargo  of  coals  from  Rio 
Janeiro  to  San  Francisco.  Damage  by  perils 
of  the  sea  compelled  her  to  put  into  Monle- 

292 


video,  where  she  was  surveyed  and  found  in- 
capable of  pursuing  the  voyage,  and  no  vessel 
could  be  procured  to  take  the  cargo.  The 
cost  of  warehousing  would,  in  a  few  months, 
have  amounted  to  the  value  of  the  cargo.  The 
town  was  in  a  state  of  seige  and  revolution ; 
therefore,  it  was  unsafe  to  leave  the  cargu  un- 
warehoused.  The  master  sold  it,  applied  the 
proceeds  to  the  ship's  purposes,  and  navigated 
her  home  to  Liverpool.  Held,  insurers  of 
freight  were  not  liable  for  the  loss  of  freight 
on  the  cargo  sold ;  that  it  was  proper  for  the 
court  to  direct  the  jury  to  determine  whether 
all  the  circumstances  were  such  as  to  create 
a  constructive  total  loss  of  the  vessel.  The 
jury  found  that  they  were  not.  Kliiigendet 
V.  Home  and  Colonial  Ins.  Co.,  15  L.  T.  (N.  S.) 
16. 

VI.  "What  is  a  total  loss  of. 

1.  On  freight  at  and  from  Baltimore  to  Rio 
Janeiro  and  back  to  Havana  or  Matanzas. 
The  policy  contained  the  usual  memoran- 
dum found  in  cargo  policies,  exempting  in- 
surers from  claim  for  partial  loss  on  articles 
perishable  in  their  own  nature.  About  four 
hundred  tons  of  jerked  beef  were  shipped  at 
Montevideo  for  Havana,  freight  payable  at 
the  port  of  destination,  xi.  large  part  of  it  was 
jettisoned  on  the  voyage  to  lighten  her  off. 
She  put  into  Nassau  with  keel  badly  shattered, 
rudder  and  forefoot  broken  off,  and  eight  feet 
of  water  in  the  hold.  The  beef  was  so  badly 
damaged  that  the  authorities  at  Nassau 
ordered  all  of  it,  except  about  one  hundred 
and  Hfty  tons,  to  be  thrown  into  the  sea,  which 
was  done;  and  as  to  that  which  remained,  it 
was  landed  wet  and  heated,  and  the  authorities 
ordered  the  master  to  remove  it  with  all  possi- 
ble speed.  Her  repairs  would  have  exceeded 
half  her  value,  nor  could  they  be  made  at 
Nassau  so  as  to  make  her  competent  to  pro- 
ceed with  the  cargo;  nor  could  any  other 
vessel  be  procured  to  carry  it  forward.  The 
master  sold  it  for  $2,061.92,  and  the  ship  waa 
repaired  temporarily  and  went  home  in  bal- 
last.  fi^eW,  the  exemption  applied  to  freight; 
and  if  the  jerked  beef  was  an  article  perisha- 
ble in  its  own  nature,  the  insmer  of  freight 
was  not  liable,  unless  the  sea  dauiage  to  it  at 
the  port  of  distress  had  destroyed  its  original 
character  as  beef,  or  that  repairing  the  ship 
or    procuring    another   to  carry   it   forward, 


585 


FREIGHT. 


586 


What  is  a  total  loss  of. 


would  have  necessaiily  caused  such  a  retarda- 
tion of  the  voyage  as  would,  in  all  probability, 
have  caused  a  destruction  of  the  beef  before  it 
could  liave  arrived  at  its  tlestination,  or  that 
wlifu  llie  ship  woukl  have  been  lepaired,  or 
another  procured,  the  condition  of  the  beef 
would  have  been  such  as  to  make  it,  hav- 
ing  proper  regard  for  the  health  of  tlie  crew, 
unsafe  to  resliip  and  proceed  with  it  on 
the  voyage.  That  in  determining  whether 
another  ship  ouglit  to  have  been  procured  to 
carry  it  forward,  regard  must  be  had  to  the 
freight  which  would  liave  been  paid  therefor, 
and  unless  one  could  have  been  procured  at 
an  expense  not  exceeding  the  freight  to  have 
been  earned  by  completing  the  voyage,  the 
insurer  of  freight  would  have  no  right  to 
require  the  mkster  to  procure  one  to  carry 
the  cargo  forvvard.  That  neither  the  inter- 
ests  of  the  cargo  owner  nor  of  the  insurer 
of  the  cargo  were  to  be  regarded  in  determin- 
ing whether  there  was  or  not  a  total  loss  of 
freight.  Hugg  v.  Augusfa  Insurance  and  Bank- 
ing Co.,  7  How.,  595;  s.  c,  Tan.  Dec,  159. 

2.  $4,000  on  freight  of  the  barque  Susan, 
frcmi  Charlcslon  to  Kio  Janeiro  and  back  to 
any  port  of  discbarge  in  the  United  States. 
She  'arrived  at  Rio,  discharged  cargo,  earned 
freight  and  took  a  return  cargo,  but  was  com- 
pelled to  put  back  for  repairs,  where  she  was 
condemned  and  sold  as  unseaworthy.  Held, 
the  policy  was  upon  the  freight  of  each  voy- 
age,  and  the  insurers  were  not  entitled  to  any 
credit  for  the  freight  earned  on  the  out  voyage. 
Insurance  Company  v.  Mordecai,  22  How.,  111. 

3.  On  freight  valued  at  $2,000.  Philadel- 
pliia  to  Tampico,  thence  to  Laguna  or  Cam- 
peachy,  thence  to  Philadelphia  or  New  York. 
The  charterer  agreed  to  pay  for  her  hire, 
$2,000  —  on  arrival  and  delivery  of  cargo,  $1,- 
000  —  on  return  home,  $1,000.  She  was  lost  on 
her  outward  vo3-age.  Held,  the  insurer  was 
liable  for  the  sum  insured,  because  the  policy 
was  for  one  entire  sum  out  and  home.  Meech 
v.  Philadelphia  Ins.  Co.,  3  Whart.,  473. 

4.  If  the  ship  owner  contracts  with  a  third 
person  for  freight,  the  risk  commences  and 
the  policy  attaches  as  soon  as  the  voyage  be- 
gins, although  there  is  no  cariro  taken  in. 
Hart  V.  Delatmre  Ins.  Co.,  2  Wash.  C.  C,  346. 

5.  Valued  policy  on  freight,  at  and  from 
tlie  home  port  to  tlie  outward  port,  and  at  and 
from  thence  back  to  the  home  port,  the  freight 
on  the  whole  being  valued  at  l|2,000.     She  de- 


livered her  cargo  at  the  out  port  and  earned 
freiglit  $2,000,  and  took  another  amounting  to 
If2,000,  but  was  captured  on  the  home  passage. 
J/eld,  the  valuation  covered  each  voyage,  and 
that  the  insured  was  entitled  to  the  sums  in-  ' 
sured  without  giving  credit  to  the  insurer  for 
the  freight  received.  Uaty  v.  Ilallett,  3 
Caines;  IG. 

6.  On  freight;  the  ship  was  lost  before  the 
voyage  was  ended.  Insurers  contended,  that 
as  the  insured  would  have  been  necessarily 
put  to  the  e.vpense  of  wages  and  provisions, 
had  the  vessel  arrived  safely,  they  were  en. 
titled  to  a  deduction  for  the  amount  of  wages 
and  prpvisions.  not  expended.  Held,  they 
were  not  entitled  to  it,  but  must  pay  the  gross 
freight.  Stevens  v.  Columbian  Ins.  Co.,  S 
Caines,  43. 

7.  The  cargo  was  all  procured  and  ready  to 
he  shipped;  the  vessel  had  taken  in  a  part  of 
it,  was  in  the  act  of  taking  in  the  balance, 
but  was  driven  ashore  in  a  gale.  Held,  in- 
sured  on  freight  was  entitled  to  a  total  loss  for 
the  amount  valued  in  the  policy.  DeLongue- 
mere  v.  New  York  Fire  Ins.  Co.,  10  Johns.,  202 ; 
DeLonguemere  v.  Phaniz  Ins.  Co.,  id.,  128. 

8.  While  the  master  is  bound  to  forward 
the  cargo  by  another  vessel,  if  one  can  be 
found,  he  is  not  bound  to  seek  another  unless 
one  can  be  found  at  the  port  of  distress  or  at  a 
port  contiguous.  Saltus  v.  Ocean  Ins.  Co.,  12 
John.s.,  107.  And  a  vessel  disabled  at  Kinsale, 
the  master  was  not  bound  to  go  to  Cork  where 
he  might  have  procured  one.    Ibid. 

9.  The  right  to  recover  for  a  technical 
total  loss  of  freight  is  subject  to  the  same  rule 
which  governs  the  right  in  the  case  of  vessel 
or  cargo,  namely,  a  loss  exceeding  one-half 
llie  value.  Center  v.  American  Ins.  Co.,  7  Cow., 
504;  affirmed,  4  Wend.,  40. 

10.  On  freight.  Tlie  cargo  was  salt  in 
sacks;  a  large  portion  of  it  was  washed  out 
by  perils  of  the  sea.  Held,  the  contract  of 
insurance  upon  freight  is,  that  the  goods  shall 
arrive  at  the  port  of  delivery,  notwithstanding 
the  perils  insured  against;  and  if  they  are 
washed  out  by  perils  of  the  sea,  the  insurer  of 
freight  is  liable.  DeWolfv.  State  Mutual  Fire 
and  Marine  Ins.  Co.,  0  Duirr,  191. 

1  1.  On  freight.  She  was  stranded  three  or 
four  miles  from  the  port  of  delivery,  which 
was  then  infected  with  yellow  fever.  The  ex- 
pense of  delivering  that  portion  of  the  cargo 
saved  exceeded  the  freight  upon  it.   The  mas- 

29;t 


687 


FREIGHT. 


588 


What  is  a  total  loss  of. 


ter  perished  with  the  wreck,  and  an  abandon- 
ment was  made  to  an  agent  acting  in  behalf 
of  the  insurers,  who  saved  and  delivered  some 
of  the  cargo  to  the  consignees.  Held,  a  total 
loss  of  freight.  Robertson  v.  Atlantic  Mut.  Ins. 
Co.,  5  J.  &  Sp.  (N.  Y.),  443. 

1 2.  "  On  ship  and  freight,  at  and  from  Am- 
sterdam to  Philadelphia,  each  subject  valued 
separately."  Ship  sufiered  so  much  from  bad 
weather  that  she  was  obliged  to  go  into  an 
English  port  to  refit.  Her  repairs  exceeded 
half  her  value,  and  while  she  was  refitting,  in- 
sured offered  to  abandon  ship  and  freight  to 
insurers,  who  refused  to  accept  an  abandon- 
ment of  tlie  freight,  but  accepted  an  abandon- 
ment of  the  ship,  and  paid  a  total  loss  on  her. 
She  pursued  her  voyage  and  delivered  her 
cargo  in  good  order  in  Philadelphia,  and 
earned  freight  the  same  as  if  she  had  met  with 
no  disaster.  Beld,  insurers  of  freight  were 
liable  for  a  total  loss  of  it,  to  the  amount  val- 
ued in  the  policy,  notwithstanding  it  was 
largely  over-valued.  CooUdge  v.  Gloucester 
Marine  Ins.  Co.,  15  Mass.,  341. 

13.  Insured  chartered  a  ship  out  and  back, 
for  which  he  was  to  pay  $750  for  the  out  pass- 
age and  $750  for  the  return.  She  took  a  cargo 
for  which  he  was  to  receive  |1,003  at  the  out 
port;  and  he  insured  $1,000  on  the  freight 
to  the  out  port,  and  |500  from  the  out  to  the 
home  port;  the  freight  being  valued  at  $1,500 
in  the  policy.  Held,  he  had  an  insurable  in- 
terest which  was  protected  by  the  policy,  and 
was  entitled  to  recover  $1,000,  notwithstanding 
nothing  became  due  from  him  to  the  ship 
owner.     Clark  v.  Ocean  Ins.  Co.,  16  Pick.,  289. 

14.  On  freight  of  the  brig  Andes,  from  New 
York  to  St.  Johns,  Florida,  thence  to  Charles- 
ton, for  the  use  of  the  owners.  They  char- 
tered her  to  persons  who  intended  to  ship 
cargo.  She  left  New  York  June  7,  1835,  and 
was  never  heard  of  Held,  insured  was  enti- 
tled to  recover  as  for  a  total  loss  of  freight 
that  would  have  been  under  deck.  Adams  v. 
Warm  Ins.  Co.,  23  Pick.,  163. 

1 5.  Insured  chartered  vessel,  except  cabin 
and  room  for  crew,  from  Palermo  to  New 
York  for  $2,500,  and  $35  per  diem  demur- 
rage. He  insured  freight  at  and  from  Ca- 
diz to  a  port  in  Sicily,  and  at  and  from  thence 
to  port  of  destination  in  the  U.  S.  She  had  on 
■board  a  small  quantity  of  goods  on  freight 
for  the  port  of  destination,  and  was  ready 
to  sail  for  Palermo,  but  was  lost  in  the  Bay 

294 


of  Cadiz.  Held,  the  whole  freight  from  Cadiz 
to  Palermo  and  from  Palermo  to  the  U.  S. 
was  the  entire  subject  of  insurance;  that  the 
valuation  was  not  so  great  as  to  raise  a  suspi- 
cion of  fraud ;  that  the  insurers  were  not  enti- 
tled to  have  the  policy  opened,  and  must  pay 
a  total  loss.  Bohinson  v.  Manufacturers  Ins. 
Co.,  1  Met.,  143. 

16.  On  freight  valued  at  .$25,000.  She  sprung 
a  leak,  and  it  was  impossible  to  procure  re- 
pairs. The  cargo  was  transhipped  for  about 
the  same  freight  she  would  have  earned  upon 
it,  and  it  arrived  safely  at  the  port  of  destina- 
tion. The  loss  of  the  vessel  became  construct- 
ively total.  Held,  the  safe  delivery  of  the 
cargo  at  the  port  of  destination  did  not  relieve 
insurer  of  freight ;  for,  as  a  general  rule,  if  the 
vessel  is  wholly  lost  by  a  peril  insured  against, 
the  power  to  earn  freight  is  lost,  and  the  insurer 
becomes  liable  on  his,  contract ;  and  the  rule  is 
the  same  in  cases  of  constructive  as  of  actual 
total  loss;  the  right  of  the  owner  in  cases  of 
constructive  total  loss  to  abandon  his  vessel, 
and  thereby  lose  the  power  of  earning  freight, 
cannot  be  restricted  or  taken  away  by  the  ex- 
istence of  policies  on  the  cargo  and  freight; 
the  insurers  on  freight  must  be  presumed 
to  have  taken,  as  one  of  the  risks  included  in 
their  contract,  a  constiuctive  total  loss  of  the 
vessel,  and  to  have  contemplated  that  by  a 
lawful  abandonment  and  consequent  vesting 
of  the  ship's  title  in  her  insurers,  the  inability- 
of  the  insured  to  receive  freight.  Thwing  v. 
Washiiigton  Ins.  Co.,  10  Gray,  443. 

17.  On  ship  and  freight.  She  was  badly 
damaged  by  sea  perils,  and  put  into  Nassau, 
where  the  master  left  her  and  made  his  way 
to  the  United  States.  After  consulting  with 
the  owners  he  returned  to  Nassau,  where  she 
was  condemned,  and  sold  for  $810  gold.  Tem- 
porary  repairs  were  made  at  Nassau,  and  she 
took  a  cargo  of  cotton  for  Liverpool;  was 
there  repaired  at  an  expense  of  $7,735,  and 
sold  for  $6,292,  gold.  Insured  abandoned 
to  their  insurers.  Held,  they  were  entitled  to 
recover  as  for  a  total  loss  of  ship  and  freight. 
Dunning  v.  Merchants  Mutual  Marine  Ins.  Co., 
57  Me.,  108. 

18.  On  brig  and  her  freight,  valued  at  $4,500 
and  $1,500.  She  made  Kingston  in  distress. 
It  would  have  cost  to  repair  her  more  than 
she  would  have  been  worth  when  repaired, 
and  but  one  vessel  could  have  been  found  in 
which  to  tranship,  and  she  could  not  have 


589 


FREIGHT. 


What  is  a  total  loss  of. 


laken  more  than  one-half  the  cargo.  Ship  and 
cargo  were  sold  I'or  benefit  of  all  concerned, 
and  insured  abandoned.  Ilckl,  no  freight  pro 
^uta  was  due;  that  sliip  and  freight  were  total 
Joss.  Callenderv.  Insurance  Company  of  North 
America,  5  Binn.,  535. 

1 9.  She  was  under  contract  of  charter  party 
<o  load  at  Mobile  for  Liverpool,  and  her 
IVeight  was  insured  from  New  Orleans  to  Mo- 
■l)ile  and  from  Mobile  to  Liverpool;  valued  at 
$5,000.  Insurers  were  not  api)rised  that  she 
was  under  charter  party,  nor  did  they  make 
.any  inquiries  as  to  the  fact.  She  was  wrecked 
before  she  took  in  any  of  her  cargo.  Held. 
sailing  under  the  charter  party  gave  her  own- 
ers an  insurable  interest  in  her  freight,  which 
■commeucid  at  the  time  she  left  New  Orleans, 
and  insured  were  entitled  to  recover  the  whole 
sum  valued  in  the  policy.  Ilodr/son  v.  Mitais- 
eippi  Ins.  Co.,  3  La.  (0.  S.),  341. 

ao.  On  merchandise,  !f3,750,  and  on  freight 
}iaid,  $1,600.  The  defendant  did  not  deny  that 
insured  had  paid  the  freight  in  advance. 
Meld,  insured  was  not  bound  to  prove  that 
lie  had  paid  it  in  advance,  nor  could  insurer 
escape  liability  on  the  ground  that  the  freight 
thus  paid  in  advance  might  be  recovered  back 
in  consequence  of  the  loss  of  the  cargo. 
Katlieman  v.  General  Mut.  Ins.  Co.,  13  La.  An., 
35. 

21."  Three  thousand  dollars  upon  the  freight 
list  of  the  Cataract,  St.  Loiiis  to  New  Orleans, 
against  total  loss  only."  She  sustained  injury 
by  one  of  the  perils  insured  against,  which 
rendered  impossible  all  further  prosecution  of 
the  voyage;  nor  could  the  cargo  have  been 
sent  forward  at  a  less  freight  than  the  origi- 
nal ;  nor  could  she  have  been  repaired  in  time 
to  pro.secute  the  voyage.  Held,  insured  was 
entitled  to  recover  if  the  vessel  was  prevented 
from  transporting  the  cargo  by  the  perils  in- 
sured against;  after  the  vessel  is  disabled 
the  freight  that  is  or  may  be  earned  in  respect 
of  the  cargo  does  not  affect  the  right  of  action 
■on  the  policy,  but  is  to  be  regarded  only  in 
adjusting  the  amount  of  it.  Willard  t.  ilil- 
ixrs  and  Uanufacturen  Ins.  Co.,  24  Mo.,  561. 

22.  On  freight  list  valued  at  $6,000.  She 
became  a  total  loss.  There  was  no  opportu- 
nity to  forw.ard  the  goods  to  their  destination 
and  no  freight  w.as  earned.  Held,  the  esti- 
mated expense  of  carrying  the  cargo  from  the 
place  of  loss  to  the  port  of  destination  was 
<ao\.  to  be  deducted  or  considered  in  determia- 


ing  the  question  of  damages  against  in- 
surer.  Lockicood  v.  Atlantic  Mut.  Ins.  Co.,  47 
Mo.,  50, 

23.  On  freight  from  M.  to  C,  at  and  from 
thence  to  B.  She  delivered  her  freight  at  C. 
and  took  in  cargo;  but  while  proceeding  with 
her  lading,  was  forcibly  carried  back  to  M.  by 
a  ship  of  war,  where  she  was  detained  for 
some  time,  but  subsequently  restored.  The 
charterer  allowed  $1,300.  C.  being  blockaded, 
the  voyage  was  broken  up  and  abandoned. 
Forty-seven  days  after  the  capture,  the  master 
chartered  her  on  another  voyage  from  M.  to 
H.  Held,  the  ship  owner  was  not  entitled  to 
full  freight  until  the  vessel  arrived  at  B,  the 
port  of  destination;  that  a  ship  cannot  be  re- 
quired to  await  the  restor.ation  of  peace  or  the 
removal  of  an  embargo,  so  as  to  allow  her  to 
return  to  her  original  port  of  lading,  nor  to 
wait  an  indefiuite  time  for  a  cargo  to  her  port 
of  destination;  hence,  insurers  of  freight  were 
liable  for  a  total  loss.  Charleston  Insurance  and 
Trust  Co.  V.  Corner,  3  Gill,  410.  But  the  in- 
surer  was  entitled  to  credit  for  the  freight  re- 
ceived from  the  charterer.    Ibid. 

24.  "  On  freight."  Held,  if  the  vessel  be- 
came  incapable  of  bringing  the  cargo  home, 
the  master  was  bound  to  act  as  a  prudent 
owner  would  have  acted,  having  regard  to  the 
state  of  the  ship,  but  without  regard  to  whether 
there  was  or  not  insurance  on  freight.  Green, 
V.  Royal  Eichange  Ass.  Co.,  6  Taunt.,  68 ;  s.  c, 
1  Marsh.,  447. 

25.  On  freight  and  cargo.  Quebec  to  Lon- 
don. She  sprung  a  leak,  was  aground  on  a 
reef,  aiMl  in  imminent  danger  of  being  de- 
stroyed. The  master,  acting  under  the  advice 
of  a  surveyor  and  a  part  owner,  who  was  agent 
for  the  other  owners,  sold  her  in  that  danger- 
ous condition;  but  she  was  afterwards  saved 
and  repaired  by  the  purchasers,  and  carried  a 
cargo  to  London.  Held,  a  total  loss  of  freight, 
Idle  V.  Royal  Exchange  Ass.  Co.,  8  Taunt.,  755 ; 
3  Moore,  115. 

26.  A.  let  his  ship  to  carry  goods  and  pas- 
sengers, and  agreed  to  make  certain  proposed 
alterations,  so  that  her  capacity  for  carrying 
passengers  would  be  largely  increjised,  and 
that  she  should  be  found,  (m  the  usual  mili- 
tary survey,  capable  of  accommodating  a  cer- 
tain number.  He  commenced  alterations, 
received  a  part  of  the  cargo,  and  shipped 
water  for  one  hundred  invalids.  She  was  then 
disabled  in  a  gale  so  that  she  could  not  per- 

295 


591 


FREIGHT. 


592 


What  is  a  total  loss  of. 


form  the  voyage.  Held,  the  contract  for  freight 
and  passage  was  sufficient  to  render  the  in- 
surers of  freight  liable  for  freight  and  passage 
money.  Truacoit  i\  Christie,  2  B.  &  B.,  320 ; 
5  Moore,  33. 

27.  Open  policy  on  freight.  On  the  safe 
arrival  of  the  ship,  freight  would  have  been 
paid,  £3,068,  which  would  have  taken  to  ehrn 
it,  seamen's  wages,  pilotage,  etc  ,  £G99.  The 
question  disputed  was,  whether  the  insurer 
should  pay  the  larger  sum  or  deduct  the 
smaller  from  the  larger,  and  pay  the  balance. 
Held,  evidence  was  admissible  to  prove  the 
uniform  custom  in  settling  such  losses,  to  pay 
the  gross  freight;  and  tlie  insurer  was  liable 
for  the  gross  sum.  Palmer  v.  Bhickburn,  1 
Bing.,  62 ;  7  Moore,  337. 

28.  On  freight.  She  was  driven  on  sliore 
and  imbedded  eight  feet  in  the  sand  above 
high  water  mark,  very  much  strained  and 
damaged.  One-third  of  the  cargo  was  on 
board  and  the  rest  engaged.  She  could  not 
have  been  got  off  except  at  great  expense, 
which  no  prudent  person  would  have  incurred. 
She  was  sold,  but  the  purchasers  got  her  off 
three  months  afterwards.  Held,  a  total  loss 
of  freight  and  no  abandonment  needed.    Mount 

V.  Harrism,  4  Bi-ng.,  388;  1  M.  &  P.,  14. 

29.  A.  let  the  ship  to  freight  and  charter 
to  B.  for  a  voyage  at  £100  a  month;  B.  to 
advance  sailing  charges  on  account.  The 
probable  duration  of  the  vo_y.age  was  eight 
months.  C.  insured  B.  £.300  advances  on  sail- 
ing charges;  and  he  also  insured  A.  £400  on 
freight.  There  was  a  total  loss.  Held,  A.  was 
his  own  insurer  for  a  moiety  of  the  risk,  and 
the  insurer  was  not  entitled  to  treat  A.'s  policy 
as  effected  on  gross  freight,  and  that  A.  was 
therefore  entitled  to  recover  the  whole  sum 
insured.  Etches  v.  Alden,  1  M.  &  R.,  157;  6 
L.  J.  R.  B.,  6.5. 

30.  On  freight,  Madras  to  London.  She 
arrived  at  Madras  roads  November  30th,  and 
from  then  till  December  5th,  the  crew  were 
employed  discharging  cargo.  She  h.ad  con- 
tracted 122  tons  of  saltpetre,  90  tons  of  light 
goods  and  25  tons  redwood,  but  was  lost  on 
the  6th  before  taking  them.  Held,  insured 
was  entitled  to  recover  for  freight  to  be  earned 
by  carrying  his  own  goods,  as  well  as  those 
contracted  for  transportation.  Flint  v.  Fie- 
mytig,  1  B.  &  Ad.,  45;  8  L.  J.  K.  B.,  350. 

31.  On  freight,  London  to  J.amaica,  liberty 
to  touch  at  Madeira,  discharge  and  take  on 

896 


goods  there.  She  was  chartered  to  take  goods 
at  London,  proceed  to  Madeira,  deliver  some 
cargo  there  and  take  in  wine  for  Jamaica,  for 
£135,  to  be  paid  in  wine  at  Madeira,  £40  per 
pipe.  She  arrived  at  Madeira,  discharged  and 
took  in  part  cargo;  but  a  gale  compelled  her 
to  slip  cables  and  put  to  sea,  where  she  was 
captured.  Held,  a  totiil  loss  of  freight.  Atty 
V.  Lindo,  4  B.  &  P.,  236. 

32.  "On  freiglit,  valued,  from  Slieerness  to 
Cliarente  and  return  to  a  port  in  the  British 
channel  and  London."  She  sailed  under  a 
charter  party  in  ballast  to  Charente,  there  to 
take  a  cargo  of  brandy.  She  was  kept  under 
an  embargo  for  six  months  at  Charente,  then 
seized  and  condemned,  no  cargo  being  on 
board.  Held,  a  total  loss  of  freight.  Macken- 
zie V.  Sheddon,  2  Camp.,  431. 

33.  On  freight.  There  was  a  charter  party 
for  a  complete  cargo,  freight  to  be  paid  at  a 
stipulated  rate.  Held,  the  charter  party  cre- 
ated an  interest  on  which  the  policy  had  at- 
tached though  no  goods  were  put  on  board. 
Moses  V.  Pratt,  4  Camp.,  297. 

34.  She  was  chartered  from  Liverpool  to 
Jamaica,  there  to  take  a  cargo  for  Liverpool 
at  current  rates,  and  a  policy  was  made  upon 
freight,  valued  at  £4,000,  from  any  port  or 
ports  in  Jamaica  to  port  of  discharge  in  IT. 
K.  She  took  in  part  of  her  cargo  and  was 
lost  in  a  gale,  the  balance  being  on  shore 
ready  for  her  to  take.  Held,  a  total  loss  of 
sum  insured.  Hacidson  v.  Willasey,  1  Mau.  & 
Sel.,  313. 

35.  On  freight,  valued,  £1,500.  About  one- 
third  of  the  cargo  was  on  board,  but  the  whole 
was  on  the  quay,  ready  to  be  shipped,  when 
she  was  lost.  Held,  the  insurers  must  p.iy  the 
sum  insured.  Montgomery  v.  Egginton,  3 
Term,  362. 

36.  She  was  chartered  from  L.  to  T.,  to 
fake  there  a  certain  number  of  pipes  of  wine, 
and  to  proceed  to  B.,  for  which  she  was  to  be 
paid  a  certain  rate  per  pipe.  She  sailed  upon 
the  voyage  and  was  captured  before  arrival  at 
T.  Held,  the  plaintiff"  was  entitled  to  recover 
of  his  insurer  on  freight.  Tlumipson  t.  Tay- 
lor, 6  Term,  478. 

37.  She  was  chartered  from  London  to  Do- 
minica, and  back  to  London,  at  a  certain  rate 
for  the  outward  cargo.  The  charterers  were 
to  provide  her  a  full  cargo  at  Dominica  for 
London  at  current  r.ites  of  freight.  The  own- 
er insured  freight  at  and  from   Dominich  tf> 


593 


FREIGHT. 


594- 


Wliat  is  a  total  loss  of. 


Li)iulon.  Before  anj-  of  llie  cargo  was  taken 
at  DumiiuGa  she  was  captured.  Held,  llie  in- 
surer was  liable  for  the  freight  that  would 
liave  been  earned  on  the  homeward  vo3'age. 
Uorncastle  v.  Swart,  7  East,  399. 

38.  Foreign  ship  cliartered  to  take  cargo 
from  London  to  St.  Petersburg  to  load  lliere 
and  return  to  London,  paying  I'reiglit  per  ton, 
stipulated:  The  charterer  might  detain  her 
forty  running  days,  to  discharge  and  take  in, 
and  if  she  should  not  be  permitted  to  load, 
charterer  should  pay  i;2,.'500  on  her  arrival  at 
London.  Insurer  agreed  to  pay  charterer  total 
loss  if  slie  should  not  be  allowed  to  load  at 
St.  Petersburg  for  the  chartered  voyage.  Tlie 
Russian  government  assumed  tliat  the  cargo  was 
British,  and  refused  permission  to  discharge 
it.  Master  immediately  proceeded  from  St. 
Petersburg  to  Stockholm,  disposed  of  it  and 
there  took  a  Swedish  cargo  for  London,  and 
earned  freight.  Held,  not  a1h)wing  her  to  un- 
load was  a  refusal  to  allow  her  toload  at  St. 
Pefersburg,  which  made  insurer  liable  for 
total  loss,  within  the  meaning  of  tlie  policy  ; 
tliat  the  intermediate  voyage  to  Stockholm  did 
not  relieve  the  charterer  of  his  liability  to  pay 
£2,500,  fi,)r  wliich  sum  the  insurer  was  liable; 
but  as  the  charterer  was  entitled  to  credit  from 
tlic  master  for  the  freight  received  from  Stock- 
holm to  London,  the  insurer  was  also  entitled 
to  tlie  same  credit  from  the  insured,  because 
the  contract  was  one  of  indemnity  merely. 
Puller  V.  Staniforth,  11  East,  233;  Puller  v. 
Olwjer,  12  East,  134. 

.H9.  A  ship  was  chartered  to  take  lead  from 
London  to  St.  Petersburg,  and  to  land  there 
a  cargo  for  London,  witli  forty  running  days 
to  unload  and  load;  aud,  if  she  should  not  be 
allowed  to  unload  within  that  time,  she  should 
have  the  right  to  return  to  London  or  to  any 
port  in  England.  The  charterer  agreed  to  pay 
her  £2,700,  If  she  .should  not  be  allowed  to  un- 
load; and,  he  insured  tlie  adventure.  She 
was  not  permitted  to  unload;  and,  after  wait- 
ing forty  days,  tlie  master  took  return  cargo 
for  London  upon  the  out  cargo,  and  she  earned 
new  freight.  Held,  insured  was  entitled  to 
recover  the  sum  insured  without  allowing 
credit  for  the  new  freiglit  earned  upon  the 
liome  voj-age.    Puller  v.  IliilUdny,  12  East,  494. 

40.  On  freight  .at  and  from  Algoa  Bay  or 
Table  Bay,  both  or  either,  to  London.  Slie 
had  discharged  all  her  outward  cargo  except 
seventy  tons  which  was  required  for  ballast. 


Tlie  homeward  cargo  was  ready.  She  was 
lost  before  she  took  in  any  homeward  car- 
go.  //eW,  if  she  was  in  a  condition  to  begin 
to  take  in  her  home  cargo  tlie  insurer  was  li- 
able. WClUmmoii  V.  Junes,  I  M.  &  liob.,  88; 
s.  c,  8Bing.,80n. 

41.  "On  ship,  cargo,  and  freight,  from 
Calcutta,  or  any  ports  or  places  on  the  Coro- 
mandel  coast  to  any  ports  or  places  in  Bour- 
bon." The  loss  was  averred  on  freight;  that 
while  she  was  at  Coringa  to  take  on  a  full 
cargo  whicli  had  been  provided  and  would 
have  been  put  on  board,  slie  was  by  perils  of 
the  sea  broken,  destroyed  and  rendered  in- 
capable to  pursue  the  voyage.  She  arrived 
on  tlie  coast  of  Coromandel  leaki.g  badly. 
The  master  was  directed  by  the  autliorities  to 
take  her  up  the  river  into  a  dock,  as  was  cus- 
tomary in  that  country,  because  tlie  extent  of 
the  defect  could  not  be  ascertained  till  she 
was  put  into  dock.  She  was  accordingly 
taken  to  Coringa  and  put  into  dry  dock, 
while  her  return  cargo  was  being  purchased  ; 
but  before  all  her  repairs  were  completed  a 
a  full  cargo  of  rice,  buflalo  horns  and  hides 
was  safely  deposited  for  her  in  warehouses 
seven  miles  from  Coringa.  Afterwards  she 
was  reported  ready  for  sea  and  could  have 
been  got  afloat  in  a  couple  of  hours;  but 
the  fastenings  yielded,  two  ribs  at  the  fastening 
of  the  starboard  forecable  were  broken,  and 
other  serious  injury  resulted  to  the  ship;  iu 
consequence  it  became  necessary  lo  dock  her 
afresh  and  repair  the  damages.  The  costs  of 
repairs  would  have  amounted  to  more  than 
tht  vessel  was  worth;  no  money  upon  bot- 
tomry or  otlierwise  could  be  borrowed  for  the 
purpose  of  repairs,  and  a  period  of  eight 
montlis  would  have  elapsed  before  the  neces- 
sary materials  for  repairs  could  have  been 
procured  from  other  places.  The  authorities 
at  Coringa  therefore  directed  an  abanilonment 
of  the  vessel,  and  she  was  broken  up  and 
sold.  The  cargo  was  conveyed  to  Bourbon 
by  another  vessel,  and  over  0,000  rufjees  were 
paid  for  the  freight  of  it.  Held,  she  was  dis- 
abled and  prevented  from  taking  the  cargo  by 
one  of  tlie  perils  insured  against,  while  the 
endeavor  to  get  her  out  of  the  dock  and  into 
the  river  was  being  made;  tliat  tlie  policy  at- 
tached ;  the  distance  from  the  ship  to  the  place 
where  the  cargo  was  deposited  was  immater- 
iai.  De  Vaux  v.  Janson,  8  L.  J.  (X.  S  ),  C.  P., 
284;  5  Biug.  ^N.  C.),519;  3  Jur.,  UTS. 

297 


595 


FREIGHT. 


596 


What  is  a  total  loss  of. 


42.  "  Oa  freight,  from  January  24lli  to 
March  1,  18o2."  She  was  laden  with  coal  for 
Aden,  where  she  could  not  have  arrived  until 
long  after  March  1st.  Slie  was  compelled  to 
put  into  Cuxhaven  February  8th  with  fifteen 
feet  of  water  in  her  hold.  The  coal  was  high- 
ly impregnated  with  deliquescent  salts,  and 
would  have  been  extreme]}'  dangerous  had  it 
been  carried  forward  in  that  condition;  and  it 
■would  have  cost  more  than  thrice  its  value  to 
free  it  from  the  salts.  Insured  abandoned, 
and  the  ship  proceeded  on  another  voj'age. 
Held,  a  total  loss.  Michael  v.  Gillespie,  3  C. 
B.  (N.  S.),  627;  s.  C,  3  Jur.  (N.  S.),  1219;  26 
L.  J.  C.  P.,  306. 

43.  "  On  cash  on  account  of  freight."  The 
-declaration  alleged  the  shipment  and  prepay- 
ment of  freight;  that  she  encountered  a  storm 
and  sustained  so  much  damage  that  she  was 
prevented  from  proceeding  without  being 
repaired,  which  could  not  have  been  done  ex- 
cept at  an  expense  greater  than  her  value  when 
repaired,  together  with  the  freight  she  would 
have  earned  on  the  voyage;  that  the  master 
•was  obliged  to,  and  did,  abandon  the  voyage, 
and  that  insured  procured  two  other  vessels  to 
carry  the  goods,  at  a  rate  of  freight  exceeding 
the  freight  originally  payable  under  the  char- 
ter  party.  Held,  the  plaintiff  was  entitled  to 
recover  as  for  a  total  loss  of  the  prepaid  freight, 
because  the  master  was  justified  in  abandon- 
ing the  voyage.  DeCuadra  «.  Swann,  16  C. 
B.  (N.  S.),  772. 

44.  Policy  on  chartered  freight,  valued  at 
^5,000,  stipulated:  "Insurers  might  sue  and 
labor  for,  in  and  about  the  preservation  of  the 
property  insured ;"  and  "  Warranted  free  from 
particular  average."  She  was  damaged  in  a 
gale,  and  put  into  Rio,  where  she  was  found 
unworthy  of  repairs,  and  the  cargo  was  for- 
warded by  another  vessel  at  a  cost  of  £3,467 
lis.  lOd.  The  goods  were  delivered,  and  the 
cliarterod  freight  paid  to  insured.  Held, 
IVcight  pro  rata  itineris  could  not  have  been 
claimed  by  the  ship  at  Rio;  hence  there  was 
a  total  loss  of  freight;  that  the  expenses  in- 
curred in  forwarding  the  goods  to  destination 
were  charges  within  the  suing  and  laboring 
clause  incurred  for  the  benefit  of  insurers  of 
freiglrt,  to  protect  them  against  a  total  loss  of 
it,  for  which  they  would  have  been  liable  but 
for  the  incurring  of  these  expenses.  The 
<;ourt  here  repudiates  the  doctrine  announced 
by  Kent,  C.  J.,  in  Bradhurst  v.  Commercial  Ins. 

298 


Co.,  9  Johns.,  17.  Kiditon  v.  Empire  Marine 
Ires.  Co.,  2  L.  R.  C.  P.,  357;  36  L.  J.  C.  P.,  156; 
16  L.  T.  (X.  S.),  119:  15  W.  R.,  769;  affirming 
s.  c,  1  L.  R.  C.  P.,  535;  12  Jur.  (X.  S.),  665; 
15  W.  R.,  63;  15  L.  T.  (N.  S.),  12;  35  L.  J.  C. 
P.,  250. 

45.  "  On  chartered  freight,  at  and  from 
Mauritius  to  rice  ports,  and  at  and  from  Ihence 
to  a  port  of  discharge  in  the  U.  K.,  valued  at 
£1,150."  She  was  about  to  proceed  from  Cal- 
cutta to  Mauritius,  and  was  chartered  to  fake 
a  cargo  of  rice  from  Mauritius  to  the  IT.  K. 
She  arrived  at  Mauritius,  and  was  lost  while 
discharging  her  cargo.  Held,  the  policy  at- 
tached when  she  arrived  at  Mauritius ;  hence 
insurers  were  liable  (citing  Thompson  v.  Tay- 
lor,  6  Term,  478;  Barber  c.  Fleming,  5  L. 
R.  Q.  B.,  59).  Foley  v.  United  Fire  and  Marine 
Tns.  Co.,  5  L.  R.  C.  P.,  1.55;  33  L.  J.  C.  P.,  206; 
18  W.  R.,  437;  22  L.  T.  (N.  S.),  108,  Exch. 
Cham. 

46.  While  on  a  voyage  from  Glasgow  to 
Kew  Zealand,  with  .cargo  and  government 
emigrants  for  Otago,  she  was  chartered  by  M. 
to  proceed  from  Otago  to  Calcutta  to  load  for 
London;  and  this  policy  was  written,  "At  and 
from  the  Clyde  to  Southland,  N.  Z.,  while 
there,  and  thence  to  Otago,  and  for  thirty  days 
in  port  there  after  arrival,  on  homeward  chart- 
ered freight."  She  grounded  at  Bluff  harbor. 
Southland,  April  33,  1863 ;  the  passengers  and 
their  luggage  were  sent  forward  at  the  ex- 
pense of  the  ship.  She  grounded  again  twice, 
and  did  not  get  clear  till  July  1st,  arriving  at 
Dunedin  on  the  4th.  On  being  examined  she 
was  found  damaged  to  a  very  considerable  ex- 
tent, but  not  enough  to  prevent  her,  after  mak- 
ing temporary  repairs,  proceeding  to  Calcutta, 
where  she  could  undergo  further  examina- 
tion and  make  complete  repairs.  She  arrived 
at  Calcutta,  June  7th  following,  when  it  was 
found  that  the  damages  sustained  at  Bluff  har- 
bor were  so  great  that  they  would  cost  to  re- 
pair them  more  than  her  value  when  repaired, 
plus  the  homeward  freight.  The  charterer 
had  also  stopped  payment,  and  his  agents  at 
Calcutta  refused  to  load  the  ship.  She  was 
detained  at  Calcutta  until  April  14th  follow- 
ing, when  she  became  a  total  wreck  in  a  cy- 
clone which  then  occurred.  Held,  the  plaint- 
iffs, not  being  bound  to  repair  her,  were  re- 
leased  from  the  obligations  of  the  charter 
party ;  there  was  therefore  no  right  or  interest 
in  the  owners  in  respect  of  freight  which  they 


307 


FREIGHT. 


598 


What  is  partial  loss  of. 


could  abandon  to  the  insurers;  that  the  only 
benetjt  that  a  notice  of  abandounieut,  under 
such  circumstances,  could  have  conferred  upon 
insurers  was,  that  they  might  have  chartered 
a  vessel  and  have  applied  to  the  charterer  to 
let  them  bring  the  cargo  home,  taking  their 
chance  of  his  acceptance,  which  he  was  not 
bound  to  give,  because  he  was  entitled  to  the 
vessel  contracted  for,  and  not  obliged  to  lake 
another;  that  this  benefit  was  not  a  tangible 
and  appreciable  right;  that  the  circumstances 
of  the  case  were  not  such  as  to  call  upon  the 
insured  to  make  a  further  examination  of  the 
vessel  before  she  left  New  Zealand,  with  the 
view  to  ascertain  whether  there  was  or  not  a 
constructive  total  loss,  and  that  notice  of 
abandonment  having  been  given  as  soon  as 
•  he  true  condition  of  the  vessel  was  ascer- 
tained, it  was  sufficient.  Potter  v.  Rankin,  6 
L.  R.  Eng.  &  Ir.  App.,  83;  affirming  s.  c,  43 
L.  J.  C.  P.,  160;  5  L.  R.  C.  P.,  341;  22  L.  T. 
(N.  S.),  347;  18  W.  R.,  GOT;  39  L.  J.  C.  P.,  147; 
reversing  s.  c,  3  L.  R.  C.  P.,  5U2;  37  L.  J.  C. 
P.,  257;  18L.  T.  (N.  S.),  712;  16W.  R.,  1049; 
Potter  V.  Campbell,  16  id.,  399. 

47.  "  On  chartered  freight,  valued  at£2,900." 
She  was  to  proceed  with  all  convenient  speed, 
■dangers  of  navigation  excepted,  "  Liverpool  to 
Newport,"  to  take  a  cargo  of  iron  rails,  thence 
to  San  Francisco.  She  grounded  in  Carnar- 
von  Baj-  January  4,  1872,  was  got  off,  and  re- 
turned to  Liverpool  April  12th.  The  char- 
terers threw  up  the  charter  February  loth,  and 
liired  another  ship  to  carry  the  rails  to  San 
Francisco.  The  jury  found  specially  that  the 
time  necessary  to  get  her  oft"  and  repair  her 
made  it  unreasonable  for  the  charterers  to 
supply  the  agreed  cargo  at  the  end  of  that 
time,  and,  in  a  commercial  sense,  put  an 
^'nd  to  the  enterprise  entered  upon  by  the 
ship  owners  and  the  charterers.  Held,  the 
charterers  were  absolved  from  loading  the 
vessel,  hence  the  ship  owner  was  entitled 
to  recover  (or  the  loss  of  freight.  Jackson 
1).  Union  Mut.  Ins.  Co.,  8  L.  R.  C.  P.,  573; 
22  W.  R.,  79;  affirmed,    10  L.  R.  C.  P.,   125. 

YII.  "What  is  paetial  loss  of. 

1,  "On  freight  from  Teneriffe  to  Havana, 
and  at  and  from  thence  to  New  York,  with 
liberty  to  stop  at  Matanzas."  On  a  second 
policy  by  the  same  company,  on  the  same  sub- 


ject, on  the  same  voyage,  there  was  no  liberty 
to  stop  or  touch  at  Matanzas.  Slie  put  into 
Matanzas,  June  2d,  to  avoid  British  cruisers, 
then  in  sight,  unloaded  and  delivered  cargo 
there  to  the  Spanish  owners,  who  paid  $7,1)00 
as  freight  to  Havana.  Insured  received  it 
"  in  full  of  all  demands  as  freight  or  otherwise 
under  or  by  virtue  of  tlic  aforesaid  charier 
party  and  cargo."  At  Havana  she  took  a  new 
cargo  belonging  to  persons  in  New  York,  con- 
sisting of  120  boxes  sugar,  at  a  freight  of  $3.50 
per  box.  She  sprung  a  leak  on  the  voyage, 
and  transhipped  half  of  the  cargo  to  another 
vessel,  bound  for  Norfolk,  where  it  was  safely 
landed.  Held,  the  freight  received  at  Matan- 
zas  did  not  prevent  the  insured  from  recover, 
ing  for  a  loss  of  freight  from  Havana  to  New 
York.  Ihighes  v.  Union  Ins.  Co.,  8  Wheat 
294. 

2.  On  freight,  New  Orleans  to  Havre.  She 
took  a  cargo  of  cotton  and  tobacco,  woods  and 
wax,  the  freight  of  which  was  nearly  $10,000. 
She  was  in  tow  of  a  steamboat,  proceed- 
ing toward  the  bar  near  the  mouth  of  the 
Mississippi;  the  current  ran  very  rapidly, 
which  caused  the  ship  to  sheer  and  surge  vio- 
lently; the  steamboat  lost  steerage  way,  the 
ship  look  the  ground  and  remained  hard  and 
fast;  the  eddy  current  caused  the  steamboat  to 
swing  round,  and  she  drove  stern  foremost 
upon  the  ship  with  great  violence,  and  broke 
in  her  larbo.ard  side.  She  commenced  to  leak 
immediately,  the  water  increased  from  six  to 
sixteen  feet  in  the  hold;  the  cargo  was  tran- 
shipped to  steamboats  and  carried  back  to 
New  Orleans,  to  which  place  she  was  taken, 
repaired  and  fitted  for  sea,  and  took  a  cargo 
for  England,  all  of  which  was  done  within 
six  weeks.  The  undamaged  cargo,  value 
$3,210,  was  sent  to  Havre  by  another  vessel ; 
the  damaged  goods  were  sold  at  New  Orleans 
under  the  advice  of  expert  surveyors,  and 
brought  $19,774.22.  The  whole  cargo  was  in- 
voiced at  $71,000.  The  cotlon  in  ils  wetted 
condition,  had  it  been  reshipped,  would  have 
been  subject  to  spontaneous  combustion,  but 
it  miglit  have  been  put  in  a  condition  for 
reshipment,  but  that  would  have  taken  six 
mouths.  Held,  the  insurers  of  freight  were 
not  liable  for  a  total  loss  of  it;  but  insured 
were  entitled  to  recover  freight  for  the  goods 
physically  lost  (citing  Anderson  v.  Wallis,  3 
Man.  &  Sel.,  240;  Everth  ».  Smith,  id.,  278; 
Herbert  n.  Uallet,  3  Johns.  C,  93;  Griswold  v 

299 


599 


FREIGHT. 


C,nO 


What  is  partial  loss  of. 


N.  Y.  Ins,  Co.,  3  Johns.,  321 ;  Siiltus  v.  Ocean 
Ins.  Co.,  14  id.,  138;  Whitney  v.  N.  Y.  Ins.  Co., 
18  id.,  208;  M'Gaw  ».  Ocean- Ins.  Co.,  23  Pick., 
4(J5 ;  Moldy  v.  Jones,  4  B.  &  C,  394;.  Jordan 
V.  Warren  Ins.  Co.,  1  Story,  343. 

3.  On  freight,  at  and  from  Bordeau.v  to  the 
United  States,  against  perils  of  the  seas,  ar- 
rests, restraints,  detainments  of  all  Ivings, 
princes,  etc.  She  sailed  from  Bordeaux  No- 
vember 17th ;  and  oil  the  20th,  before  she  reach- 
ed the  mouth  of  the  Garonne,  was  embargoed 
by  the  French  government,  which  was  not 
talien  off  until  Jauuaiy  10th.  During  the  em- 
bargo, an  expense  was  incurred  for  seamen's 
wages,  provisions  and  extra  pilotage,  $875. 
She  completed  her  voyage,  and  received 
fi-eight  according  to  the  original  stipulation 
between  shipper  and  ship  owner.  Held,  the 
expense  was  an  immediate  consequence  of  the 
embargo  at  Bordeaux;  the  injury  was  done 
exclusively  to  the  freight,  and  in  the  abseuce 
of  any  commercial  usage  to  the  contrary,  the 
insurers  of  freight  were  liable  for  it.  Jones 
V.  Insurance  Co.  of  North  America,  4  Dall.,  247. 

4.  On  freight.  She  took  a  cargo  of  guano 
at  the  Chincha  Islands  for  New  York  and 
sailed.  She  sprung  a  leak  and  was  compelled 
to  return  to  Callao  for  repairs.  A  part  of  the 
cargo  had  been  so  much  damaged  by  sea 
■water  that  it  was  in  a  semi-liquid  state,  utter- 
ly worthless,  and  could  not  be  kept  in  the  ves- 
sel. The  cost  of  drying  would  have  been 
greater  than  its  value  when  dried;  and-  it 
was  thrown  overboard.  The  vessel  could  not 
be  repaired  with  the  cargo  on  board.  The 
necessary  appliances  for  unloading  could 
not  be  procured  at  Callao ;  the  balance  was 
tlierefore  transhipped  to  another  vessel  bound 
for  England,  and  she  was  allowed  iifty  cents 
per  ton  for  the  part  trausliipped.  After  repairs 
were  complete,  the  charterers  consented  that 
she  should  go  to  the  Islands  and  take  another 
cargo  under  the  original  charter ;  and  in  pur- 
suance of  that,  she  took  one  and  delivered  it 
safely  in  New  York.  Held,  insured  on  freight 
was  entitled  to  recover  freight  on  the  cargo 
thrown  overboard  at  Callao,  but  they  were  not 
entitled  to  recover  a  total  loss  of  freight  for 
the  voyage.  Parsons  v.  Manufacturers  Ins. 
Co.,  16  Gray,  463. 

5.  "  On  freight,  laden  or  to  be  laden. 
New  Orleans  to  Gibraltar,  with  liberty  to  go 
to  Cape  deVerds  for  salt,  and  back  to  the  United 
States.     She  delivered  her  cargo  out,  and  with 

300 


the  freight  earned  purcliased  part  cargo  of 
wine,  took  some  wine  on  freight  for  other  per- 
sons, and  sailed  for  the  Cape  de  Verds  to  in- 
vest balance  of  freight  earnings  iu  salt ; 
she  was  lost  on  the  voyage.  Held,  the  in- 
surers were  liable  for  the  freight  of  the  goods 
on  board  and  no  more,  altliough,  had  she 
reached  the  Cape  de  Verds  and  taken  the  salt 
there,  her  freight  would  have  been  over 
|2,000.  miei/  V.  Hartford  Ins.  Co.,  3  Conn., 
368. 

6.  The  vessel  was  to  proceed  from  M.  to  C.  and 
thence  to  B.;  and  when  the  voyage  should  be 
ended,  the  owners  were  to  receive  a  gross  sum ; 
but  she  was  forcibly  taken  away  from  C.  be- 
fore her  lading  was  completed.  Held,  the 
the  charterer  was  not  bound  to  pay  full 
freight.  Charleston  Ins.  &  T.  Co.,  i.  Corner, 
3  Gill,  410. 

7.  She  grounded ;  an  unsuccessful  etlbrt 
was  made  to  get  her  Off.  She  was  survej-ed, 
and  the  master  was  obliged  to  strip  her  and 
save  what  he  could.  Subsequentlj%  about  ten 
days  after  she  grounded,  ship  and  cargo  were 
sold.  The  cargo,  and  a  large  quantity  of  her 
stores,  were  substantially  uninjured,  all  of 
which  might  have  been  forwarded  to  their 
destination.  The  policies  were  against  total 
loss  onlj'.  Held,  as  to  the  policy  on  carso,  no 
recovery  could  be  had ;  but  as  to  that  on  dis- 
bursements, insured  were  entitled  to  recover, 
because  the  vessel  was  rendered  unable  to  earn 
freight.  Carrie  v.  Bombay  Native  Ins.  Co.,  3  L. 
R.  P.  C,  72;  6  Moore  P.  C.  C.  (N.  S.),  302;  39' 
L.  J.  P.  C,  1 ;  22  L.  T.  (N.  S.),  317 ;  18  W.  R., 
296. 

8.  On  ship,  and  on  freight.  She  was  de- 
tained by  embargo,  and  the  respective  sul> 
jects  insured  were  abandond.  The  insur- 
ers on  ship  authorized  the  insured  to  act  for 
them,  for  the  purpose  of  recovering  the 
freight.  She  afterwards  brought  the  cargo 
home,  and  freight  was  paid  upon  it.  Held,  tlie 
insurers  of  freight  were  entitled  to  recover  it 
from  the  insured.  Leathern  v.  Terry,  3  B.  & 
P.,  478. 

9.  The  owner  of  ship  abandoned  her  to  his 
insurers,  and  he  also  abandoned  freight  to  in- 
surers of  it;  both  paid  total  losses,  but  she 
subsequently  reached  the  port  of  destination 
and  earned  freight,  which  was  received  by  in- 
sured. Held,  the  ship  and  freight  were  sal- 
vage to  the  different  insurers;  and  that  in- 
surers  of  freight  were  entitled  to  recover  all 


601 


FREIGHT. 


602 


When  insurers  of  sliip  shall  have  freight  earned. 


that  insured  had  collected,  subject  to  any  de- 
ductions which  were  properly  a  charge 
jgainst  it.  Sharp  v.  OUidslone,  7  East,  24;  3 
Smith,  39. 

10.  "  On  freight,  valued  at  the  sum  insured, 
Cameroons  to  Liverpool."  She  was  stranded 
near  Pwllheli,  on  the  Welsh  coast,  where  it 
beciiine  necessarj'  to  land  tbe  cargo.  She  was 
towed  to  the  nearest  port,  Carnarvon,  and 
made  thoroughly  seaworthy;  but  the  freight 
was  forwarded  by  railway  to  Liverpool  at 
ship's  cost,  £313  15s.  Id.  Insured  received 
freight  according  to  bill  of  lading.  IIe!d, 
insured  was  entitled  to  recover  only  that  ex- 
pense which  was  necessary  for  the  purpose 
of  earning  freight.  Lee  v.  Sotdhern  Ins.  Co.,  5 
L.  R.  C.  P.,  397;  33  L.  T.  (N.  S),  443;  18  W. 
R,  863;  39  L.  .1.  C.  P.,  318. 

11.  "On  chartered  freiglit,  at  and  from 
Bombay  to  Howland's  Island,  while  there,  and 
thence  to  any  port  in  llie  United  Kingdom." 
She  sailed  from  Bombay,  in  b.allast,  October 
4.  1866,  under  charter  to  take  a  cargo  of  guano 
from  the  island,  intending  to  call  at  a  port  in 
New  Zealand  for  water,  but  she  went  ashore 
on  the  coast  of  New  Zealand.  December  35th, 

,  following,  and  was  so  much  damaged  that  the 
voyage  was  necessarily  abandoned,  ffeld,  the 
contract  of  atTreiglilment  gave  the  ship  owner 
an  interest  in  freiglit,  and  the  amount  of  loss 
was  recoverable  under  the  policj-.  BnrbT  v. 
Fleming,  5  L.  J.  Q.  B.,  59 ;  39  id.,  35  :  18  W.  R., 
3.54. 

12.  A.  chartered  his  ship  to  B. — coals  — 
"  Greenock  to  Bombay,"  at  43s.  per  ton,  one- 
half  to  be  prepaid,  and  the  remainder  upon 
right  delivery  of  tlie  cargo.  The  cliarterer 
paid  the  one-half  of  the  freight  to  the  ship 
owner,  who  procured  this  policy.  She  was 
lost  near  Bombay;  about  half  the  cargo  v  as 
lost,  and  the  other  half  safely  delivered  to  the 
consignees  free  of  freight.  Held,  insurers 
wore  not  liable  for  a  total  loss  of  the  unpaid 
IVeiirht,  for  the  owner  of  the  cargo  could  not 
appropriate  the  whole  amount  prepaid  to  that 
portion  of  llie  cargo  which  was  .actually  deliv- 
ered, but  that  it  should  be  applied  pro  rata  on 
the  cargo  delivered;  lience  there  was  a  loss  of 
one-half  of  the  freight  on  the  coals  not  deliv- 
ered for  wliioh  insurers  were  liable.  Allison 
V.  Bnstcl  Marine  Ins.  Co.,  9  L.  R.  C.  P.,  559; 
4:^  L.  J.  C.  p.,  311 ;  31  W.  R.,  920;  30  L.  T.  (N. 
S.),  SrT;  reversing  s.  c,  43  L.  J.  C.  P.,  334. 


VIII.  When  insurers  of  ship  shall 

HAVE    FREIGHT    EARNED. 

1.  The  ship  was  abandoned  and  the  insurer 
accepted  it,  but  the  voyage  was  afterwards 
performed.  Held,  the  freiglit  earned  was  the 
property  of  insurer  of  ship.  United  Ins.  Co. 
V.  Lenox,  I  .Jolins.,  377;  s.  c.  affirmed,  2  id., 
443. 

2.  If  tlie  cargo  owner  directs  a  sale  of  th<5 
property  at  the  port  of  necessity,  receives  the 
net  proceeds  as  the  owner  of  the  cargo,  that  is 
a  partial  not  a  technical  total  loss  of  cargo, 
and  the  ship  is  entitled  to  freight  pnt  rata  for 
which  tlie  insurers  on  freight  must  receive 
credit.  Whitney  v.  New  York  Firemen's  Int. 
Co.,  18  Johns.,  308. 

3.  The  insured  abandoned,  and  the  insurer 
adjusted  as  for  a  total  loss  of  freight;  but  she 
subiiequently  earned  freight  on  the  voyage. 
Held,  the  insured  must  account  to  his  insurer 
for  it,  less  the  expenses  against  it.  Barclay  n. 
Sterling,  5  Mau.  &  Sel.,  6. 

4.  Ship  and  freight  insured  by  separate  in- 
surers.  She  was  captured  and  abandoned  to 
them  severally,  and  they  paid  total  losses ;  she 
was  recaptured  and  earned  freight,  which  was 
paid  to  insured.  Held,  insurer  of  the  ship  wa.<< 
entitled  to  the  freight  earned.  Case  v.  David- 
son, 5  Mau.  &  Sel.,  79 ;  2  B.  &  B.,  379. 

5.  A  ship  owner  insured  his  ship  with  A. 
and  his  freight  with  B.,  and  received  payment 
from  both  as  for  total  losses.  He  assigned  his 
interest  in  the  ship  to  the  insurers  of  it,  and 
agreed  to  account  to  them  for  it;  and  to  in- 
surers on  freight  he  agreed  to  account  for 
freight.  She  arrived  and  earned  freight,  which 
was  received  by  insured.  Held,  he  must  pay 
over  the  money  received  as  freight,  to  the 
insurers  of  freight.  Thompson  v.  Mowcroft,  4 
East,  34. 

6.  On  ship.  She  was  badly  damaged  on  the 
voy.nge,  but  reached  her  destination  and  earned 
freight.  Insurers  refused  an  abandonment. 
The  jury  found  she  was  not  worth  repairing. 
Held,  a  total  loss.  But  insurers  of  ship  were 
entitled  to  credit  for  the  freight  earned  in  pro. 
portion  as  the  value  of  the  ship  bore  to  the 
amount  insured  on  ship.  Stewart  v.  Greenock 
Marine  Ins.  Co.,  8  C.  C.  S.,  323;  18  Scot.  Jur., 
151. 


301 


603 


FROM  THE  LOADING. 


60-f 


Miscellaneous. 


IX.   When  insueees  of  ship  shall 

NOT  HA\'E   FEEIGHT   EARNED. 

She  was  "  cliartered  from  Portsmouth  to 
Calcutta,  one-third  of  the  freight  payable  with- 
in fourteen  days  after  sailing,  and  the  other 
two-thirds  within  twenty-one  days  after  dis- 
charge at  port  of  destination,"  and  this  policy 
was  made  upon  the  ship  for  twelve  months, 
from  August  13,  1857.  About  700  miles  be- 
yond the  ilauritius,  she  took  fire,  and  put 
back  to  the  Mauritius,  where  she  arrived  in  a 
very  badly  damaged  condition.  An  abandon- 
ment was  offered  and  accepted.  The  master 
hired  another  vessel,  completed  the  charter, 
and  received  the  balance  of  freight  at  Cal- 
cutta. Held,  insurers  of  ship  wore  not  entitled 
to  any  part  of  the  freight  collected,  for  the 
master  acted  as  the  agent  of  the  ship  owner,  in 
taking  steps  to  complete  his  contract  and  earn 
freight  (any  thing  in  Stewart  v.  Greenock  Ma- 
rine Ins.  Co.,  3  H.  of  L.  Cas.,  159,  in  conflict 
with  this  was  mere  dicta).  JSickie  v.  Modocan- 
achi,  4  H.  &  N.,  455 ;  5  Jur.  (N.  S.),  550;  28  L. 
J.  Ex.,  373;  7W.K.,54o. 

X.   Ajbandonment  of. 

1.  An  abandonment  of  ship  to  one  insurer 
does  not  prevent  a  recovery  of  freight  from 
another  insurer.  Livingston  v.  Columbian  Ins. 
Co.,  3  Johns.,  49. 

2.  Where  the  ship  is  driven  back  to  her 
port  of  lading,  and  is  in  such  a  condition  that 
she  cannot  be  repaired  for  half  her  value,  the 
court  will  not  presume  that  another  vessel 
could  have  been  employed  for  a  sum  less  than 
that  stipulated  in  the  original  charter  party. 
In  such  a  case,  there  is  no  salvage  on  freight, 
and  therefore  nothing  to  abandon  in  respect 
to  it,  and  no  abandonment  is  necessary.  Cen- 
ter V.  American  Ins.  Co.,  7  Cow.,  564;  affirmed, 
4  Wend.,  45. 

3.  On  hull  and  freight,  New  Orleans  to  San 
Francisco.  She  was  driven  into  Rio  by  stress 
of  weather,  and  compelled  to  make  repairs 
tliere ;  while  doing  so,  a  gale  came  on  in  which 
she  was  so  badly  damaged  that  she  was  con- 
demned, sold,  and  the  cargo  reshipped  by  an- 
other vessel  for  point  of  destination.  Insured 
abandoned  immediately  after  intelligence 
reached  them.  Insurer  did  not  accept  the 
abandonment,  but  paid  a  total  loss  on  the  hull, 
and  made  a  payment  on  account  of  the  freight. 

302 


Held,  an  acceptance  was  unnecessary :  insured 
was  entitled  to  recover  for  a  total  loss  of  freight. 
Rogers  v.  Nashtille  Marine  and  Fire  Ins.  Co.,  9 
La.Au.,  537 

4.  On  freight.  The  master  sold  the  ship 
while  she  was  in  a  dangerous  positicm,  but 
the  purchasers  got  her  ofl,  repaired,  loaded, 
and  navigated  her  to  the  point  of  destination. 
Held,  if  the  master  acted  fairly  for  the  benefit 
of  all  concerned,  in  selling  her,  no  abandon, 
raent  of  freight  was  necessary.  Idle  e.  Royal 
Exchange  Ass.  Co.,  8  Taunt.,  755 ;  s.  c,  3  Moure, 
115. 

XI.  Measitee  of  damage. 

On  freight  not  valued.  The  ship  owner  was 
owner  of  the  cargo.  She  was  lost  on  the  voy- 
age. Held,  the  usual  and  reason.able  freight 
for  the  voyage  was  the  measure  of  damage. 
Paradise  v.  Sun  Mutual  Ins.  Co.,  6  La.  An.,  596-. 


FROM  THE  LOADING. 

1.  On  cargo  from  Vera  Cruz  to  NeT  Yo;  k. 
"Beginning  the  adventure  from  and  immedi- 
ately after  the  loading  thereof,  on  board  said 
vessel  at  Vera  Cruz,  with  liberty  to  touch  and 
trade  at  New  Orleans  or  Havana.  He'd,  it  did 
not  cover  a  cargo  taken  at  any  jilace  other 
than  Vera  Cruz.  Graves  r.  Marine  Ins.  Co., 
2  Caines,  339. 

2.  On  goods,  at  and  from  Pernambuco  to 
Maranham,  thence  to  Liverpool,  beginning 
the  adventure  from  the  loading  thereof^  where- 
soever. She  carried  goods  from  Liverpool  to 
Pernambuco,  disposed  of  the  whole  except 
twenty-five  cases,  which  were  not  unladen, 
and  she  sailed  with  them  for  Maranham,  with 
other  goods  and  specie,  to  be  carried  to  Liver- 
pool, and  was  lost  between  Pernambuco  and 
Maranham.  Held,  they  were  within  the  mean- 
ing of  the  policy.  Gladstone  v.  Clay,  1  Mau. 
&  Sel-,  418. 

3.  On  goods  from  Gottenburg  to  the  ship's 
port  of  discharge,  "  Beginning  the  adventure 
from  the  loading  thereof."  They  were  laden 
at  Christiansand,  in  Norway.  She  arrived  at 
Gottenburg,  August  2d.  The  goods  were  not 
unladen,  and  no  other  cargo  was  taken  at  Got- 
tenburg. Held,  the  loading  must  be  subse- 
quent to  the  ship's  arrival  at  the  port,  and  dur- 


605 


GARNISHMENT  — GENERAL  AVERAGE. 


eoc 


What  are  chargfes  in. 


ing>  the  time  she  is  at  the  port  whence  the  voy- 
age is  to  commence.  MelUsh  v.  Alliiuit,  2  Mau. 
&  Sel.,  106. 

4.  At  and  from  Gottcnburg  to  any  port  of 
discharge  in  the  Baltic,  on  coffee  and  sugar, 
heginniug  the  adventure  from  tlic  loading 
thereof.  The  cargo  was  taken  at  London. 
She  arrived  at  Gotttnhurg,  but  it  was  not 
talcen  out  there.  The  insurer,  at  the  time  of 
executing  the  policy,  knew  that  fact.  Held,  the 
policy  did  not  cover  the  goods.  Langhorn  v. 
Hardy,  4  Taunt,,  G38;  Spitta  v.  Woodman,  2 
id.,  41G. 

5.  On  ship  D.  H.  and  her  cargo  of  guano, 
at  and  from  port  or  ports  in  the  river  Platte  to 
the  United  Kingdom,  "  Beginning  the  adven- 
ture  upon  the  said  goods  and  merchandises 
from  the  loading  tlicreof  aboard  the  said  ship 
at  as  above."  The  cargo  had  been  originally 
loaded  at  Patagonia,  but  she  made  the  river 
Platte  inU  distressed  condition,  where,  to  en- 
able repairs  to  be  made,  a  portion  of  the  cargo 
was  taken,  out,  and  reloaded  when  the  repairs 
were  completed.  At  the  time  the  policy  was 
made,  insurers  had  notice  that  the  cargo  might 
not  have  been  taken  in  at  the  river  Platte;  that 
it  was  a  Patagonian  cargo,  and  tliat  their  de- 
sire was  to  effect  an  insurance,  though  the  ves- 
sel had  then  gone  over  a  considerable  portion 
of  her  voyage.  Held,  the  court  would  look  at 
all  the  surrounding  facts  and  circumstances 
to  ascertain  what  the  intention  of  the  parties 
was,  because  the  instrument  was  susceptible 
of  more  meanings  than  one;  hence  the  stipu- 
lation for  loading  at  the  port  of  departure  was 
satisfied  on  the  authority  of  Nonen  i>.  Kettle- 
well,  16  East,  176.  Carr  v.  Montefiore,  5  B.  & 
S.,  408;  8.  c,  10  Jur.  (N.  S.),  1069;  33  L.  J.  Q. 
B.,  256;  12  W.  R.,  870;  11  L.  T.  (N.  S.),  157; 
affirming  s.  c,  10  Jur.  (N.  S.),  312;  33  L.  J.  Q. 
B.,  57;  10  L.  T.  (N.  S.),  294;  12  W.  R.,  12G. 


GARNISHMENT. 

(See  Attachment  and  Gabnibqhedt.) 


GENERAL  AVERAGE. 

I.  What  are  charges  ts. 

II.  NOT  CHARGES  IN. 

III.  SHALL  NOT  BE  CONTRIBDTED  FOR. 


IV.  What  must  contribute. 
V.  shall  not  contributk. 

VI.   CoKTRIBtJTORY  VALUES. 

VII.  Adjust.ment. 

(a)  yVhen  conclusive, 

(b)  not  conclusive. 

(c)  What  law  governs. 

I.  "What  ajje  charges  in. 

1.  The  wages,  provisions  and  other  expenses 
of  a  voyage  to  a  port  of  necessity,  for  the  pur- 
pose of  making  repairs,  are  charges  in  general 
average ;  the  right  to  treat  them  as  such  does 
not  depend  upon  whether  there  are  sev- 
eral subjects  on  board  the  ship,  but  whether 
there  is  a  common  sacrifice  for  the  bene.it  of 
all  who  are  or  may  be  interested  in  the  suc- 
cessful completion  of  the  voyage;  nor  does 
the  fact  that  the  vessel  is  insured  under  a  time 
policy  affect  the  rights  of  the  parties.  Potter 
V.  Ocean  Ins.  Co.,  3  Sumn.,  27. 

2.  Term  policy.  She  sailed  from  New- 
Providence  for  New  Orleans  with  a  cargo  be- 
longing to  her  owner;  but  she  encountered  a 
gale  in  which  she  was  obliged  to  cut  away 
her  masts  and  rigging,  and  was  compelled  to- 
go  to  New  York  for  repairs,  where  it  wa.* 
found  the  cost  would  exceed  half  her  value. 
The  owner  took  the  cargo  out  and  sold  it. 
Held,  the  loss  of  the  masts  and  rigging  were 
general  average,  to  be  apportioned  against 
ship  and  cargo  separatelj',  in  the  same  manner 
as  if  each  belonged  to  separate  owners;  in- 
surer  of  sliip  had  a  right  to  be  credited  against 
the  claim  for  total  loss,  with  the  cargo's  con- 
tribution, because  the  cargo  owner  was  the  in- 
sured on  ship.  Potter  v.  Providence  Washing- 
ton Ins.  Co.,  4  Mason,  298. 

3.  On  corn  and  other  cargo.  Stipulated: 
"  Salt,  grain  of  all  kinds,  Indian  meal  and  all 
other  articles  perishable  in  their  own  nature, 
are  warranted  free  from  average  unless  gen- 
enal."  It  became  necessary  to  cut  away  the 
mainmast,  and,  in  doing  so,  it  splintered  off  be- 
low the  partners,  tearing  away  the  coat,  and 
admitted  sea  water  to  the  cargo.  Held,  the 
damage  to  the  cargo  caused  by  the  sea  water 
was  a  charge  in  general  average.  Maggrath  t. 
Church,  1  Caines,  196. 

4.  If  a  vessel  be  obliged  from  sea  damage 
to  bear  away  to  a  port  of  necessity  to  refit,  the 
wages  and  provisions  of  crew,  from  the  mn. 
mtnt  she  bears  away  until  she  sails  again  on 

302 


607 


GENERAL  AVERAGE. 


608 


Whiit  are  charges  in. 


her  original  voyage,  constitute  a  charge  in 
general  average,  and  the  owners  of  ship  have 
A  right  of  action  against  owners  of  the  cargo 
for  their  proportion  of  the  charge.  Walden  v. 
LeRoy,  2  Caiues,  263. 

5.  Cargo  jettisoned  in  a  storm  must  be  con- 
tributed for  in  general  average.  LeRoy  v.  Gou- 
verneur,  1  Johns.  C,  226. 

G.  Vessel  and  cargo  were  seized  and  con- 
demned. Hdd,  the  expenses  incurred  in  at- 
tempting to  procure  a  release  of  ship  and 
freight  should  be  borne  by  eacli,  according  to 
their  respective  proportions.  Watsoti  v.  Ma- 
rine Ins.  Co.,  7  Johns.,  58. 

7.  Where  the  vessel  and  cargo  are  captured 
and  abandoned,  and  a  compromise  is  made 
between  the  captors  and  the  master,  the  ex- 
penses incurred  are  general  average  against 
vessel,  freight  and  cargo.  Jwnel  v.  Marine 
Ins.  Co.,  1  Johns.,  412. 

8.  Sliip  drifted  from  her  anchors,  being  in 
danger  of  running  foul  of  other  vessels  which 
■were  adrift;  and,  for  the  purpose  of  saving  life, 
ship  and  cargo,  her  cables  were  cut  and  she 
was  run  ashore,  where  she  was  greatly  injured. 
Held,  tlie  damages  caused  by  the  stranding 
■were  to  be  contributed  for  in  general  average. 
Bradhurst  et  al.  v.  Columbian  Ins.  Co.,  9 
Johns.,  9. 

9.  Vessel  and  cargo  stranded  near  Shrews- 
bur}'.  All  parties  took  measures  to  save  the 
property  without  prejudice  to  the  riglits  of 
either.  The  cargo  was  saved  and  brought  in 
sound  state  to  point  of  destination  (New  York) 
in  lighters;  bnt  the  vessel  was  totally  lost,  ex- 
cept a  few  materials.  Held,  the  expenses  were 
incurred  for  the  benefit  of  all,  and  constituted 
general  average  charges  against  vessel,  freight 
and  cargo.  Heyliger  v.  Jfeio  York  Firemen's 
Ins.  Co.,  11  Johns.,  85. 

1 0.  Part  of  the  cargo  was  thrown  overboard 
for  the  preservation  of  ship  and  cargo,  and 
the  residue  greatly  damaged;  upon  unloading 
to  repair,  was  found  unfit  to  be  reshipped,  and 
■was  sold.  Held,  so  much  of  it  as  was  thrown 
overboard  must  be  made  good  in  general  aver- 
age.   Saltus  V.  Ocean  Ins.  Co.,  14  Johns.,  188. 

11.  She  was  bound  from  New  York  to  Mo- 
bile, and  was  stranded  near  Mobile  Point. 
The  cargo  ■was  put  into  lighters  and  forwarded 
to  Mobile.  On  their  passage  from  the  vessel 
to  Mobile,  the  defendant's  goods  were  dam- 
aged. Held,  in  adjusting  the  genera!  average, 
it  was  proper  to  take  into  account  the  loss 

304 


that  had  occurred  to  the  defendant's  goods, 
which  must  be  contributed  for  in  general  av. 
erage.    LewiK  v.  Williams,  1  Hall  (N.  Y.),  130. 

12.  If,  in  the  course  of  a  voyage,  the  sliip  is 
damaged  by  winds  and  storms,  and  she  seeks 
a  port  to  refit,  tlie  expenses  consequent  upon 
putting  in,  including  wages  and  provision.s 
for  crew  during  the  detention,  are  general  av- 
erage.    Padelfordv.  Boardman,  4  Mass.,  548. 

13.  Vessel  accidentally  stranded  in  course  of 
voyage,  but  got  off  with  cargo  on  board.  Held, 
expenses  incurred  were  general  average.  Bed- 
ford Commercial  Ins.  Co.  d.  Parker,  2  Pick.,  1. 

14.  Repairs  made  abroad,  strictly  necessary 
to  enable  ship  to  return,  which  are  temporary 
and  of  no  permanent  value  to  the  ship,  are 
general  average.  Brookes  v.  Oriental  Ins.  Co., 
7  Pick.,  259. 

15.  A  vessel  at  anchor,  in  imminent  peril 
of  sinking  at  her  anchors,  or  that  she  will 
part  her  cables  and  drive  on  shore ;  if  her  ca- 
bles are  cut  and  slie  is  voluntarily  run  on  shore, 
as  the  best  expedient  for  saving  the  lives  and 
property  at  risk,  the  expense  of  getting  her  off 
is  general  average,  and  it  is  immaterial  wheth- 
er the  cargo  is  again  taken  on  board  or  the 
voyage  resumed.  Reynolds  v.  Ocean  Ins.  Co., 
22  Pick.,  191. 

16.  The  insurers  on  ship  are  liable  for  gen- 
eral average,  however  small.  Giles  t.  Eagle 
Ins.  Co.,  2  Met.,  140.  And  the  hire  of  laborers 
and  others  employed  to  assist  in  getting  the 
vessel  off,  also  the  loss  on  outfits  sold  to  pro- 
cure money  to  pay  for  assistance,  are  charges 
in  general  average.    Ibid. 

17.  The  distinguishing  character  of  a  gen- 
eral average  loss  is,  that  it  is  voluntarily  in- 
curred for  the  benefit  of  all,  and  the  cutting 
away  of  the  masts,  with  consequent  damage, 
are  gener.al  aver.age  charges,  notwithstanding 
she  was  in  ballast  and  there  was  neither  cargo 
nor  freight  to  contribute.  Greely  v.  Tremont 
Ins.  Co.,  9  Cush.,  415. 

1 8.  Expenses  for  provisions  and  wages  of 
master  and  crew  during  an  embargo  are  gen- 
eral average.  Insurance  Company  of  North 
America  v.  Jones,  2  Binn.,  .547. 

19.  In  a  violent  gale,  she  carried  away  her 
small  bower  and  parted  the  cable  of  the  other. 
The  master  attempted  to  run  her  ashore ;  she 
struck  on  a  shoal,  mizzen  and  mainmast  were 
cut  awaj',  and  she  fetched  up  broadside  on  the 
beach.  Held,  the  damage  to  the  hull  sus- 
tained on  the  breakers,  as  well  as  all  the  ex- 


609 


GENERAL  AVERAGE. 


610 


What  are  diarges  in. 


pensi's  which  fullowccl,  were  general  average. 
8im»  V.  Ourney,  4  Binn.,  513. 

20.  Cables,  auchors  and  masts  sacrificed 
for  the  commcin  benefit,  while  vessel  was  on  a 
reef,  are  charges  in  general  averaije,  notwith- 
standing the  sacrifice  was  iucfifectual  to  save 
her  from  total  loss.  Walker  v.  Uiiiled  States 
Im.  Co.,  11  S.  &  R.,  61. 

21.  Seamen's  wages,  and  provisions  for 
them,  are  items  of  charge  in  general  average, 
when  the  case  is  a  proper  one  for  general  av- 
erage (overruling  Perry  v.  Ohio  Ins.  Co.,  5 
Ohio,  305;  Gazzam  v.  Cincinnati  Ins.  Co.,  6 
Ohio,  71 ;  Webb  r.  Protection  Ins.  Co.,  id.,  456). 
JSarker  v.  Baltimore  and  Ohio  M.  li.,  23  Ohio 
St.,  45. 

22.  The  expenses  of  the  crew,  for  wages 
and  provisions,  from  the  time  she  put  away  for 
the  port  to  refit,  during  her  detention  at  port 
while  the  repairs  were  being  made,  and  every 
other  expense  necessarily  incurred  during  the 
detention  for  the  benefit  of  all  concerned,  arc 
subjects  of  general  average.  Manu  v.  New  Or- 
leans Mdriuc  and  Fire  Ins.  Co.,  10  La.  (O.  S.),  1. 

23.  She  was  captured.  The  plaintiff  paid 
the  expenses  incurred  by  the  capture,  for  the 
benefit  of  all  concerned  in  vessel  and  cargo. 
Held,  he  was  entitled  to  recover  from  the  par- 
ties interested.    Kern  v.  &roning,  1  Brev.,  506. 

24.  The  ship  was  obliged  to  go  into  port 
for  the  benefit  of  all  concerned.  Held,  the 
wages  and  victuals  of  the  crew,  from  the  day 
it  was  resolved  to  seek  a  port  to  refit,  till  the 
day  of  her  departure  from  it,  with  all  charges 
■of  loading,  unloading,  anchorage,  pilotage 
and  every  other  expense  incurred  by  the  neces- 
sity, are  general  average.  Da  Costa  v.  Nown- 
ham,  2  Term,  407. 

25.  She  was  bound  from  Liverpool  for  a 
foreign  port,  there  to  load  a  return  cargo, 
freight  payable  on  delivery  of  it  at  home. 
She  to<ik  in  the  outward  cargo  and  sailed,  but 
was  driven  aground  near  the  port  of  sailing. 
The  cargo  was  taken  out,  carried  back  to  Liv- 
erpool and  warehoused.  She  was  got  off, 
taken  back  to  Liverpool,  repaired,  received 
the  cargo  and  proceeded  on  the  voyage.  Meld, 
the  saving  of  ship  and  cargo  was  one  contin- 
ued transaction,  hence  the  expenses  were  gen- 
•eral  average,  to  which  ship,  freight  and  cargo 
must  contribute.  Moran.  v.  Jone.i,  7  El.  &  Bl., 
52.S;  3  Jur.  (N.  S.),  603;  26  L.  J.  Q.  B.,  187. 

26.  On  gold  in  bars,  on  board  the  ship 
Dutchman.     The  day  after  the  policy   was 

20 


made,  she  was  transferred  ftom  her  English 
owners  to  a  Russian  citizen,  of  which  neither 
parly  had  any  notice  She  was  stranded  in 
Turkish  tenilory,  within  one  hundred  miles 
of  Constantinople,  and  within  the  jurisdiction 
of  that  port.  The  gold  was  taken  out  and  de- 
posited with  the  Russian  consul ;  and  to  enable 
the  consignees  to  obtain  possession  of  it,  they 
were  compelled  to  deposit  twenty  per  cent,  of 
its  value,  to  answer  average  or  salvage  ex- 
penses. It  was  admitted  that  the  Russian 
consul  or  court  had  authority  to  determine  all 
matters  pertaining  to  ship  and  cargo;  and  that 
court  did  decide  that  this  was  a  case  of  sal- 
vage  and  not  of  average,  to  the  expenses  of 
which  the  cargo  saved  must  contribute,  in- 
eluding  the  gold  landed,  before  any  operations 
were  commenced  to  save  the  cargo.  A  large 
amount  of  the  salvage  was  decreed  against  the 
gold,  which  decree  became  final,  because  no 
appeal  was  lodged  within  eight  daj's.  Had 
the  ship  retained  her  English  character,  the 
adjustment  would  have  been  according  to  the 
law  of  England,  ffeld,  the  loss  was  by  perils 
ofthesea,  for  the  money  had  been  expended 
to  get  possession  of  property  placed  in  jeop- 
ardy by  a  peril  of  the  sea ;  that  there  was  no 
warranty  that  the  ship  should  retain  her  na- 
tional character,  hence  the  change  of  it  was 
no  defense  to  the  action.'  Dent  v.  Smith,  4  L. 
R.  Q.  B.,  414. 

27.  She  sailed  with  a  sufficient  stock  of 
coals  for  an  ordinary  voyage,  encountered  bad 
weather,  and  was  obliged  to  set  the  donkey 
engine  to  work  to  keep  her  free.  Without  this 
engine  or  ten  additional  men,  she  would  not 
have  been  seaworthy.  The  engine  was  kept 
constantly  at  work,  and  the  stock  of  coals 
thereby  became  so  greatly  reduced  that  it  be- 
came  necessarj'  to  consume  some  of  her  spare 
spars  and  other  wood,  part  of  the  ship's  store.s. 
She  obtained  coal  from  a  passing  vessel,  put 
into  a  port  of  distress  for  a  further  suppl3',  and 
upon  reaching  the  Thames,  the  engine  broke 
down  from  OTerwork,  while  tJicre  was  sulB- 
cient  fuel  on  board  to  keep  it  at  work. 
There  was  no  serious  danger  in  consequence 
of  the  leak.  Held,  the  spars  and  wood  were 
sacrificed  for  the  general  benefit,  and  were  to 
be  contributed  for  in  general  average ;  that  the 
coal  and  overwork  of  the  donkey  engine  were 
not.  Harrison  d.  Bank  of  Austraiasia,!  L.  R. 
Ex.,  39 ;  41  L.  J.  Ex.,  30 ;  20  W.  R.,  385 ;  25  L 
T.  (X.  S.),  944. 

305 


611 


GENERAL  AVERAGE. 


612 


What  are  not  charges  in. 


II.    What  aee  not  chaeges  in. 

1.  Where  a  moiety  in  quantity  and  value  of 
the  cargo  is  sold  to  relieve  it  from  captors,  the 
loss  is  not  general  average.  Vandenheuvel  v. 
United  Ins.  Go.,  1  Johns.,  406. 

2.  Where  a  ship's  cables  are  cut  for  the  pur- 
pose of  running  her  ashore  to  save  life  and 
property,  if  she  is  lost,  it  is  not  a  case  for  gen- 
eral average,  though  the  cargo  is  saved,  and  it 
is  not  bound  to  contribute  for  the  loss  of  the 
ship.  Bradhurst  v.  Columbian  Ins.  Co.,  9 
Johns.,  9. 

3.  On  ship  valued  at  $25,000,  at  and  from 
New  York  to  Liverpool,  and  thence  to  a  port 
of  discharge  in  the  United  States.  On  the 
voy.ige  out  she  sustained  great  injury,  and  was 
obliged,  after  she  had  delivered  her  cargo  at 
Liverpool,  to  go  into  dock  and  repair,  and  was 
detained  from  December  1st  to  March  24th, 
for  that  purpose.  While  so  detained,  expenses 
were  incurred  for  wages  and  provisions  of 
master  and  crew.  Held,  the  insurer  on  ship 
was  not  liable  for  them,  and  that  they  were 
not  charges  in  general  average.  Dunham  v. 
Commercial  Ins.  Co.,  11  Johns.,  315. 

4.  Repairs  to  a  ship  which  seeks  a  port  to 
refit  may  be  either  general  average  or  partic- 
ular average  on  sliip ;  they  are  not  general  .av- 
erage  unless  caused  by  jettison.  Padelford  v. 
Boardman,  4  Mass.,  548. 

5.  Commissions  on  repairs  and  expense  of 
survey  made  in  a  home  port  are  not  a  charge 
against  the  insurers.  Brookes  v.  Oriental  Ins. 
Co.,  7  Pick,,  259. 

6.  Slie  fell  in  with  a  ship  in  distress  about 
to  sink,  and  in  order  to  make  room  for  the 
passengers  and  crew,  and  while  they  were  be- 
ing taken  in,  a  part  of  the  cargo  was  thrown 
overboard.  Held,  the  destruction  of  a  part  of 
the  cargo  was  not  a  charge  against  the  insur- 
ers  of  ship  or  cargo.  Dahney  v.  New  England 
Mutual  Marine  Ins.  Co.,  14  Allen,  .300. 

7.  If  the  loss  of  the  vessel  has  become  in- 
evitable, in  consequence  of  the  peril  then 
present,  and  the  acts  of  the  crew  are  intended 
to  alleviate  instead  of  avoiding  that  conse- 
quence, they  are  not  in  the  nature  of  sacrifice ; 
therefore,  if  a  vessel  on  a  lee  shore,  in  a  heavy 
gale,  must  go  ashore  at  all  events,  but  the 
crew,  for  the  purpose  of  saving  their  lives, 
slip  the  anchors,  put  her  before  the  wind  to 
run  her  ashore,  and  she  is  run  ashore  and  lost, 

306 


it  is  not  a  loss  for  the  preservation  of  prop. 
erty,  and  gives  no  claim  for  general  average, 
Meech  v.  Robinson,  4  Whart.,  360. 

8.  General  ship,  freighted  by  several  mer- 
chants, parted  with  convoy  in  a  gale,  wai 
attacked  by  an  American  privateer,  which  she 
beat  off,  with  loss  of  one  man  killed  and  four 
wounded.  Her  hull  and  rigging  were  dam- 
aged in  the  conflict,  but  she  reached  port  and 
delivered  her  cargo  safely.  Held,  it  was  the 
duty  of  the  sailors  to  defend  tlie  ship  in  pro- 
portion to  their  means,  and  within  measures 
of  discretion;  hence,  the  expenses  of  repair- 
ing her  and  curing  the  sailors  were  not 
charges  in  general  average.  Taylor  t.  Curtis 
Holt  N.  P.,  192;  3  Marsh.,  319;  6  Taunt.,  608; 
4  Camp.,  337. 

9.  A.  shipped  certain  copper  ore  on  B.'s  ves- 
sel, to  be  carried  to  Swansea.  She  encountered 
a  storm,  sustained  damage,  and  for  the  preser- 
vation  of  ship  and  cargo,  and  to  enable  her  to 
complete  the  V03'age,  she  put  back  for  repairs» 
and  was  repaired,  the  cost  of  which  exceeded 
the  value  of  the  ship  w^ien  repaired.  The 
master  was  unable  to  raise  money  to  pay  for 
them,  except  by  selling  a  portion  of  the  cop- 
per ore,  which  he  did,  and  carried  the  balance 
to  the  port  of  destination.  The  difference  be- 
tween the  proceeds  at  the  port  of  distress,  and 
what  the  ore  would  have  brought  at  the  port 
of  destination,  exceeded  the  value  of  the  ship 
when  repaired.  Held,  not  general  average 
Hallett  V.  Wigram,  9  C.  B.,  580;  19  L.  J.  C.  P.' 
281. 

10.  In  order  to  escape  from  a  privateer,  she 
put  on  an  unusual  press  of  sail,  in  conse- 
quence of  which  she  was  much  strained,  her 
seams  opened,  and  the  main-mast-head  car- 
ried awaj';  but  she  succeeded  in  her  escape. 
Held,  particular  average  on  ship,  but  no  claim 
in  general  average.  Covington  v.  Roberts,  5  B. 
&  P.,  378. 

11.  She  was  bound  from  London  to  Lisbon. 
In  sight  of  the  English  coast,  the  bowsprit 
bitts  gave  way;  she  was  then  beating  in  a 
heavy  and  dangerous  sea.  She  put  off  and 
came  to  anchor  in  Cowes  roads  that  day, 
where  she  remained  four  days;  repairs  being 
completed,  she  sailed  on  the  voyage,  but  re- 
turned the  neSt  day,  being  again  driven  back 
by  heavy  weather,  where  she  remained  for  two 
weeks.  Held,  the  wages  of  the  master  and 
crew,  the  provisions  consumed  by  them,  the 
rep.Tirs  to  the  bowsprit  bitts,  and  tliree  coils 


613 


GENERAL  AVERAGE. 


614 


What  shall  not  be  contributed  for  —  Wli.it  must  contribute. 


of  rojje  used  in  that  respect,  were  not,  nor 
were  any  of  thera,  charges  in  general  average. 
Power  V.  Whitmore,  4  Mau.  &  Sel.,  141. 

12.  "Warranted  free  from  average,  except 
gencr.il,  or  the  ship  be  stranded."  Slie  met 
with  verj'  heavy  weather,  and  made  consid- 
erable water.  In  pumping,  wlie.at  to  tlie  value 
of  £75  was  pumped  out.  Held,  an  average 
loss  only,  for  which  insurer  was  not  liable. 
Hills  V.  London  Ass.  Corp.,  5  Mee.  &  W.,  569 ;  9 
L.  J.  (N.  S.),  E-x.,  25. 

13.  She  sailed  from  Liverpool  for  St.  Johns, 
Newfoundland,  ran  ashore  on  the  coast  of  Ire- 
land, and  in  order  to  get  her  off,  it  became 
necessary  to  discharge  the  whole  of  llie  cargo, 
which  wag  put  in  store  at  Dublin.  A  chan- 
nel was  dug,  and  a  steam  tug  employed  to  get 
her  off.  She  was  taken  to  Liverpool  for  re- 
pairs. The  cargo  was  forw.arded  to  its  desti- 
nation in  anotlier  vessel.  Ileld,  all  expenses 
incurred  for  the  purpose  of  getting  the  ship 
off,  after  tlie  cargo  was-in  safety,  were  a  cliarge 
against  the  ship  alone,  for  which  the  insurer 
of  ship  must  respond,  as  in  cases  of  particu- 
lar average;  that  they  were  not  charges  in 
general  average.  Job  v.  Lnngton,  6  El.  &  131., 
779;  s.  c,  3  Jur.  (N.  S.),  109;  26  L.  J.  Q.  B., 
97. 

1 4.  Ship  laden  with  cargo  was  driven  ashore 
before  she  left  port,  October  5th ;  cargo  was 
landed  and  warehoused  in  safety  the  19th, 
and  remained  under  the  control  of  the  ship 
owner.  An  unsuccessful  attempt  was  made 
to  float  her  off  up  to  November  24tli,  but  was 
renewed  December  31st  witli  success.  She 
was  taken  into  port  and  repaired,  took  in  the 
cargo  and  proceeded  to  destination.  Ucld, 
the  expense  of  floating  her  off  was  not  general 
average;  hence,  the  owners  of  cargo  were 
not  bound  to  contribute  to  it.  Walthew  v. 
Mavrojani,  5  L.  R.  Ex.,  116;  22  L.  T.  (N.  S.), 
310. 

15.  A  fire  broke  out  in  the  forehold  of  a 
ship  lying  at  anchor,  and  all  efforts  to  extin- 
guish it  by  throwing  water  down  the  hatch- 
ways and  upon  the  cargo  were  unsuccessful. 
A  hole  was  cut  in  the  vessel's  side,  and  her  fore 
compartment  filled  with  water,  by  wliich  the 
fire  was  extinguished.  Had  not  tliis  been 
done,  the  cargo  would  have  been  destroyed 
and  the  ship  seriously  damaged,  if  not  totally 
destroyed.  A  part  of  the  cargo,  damaged  by 
water,  was  shipped  by  bills  of  lading;  "aver- 
Bg.",  if  any,  to  be  adjusted  according  to  British 


custom."  Reld,  the  loss,  according  to  the  gen 
eral  law  of  England,  was  a  subject  of  a  general 
average  contribution;  but  according  to  cus- 
tom, British  .average  adjusters  treat  a  loss 
occasioned  by  water  in  the  manner  above  de- 
scribed,  as  special  and  not  general ;  therefore, 
it  was  held  that  the  p.arties,  by  their  agree- 
ment, made  that  custom  a  part  of  their  con- 
tract; hence,  there  could  be  no  recovery  for 
contribution  in  general  average  as  to  if.  Stew- 
art V.  West  Indian  and  Pacific  Steamship  Co., 
42  L.  J.  Q.  B.,  84 ;  21  W.  R.,  381 ;  27  L.  T.  (N. 
S.),820;  affirmed,  8  L.  R.  Q.  B.,362;  21  W.R., 
953;  28  L.  T.  (N.  S.),  742. 

III.  What  shall  not  be  contributed 

FOK. 

Goods  on  the  deck  of  a  propeller  were  on 
fire,  which  placed  vessel  and  cargo  in  immi- 
nent peril.  The  goods  were  thrown  overboard, 
and  the  vessel  and  cargo  thereby  saved.  Jleld, 
there  was  no  right  to  contribution  in  general 
average  for  the  goods  thrown  overboard,  be- 
cause,  by  reason  of  the  fire,  their  destruction 
was  certain,  and  they  were,  therefore,  of  no 
value  when  jettisoned;  for  the  same  reason, 
they  could  not  be  regarded  as  voluntaril}'  sac- 
rificed, or  as  selected  for  that  purpo.se,  since 
their  own  condition  made  it  necessary  that  they 
should  at  (mce  be  thrown  overboard.  Slater  o. 
Hayward  liubber  Co.,  26  Conn.,  128. 

TV.  "What  must  conteibtjte. 

1.  On  freight  from  Philadelphia  to  Batavia, 
thence  to  Philadelphia.  On  her  return,  she 
was  captured  by  a  French  privateer,  and 
ordered  to  Guadaloupe.  She  was  afterwards 
recaptured  by  a  British  man-of-war,  caiTied  to 
Martinique,  and  libeled  for  salvage.  One- 
half  of  tlie  cargo  was  specifically  delivered, 
and  $2,700  fixed  for  the  salvage  on  ship. 
Held,  the  insurers  on  freight  were  liable  for 
a  general  average  for  contribution  against 
freight.    Sansom  v.  Ball,  4  Dall,  459. 

2.  A  vessel,  having  on  board  a  large  amount 
of  specie,  was  stranded  and  ice-bound  in  a 
situation  of  imminent  peril;  tlie  specie  was 
carried  over  the  ice  bj'  land  to  point  of  destin- 
ation,  and  the  vessel  ultimately  reached  her 
port  with  remainder  of  cargo.  Held,  the 
owners  of  the  specie  were  bound  to  contribute 
for  general  average  expenses  incurred  after 

307 


C15 


GENERAL  AVERAGE. 


616 


What  must  contribute. 


the  specie  left  the  vessel.    Sevan  v.  Bank  of 
Cnitcd  States,  4  Whart.,  301. 

3.  Certain  clothing,  the  property  of  the 
United  States,  invoiced  at  |7,320,  was  laden  at 
Boston  for  New  York.  The  vessel  went 
ashore  on  Block  Island,  and  much  expense 
was  incurred  in  saving  property.  They  were 
carried  back  to  Boston ;  but  the  store  keeper 
of  the  United  States  refused  to  sign  any  bond, 
or  to  secure  the  payment  of  general  average 
contribution.  Held,  the  government  of  the 
United  States  had  no  right  to  be  exempted 
from  the  ordinary  maritime  lien,  and  therefore 
the  plaintiff  could  not  maintain  trover  for  the 
goods.     United  States  v.  Wilder,  3  Sumn.,  308. 

4.  The  policy  gave  general  permission  to 
labor  for  the  safety  of  the  property  without 
prejudice,  etc.  Held,  insurer  was  liable  to  a 
general  average  for  expenses  incurred  in  at- 
tempts to  recover  the  property.  Bordes  v. 
Hallet,  1  Caines,  444. 

5.  On  outfits,  stipulated:  "One-fourth  of 
the  catching  should  replace  the'  outfits  con- 
sumed,  except  that  catching,  shipped  from 
the  Cape  de  Verds  or  this  side,  should  be  at 
the  risk  of  the  insured,  without  diminution  of 
value."  There  was  a  large  quantity  of  blubber, 
equal  to  65  or  70  barrels  of  sperm  oil  in  the 
blubber  room,  when  she  encountered  a  violent 
hurricane.  The  shifting  boards  gave  way  aud 
all  the  blubber  rolled  to  leeward,  and  to  pre- 
vent her  from  sinking,  it  was  thrown  over- 
board, and  some  of  tlie  masts  cut  away.  She 
put  into  the  Mauritius  for  repairs.  Held,  the 
construction  of  tlie  word  "  outfits,"  in  the  ab- 
sence of  any  technical  meaning  given  it  by 
usage,  was  a  matter  of  law  for  the  court  to  de- 
cide; blubber,  or  pieces  of  the '  flesh  of  the 
whale,  on  deck  or  stored  under  deck,  were 
catchings,  for  they  were  things  caught,  in  tije 
possession,  custody,  power  aud  dominion  of 
the  parly,  with  a  present  capacity  to  use  them 
for  his  own  purposes;  the  blubber  was  enti- 
tled to  and  liable  for  contribution  in  cases  of 
jettison,  and  constituted  a  claim  for  general 
average.  Rogers  v.  Machanics  Ins.  Co.,  1 
Story,  603 ;  3  id.,  173. 

6.  She  sailed  from  New  Orleans  to  Havre, 
with  a  cargo  of  cotton  and  $30,853  specie ;  was 
struck  by  lightning  in  the  Gulf  stream,  and 
found  to  be  on  fire  in  the  hold.  After  at- 
temping,  without  success,  to  extinguish  it,  a 
vessel  in  siglit  was  signaled,  passengiT.-i  and 
baggage   were   transferred,  and    she   was   eu- 

308 


gaged  to  keep  company.  At  daylight  the 
fire  appeared  to  be  gaining.  The  master 
concluded  to  make  a  port  of  distress,  the 
specie  was  transhipjied  to  tlie  other  vessel, 
and  both  bore  away  for  Charleston,  where 
they  arrived  in  three  days.  Tlie  fire  did  not 
appear  to  decrease.  Large  quantities  Of 
water  were  thrown  into  the  ship  at  Charleston, 
till  she  filled  and  sank  to  the  upper  deck. 
The  cargo  was  sold  and  the  voyage  aband- 
oned. The  specie  was  taken  from  the  other 
vessel  and  deposited  in  bank.  Held,  the 
specie  was  liable  to  contribute  in  general 
average  for  the  services  of  the  other  vessel, 
the  expenses  at  Charleston  in  sinking  and 
raising  the  vessel,  for  the  damage  to  aud  ex- 
penses incurred  for  the  cargo.  Dissenting, 
Comstock  and  Clerke,  J  J.  Nelson  v.  Belmont, 
21  N.  Y.,  36;  s.  c,  5  Duer,  310. 

7.  Cargo  owner  saved  a  part  of  it  at  his  own 
expense.  Insurers  of  ship  afterward^  em- 
ployed men,  who  tried,  without  success,  to  get 
ship  off.  At  same  time  men  emploj-ed  by 
cargo  owner  saved  more  cargo.  The  two  par. 
ties  acted  separately,  though  assisting  each 
other  at  times.  Afterwards  insurers  contracted 
to  pay  .$2,000  to  D.  if  he  would  get  ship  otl", 
and  owner  agreed  that  insurers  of  ship  might 
offer  D.  $600  to  save  cargo,  provided  ship 
should  not  be  saved.  D.  got  her  off  wiiJx 
155  tons  of  cargo.  Held,  the  155  tons  must 
contribute  in  general  average  to  the  §2,600; 
that  the  rest  of  the  cargo  should  not  contri- 
bute; that  the  aid  rendered  bj-  the  owner's 
men  to  the  insurer's  men,  might  be  set  oS pro 
tanto  against  claim-for  assisting  to  save  the 
other  part  of  the  cargo.  Bedford  Commercial 
Ins.  Co.  V.  Parker,  2  Pick.,  1. 

8.  On  slaves,  Richmond  to  New  Orle-ins, 
"  Solely  against  loss  bj'  drowning  in  conse- 
quence of  stranding  or  shipwreck  otherwise  of 
the  vessel,  insurers  being  warranted  against 
all  other  risks,  and  especially  against  mutiny, 
elopement,  natural  death,  and  the  interference 
of  foreign  governments  on  these  subjects." 
She  was  stranded  near  Abaco,  and  a  portion 
of  the  cargo  was  jettisoned  for  the  purpose  of 
saving  the  crew,  the  slaves,  and  the  remainder 
of  the  cargo.  Heid,  the  insurers  of  the  slaves 
were  liable  for  their  contribution  in  general 
average,  for  the  presumption  is,  that  had  the 
jettison  not  been  made,  the  cargo  as  well  as 
the  slaves  would  have  perished.  Hunter  v. 
General  Mut.  Ins.  Co.,  11  La.  An.,  131). 


(517 


GENERAL  AVERAGE. 


G18 


What  sh;ill  not  contribute  —  Contributing  values. 


9.  Tliore  was  a  jettison  amounting  to  .$3,290, 
anil  tlie  defendant  had  twelve  slaves  on  board, 
worth  |0,000.  Held,  the  owner  was  bound  to 
contribute  for  them  in  general  average.  Bo- 
relli  V.  Ilagan,  13  La.  (O.  S.),  580. 

10.  After  she  was  captured  by  a  French  pri- 
vateer, the  crew  threw  overboard  guns,  two 
anchors,  two  cables,  and  other  stores,  from  the 
middle  deck,  for  the  preservation  of  the  ship 
and  cargo.  Held,  the  cargo  was  bound  to  con- 
tribute in  general  average.  Price  v.  Noble, 
4  Taunt.,  123. 

11.  She  was  chartered,  London  to  East  In- 
dies, to  deliver  outward  and  return  with  home 
cargo  into  the  Thames,  charterers  to  pay- 
freight  for  every  ton  of  goods  that  should  be 
brought  to  London,  so  much  per  ton.  Ship 
was  insured  for  the  voyage  out;  on  it  she  in- 
curred an  average  loss,  was  repaired  and  re- 
turned to  London  with  home  cargo.  There 
were  also  expenses  in  general  average  in- 
curred. Held,  the  freight  was  bound  to  contri- 
bute in  general  average.  Williams  v.  London 
Ass.  Co.,  1  Mau.  &  Sel.,  318. 

12.  Ship  and  cargo  were  insured,  but  for 
less  than  their  value.  She  was  wrecked,  and 
Expenses  were  incurred  exceeding  the  value  of 
what  was  saved.  Ueld,  owners  of  ship  and 
cargo  must  contribute  to  the  expense  pro  rata, 
for  the  amount  uninsured,  but  the  freight 
must  pay  nothing,  for  none  was  earned.  Dal- 
rymple  v.  Johnston,  Faculty  Dec,  1775  to  1777, 
p.  477. 

Y.    "WlIAT   SHALL  NOT  CONTRIBUTE. 

Ship  took  a  number  of  passengers  for  the 
defendants,  who  shipped  provisions  and 
victualing  stores.  Held,  that  only  such  stores 
as  are  termed  mercer,  are  liable  to  contribute 
lor  average.  Merces  has  never  been  held  to 
extend  to  provisions,  but  includes  only  the 
cargo  put  on  board  for  the  purjjoses  of  com- 
merce.   Brown  v.  Stapylelon,  4  Bing.,  119. 

VI.    CONTEIBTJTING  VALUES. 

1.  She  was  bound  to  Madeira,  but  driven 
into  Philadelphia,  where  the  cargo  was  found 
so  badly  damaged  that  the  voyage  was  broken 
up  as  not  worth  pursuing.  Field,  in  settling 
the  general  average,  the  freight  actually  earned, 
»«d  not  what  would  have  been  due  at  Madeira, 


was  the  contributory  value  of  freight.    Mag- 
grath  v.  Church,  1  Caines,  195. 

2.  The  contributory  value  upon  a  ship  sold 
at  a  foreign  port  is  the  amount  she  brings, 
bona  fide.  Bell  v.  Columbian  Ins.  Co.,  2  Johns., 
98. 

3.  Freight  was  paid  in  advance.  General 
average  expenses  were  incurred,  but  the  vessel 
was  lost  on  the  voy.age.  None  of  the  cargo 
was  ever  delivered  at  the  point  of  destination. 
Held,  freight  was  not  bound  to  contribute  in 
general  average,  for  the  general  rule  is,  in  the 
absence  of  special  agreement  to  the  contrary, 
freight  paid  in  advance  shall  be  recovered 
back,  if  the  cargo  is  not  delivered  at  the  point 
of  destination  (citing  Phelps  c.  Williamson,  5 
Sandf.,  578;  Ogden  v.  M.  Y.  Mut.  Ins.  Co., 
4  Bos.,  447;  Hall  v.  Jansen,  t  El.  &  Bl.,  500>. 
Hathaway  •».  Sun  Mut.  Ins.  Co.,  8  Bos.,  33. 

4.  The  values  and  properly  to  contribute  in 
general  average  are  the  net  sales  of  the  cargo, 
deducting  the  customary  freight;  the  net  salv- 
age of  the  vessel  and  freight,  deducting  what 
was  paid  the  other  ship  to  carry  the  cargo 
forward.  Dodge  v.  Union  Marine  Ins.  Co., 
17  Mass.,  471. 

5.  The  only  question  was,  whether  for  the 
purposes  of  contribution  in  general  average, 
the  ship  must  be  estimated  at  her  actual  value, 
ascertained  by  appraisement,  or  at  the  valua- 
tion agreed  upon  in  the  policy.  Held,  the 
actual  value  is  that  which  should  govern  the 
rights  of  the  parties.  Meeker  v.  Klemm,  11  La. 
An.,  104. 

6.  Where  there  is  an  average  loss,  the 
computation  must  be  made  on  the  real  in- 
terest on  board.  Not  on  the  valuation  men- 
tioned  in  the  policy.  Le  Cras  v.  Hughes,  3 
Doug.,  81. 

7.  She  sailed  with  2,000  tons  of  salt,  ground, 
ed  on  the  Irish  coast,  threw  overboard  one- 
half  the  cargo,  was  got  otT  and  brought  to 
Liverpool,  where  all,  except  about  100  tons 
was  found  unfit  to  be  forwarded,  and  nearly 
worthless.  The  freighter  )iad  paid  £1,250  in 
advance  for  freight.  Held,  in  cases  of  gen- 
eral average,  the  things  saved  contribute, 
not  according  to  the  prime  cost,  but  accord- 
ing to  tlie  price  at  which  they  may  be  sold  at 
the  time  of  making  the  average.  If,  however, 
after  jettison,  the  remainder  of  the  goods  are 
totally  lost,  so  that  no  benefit  accrues  to  the 
owners  of  the  property  saved,  no  contribulioa 
can  be  claimed.     In  this  case,  the  value  must 

30i1 


6iy 


GENERAL  AVERAGE. 


620 


Adjustment  of. 


te  determiaed  by  the  value  at  Liverpool ;  that 
is  to  say,  the  goods  jettisoned  to  be  estimated 
at  their  Liverpool  value,  and  this  was  to  be 
ascertained  by  determining  whether  they  were 
in  such  a  condition  that  they  would,  in  all 
probability,  have  arrived  undamaged  at  the 
place  of  adjustment;  that  as  it  was  almost  a 
matter  of  certainty,  the  salt  jettisoned  could 
not  have  reached  the  port  of  adjustment  in  a 
sound  state,  its  contribuory  value  was  what  it 
would  have  been  worth  liad  it  arrived  in  an 
unsound  condition,  instead  of  being  jettisoned 
(citing  1  Arnold  on  Ins.,  3d  ed.,  vol.  2,  809), 
and  that  no  attention  was  to  be  given  to  the 
lact  tliat  the  freighter  had  paid  freight  in  ad- 
vance. Fletcher  v.  Alexander,  3  L.  R.  C.  P., 
375;  37  L.  J.  C.  P.,  193;  18  L.  T.  (N.  S),  432; 
16  W.  R.,  803. 

VII.  Adjustment  of. 

(a)  When  conclusive. 

1.  "On  rye,  corn,  etc.,  warranted  free  from 
average  unless  general,  or  the  ship  be  strand- 
ed." In  the  margin  the  following  words  were 
found :  "  To  pay  general  average  as  per  foreign 
statement,  if  so  made  up.  Warranted  free 
from  particular  average,  unless  the  ship  or 
craft  be  stranded,  sunk,  or  burned;  but  this 
warranty  not  to  exonerate  the  underwriters 
from  liability  for  special  charges  for  mats, 
warehousing,  forwarding  or  otherwise,  if 
incurred,  as  well  as  partial  loss  arising 
from  transhipment."  She  encountered  heavy 
weather,  and  was  compelled  to  put  into  two 
ports  for  repairs,  and  in  order  to  obtain 
funds  to  put  her  in  a  condition  to  con- 
tinue the  voyage,  the  master  hypothecated 
ship,  freight  and  cargo,  for  £3,818  10s.  5d. 
Arrived  at  the  port  of  destination  (Bremen), 
the  consignees  of  cargo  discharged  the  obli- 
gation in  order  to  obtain  possession  of  their 
property.  The  average  was  apportioned  upon 
cargo,  £1,088  14s.  lid.,  and  upon  ship  and 
freight,  £1.185  lis.  The  ship  was  not  able  to 
l>ay  her  proportion,  and  she  was  sold  by  order 
of  court  at  Bremen  for  £729  10s.  2d.,  leaving  a 
balance  of  £663  3s.  lOd.  A  further  or  supple- 
mental  statement  was  made  by  the  average- 
stater,  in  which  the  deficit  was  stated  to  be 
the  amount  the  cargo  had  to  pay  as  additional 
bottomry  debt,  to  the  holders  of  the  bonds.    It 


was  admitted  by  both  parties,  that  the  aver- 
age statement  was  correctly  made  b}'  the  law 
of  Breman.  Held,  insurers  of  cargo  were 
bound  by  the  average  statement,  and  were, 
therefore,  liable  to  insured  for  the  whole  de- 
ficit. Harris  v.  Scaramanga,  7  L.  R.  C.  P., 
481 ;  41  L.  J.  C.  P.,  170;  20  W.  R.,  777;  36  L. 
T.  (N.  S.),  797. 

2.  "  On  wheat,  warranted  free  from  average 
unless  general.  General  average  as  per  for- 
eign statement."  She  put  into  Constantinople. 
The  consular  court  there  directed  a  survey. 
One  fifth  of  the  wheat  had  been  damaged. 
The  surveyors  recommended  the  voyage 
should  end  at  Constantinople;  that  the  dam- 
aged wheat  should  be  sold  there,  and  the  un- 
damaged wheat  transhipped  to  port  of  desti- 
nation. An  order  of  court  was  accordinglj- 
made,  and  an  adjustment  of  average  was 
also  made  by  order  of  court.  The  dam- 
age the  wheat  had  .  sustained  was  there 
treated  as  general  average ;  but  under  the  law 
of  England,  it  would  not  have  been  general 
average.  Held,  insurers  were  bound  by  the 
foreign  average  statement.  Mavro  v.  Ocean 
Marine  Ins.  Co.,  9  L.  R.  C.  P.,  595 ;  43  L.  J.  C. 
P.,  339;  31  L.  T.  (N.  S.),  186;  affirmed  10  L. 
R.  C.  P.,  414. 

3.  "  On  sugars  from  Java  to  Holland,  to 
cover  only  the  risks  excepted  by  the  clause, 
'warranted  free  from  particular  average,' un- 
less the  vessel  be  stranded,  sunk  or  burned ;  to 
pay  all  claims  and  losses  on  Dutch  terms,  and 
according  to  statement  made  up  bj'  official 
dispacheur  in  Holland."  There  was  a  policy 
on  the  same  goods  effected  in  Holland,  of 
which  these  insurers  had  no  notice,  except 
that  which  could  be  implied  from  the  risks 
taken.  She  took  the  ground,  and  the  cargo 
sustained  damage.  According  to  Dutch  law, 
it  would  not  have  amounted  to  stranding,  but 
it  would  have  been  held  in  England  to  be  a 
stranding.  A  Dutch  dispacheur  stated  the 
particular  average,  which  was  made  according 
to  the  facts  and  governed  by  the  law  of  Hol- 
land. Held,  a  contract  to  pay  all  claims  and 
losses  according  to  Dutch  law;  Qiat  if  the 
vessel  were  stranded,  sunk  or  burned,  and  ac- 
cording to  Dutch  law  a  claim  for  particular 
average  arose  under  that  law,  the  Instucrs 
were  bound  to  pay  it.  Hendricks  v.  Australa- 
sian Ins.  Co.,  9  L.R.  C.  P.,  460;  43  L.  J.  C.  P. 
188;  33  W.  R.,  947;  30  L.  T.  (N.  S.),  419. 


310 


€21 


GENERAL  AVERAGE —GIFT. 


C22 


AJjustment  of,  etc. 


(b)    When  not  concl/uswe. 

4.  She  was  bound  from  Uichmoml  to  Bre- 
men, but  put  into  Cuxhaven  for  the  preserva- 
tion of  sbip  and  cargo,  at  which  place  an  ad- 
justment of  general  average  was  made.  The 
adjuster  took  no  notice  of  the  expense  for 
•wages  and  victualing  the  crew  while  slie  was 
delaj'ed,  and  this  action  was  brought  to  re- 
cover it.  Eeld,  the  adjustment  was  conclusive 
between  the  consignees  of  cargo  and  ship 
owner;  but  it  was  not  conclusive  between  in- 
sured and  insurers  of  ship,  for  their  rights 
■were  to  be  measured  by  the  actual  amount  of 
the  ship  owner's  loss,  in  order  that  he  might 
receive  exact  indemnity;  that  he  was  bound 
to  account  to  insurer  for  what  he  had  received 
under  the  foreign  adjustment,  and  was  entitled 
to  recover  any  balance  of  his  loss,  to  be  de- 
termined by  the  law  of  the  place  where  the 
■contract  was  made;  by  which  wages  and 
provisions  of  crew,  from  the  time  the  ves- 
sel put  away  for  a  port  of  distress,  until  she 
sailed  on  her  voyage  again,  were  a  charge  in 
general  average,  for  which  the  insurers  of  ship 
must  contribute  their  proper  proportion. 
Thornton  v.  United  States  Ins.  Co.,  13  Me.,  150. 

(c)  W/iat  law  governs. 

5.  A  contract  of  insurance,  made  in  New 
York,  upon  which  a  claim  arises,  is  to  be  ad- 
justed  according  to  the  principles  and  usages 
of  the  place  where  the  contract  was  made; 
whether  the  loss  be  general  or  particular  aver- 
age, it  must  be  governed  by  the  law  of  New 
York.  Lenox  v.  United  Ins.  Oo.,  3  Johns.  C, 
178. 

6.  The  adjustment  of  general  average  must 
be  governed  by  the  law  of  the  place  where  the 
detention  takes  place.  Insurance  Co.  v.  Harris, 
3  Phila.,  136. 

7.  She  put  to  sea  and  was  obliged  to  return 
to  Charleston  for  repairs.  She  sailed  again, 
and  arrived  at  Philadelphia,  her  port  of  des- 
tination. By  the  custom  of  Philadelphia, 
wages  and  provisions  of  crew  were  properly  a 
chsrge  in  general  average.  The  policy  was 
to  He  settled  according  to  the  laws  and  usages 
^  the  city  of  London,  which  excluded  from 


general  average,  wages  and  provisions  of  crew 
while  the  vessel  should  be  detained  for  repairs; 
and  the  same  custom  prevailed  at  Charleston. 
Held,  insurers  were  not  liable  in  general  aver- 
age  for  expense  of  wages  and  provisions  for 
crew,  while  she  was  detained  making  repairs. 
Union  Bank  v.  Union  Ins.  Co.,  Dud.  Ap.  (S. 
C),  171.  ■ 

8.  The  goods  insured  were  compelled  to 
contribute  in  an  adjustment  of  general  aver- 
age at  the  port  of  destination,  for  certain  losses 
sustained  by  the  ship  on  her  voyage.  Held,  if 
the  general  average  was  not  adjusted  in  ac 
cordance  with  the  laws  of  the  country  where 
the  contract  of  insurance  was  made,  it  had  no 
binding  eflect  upon  insurer.  Skiff  v.  Louis- 
iana  State  Ins.  Co.,  18  Mart.  (La.),  G28. 

9.  She  was  bound  on  a  voyage  from  Londou  ' 
to  Lisbon.  Held,  the  insurers  had  a  right  to 
require  the  general  average  to  be  settled  ac- 
cording to  the  law  of  England,  where  the  cou- 
tract  of  insurance  was  made,  unless,  by  a 
usage  adopted  in  England,  the  rules  of  settle- 
ment at  Lisbon  were  to  be  applied  to  policies 
made  in  England.  Power  v.  Whitmore,  4 
Man.  &  Sel.,  141. 

10.  The  place  where  the  general  average 
should  be  adjusted  is  that  of  the  ship's  destin- 
ation, or  where  she  delivers  her  cargo.  The 
master  is  not  obliged  to  part  with  possession 
of  the  goods  until  the  sum  contributable  in 
respect  of  them  shall  be  paid  or  secured  to 
his  satisfaction;  and  the  adjustment  is  to  be 
governed  according  to  the  laws  of  the  country 
in  which  it  is  made.  Simonds  v.  White,  2  L.  J. 
K.  B.,  159. 


GIFT. 

(See  Bequests.) 

The  intestate  had  engaged  to  marry  the  de. 
fendant,  and  she  gave  the  policy  to  him  on 
her  death  bed.  The  jury  found  that  it  wa3  a 
gift.  Held,  there  was  no  distinction  between 
a  policy  of  insurance  and  a  bond  or  mortgage; 
all  were  the  subject  of  a  donatio  mortis  causa. 
Witt  V.  Amis,  7  Jur.  (N.  S.),  499;  4  L.  T.  (N, 
S.),  283. 


811 


623 


GOLD  COIN -ILLICIT  TRADE. 


C2-I 


Insurer  is  not  liable  for,  etc.  —  What  is  not  a  breach  of  the  warranty. 


GOLD  COIN. 

1.  Stipulated:  " The  damages  shall  be  pay- 
Bble  in  gold  coin."  i7eW,  judgment  must  be 
rendered  in  gold  coin.  Warren  v.  Franklin 
Ins.  Co.,  104  Mass.,  518. 

2.  Insurers  accepted  the  premium  in  gold, 
and  agreed  to  pay  losses  in  gold.  Held,  tlie 
dividends  due  upon  the  policies  were  not  pay- 
able in  gold.  Lidin.g  v.  Atlantic  Mut.  Ins.  Co., 
61  K.  Y.,  2(»7;  s.  c,  45  Barb.,  510;  50  id.,  520; 
80  How.  Pr.,  69. 


GOODS  IN  TRUST, 
(See  In  Tbdst  on  Coicmission  oe  Consignment.) 


GUNPOWDER. 

(Bee  EBXFma  and  Stokino;   Refconant  Stipui.a- 

TI0N3.) 


ILLEGAL  CONTRACT. 

(See  CONTBAOT.) 


ILLEGAL  VOYAGE. 

(See  iLLicrr  Trade.) 


ILLICIT  TRADE. 

I.  INSXJKER    is   not      liable     for,    IOTI/ESS 
RISK  EXPRESSLY  TAKEN. 

^T.  What  is  not  a  breach  of  the  'war- 
ranty. 

III.  What  is  not  proof  op. 

IV.  What  is  illicit  trade. 
V.  Construction. 

I.  Insurer  is  not  liable  for,  unless 

RISK  EXPRESSLY  TAKEN. 

The  application  for  insurance  stated,  "  She 
is  bound  for  Kingston,  Jamaica;  if  not  allowed 
to  sell  there,  will  proceed  to  Cuba."    The  pol- 
312 


icy  delivered  was  silent  upon  this  subject 
She  sailed  for  Kingston,  expecting  to  find  that 
port  open  to  American  vessels.  Neither  party 
contemplated  illicit  trade;  but  it  was  closed, 
and  she  was  seized  and  condemned  for  illicit, 
trade.  i/eW,  tlie  underwriter  is  not  liable  for 
loss  arising  from  illicit  trade,  unless  the  pol- 
icy be  written  with  a  full  knowledge  that  the 
object  of  voyage  was  illicit  trade;  that  the 
underwriter  cannot  be  presumed  to  undertake 
risks  occasioned  by  the  insured  or  his  agent's 
violation  of  law,  notwithstanding  the  policy 
is  in  general  terms;  that  when  both  parties 
believed  that  tlie  voyage  was  lawful,  notice  to 
the  insurer  at  the  time  the  policy  was  made 
that  the  vessel  was  bound  on  the  voyage  did 
not  raise  any  presumption  that  the  insurer  un- 
dertook the  risk  of  illicit  trade.  Andrews  v. 
Essex  Fire  and  Marine  Ins.  Co.,  3  Mason,  6. 

II.  "What   is   not   a  breach  of  the 

WARRANTY. 

] .  Two  policies  upon  the  cargo  of  the  brig- 
antine  Aurora  from  New  York  to  one  or  two 
Portuguese  ports  on  the  coast  of  Brazil,  at  and 
from  thence  to  New  York;  stipulated:  "In- 
surers do  not  take  the  risk  of  illicit  trade  with 
the  Portuguese."  She  cleared  for  the  Cape  of 
Good  Hope.  Insured  was  supercargo.  She 
arrived  at  Rio  and  was  permitted  to  sell  some 
of  the  cargo.  She  sailed  thence  for  Para  on 
the  coast  of  Brazil,  and  came  tn  anchor  about 
five  leagues  from  laud.  After  she  left  Rio,  her 
destination  was  kept  a  secret,  and  it  was  as- 
serted that  she  anchored  off  Para  for  the  pur- 
pose of  getting  wood  and  water,  which  were 
needed.  Insured  went  ashore  in  a  boat,  assert- 
ing that  he  left  her  for  the  purpose  of  procuring 
a  pilot  to  take  her  up  for  wood  and  water  .and 
to  sell  the  cargo,  if  permitted.  He  was  ar- 
rested and  imprisoned,  and  she  was  taken  by 
a  body  of  armed  men  and  carried  into  Para. 
Trade  with  Para  was  prohibited  and  sliip  and 
cargo  were  condemned  by  the  governor  of 
Para,  on  the  ground  of  illicit  trade.  Held,  a 
seizure  not  justiliable  under  the  laws  and 
regulations  established  by  the  crown  of 
Portugal,  for  the  restriction  of  foreign  com- 
merce with  its  dependencies,  was  not  with- 
in the  exception;  but  that  every  seizure  so 
justifiable,  was  within  it,  that  these  laws 
and  regulations  must  be  proved  like  other 
facts  before  they    could    be    received    in  a. 


625 


ILLICIT  TRADE. 


C26 


What  is  not  a  breach  of  the  warranty. 


court  of  justice.     Church  v.  Hubbart,  1  Cran., 
165. 

2.  A  vessel,  the  property  of  citizens  of  the 
United  States  in  the  year  1799,  was  ilriven  by 
distress  into  a  French  port  and  obliged  to 
land  her  cargo  in  order  to  make  repairs.  She 
was  prevented  by  the  Frencli  government  from 
reloading,  and  it  was  sold.  The  officers  of 
the  government  were  to  pay  for  it  in  thirty 
days,  but  paj-ment  was  not  made,  and  she  took 
produce  of  that  country  in  payment,  sailed, 
and  was  captured  by  a  British  frigate,  carried 
to  Tortola  and  libeled  as  enemies'  property, 
and  as  property  of  American  citizens  trading 
contrary  to  the  laws  of  the  United  Slates. 
Held,  the  case  was  not  within  the  act  of  con- 
gress of  1798,  usually  called  the  noninter- 
course  law;  that  a  vessel  forced  by  stress  of 
weather  into  a  French  port  and  obliged  to 
land  her  cargo,  and  prevented  by  the  authori- 
ties from  reloading  and  carrying  it  away, 
•was  not  bound  to  abandon  the  property  and 
seek  redress  at  the  hands  of  her  government; 
if  actual  war  had  existed  between  France  and 
the  United  States,  the  insured,  being  driven 
by  stress  of  weather  Into  a  French  port  and 
being  prevented  by  the  authorities  from  tak- 
ing his  cargo  away,  might  sell  it  and  purchase 
a  new  cargo  without  vitiating  the  policy,  be- 
cause it  would  not  have  been  an  intentional 
offense.    Hallet  v.  Jenks,  3  Cran.,  310. 

3.  On  goods,  warranted  against  capture  or 
detention  for  or  on  account  of  any  illicit  trade 
or  trades  in  articles  contraband  of  war.  The 
insurer  knew  that  goods  contraband  of  war 
■were  to  be  carried  in  the  ship,  and  made  the 
policy  with  that  fact  in  view.  Held,  the  war- 
ranty extends  in  the  understanding  of  the  par- 
ties to  the  goods  of  the  insured.  Bowne  v. 
Shaw,  1  Caines,  489.  And  where  it  appears 
that  the  insurer  did  not  have  notice  that  con- 
traband goods  would  be  carried,  and  the  in- 
sured is  m.aster  of  the  ship  and  consignee  of 
the  contraband  goods,  still  the  warranty  is  lim. 
iled  to  the  goods  of  the  insured.    Ibid 

4.. Warranty  against  illicit  trade  is  not 
broken  if  the  master  barratrously  carry  on 
illicit  trade.    Buckley  v.  Delafield,  2  Caines,  223. 

5,  To  constitute  a  breach  of  warranty 
against  illicit  trade,  the  seizure  must  be  for 
an  actual  illicit,  prohibited  or  contraband 
trade.     Johnnton  v.  Ludlmo,  1  Caines'  Cas.,  29. 

6.  "  On  goods  and  merchandise."  Contra- 
band goods  were  shipped.    Held,  a  trade  by  a 


neutral  in  goods  contraband  of  war  is  lawful, 
and  it  was  not  necessary  to  disclose  to  the  in- 
surer that  a  part  of  the  cargo  was  contraband. 
The  presumption  is  that  the  neutr.al  trades  as 
usual,  without  any  regard  to  the  accidental 
circumstance  of  war  abroad.  Seton  v.  Low,  1 
Johns.  C,  1. 

7.  On  cargo,  from  Surin.am  to  a  port  of  dis- 
charge in  the  United  Slates.  She  sailed;  was 
captured  the  next  day,  libeled  and  con- 
demned  as  lawful  prize.  The  policy  was  for 
account  of  Mackaj-,  of  Boston.  Ileld,  equiv- 
alent to  saying  that  the  cargo  was  his  prop- 
erty; that  the  trade  between  Surinam  and 
Boston  was  not  illegal;  hence  the  plaintiff 
was  entitled  to  recover.  Kemble  v.  Efiine- 
lander,  3  Johns.  C,  130. 

8.  Ship  entered  the  river  La  Plata  on  her 
return  voyage,  the  master  being  ignorant  of 
the  war  between  the  Brazils  and  Buenos 
Ayres.  She  was  taken  by  a  Brazilian  vessel 
to  Rio  Janeiro,  where  prize  proceedings  were- 
instituted  by  the  captors,  and  abandoned  to 
the  insurers  during  their  pendency.  Held,  tlifr 
capture  was  hostile;  that  the  case  did  not 
come  within  tJie  perils  excepted  of  illicit 
trade,  or  trade  in  articles  contraband  of  war. 
and  that  she  was  not  violating  the  belligerent 
rights  of  Brazil,  because  she  had  no  notice  of 
the  blockade;  hence  the  insurers  were  liable. 
Lowering  v.  Mercantile  Ins.  Co.,  12  Pick.,  348. 

9.  On  ship,  from  New  York  to  St.  Barthol- 
omew. "  Warranted,  furnished  with  a  pass- 
port from  Admiral  Sawyer,  in  the  usual 
form."  She  was  taken  by  a  British  ship  of 
war,  and  condemned  on  the  ground  that  the 
license  issued  by  the  admiral  was  not  author- 
ized. The  license  was  for  a  cargo  of  dry  pro- 
visions, but  the  cargo  consisted  of  wet  and 
dry  provisions.  Held,  if  there  was  no  other 
form  of  license  than  that  granted,  and  the 
usage  of  merchants  and  understanding  of  the 
parties  was  that  such  license  was  the  only  one 
required,  whatever  might  be  the  cargo,  or  that 
the  insurers  knew  what  cargo  was  put  oa 
board,  insured  would  be  entitled  to  recover. 
Bulkley  v.  Derby  Fishing  Co.,  1  Conn.,  571. 

1 0.  "  Warranted  against  loss  or  damage  aris- 
ing from  any  illicit  or  prohibited  trade,  or 
any  trade  in  articles  contraband  of  war." 
The  parties  agreed  that  she  was  captured  as 
prize  of  war,  being  enemies'  properly.  Held, 
no  defense  could  be  rested  on  tlie  warranty. 
Merchants  Ins.  Co.  v.  Edmond,  17  Gratt.,  138. 

313 


■627 


ILLICIT  TRADL. 


628 


What  is  not  a  breach  of  the  warraatj-. 


1 1.  The  license  granted  gave  a  wi;ler  scope 
than  the  conditions  stated  in  the  orders  of  the 
council,  but  the  license  did  not  refer  to  the 
•orders  in  council.  Held,  the  license  could 
not  be  restricted  by  the  orders  in  council. 
£pitta  «.  'Woodman,  3  Taunt.,  416. 

1 2.  The  statute,  43  Geo.  Ill,  ch.  77,  has  re- 
pealed the  statute  requiring  a  license  from  the 
South  Sea  Co.  or  the  East  India  Co.,  for  ships 
passing  through  the  straits  of  Magellan  or 
round  Cape  Horn  for  the  purpose  of  trading 
-or  fishing  in  the  Pacific  Ocean;  hence  a  ship 
might  go  there  either  for  the  sole  purpose  of 
trade  or  the  sole  purpose  of  fishing.  Jacob  v. 
Janaen,  3  Taunt.,  534. 

1 3.  At  and  from  St.  Petersburg  to  London, 
with  or  without  simulated  papers  or  licenses, 
on  goods  as  interest  might  appear,  to  be  there- 
after declared  and  valued.  M.,  S.  &  B.,  were 
interested  to  the  amount  insured,  which  was 
for  their  use  and  benefit  and  afterwards  de- 
clared by  indorsement,  that  the  interest  was 
in  them  and  that  the  goods  were  valued  at 
i4,130.  S.  resided  at  Hamburg,  B.  at  Glas- 
gow, and  M.  at  Gottenburg.  They  were  part^ 
ners  in  trade.  License  to  P.  &  Co.,  permitting 
goods  to  be  imported  from  any  port  in  Russia, 
Prussia  or  Denmark,  to  any  port  in  the  U.  K. 
Hamburg  and  Sweden  were  both  in  a  state  of 
hostility  with  Great  Britain.  S.  &  M.  were 
alien  enemies.  The  goods  were  consigned  to 
the  insured.  Held,  it  was  the  intention  of  the 
government  to  encourage  the  importation  of 
these  goods  from  Russia,  Prussia  and  Den- 
mark ;  that  F.  &  Co.  had  a  right  to  recover 
the  sum  insured;  and  that  no  question  could 
be  raised  as  to  what  they  intended  to  do  with 
thi>.  money.  Fayle  v.  Bourd.illion,  3  Taunt., 
546 ;  Morgan  v.  Oswald,  id.,  554. 

14.  The  license  provided  that  the  name  of 
the  vessel,  her  tonnage  and  time  of  clearance 
from  port  of  loading  should  be  indorsed  on  it 
and  an  indorsement  was  made,  as  follows: 
"The  vessel  for  which  this  license  is  granted 
is  the  Rostock  ship,  called  America,  Gunter 
master,  which  cleared  the  port  of  Archangel 
for  the  port  of  London,  the  5th  September, 
1810.''  The  master  got  his  papers  September 
SOth,  new  style,  and  sailed  on  the  33d.  Sep- 
tember 5,  1810,  old  style,  was  Septembei'  17th, 
new  style.  Held,  a  substantial  compliance 
witli  the  condition.  Morgan  v.  Oswald,  3 
Taunt.,  554. 

15.  A  license  to  G.,  F.  &  Co.,  on  behalf  of 
SU 


themselves  and  others.  Held,  it  could  not  bo 
restrained  to  the  grantees  alone  nor  to  British 
subjects  only.    Feise  v.  Bell,  4  Taunt.,  4. 

16.  On  cargo  from  London  to  Archangel. 
It  was  the  iiropertj-  of  three  persons,  one  a 
British  subject,  the  two  others  were  neutrals 
at  the  time  of  shipment;  but  before  action 
brought  the}-  became  alien  enemies.  There 
was  a  sufficient  license.  Held,  the  policy  was 
valid  and  a  recovery  could  be  maintained  for 
the  joint  interests  of  the  three.  He  Tastet  v. 
Taylor,  4  Taunt.,  338. 

17.  The  license  permitted  the  licensee  to 
import  direct  from  any  port  in  Norway, 
Sweden  or  Denmark  without  the  Baltic,  not 
under  blockade,  or  to  sail  in  ballast  from  any 
port  north  of  the  Scheldt  to  any  port  of  Nor- 
way,  Sweden  or  Denmark,  without  the  Baltic, 
not  under  blockade,  and  in  either  case  to  im- 
port from  thence  a  cargo,  etc.  The  policy 
was  from  Jersey  to  port  or  ports  in  Norway, 
there  in  port  and  back  to  London.  She  sailed 
in  ballast,  and  before  she  arrived  in  Christiana 
was  captured  by  a  Danish  privateer.  Held, 
the  license  authorized  her  to  proceed  from  anj' 
port  of  Great  Britain,  whether  north  or  south 
of  the  Scheldt.  Le  Cheminant  v.  Pearson,  4 
Taunt.,  367. 

18.  The  license  was  limited  to  a  certain 
day.  The  voyage  was  not  completed  at  that 
date.  Held,  it  was  incumbent  on  the  person 
claiming  the  protection  of  the  license  to 
prove  that  the  master  had  exercised  due  dili- 
gence, or  that  there  were  special  circumstances 
not  within  his  control,  clear  of  fraud  and 
laches  which  protracted  the  voyage,  and  if 
there  was  no  default,  the  license  protected  the 
■adventure  till  its  completion.  Freeland  'c. 
Walker,  4  Taunt.,  478 ;  Leevin  v.  Cormac,  id., 
483  n.;  Siffken  v.  Glover,  id.,  717. 

lO;  She  was  intended  to  go  to  the  Baltic, 
but  took  a  clearance  to  Gottenburg.  The 
license  provided  that  she  should  proceed  di- 
rect to  the  port  of  discharge  specified  in  her 
clearance.  She  was  detained  twenty  days  by 
adverse  winds,  and  at  Gottenburg  she  was  fur. 
ther  detained  by  an  embargo ;  she  was  again 
driven  in  Malmoe  roads  by  stress  of  weather, 
and  detained  there  five  days.  The  license  ex- 
pired June  3d,  and  she  was  captured  on  the 
13th,  in  Pillau  roads.  Held,  the  license  pro- 
tected the  voyage,  notwithstanding  the  ulti- 
mate  port  of  destination  was  not  mentioned  in 
the  clearance.    Leevin  v.  Cormac,  4  Taunt.,  483. 


629 


ILLICIT  TRADE. 


630 


What  is  not  a  broach  of  the  warranty. 


20.  She  brought  goods  enumerated  iu  a 
license  from  a  lioslile  countrj',  and  oilier  goods 
not  licensed,  from  the  same.  Held,  the  insur- 
ance on  the  goods  licensed  was  not  thereby 
vitiated.    Pieschell  v.  Alliiutt,  4  Taunt.,  792. 

21.  She  was  driven  into  a  port  of  distress, 
where  her  cargo  was  unladen  that  she  might 
be  repaired,  and  it  was  burned  in  warehouse. 
Another  cargo  of  other  goods  was  purchased 
there,  with  which  she  sailed  to  complete  the 
voyage.  Held,  it  was  protected  by  the  license, 
notwithstanding  it  w^as  to  expire  long  before 
the  cargo  was  taken  in.  Siff/ceii  v.  Glover,  4 
Taunt.,  717. 

22.  A  license  was  granted  to  G.,  P.  &  Co.,  to 
■export  on  behalf  of  tliemselvcs  and  others  a 
cargo  from  London  to  Archangel,  an  enemy's 
port,  and  to  import  thence  in  the  same  ship  a 
cargo  of  such  goods  as  were  by  lasv  permitted 
to  be  imported,  notwithstanding  that  all  the 
documeuts  which  accompany  the  ship  and 
cargo  rpay  represent  the  same  to  be  destined 
to  a  neutral  or  hostile  port.  She  arrived  at 
Archangel,  and  ship  and  cargo  were  seized 
and  detained  by  persons  acting  under  author- 
ity of  the  Emperor  of  Russia.  She  was  after- 
wards released,  but  the  cargo  was  condemned 
on  the  ground  that  it  was  not  taken  on  board 
in  a  neutral  or  friendl}',  but  in  an  enemy's 
port,  and  that  the  papers  which  accompanied 
it  were  fallacious.  Held,  the  license  sanctioned 
the  shipment,  and  therefore  it  was  legal,  and 
that  the  insurance  on  it  was  therefore  legal, 
notwithstanding  that  in  obtaining  the  11- 
■cense,  the  privy  council  did  not  know  that 
the  application  was  iu  behalf  of  a  hostile 
trader;  nor  did  that  concealment  vitiate  the 
license  or  policy.  FliiuU  v.  Scott,  5  Taunt., 
674 ;  overruling  Meiinett  v.  Bonham,  15  East, 
477;  reversing  Fliiidt  v.  Scott,  15  id.,  5S5. 

23.  A  license  to  sail  in  ballast  from  any 
port  north  of  the  Scheldt  to  Arehaugel,  or  to 
any  other  port  of  the  White  Sea,  there  to  take 
a  cargo  of  goods  permitted,  and  to  import 
them  into  the  United  Kingdom,  makes  it  law- 
ful for  a  vessel,  which  had  sailed  from  Great 
Britain  to  St.  Petersburg  with  colonial  pro- 
duce, to  bring  home  a  return  cargo  of  the 
goods  specified.  Staniforth  ti.  C'oombe.  5  Taunt., 
736. 

24.  A  neutral  is  protected  by  the  policy 
against  the  confiscation  of  his  own  govern- 
ment iiiade  under  the  Berlin  and  Milan  de- 
crees  -f  ihe  adventure  was  in  furtherance  of 


the  objects  of  British  commerce.     Bazett  v. 
Meyer,  5  Taunt.,  824. 

25.  The  exportation  of  gunpowder  was  pro- 
hibited by  proclamation,  but  the  insured  was 
by  license  permitted  to  export  150  barrels.  Ha 
exported  300  barrels.  Held,  the  insurer  Wiis 
liable  for  the  value  of  the  quaulity  licensed. 
Keir  V.  Andrade,  G  Taunt.,  490. 

26.  A  license  was  granted  to  A.  and  B.,  per- 
mitting vessels  bearing  any  flag  to  import 
specified  goods.  Held,  for  the  purpose  of 
showing  the  voyage  was  lawful,  it  was  suffi- 
cient to  show  that  the  license  applied  to  the 
ship  and  voyage  in  question  without  connect- 
ing the  insured  with  the  persons  to  whom  the 
license  was  granted;  and  that  when  it  ap- 
peared that  the  custom  house  would  not  have 
permitted  the  entry  to  have  been  made  unles3 
the  time  of  the  clearance  was  indorsed  upon 
the  license  (it  being  accidentally  destroyed), 
the  presumption  was  that  the  time  of  the  clear- 
ance was  indorsed.  Butler  v.  Allnutt,  1  Stark., 
222. 

27.  Goods,  the  produce  of  Holland,  pur- 
chased  there  during  hostilities  between  Hoi- 
land  and  England,  by  a  British  agent  resident 
there,  shipped  for  British  subjects,  were  in- 
sured in  England.  Held,  the  trade  was  legal 
and  the  policy  valid.  Bell  v.  Gilson,  1  B.  & 
P.,  345. 

28.  License  to  Bridge  &  Smith,  their  agents 
or  the  bearers  of  their  bills  of  lading,  to  im- 
port certain  goods  within  six  months,  provided 
any  person  who  shall  claim  the  benefit  of  the 
license,  shall  take  and  have  the  same  upon 
certain  conditions.  Goods  were  shipped  by 
J.  Smith  &  Son  under  three  bills  of  lad- 
ing, included  iu  another  bill  of  lading  made 
for  the  whole  cargo  to  Bridge  &  Smith. 
Held,  all  the  goods  were  protected  by  the 
license.    D(fflis  v.  Parry,  3  B.  &  P.,  3. 

29.  If  an  alien  be  resident  in  an  enemy's 
country,  goods  delivered  for  him  at  a  neutral 
or  friendly  port  are  not  on  that  account 
uninsurable.  Bromley  «.  Hesseltine,  1  Camp., 
75. 

30.  She  sailed  under  convoy,  but  parted 
company  in  a  gale  and  was  captured.  By  the 
capitulation  of  Copenhagen,  that  place  was  to 
be  restored  within  six  weeks  from  its  surren- 
der to  the  Englisli  arms;  that  period  expired 
October  19th,  and  the  city  was  evacuated  the 
following  day,  but  the  intelligence  had  not 
reached  England  before  she  sailed.    Held,  the 

315 


631 


ILLICIT  TRADE. 


632 


What  is  not  a  breach  of  the  warranty. 


voyage  was  not  illegal.     Atkinson  v.  Abbott,  1 
Camp.,  535;  11  East,  1.35. 

31.  On  a  voyage  to  a  Prussian  port.  No 
declaration  of  war  had  been  made  against 
Prussia,  nor  letters  of  marque  and  reprisals 
Lssued,  nor  any  act  of  hostility.  Held,  the 
voyage  was  not  illegal.  MuUer  v.  Thompson, 
2  Camp.,  610. 

32.  She  had  a  license,  to  expire  September 
29th;  but  she  sailed  in  the  summer  preceding 
and  was  prevented  by  stress  of  weather  from 
reaching  her  destinaticm  before  that  date. 
Held,  the  license  operated  as  a  remission  of 
the  king's  rights  of  war  till  the  adventure  was 
completed,  and  preserved  the  legality  of  the 
policy.     Grnning  v.  Crockett,  3  Camp.,  83  n. 

33.  The  license  was  to  remain  in  force  till 
September  29th.  She  had  her  cargo  on  board 
and  was  ready  to  sail  before  that  day,  but  was 
prevented  by  foul  weather.  Held,  as  the  pol- 
icy attached  before  the  license  expired,  it  was 
exactly  the  same  as  if  it  had  expired  only  the 
day  before  she  reached  the  port  of  destination. 
Schroeder  «.  Yaux,  3  Camp.,  84,  note ;  s.  c,  15 
East,  52. 

34.  "  On  cargo  at  and  from  Bordeaux  to 
Madeira,  the  East  Indies  and  America,  with 
liberty  to  touch,"  etc.  She  proceeded  to  Ma- 
deira and  took  goods  that  had  been  previously 
shipped  from  London,  for  the  purpose  of  pro- 
ceeding with  her  whole  cargo  to  the  British 
territories  in  the  East  Indies.  She  was  cap- 
tured after  she  left  Madeira,  with  all  her  cargo. 
Held,  under  the  13th  article  of  the  treaty  be- 
tween England  and  America,  the  intercourse 
between  America  and  the  East  Indies  need 
not  be  immediate  and  direct,  but  it  might  be 
carried  on  circuitously  by  way  of  Europe. 
Wilson  V.  Marry  at,  8  Term,  36;  1  B.  &  P.,  430. 

35.  On  goods  from  Canton  to  Hamburg  or 
Copenhagen.  She  was  loaded  at  London  and 
proceeded  to  the  Mauritius,  Bombay  and  Can- 
ton,  where  the  cargo  was  sold,  the  proceeds 
were  invested  in  cargo  for  Europe,  and  she 
was  captured.  Ileld,  the  two  voy.ages  were 
separate;  that  the  homeward  voyage  could 
not  be  affected  by  the  illegality  of  the  outward 
voyage.    Bird  it.  Appleton,  8  Term,  562. 

36.  "  On  goods  on  bo.ard  the  Hermon.  Liv- 
erpool to  Messina  and  Naples."  Prior  to  the 
making  of  the  policy,  she  was  described  by 
the  broker  as  American ;  but  it  was  not  so 
represented  when  the  policy  was  made.  She 
was  American,  but  she  had  goods  contraband 

316 


of  war,  and  had  no  certificate  of  the  fact,  as 
required  by  the  treat3'  between  tlie  U.  S.  and 
Spain.  She  was  captured  and  condemned 
because  she  was  not  properly  documented 
ffeld,  as  she  was  not  required  by  the  policy  t« 
be  American,  it  was  not  necessary  to  docu- 
ment  her  as  such.  Dawson  ».  Atly,  7  East, 
367. 

37.  A  policy  was  made  in  the  name  of  a 
British  subject,  as  agent  for  the  benefit  of  an 
alien  enemy ;  and  the  adventure  was  protected 
by  the  King's  license.  Held,  the  same  policy 
which  allows  the  granting  of  licenses  to  au- 
thorize the  trade,  ought  to  give  effect  to  the 
ordinar}'  means  of  indemnity  by  which  that 
trade  might  be  best  promoted  and  secured. 
Trading  with  an  alien  enemy  for  specie  and 
goods,  to  be  brought  from  the  enemy's  country 
in  his  ships,  to  the  British  colonies,  was  au- 
thorizcd  by  license.  Held,  an  insurance  upon 
the  enemj-'s  ship,  as  well  as  on  the  goods  and 
specie,  were  protected  by  the  license.  Ken- 
sington V.  Inglis.  8  East,  273. 

38.  A  neutral  ship  may  lawfully  carrj'  ene- 
my's property  from  its  own  to  the  enemy's 
country.     Barker  v.  Slakes,  9  East,  283. 

39.  A  license  was  gr.anted  to  export  goods 
to  certain  places,  in  the  name  of  N.  H.,  on  be- 
half of  himself  and  other  British  merchants. 
N.  H.  had  no  property  in  the  goods,  but  ho 
was  proved  to  be  the  agent  of  the  persons  re- 
ally interested.  Held,  sufficient  to  support  a 
policy  on  the  goods.  Rawlinson  v.  Janson,  13 
East,  223. 

40.  A  native  Spaniard,  domiciled  in  Eng- 
land  during  a  war  with  Spain,  was  licensed 
to  ship  goods  in  a  neutral  vessel  to  certain 
ports  in  Spain.  Held,  the  license  protected 
goods  his  own  or  the  property  of  his  corres- 
pondents, thougli  they  resided  in  the  enemy's 
country.     ZTsparicha  v.  Noble,  13  E^st,  232. 

41.  A  person  to  whom  the  license  was 
granted  was  described  as  of  London,  but  he 
resided  at  Heligoland.  Held,  the  license  was 
invalid.  Elingender  v.  Bond,  14  East,  484; 
overruled,  Lemcke  v.  Vaughan,  2  L.  J.  C.  P., 
44;  7  D.  &  R, '236. 

42.  The  trade  prosecuted  was  with  places 
which,  by  prior  orders  of  council,  were  de- 
clared to  have  ceased  to  be  undw  the  domin 
ion  of  the  enemy.  Held,  they  were  thereby 
recognized  as  neutral,  and  by  operation  of  law, 
those  places  were  open  to  trade  as  other  place* 
not  hostile,  and  insurance  uf)on  a  voyage  to, 


633 


ILLICIT  TRADE. 


634 


What  is  not  a  breach  of  the  warranty. 


tliem  or  to  any  of  them  was  valid.  Blackburne 
V.  Thompson,  15  East,  81;  3  Camp.,  Gl. 

4.3.  Stipulated:  "Tlio  ship  may  carry  sim- 
ulated papers."  She  was  condemned  on  the 
ground  principally  that  the  simulation  was 
irtiperfeot.  IleUl,  if  the  simulation  was  the 
ground,  or  mainly  conducive  ground  of  con- 
demnation, the  insurer  could  not  he  dis- 
charged, for  he  had  agreed  that  she  should 
carry  simulated  papers.  Dell  v.  Broowjicld,  l.j 
East,  3G4. 

44.  A  license  to  F.  and  others  will  protect 
property  shipped  by  a  person  for  wliom  F. 
and  others  were  acting  as  agents,  in  procuring 
the  license  and  carrying  on  the  adventure, 
though  tliat  person  was  a  foreigner,  residing 
in  England  under  an  alien  license.  JFeise  e. 
Neicnham.  16  E.ast,  197. 

45.  A  license  was  granted,  to  expire  Sep- 
-cmber  29,  1810;  extended  to  June  1,  1811.  She 
sailed  on  her  home  voyage  October  13,  1810, 
Dut  was  driven  back  to  Archangel,  discharged 
and  sold  cargo,  and  laid  up  for  the  winter, 
bhe  did  not  sail  till  August,  1811.  Held,  it 
appearing  that  the  voyage  was  prosecuted  witli 
all  reasonable  dispatch,  the  license  protected 
a  policy  made  upon  her  home  cargo  in  Au- 
gust, 1811.  Siffkeii  V.  Allnutt,  1  Mau.  &  Sel., 
39. 

46.  A  license  to  H.  S.,  a  British  merchant, 
permitting  a  vessel  bearing  anj-  flag  except 
French,  to  proceed  to  enemy's  port  and  take  a 
cargo  to  the  United  Ki.igdom,  is  not  confined 
to  H.  S.,  but  covers  the  goods  of  an  alien 
enemy,  it  appearing  that  the  licensoe  acted  on 
behalf  of  the  alien  enemy  in  procuring  the 
license.  liobinson  v.  Toiiray,  3  Camp.,  158; 
Same  v.  Cheesewright,  1  S[au.  &  Sel.,  220;  Sull- 
inan  v.  Whitmoi-e,  3  id.,  337. 

47.  A  British  merchant  obtained  a  license 
in  his  own  name,  on  behalf  of  himself  and 
other  British  merchants,  to  export  on  any  ves- 
sel bearing  any  flag  except  French,  a  specified 
cargo,  from  London  to  any  port  in  the  Baltic, 
not  under  blockade.  She  took  a  cargo,  the 
property  of  Hamburg  merchants,  and  sailed 
for  Swincmunde,  arri%-cd,and  was  informed  by 
the  commisary  that  it  would  be  safer  to  land 
at  Rugcnwold.  On  her  voyage  thither  she 
was  captured  by  a  French  privateer.  Ham- 
burg was  in  the  possession  of  the  French 
troops,  but  the  Senate  continued  to  exercise 
the  powers  of  civil  government.  Held,  the 
possession    "♦   Hamburg  by  the    French  did 


not  constitute  Hamburg  subjects  the  enemies 
of  England,  and  that  the  license  protected  tho 
policy  upon  the  voyage  insured.  Uagedorn  o. 
Bell,  1  Mau.  &  Sel.,  450. 

48.  From  London  to  any  ports  in  the  Baltic 
or  the  Gulf  of  Finland,  backwards  and  for- 
wards,  with  liberty  to  touch,  stay,  discharge 
and  unload  or  tranship,  etc.,  to  carry  and  ex- 
change  simulated  papers  and  clearances.  The 
interest  was  in  Prussian  subjects  resident  at 
Colberg  in  Prussia,  to  whom  the  goods  were 
consigned.  They  were  seized  near  Colberg  by 
persons  exercising  the  powers  of  government 
in  Prussia,  were  sequestered  and  lost,  "  Because 
she  carried  siniulated  clearances  when  all 
commerce  between  England  and  the  Baltic 
ports  was  prohibited."  Merchants,  generally, 
knew  that  goods  for  the  Bailie  were  subject 
to  seizure,  and  by  way  of  atlbrding  protectioa 
to  such  risks,  trade  was  carried  on  in  the 
name  of  others;  the  perils  which  might  result 
from  such  a  trade  were  contemplated  by  the 
parties  when  the  policy  was  made.  Held,  the 
exclusion  of  a  risk  occasioned  by  the  act  of 
the  government  of  the  insured,  is  only  an 
implied  exclusion,  which  may  be  rebutted  by 
circumstances;  that  the  facts  and  circum- 
stances  in  this  case  were  sutBcient  to  rebut 
that  implied  exclusion,  and,  therefore,  the  in- 
surer  was  liable.  Simeon  v.  Bazett,  2  Mau.  & 
Sel..  94. 

49.  Policy  to  A.,  as  well  in  his  own  name 
as  for  others,  upon  ship  for  the  benefit  of  S.,  au 
al  ien  enemy.  A.  procured  a  license  for  the  voy- 
age, and  S.  adopted  the  insurance  two  years 
after  by  letter  to  insured.  Held,  tlie  insurer 
was  liable  upon  an  action  brought  by  A.  averr. 
ing  the  interest  in  S.  Uagedorn  v.  Oliverson, 
2  Man.  &  Scl.,  485. 

50.  A  license  granted  to  J.  H.,  on  behalf  of 
himself  and  other  British  or  neutral  mer- 
chants,  in  any  vessel  bearing  anj-  flag  except 
French,  from  place  or  places  within  certain 
specified  limits.  Held,  it  protected  a  cargo  in 
which  an  alien  enemy  was  interested,  from  a 
hostile  port.    Hagedornv.  Iieid,l  Muu.&Se\., 

567 ;  3  Camp.,  377 ;  liucker  v.  Ansley,  5  Mau.  & 
Sel.,  25. 

51.  On  goods.  Tlicj'  were  manufactured 
within  the  kingdom  of  Prussia,  and  imported 
in  a  Swedish  ship  for  use  in  the  United  King- 
dom. Held,  no  defense  to  the  action,  because 
the  goods,  bristles  and  beer,  were  not  enume- 
ra'fd  in  the  2d  sec.  of  3  &  4  Will,  IV,  ch.  54. 

317 


635 


ILLICIT  TRADE. 


030 


What  is  not  proof  of  iU'cit  trade. 


Thompson  v.  Irving,  7  Mee.  &  W.,  307 ;  5  Jur., 
103. 

52.  A  license  was  granted  to  C.  F.  Hampe 
of  London,  merchant,  permitting  any  vessel 
bearing  any  flag,  except  the  French,  to  take  a 
cargo  of  British  manufactured  colonial  pro- 
duce, aud  sucli  goods  as  were  permitted  to  be 
exported  from  Heligoland  to  any  port  in  the 
Baltic  not  under  blocliade;  with  liberty  to 
carry  simulated  papers,  upon  condition  that 
the  name  and  tonnage  of  the  vessel,  name  of 
master  and  time  of  clearance  from  Heligoland, 
should  be  indorsed  upon  the  license,  and  a 
certificate  from  the  custom,  house  at  Heligo- 
land should  accompany  the  cargo,  certifying 
that  the  same  was  originally  exported  from 
the  *U.  K.,  to  be  in  force  for  four  months. 
The  indorsements  were  made  as  required,  and 
the  customs  certificate  accompanied  the  cargo. 
This  policy  was  "from  Heligoland  to  any 
port  or  ports  in  the  Baltic  and  Gulf  of  Fin- 
land,  against  all  risks,  including  risks  of 
craft,  with  liberty  to  carry  aud  exchange 
real  or  simulated  papers.  On  goods  as  shall 
be  declared  and  valued  hereafter."  By  in- 
dorsement, the  goods  were  declared  aud  val- 
ued at  £10,150,  by  Vrow  Hendricka.  The 
plaintiff  was  a  merchant,  native  and  resident 
of  Hanover  at  the  time  the  policy  was  ef- 
fected, license  granted,  and  loss.  He  had 
imported  the  goods  from  British  colonies; 
they  were  at  Heligoland,  in  possession  of  his 
agents  there,  but  having  resolved  to  send  some 
of  them  to  neutral  ports  in  the  Baltic,  he  em- 
ployed C.  F.  Hampe,  sent  him  to  Heligoland 
for  that  purpose,  and  Hampe  was  then  on  tlie 
point  of  going  to  England  to  reside,  and  di- 
rected his  correspondent,  Klingender,  to  effect 
insurance  to  cover  the  adventure.  Klingender 
procured  the  license  in  Hampe's  name  and 
made  the  insurance  in  his  own.  Held,  fraud 
was  neither  intended  nor  committed  in  tlie 
description;  that  licenses  of  this  description 
were  to  have  a  liberal  construction ;  the  ob- 
ject of  the  license  was  to  legalize  the  adven- 
ture rather  than  to  qualify  llie  party,  and  was 
therefore  sufficient  to  protect  the  policy 
Lemckev.  Vaughan,  3  L.  J.  C.  P.,  44;  aflJrmed, 
7  D.  &  R.,  236;  reversing  Klingender  v.  Bond, 
14  East,  484. 

53.  On  goods  from  London  to  Matamoras. 
Plea:  "They  were  contraband  of  war,  were 
shipped  by  the  plaintiff  for  the  purpose  of 
being  sent  to  and  imported   into  a  state   in 

313 


open  hostilities  to  tlie  United  States,  and  were 
liable  to  be  seized  by  the  cruisers  of  the  Uni- 
ted States  as  contraband  of  war;  that  the  ship 
carried  goods  and  papers  which  rendered  her 
liable  to  be  seized  by  said  cruisers,  and  that 
the  ship  and  goods  were  seized  accordingly, 
which  is  tlie  loss  complained  of."  Eeld,  tlie 
allegation  that  they  were  shipped  for  the  pur- 
pose of  being  sent  to  an  enemy's  port  was  an 
allegation  of  mental  process  only,  and  insuffi- 
cient of  itself  to  establish  that  they  were  lia- 
ble to  seizure  for  a  breach  of  neutrality;  that 
goods  passing  between  neutrals,  though  of  the 
quality  described  as  contraband  of  war,  ars 
not  seizable  by  a  belligerent,  unless  it  dis- 
tinctly  appears  that  the  voj-age  was  to  an  ene- 
my's port;  that  "She  was  carrjing  papers 
which  made  her  liable  to  be  seized,  of  which 
the  insurer  was  ignorant,"  was  no  defense,  for 
the  defendant  may  have  remained  in  igno- 
rance without  fault  on  the  part  of  the  plaint, 
iff.  Hobbs  V.  ffenning,  17  C.  B.  (N.  S.),  791 ; 
11  .Jur.  (N.  S.),  223;  34  L.  J.  C.  P.,  117;  13  W. 
R.,  431 ;  12  L.  T.  (N.  S.),  205. 

III.  What  is   not   proof  of  illicii 

TRADE. 

1.  Warranted  free  from  loss  which  may 
arise  in  consequence  of  a  seizure  or  detention 
of  the  property  for,  or  on  account  of  an}-  illicit 
or  prohibited  trade.  It  was  alleged  she  had 
on  board  mahogany  of  a  larger  size  than  was 
permitted  to  be  exported  by  the  regulations  of 
the  British  Settlement  at  Honduras.  She  was 
seized  for  it,  aud  while  proceeding  to  Jamaica 
under  charge  of  the  captor,  both  vessels  were 
lost.  But  the  cargo  was  taken  in  for  Liver- 
pool. There  was  an  express  prohibition  that 
no  vessel  should  be  permitted  to  carry  mahog- 
any exceeding  seventeeen  inches  to  the  United 
States.  Held,  the  trade  was  not  Illicit,  and  the 
warranty  was  preserved.  Graham  v.  Pennsyl- 
vania Ins.  Co.,  2  Wash.  C:  C,  113. 

2.  She  proceeded  to  the  Falkland  Lslands, 
on  a  sealing  voj-age,  and  was  there  seized, 
under  an  alleged  authority,  by  the  acting  gov. 
eruor,  for  fishing  contrary  to  the  law  of  Bue- 
nos Ayres.  But  the  American  government  had 
theretofore  and  at  that  time  asserted,  through 
the  executive,  that  the  Falkland  Islands  did 
not  constitute  any  part  of  the  dominions 
within  the  sovereignty  of  Buenos  Ayrcs,  and 
that  the  seal  fisliing  at  those  islands  was  a 


637 


ILLICIT  TRADE. 


63» 


What  is  not  proof  of  illicit  trade. 


trade  free  and  liiwfiil  to  tlie  citizens  of  llie 
United  States,  and  beyond  the  power  of  the 
government  of  Buenos  Ayres  to  regulate,  pro- 
hibit or  punish.  The  master  had  w.arning 
that  she  would  be  seized  if  she  eng.aged  in  it, 
but  she  engaged  in  it  after  the  warning,  was 
seized  and  condemned  tlierefor.  The  master 
noted  hona  fide,  under  a  belief  that  he  was 
hounif  to  do  so  as  a  matter  of  duty  to  the 
owners  and  others  interested  in  the  voyage. 
Held,  when  the  executive  branch  of  the  gov- 
ernment assumes  a  fact  in  regard  to  the  sover- 
eignty of  any  island  or  country,  it  is  conclu- 
sive on  the  .judicial  department,  and  it  is  not 
in  the  province  of  the  court  to  determine 
■whether  the  executive  be  right  or  wrong; 
hence  any  inquiry  on  that  point  was  immate- 
rial; a  contrary  rule  would  produce  irrecon- 
cilable differences  between  the  executive  and 
judicial  departments,  upon  questions  of  for- 
eign jurisdiction;  that  the  master  was  not  to 
be  diverted  from  the  objects  of  the  voyage 
and  the  e.xercise  of  rights  which  belonged  in 
common  to  the  citizens  of  the  United  States, 
by  an  unauthorized  threat  of  seizure;  liencc 
insured  were  not  bound  to  regard  the  threats 
of  any  individual  who  might  assume  to  exer- 
cise power;  and  it  was  the  master's  duty  to 
prosecute  the  voyage  and  attain  the  objects  of 
it  for  the  benefit  of  his  owners,  in  the  exercise 
of  a  proper  discretion;  hence,  insurers  were 
liable  for  the  loss.  Affirming  s.  c,  3  Sumn., 
270;  Willifims  v.  Suffolk  Ins.Co..l3  Pet.,  415. 

3.  "Warranted  against  seizure  or  detention 
for  or  on  account  of  any  illicit  or  prohibited 
trade.  Held,  unless  there  was  an  actual  exis- 
tence of  either  illicit  trade  or  contraband  pro- 
ducing the  loss,  the  insurer  was  liable;  that 
■where  the  facts  stated  in  the  sentence  of  con- 
demnation fail  to  support  the  conclusions  of 
the  sentence,  the  underwriter  could  not  be  re- 
lieved.   Johnston  v.  Ludloio,  3  Johns.  C,  481. 

4.  Where  the  policy  warrants  against  any 
damage,  charge  or  loss  which  may  arise  in 
consequence  of  a  seizure  or  detention  for  or 
on  account  of  any  illicit  or  prohibited  trade. 
Held,  the  seizure  must  be  for  an  actual  illicit 
or  prohibited"  trade,  and  the  insurer  must 
prove  the  existence  of  a  law  condemning  the 
trade;  a  seizure  and  condemnation  under  pre- 
text of  such  a  trade  is  not  sufficient  if  in  fact 
the  trade  is  not  illicit;  both  the  seizure  and 
illicit  trade  must  concur,  and  the  illicit  char- 
acter of  the  trade  is  not  proven  by  the  fact  cf 


seizure.  Francis  v.  Ocean  Ins.  Co.,  6  Cow., 
404.  And  if  the  decree  of  condemnation  doe» 
not  specify  the  grounds  on  which  it  is  pro- 
nounced, but  alleges  that  it  is  for  a  breach  of 
some  or  one  of  the  laws  of  navigation,  it  is 
not   prima  facie  evidence.     Ibid;  affirmed 

2  Wend.,  64. 

5.  The  policy  excepted  loss  wliich  might 
arise  in  consequence  of  seizure  or  detention 
for  or  on  account  of  any  illicit  or  prohibited 
trade.  She  was  seized  off  Cuxhaven,  carried 
to  Hamburg,  where  the  cargo  was  confiscated 
by  the  Emperor  Napoleon.  Held,  there  must 
be  both  a  seizure  and  an  illicit  or  prohibited 
trade;  that  it  must  be  a  legal  prohibition, 
such  as  the  prohibiting  power  had  a  right  to 
make ;  that  the  insurer  must  prove  that  Ham- 
burg, at  the  time  of  the  decree,  was  within 
the  territory  of  the  Emperor  Napoleon,  and 
that  the  seizure  was  made  in  consequence  of 
a  breach  of  it;  of  which  there  was  not  the 
necessary  proof.    Smith  v.  Delaware  Ins.  Co , 

3  S.  &  R.,  74. 

6.  Warranted  free  from  any  charge,  damage 
or  loss  which  may  arise  in  consequence  of 
having  been  engaged  in  illicit  or  prohibited 
trade  at  any  time  whatsoever.  When  the 
policy  -n-as  subscribed,  it  was  publicly  known 
that  Tampico,  the  port  of  destination,  was  in 
the  possession  of  the  Spanish  invading  forces, 
but  was  declared  free  for  provisions,  except 
flour.  Between  the  day  she  sailed  and  her  ar- 
rival  at  Tampico  (twelve  days)  the  Mexicans 
had  retaken  the  place,  and  exhibited  Spanish 
colors  to  decoy  vessels  laden  -with  provisions. 
She  was  seized,  dismantled,  the  master  and 
crew  imprisoned,  and  the  cargo  sold  without 
any  judicial  proceedings.  By  the  Mexican 
law,  prohibited  articles  became  forfeited  to 
the  government,  but  the  forfeiture  of  cargo 
did  not  work  a  forfeiture  of  the  ship.  Upon 
the  master's  release,  he  applied  to  the  com- 
mander-in-chief for  restoration  of  his  vessel, 
but  was  ordered,  under  pain  of  death,  to  dis- 
continue further  application.  Held,  whenever 
violence  is  used  and  military  authority  exer- 
cised ia  matters  which,  in  all  civilized 
countries,  are  the  attributes  of  the  civil  power, 
a  presumption  is  raised  that  the  proceedings, 
even  in  their  result,  are  not  such  as  would 
have  obtained  the  sanction  of  law;  it  was 
necessary  for  the  defendants  to  show  that  by 
due  course  of  legal  proceedings  the  vessel 
was  condemned  as  contraband;  that  having 

319 


639 


ILLICIT  TRADE. 


640 


What  is  illicit  trade. 


failed  to  do  so,  the  insured  was  eutitkd  to  re- 
cover. Thompson  v.  Mississippi  Fire  and  Ha- 
riri Ins.  Co.,  3  La.  (0.  S.),  228. 

7.  She  was  Norwegian  built,  and  was  pur- 
chased by  insured  of  a  subject  of  Denmarlc,  a 
hostile  state.  Insured  had  a  license  to  pur- 
chase of  the  enemy.  She  was  chartered  from 
Loudon  to  St.  Michaels  and  back  to  London, 
for  a  cargo  of  fruit  at  St.  Michaels.  She  sailed 
in  ballast,  with  Danish  papers,  colors,  master 
nnd  crew.  Ou  her  arrival  at  St.  Michaels,  she 
•was  refused  entrance,  and  ordered  to  proceed 
to  Tercera,  there  to  seek  and  obtain  permission 
to  land  at  St.  Michaels,  which  the  master  re- 
fused to  do,  assigning  as  his  reason  that  it 
would  violate  his  charter  parly,  and  asserted 
that  he  would  lie  in  the  harbor  during  the 
time  stipulated  for  taking  in  the  cargo;  where- 
upon a  Portuguese  pilot,  master  and  crew 
were  put  on  board,  her  master  thrown  into 
prison,  and  the  ship  navigated  to  Tercera. 
She  was  sequestered  on  the  ground  that  she 
had  not  British  registration.  Held,  the  seizure 
was  illegal,  and  the  insured  was  entitled  to 
recover.  Sewell  v.  Royal  Exchange  Ass.  Co.,  4 
Taunt.,  856. 

8.  The  owners  of  certain  arms  and  ammuni- 
tion consigned  them  to  D.  &  Co.,  at  Madeira, 
and  they  were  insured  from  London  to  Jla- 
deira,  valued  at  £800.  The  shippers'  intention 
to  ship  was  communicated  to  the  consignee 
prior  to  the  ship's  departure,  and  that  inten- 
tion was  communicated  by  the  consignee  to 
the  governor  at  the  port  of  destination,  who 
seized  the  goods  on  their  arrival.  By  treaty 
between  Great  Britain  and  Portugal,  full  re- 
ciprocal liberty  of  commerce  and  navigation 
was  granted  for  all  goods,  except  enemies' 
property  of  either  power,  or  contraband  of 
war,  and  certain  goods,  design.ated,  were  pro- 
claimed contraband  of  war.  The  government 
of  Portugal  had  the  right  of  preemption  as  to 
goods  irhported,  known  as  military  and  naval 
Btores,  and  required  for  their  own  use.  '  The 
shipment  was  made  openly  and  described  in 
the  manifest.  Held,  the  exception  as  to  goods 
conti-aband  applied  only  to  a  time  of  war,  and 
insurer  was  liable  for  the  loss,  though  the 
seizure  was  accelerated  by  the  agent  of  the 
insured.  Wilbraham  v.  Warlnahy,  8  L.  J.  K. 
B.,  255. 

IV.  "What  is  illicit  teade. 
1.  "On   freight    from    Norfolk    to    Cadiz, 
320 


property  warranted  free  from  all  claims  in 
consequence  of  any  restraints  that  may  be  im- 
posed  by  the  American  government  previous 
to  sailing.  The  ship  has  a  Sidmouth  license 
on  board."  She  was  carried  into  Lynhavea 
Bay  by  the  British  squadron,  and  the  mastei 
was  informed  that,  the  Chesapeake  was  then 
blockaded;  thai  lie  must  take  the  ship  back 
to  Norfolk.  He  was  finally  ordered  to  ascend 
the  James  and  to  remain  there,  which  he  did. 
About  four  months  after,  an  abandonment  was 
tendered,  of  which  the  master  was  informed, 
May  20th.  The  cargo  was  subsequently  sold 
by  order  of  insurers,  who  were  also  insurers 
of  the  freight.  Held,  the  voyage  was  illegal 
because  she  had  a  British  license  (citing  The 
Fanny,  9  Cranch,  181 ;  The  Aurora,  8  id.,  203 ; 
The  Hiram,  1  Wheat.,  440;  The  Ariadne,  2  id., 
148).  Craig  v.  United  States  Ins.  Co.,  Pet.  C. 
C,  410. 

2.  Time  policy  on  goods.  "  Warranted  free 
from  charge,  damage  or  loss  which  may  arise 
incons(!quence  of  seizure  or  detention  for  or  on 
account  of  illicit  or  prohibited  trade,  or  trade 
in  articles  contraband  of  war."  She  cleared 
for  the  Sandwich  Islands  and  Canton,  but 
was  bound  immediately  to  Valparaiso,  in 
Chili,  with  ulterior  destination  stated  in  her 
sailing  orders.  Spain  and  the  states  of  Chili 
were  in  open  hostility  at  the  commencement 
of  the  voyage.  She  arrived  at  Valparaiso  and 
transferred  to  an  English  brig  sixteen  casks 
of  powder  and  a  large  quantity  of  muskets; 
she  sailed  thence  and  arrived  at  Coquiseto,  in 
Chili,  where  she  landed  more  powder  and 
sailed  thence  for  Huasco,  in  Chili,  having 
sold  and  taken  in  cargo  not  contraband.  She 
arrived  at  Quilca  and  commenced  to  discharge 
balance  of  cargo,  when  she  was  seized  under 
an  alleged  authority  from  the  Spanish  govern- 
ment, and  the  cargo  was  coutiscated.  Held, 
unless  the  seizure  was  legal  aud  justifiable, 
the  exception  did  not  release  the  insurer;  that 
upon  the  facts  stated,  it  was  legal  and  justifia- 
ble ;  that  having  deposited  or  disposed  of  the 
contraband  goods  before  the  seizure  did  not 
relieve  the  insured  from  the  consequences  of 
violating  tlie  warranty;  aud  it  was  immate- 
rial whether  the  proceedings  against  her  for 
adjudication  were  irregular.  Carrington  d. 
Merehajits  Ins.  Co.,  8  Pet.,  495. 

3.  On  cargo  from  Baltimore  to  Hamburg, 
loss  by  seizure  or  detention  for  sr  on  account 
of  illicit  or  prohibited  U">lc  excepted      In- 


641 


ILLICIT  TRADK. 


642 


What  is  illicit  ti'ade. 


Burcd  were  owners  of  sliip.  She  reached 
Ilcligolaiul  and  waa  cautioned  by  a  British 
vessel  of  war  not  to  go  to  Toenuiiigeu,  as  the 
Eyder  was  blockaded.  She  thereupon  sailed 
for  Hamburg,  and  arrived  at  Cuxliaven  Octo- 
bcr  22d,  where  she  was  seized,  her  papers  ex- 
amined by  a  custom  house  oflicer,  and  she  was 
taken  to  Hamburg,  her  cargo  landed,  part  of 
it  sent  to  France  in  wagons,  and  the  residue 
sold  in  Hamburg.  The  French  government 
had  possession  of  Hamburg  and  Cuxhaveu, 
and  everything  was  done  by  persons  repre- 
senting the  emperor.  The  French  decree  de- 
clared colonial  goods  siiould  not  be  admitted 
unless  accompanied  with  certificate  of  origin, 
which  she  did  not  have.  Insured  received 
notice  of  the  seizure  September  11th,  but  no 
offer  to  abandon  was  made  till  June  9lh  fol- 
lowing. In  the  interim  there  was  a  hope  or 
expectation  that  the  cargo  would  be  released. 
Held,  if  she  was  not  destined  for  Hamburg, 
there  never  was  an  inception  of  the  voyage  in- 
sured;  that  to  establish  illicit  trading,  break- 
ing bulk  was  not  necessary  for  sailing,  with- 
■out  the  certificate  of  origin  rendered  the  trade 
illicit  and  prohibited.  Smith  v.  Delaware  Ins. 
€o.,  3  Wash.  C.  C,  127. 

4.  Policy  on  two-tliirds  of  a  brig  frotii  Phil- 
adelphia to  Calcutta,  tlience  to  Philadelphia. 
She  sailed  December  17th,  and  the  nonimpor- 
tation law  took  efl'ect  February  2d  following. 
Meld,  if  the  traffic  in  which  the  ship  was  to  be 
engaged  was  forbidden  by  law,  a  policy  on  the 
ship  for  the  voyage  was  void,  because  she 
would  be  ill  pari  delicto.  Gray  v.  Sims,  3 
Wash.  C.  C,  270. 

5.  Policy  excepted  loss  from  "  seizure,  de- 
tention or  account  of  illicit  or  prohibited  trade 
or  contraband  of  war."  The  ship  arrived  at 
Antigua  and  commenced  loading  September 
12th;  but  she  did  not  clear  until  October  8th. 
September  4lh  a  proclamation  was  made  pro- 
hibiting American  vessels  from  taking  sugars, 
but  it  was  not  delivered  at  the  custom  house 
until  the  10th.  She  was  regularly  cleared 
from  the  custom  house,  captured  by  the 
French,  recaptured  by  the  British,  and  car- 
ried into  St.  Kitts  and  restored  on  payment  of 
salvage;  but  the  sugar  was  seized  and  con- 
demned for  a  breach  of  the  trade  laws.  Held, 
notwithstanding  the  regular  clearance  from 
Antigua,  the  trade  was  illicit  and  a  breach  of 
the  warranty.  Tucker  v.  De  Longuemere,  1 
Johns.,  20. 

21 


6.  On  schooner  valued  at  $6,000,  from  New 
York  tc  St.  Bartholomew,  and  thence  back  to 
New  York,  with  liberty  to  touch  and  trade  at 
Martinique.  July  7tli  she  had  on  board  35 
hog.sheads  of  molasses,  which,  by  tlie  nou- 
intercourse  law  of  the  United  States,  forfeited 
her  to  the  V.  S.,  if  it  was  taken  on  board  with 
intent  to  import  the  same  into  the  U.  S.  Held, 
by  taking  return  cargo,  the  court  would  pre- 
sume it  was  intended  that  the  goods  were  for 
the  home  port;  and  if  the  policy  had  been 
confined  to  one  port,  no  room  would  be  left 
for  explanation;  but  as  she  was  destined  for 
St.  Bartholomew,  an  explanation  might  bo 
given  that  the  goods  were  intended  for  St. 
Bartholomew.  Fontaine  v.  Phoenix  Ins.  Co., 
11  Johns.,  293. 

7.  "  Warranted  the  vessel  shall  have  a  geu- 
uine  British  license,  and  that  the  cargo  shall 
he  in  conformity  with  the  license."  The  voy- 
age was  from  Petersburg  to  Norfolk,  and 
from  Norfolk  to  Lisbon  (a  voyage  admitted  to 
be  illegal).  Ileld,  any  contract  founded  upon 
an  illegal  voyage  was  void;  that  the  enemy's 
license  perse  was  a  cause  of  forfeiture.  ColqvL- 
houn  V.  New  York  Firemen's  Ins.  Co.,  15  Johns., 
353. 

8.  The  plaintifi",  as  agent  of  N.  and  B.,  ex- 
ported  from  the  United  States  to  the  province 
of  N.  B.,  in  the  British  Dominions,  thence  to 
the  British  West  India  Islands,  a  large  quan- 
tity of  provisions,  the  property  of  N.  and  B., 
contrary  to  the  embargo  laws,  under  an  agree- 
ment that  after  the  property  should  arrive  at 
N.  B.,  it  was  to  be  shipped  to  the  Islands  and 
sold  fortlie  benefit  of  N.  and  B.  It  was  trans- 
ported in  pursuance  of  this  agreement,  and 
this  action  was  brought  to  recover  the  pro- 
ceeds. Held,  the  transaction  was  unlawful  and 
no  action  could  be  founded  upon  it.  Sturges 
v.Bush,  5  Day,  452;  Pond  v.  Smith,  4i  Cuuu  , 
297. 

9.  The  decree  of  the  Mexican  government 
prohibited  importing  not  only  goods  and  mer- 
chandise, the  manufacture  of  Spain,  but  all 
merchandise  which  may  have  been  l)rought 
from  the  ports  of  that  country,  no  matter  what 
its  origin  or  to  whow  it  might  belong.  Held, 
en^ao-ing  in  that  l;'ade  was  a  violation  of 
this  decree.  Cucullv  ■».  Louisiana  State  Ins. 
Co.,  17  Martin  (La.),  464. 

10.  Cargo  put  on  board  September  20th. 
Ship  sailed  October  3d.  Order  for  insurance 
made  September  3d,  and  arrived  October  5th. 

321 


643 


ILLICIT  TRADE. 


644 


What  is  illicit  trade. 


License  procured  on  the  7th,  but  the  policy 
•was  not  efTected  till  November  SOtli.  Held, 
the  voyage  was  illegal  when  it  commenced,  no 
license  having  been  then  obtained,  and  that 
the  subsequent  license  did  not  make  it  lawful. 
Eeiiti/  V.  Staniforth,  1  Stark.,  254. 

11.  On  ship  from  London  to  a  port  of  dis- 
charge in  Holland  or  the  Ems.  She  had  a 
license  to  sail  in  ballast  from  London  to  Hol- 
land, "  notwithstanding  anything  contained  in 
his  majesty's  order  of  council,"  etc.  She  was 
enemy's  property.  Held,  the  license  did  not 
protect  her,  and  the  insurance  was  therefore 
void.  Grigg  <o.  Scott,  Holt  N.  P.,  129 ;  s.  c,  4 
Camp.,  339. 

12.  On  ship  and  cargo,  from  the  Cape  of 
Good  Hope  to  Buenos  Ayres.  Three  Spanish 
officers,  prisoners  of  war,  on  their  p.arole,  were 
taken  gratuitously  for  South  America,  to  ap- 
pe.ir  there  before  the  officer  in  command,  to 
be  exchanged  by  him  for  English  prisoners. 
They  had  concealed  arms,  and  with  four  En- 
glish sailors,  overpowered  the  master  and 
crew,  ran  the  ship  aground  and  escaped.  She 
sailed  in  the  fir.st  week  of  September,  1806, 
without  license  from  the  South  Sea  Company, 
and  was  burned  to  prevent  capture.  Held, 
this  was  a  trading  within  the  limits  of  the 
South  Sea  Company's  charter,  which  was  ille- 
gal and  the  policy  to  protect  it  was  therefore 
void.    Tmdmin  v.  Anderson,  1  Taunt.,  227. 

1 3.  To  support  the  policy  a  license  was  pro- 
duced, permitting  B.  and  Sons  to  import,  from 
any  port  in  Holland,  in  six  neutral  ships,  not 
named,  goods  enumerated,  the  property  of  B. 
and  Sons,  as  might  be  specified  in  their  bills 
of  lading.  B.  was  the  ship's  broker,  and  he 
appropriated  the  license  to  the  ship  which 
brought  this  cargo  as  one  of  the  six,  and  in- 
sured repaid  B.  the  proportion  of  the  fees  for 
obtaining  it.  The  consignors  signed  a  general 
bill  of  lading  to  B.  for  the  goods  and  particn. 
lar  bills  of  lading  to  particular  consignees. 
Held,  the  license  did  not  protect  the  goods, 
therefore,  the  policy  was  not  lawful.  Feise 
e.  Waters,  2  Taunt.,  249. 

14.  She  was  licensed  to  sail  without  con- 
voy, armed  witli  six  carriage  guns  and  twelve 
men  and  boys.  She  had  her  full  complement 
in,  and  cleared  for  Maderia,  but  discliarged 
five  men  before  she  sailed.  Four  montlis  after, 
she  sailed  from  the  Downs  for  Portsmouth, 
■where  she  expected  to  have  found  and  joined 
convoy,  but  was  captured,  two  days  later,  oflF 


Shoreham,  with  seven  men  only  on  board. 
The  statute  provided  that  no  clearance  should 
be  given  to  any  ship  which  was  to  sail  with- 
out convoy,  unless  a  bond  was  given  accord- 
ing to  the  statute;  no  bond  was  given.  Held, 
the  voyage  was  illegal,  because  it  was  in  con- 
travention of  the  statute,  for  she  sailed  with- 
out convoy,  under  a  license  the  terms  ofwhich 
were  not  complied  with.  Hinckley  v.  Walton. 
3  Taunt.,  131. 

1,5.  The  whole  cargo  consisted  of  British 
manufactured  goods,  previously  exported 
from  England  to  the  Cape  of  Good  Hope.  An 
agent  of  the  East  India  Company,  resident  at 
the  Cape,  confirmed  a  license  granted  by  the 
governor,  authorizing  the  vessel  to  proceed  to 
the  islands  of  Rodriguez  and  Bourbon.  Held, 
an  illegal  voyage,  because  it  was  the  voyage 
of  a  British  ship  carrying  goods  to  the  island 
of  Bourbon  from  the  Cape,  instead  of  direct 
from  Great  Britain,  contrary  to  15  Car.  II,  ch.  7. 
Gray  v.  Lloyd,  4  Taunt.,  136. 

1 6.  By  the  statute,  43  Geo.  Ill,  ch.  57,  all  in- 
surances on  goods  are"  void  unless  the  ship^ 
sailed  with  convoy,  or  had  a  sufficient  license 
to  proceed  without  it.  She  wiis  bound  from 
Hull  to  Palermo,  Messina  and  Malta,  or  Malta^ 
Messina  and  Palermo,  with  leave  to  call  at 
Gibraltar.  She  had  a  license  to  sail  without 
convoy  to  Gibraltar  only.  She  failed  to  ob- 
tain convoy  there,  and  was  captured  after  she 
departed  from  Gibraltar.  Held,  the  shipper  of 
goods  was  privy  to  the  sailing  without  a 
license,  for  the  master  was  the  agent  of  the 
shipper  in  respect  to  the  goods,  and  the  policy 
was  void.     Wainlwuse  v.  Cowie,  4  Taunt.,  178. 

17.  "From  Portsmouth  to  Amsterdam,  on 
prize  wines,  interest  in  Van  Eyck,  a  native  of 
Holland,  domiciled  at  Amsterdam,  but  resi- 
dent  in  England,  under  the  King's  license, 
dated  May  28,  1806,  for  the  term  of  three 
months."  It  was  extended  from  time  to  time 
until  July,  1807,  and  cm  the  31st  of  that  month, 
a  license  was  gr.anted  to  B.  &  K.,  for  them- 
selves and  other  British  merchants  to  export 
prize  wines.  Held,  the  license  to  export  pro- 
tected only  the  property  of  British  merchants; 
that  Van  Eyck's  residence  in  England  having 
terminated,  he  ceased  to  preserve  the  charac- 
ter of  a  British  merchant ;  hence  the  insurer 
was  discharged.  Warin  v.  Scott,  4  Taunt., 
605. 

18.  On  American  ship  Washington,  from 
Congo  River  to  Charleston.    There  was  "aa 


C-io 


ILLICIT  TRADE. 


646 


^NTiat  is  illicit  trade. 


agreement  between  her  owners  and  the  owners 
of  the  ship  Corydon,  that  the  latter  should,  on 
the  coast  of  Africa,  deliver  to  the  former, 
arms  and  gunpowder,  which  Ihe  Corydon  had 
taken  for  traffic  on  the  African  coast,  which 
agreement  was  carried  out.  Helil,  it  was  a 
fraudulent  agreement,  and  therefore  the  policy 
was  void.  Gib»on  v.  Service,  5  Taunt.,  433 ;  s. 
c,  1  Marsh.,  119. 

1 9.  An  importation  from  a  hostile  port  by 
an  alien  enemy,  resident  there,  may  be  legal- 
ized by  a  license  tn  another  person  on  behalf 
of  a  British  merchant,  for  a  person  not  named ; 
but  the  insured  must  prove  by  what  authority 
he  applies  the  license  to  the  adventure.  It  is 
not  enough  to  show  that  the  ship's  name  was 
indorsed  on  the  license  in  the  hostile  port. 
Robinson  v.  Morris,  5  Taunt-,  720. 

20.  A  license  to  export,  limited  to  Septem- 
ber 10th.  She  cleared  at  London  ou  tlio  9th, 
but  did  not  get  her  clearance  atGravesend  till 
the  13th.  Kg  evidence  was  given  to  account 
for  the  delay.  Held,  the  plaintiff  was  not  en- 
titled to  recover.  Williams  v.  Marshall,  6 
Taunt.,  890;  8.  c,  1  Moore,  168;  7  Taunt.,  408; 
2  Marsh.,  92;  Talloch  v.  Boyd,  7  Taunt.,  472; 
s.  c,  1  Moore,  174;  1  Holt  N.  P.,  487. 

21.  On  goods  at  and  from  her  ports  of  load- 
ing in  the  river  Platte  to  London.  Held,  ille- 
gil  voyage  under  9  Ann.,  ch.  21.  C'owie  v. 
Barber,  4  Camp.,  100. 

22.  The  order  for  insurance  was  made 
September  3d.  A  license  procured  October 
7th  to  remain  in  force  six  months.  The  pol- 
icy was  made  November  20lh  at  and  from 
Riga  to  Great  Britain.  She  commenced  to 
load  September  10th,  and  sailed  October 
3d.  B'eld,  an  adventure  which  commenced 
September  10th,  was  not  legalized  by  a  license 
dated  October  7th.  Henry  v.  Staniforlh,  4 
Camp.,  270. 

23.  On  ship  and  cargo,  from  Virginia  to 
Great  Britain.  She  was  American  built,  but 
owned  by  British  subjects,  and  by  them  char- 
tered to  a  British  sabject.  The  cargo  was  the 
produce  of  the  United  States.  Held,  the  voy- 
age was  illegal,  because  the  act  was  confined 
to  ships  owned  by  Americans;  that  the  im- 
portation was  illegal,  because  the  register 
act  prevented  an  American  built  ship  from 
being  considered  as  British  ship.  Campbell 
V.  Innes,  4  B.  &  A.,  424. 

24.  Timber  laden  at  a  British  port  in  North 
America.    She  sailed  after  September  1st,  smd 


before  May  1st,  viz :  September  14th.  Part  of 
the  cargo  was  loaded  and  remained  upon 
deck  contrary  to  the  act  16  and  17  Vict., 
ch.  107,  sees.  170,  171  and  172.  Held,  though 
the  master  viohited  the  provisions  of  the 
statute,  the  policy  was  valid,  unless  the  in- 
sured, at  the  time  of  effecting  it,  was  privy  to 
the  act  of  the  master.  Cunard  v.  Hyde,  El. 
B1.&  El.,  670;  s.  c,  27  L.  J.  Q.  B.,  408;  5 
Jur.  (N.  S.),  40.  The  plea  was  afterward 
amended,  and  it  was  averred  that  the  insured 
were  privy  to  the  illegal  loading,  and  it  was 
held,  that  no  recovery  could  be  had  upon  the 
policy,  s.  C,  2  E1.&  El.,  1;  s.  c.  29  L.  J.  Q. 
B.,6;6  Jur.(N.  S.),14. 

23.  Part  of  the  cago,  including  the  goods 
insured,  were  prohibited  under  the  act  of  18 
Geo.  Ill,  ch.  .5;  but  there  had  been  a  procla- 
mation by  Sir  Wm.  Howe,  allowinir  the  entry 
of  such  goods  at  New  Tork.  Held,  the  policy 
was  void.    Johnston  v.  Sutton,  1  Doug.,  254. 

26.  Swedish  ship  insured  from  a  port  in  the 
East  Indies  to  Gotteuburg.  A  portion  of  the 
cargo  was  laden  at  a  British  port  contrary  to 
the  navigation  laws.  Held,  it  was  unlawful 
and  llierefore  no  recovery  coUld  be  had  on  it. 
Chabners  v.  Beil,  3  B.  &  P.,  004. 

27.  It  is  competent  for  insurers  of  ships 
trading  to  the  East  Indies  in  contravention  of  ft 
&  10  W.,  3,  to  avail  themselves  of  the  illegal. 
ity  of  such  trading  in  an  action  brought  on 
the  policies.  Camden  v.  Anderson,  1  B.  &  P., 
272;  0  Term,  723;  5  id.,  709. 

28.  On  goods  from  Kotterdam  to  Hull, 
"  with  liberty  to  touch  and  stay,"  etc.  She 
was  the  properly  of  subjects  of  Prussia; 
captured  by  a  French  ship.  The  property  was 
purchased  for  insured  by  their  agent  at  Rot- 
terdam. Before  the  purchase  of  the  goods  at 
the  time  the  policy  was  subscribed,  and  be- 
fore the  ship's  departure  from  Rotterdam, 
hostilities  had  commenced  and  existed  be- 
tween the  United  Provinces  and  Great  Britain. 
Held,  ti'ading  with  an  enemy  without  the 
king's  license  was  illegal.  Potts  v.  Bell,  8 
Term,  548;  reversing  s.  c,  2  Esp.,  712. 

20.  She  was  insured  at  and  from  A.  to  B. 
Her  traffic  at  A.  was  unlawful.  Held,  the  in- 
sured  could  not  recover  for  a  loss  happening 
between  A.  &  B.  Bird  ».  Appelton,  8  Term, 
5G2. 

30.  Trading  with  an  enemy's  country  is 
illegal,  and  no  insurance  with  respect  to  it 
is  valid,  unless  authorized  by  license,  whict 

323 


617 


ILLICIT  TRADE. 


648 


What  is  illicit  trade. 


the  common  law  permits  the  sovereign  to 
grant;  but  whoever  would  draw  to  himself 
the  protection  of  a  license  must  show  a  com- 
pliance with  its  terms.  In  this  case,  the  li- 
cense required  a  bond  conditioned  that  the 
goods  should  be  exported  to  the  places  pro- 
posed and  no  other,  which  was  never  made. 
Held,  the  license  did  not  protect  the  voj-age, 
and  it  consequently  was  illegal,  and  the  in- 
surance void.  Vandyck  v.  Whitmore,  1  East, 
475 ;  VanharthaU  v.  Halbed,  id.,  486  n. 

31.  "Warranted  an  American  ship."  The 
ti-eaty  between  France  and  America  required 
ships  of  either  nation  to  be  furnished  with  a 
passport  expressing  the  habitation  of  the 
commander.  She  had  one  to  G.  D.,  C(jm- 
mander  of  the  ship  called  the  M.  P.,  of  the 
town  of  P.  Held,  the  town  of  P.  was  appli- 
cable only  to  the  ship,  for  it  was  the  last  ante- 
cedent; hence  it  was  not  in  accordance  with 
the  treaty,  and  did  not  entitle  the  insured  to 
recover  upon  a  policy  made  upon  the  ship. 
Baring  v.  Christie,  5  East,  3i)S. 

32.  The  produce  of  the  British  West  Indies 
could  not  lawfully  be  shipped  to  Gibraltar. 
The  ship  and  a  cargo  of  West  India  produce 
were  insured  from  Trinidad  to  Gibraltar  and 
lost  in  the  outer  road  off  Gibraltar.  Held,  the 
insured  could  not  recover  for  the  loss  of  the 
cargo  or  even  the  return  premium,  because 
the  voyage  was  illegal.  Lubbock  v.  Potts,  7 
East,  449. 

33.  "  Ou  cargo,  as  shall  be  hereafter  speci- 
fied." It  consisted  of  hardware  and  naval 
stores,  the  property  of  one  person.  The  naval 
stores  were  less  than  £600.  The  whole  sum 
was  £10,000.  The  exportation  of  naval  stores 
was  prohibited,  and  the  ship  in  which  they 
were  laden  became  forfeited,  was  captured, 
recaptured  and  condemned.  Held,  it  was  an 
illegal  act  to  sail  with  such  stores  ou  board, 
and  the  policy  was  void  on  the  whole.  Parkin 
B.  Dick,  11  East,  502;  s.  C,  2  Camp.,  221. 

34.  The  king  cauuot,  by  license,  sanction 
the  importation  of  enemy's  property  by 
neutral  ships,  for  that  is  forbidden  by  the  laws 
of  the  land.    Shiffner  v.  Gordon,  13  East,  296. 

35.  A  general  license,  dated  three  months 
prior  to  the  ship's  sailing,  directed  to  R.  S. 
and  other  British  merchants,  conditioned  that 
it  should  be  delivered  up  when  the  ship  should 
en'er  any  port  in  the  United  Kingdom,  was 

.oflfered  to  support  a  policy  on  goods  bound  to 
enemy's    port.      Held,   it   was    not   sufficieut 
324 


unless  evidence  were  given  to  account  for  its 
possession,  and  to  show  a  lawful  user  con- 
necting  the  license  with  the  particular  ad- 
venture.   Barlow  v.  Mcintosh,  12  East,  311. 

36.  She  sailed  from  London  with  license, 
carried  simulated  papers  representing  that 
she  sailed  from  Bergen  in  Norway.  Sweden 
was  at  war  with  Russia.  She  arrived  at  Got- 
tenburg,  proceeded  to  Riga,  where  her  papers 
were  taken  away,  sent  to  St.  Petersburg  to  be 
examined,  and  her  hatches  sealed  down.  She 
was  condemned  for  having  simulated  papers. 
Held,  the  loss  was  caused  by  an  act  of  the 
insured  done  without  insurer's  leave.  Hor- 
neyer  v.  Lunhington,  15  East,  46 ;  3  Camp.,  85 ; 
Osiccll  ei).  Vigne,  15  East,  70. 

37.  A  license  in  admiralty  described  her  as 
bound  on  a  voyage  to  Gibraltar.  She  sailed 
with  instructions  to  make  the  best  of  her  way 
to  Palermo  without  touching  at  Gibraltar, 
unless  ordered  into  the  baj-  by  cruisers.  Held, 
it  was  fraudulent  and  void,  aud  did  not  protect 
an  insurance  made  upon  cargo  to  Palermo, 
though  she  did,  in  fact,  go  to  Gibraltar,  being 
driven  there  by  sti-ess  of  weather  agaiust  the 
master's  intentions.  Ingham  v.  Agnew,  15  East, 
517. 

38.  A  license  to  import  cargo,  issued  to 
certain  persons,  will  not  warrant  an  importa- 
tion  by  others,  unless  the  latter  can  connect 
themselves  with  the  parties  licensed.  Busk  o. 
Bell,  16  East,  3. 

39.  A  license  to  a  London  merchant  on  be- 
half of  himself  and  other  British  and  neutral 
merchants,  to  export  to  the  ports  in  the  B.iltic 
not  under  blockade.  The  property  belonged  to 
Russian  subjects,  was  seized  and  confiscated 
in  a  Russian  port  by  commissioners  appointed 
by  the  Russian  government.  Held,  the  license 
did  not  protect  the  property  of  Russian  sub- 
jects, but  that  it  protected  separate  and  dis- 
tinct portions  of  the  cargo,  the  property  of 
citizens  of  Hamburg.  Hugedorn  v.  Bazett,  2 
Mau.  i&  Sel.,  100. 

40.  The  license  was  procured  three  days 
after  the  vessel  sailed.  Held,  the  voyage  was 
illegah  Hentig  v.  Staniforth,  5  3Iau.  &  Sel., 
122. 

41.  On  cotton-wool  in  Spanish  ships  from 
New  Orleans  to  Great  Britain,  which  couuUy 
aud  the  United  States  were  at  war.  Held,  thd 
policy  was  void,  and  it  was  not  any  consider, 
ation  to  support  an  action  for  the  premium 
Jenkins  v.  Power,  6  Mau.  &  Sel.,  282. 


C49 


INCREASE,  OR  CHANGE  OF  RISK. 


650 


Of  matter  that  does  not  vitiate. 


V.    CONSTEUCTION. 

1.  "On  all  lawful  goods  against  all  risks." 
Jleld,  it  included  all  goods  which  might  be 
hiwfully  exported  from  the  United  States, 
though  contrabaud  of  war  and  owned  by  a 
subject  of  one  of  the  belligerents.  Skidmore  v. 
Pesiloili/,  2  Johns.  C,  77. 

2.  Stipulated  :  "  Free  from  any  charge, 
damage  or  loss,  which  may  arise  in  conse- 
quence  of  engaging  or  having  been  engaged 
in  illicit  trade  at  any  time  whatsoever."  Held, 
insured  took  the  risk  of  seizure  for  illicit  trade 
at  any  distance  from  shore,  where  by  the  law  of 
nations,  such  seizure  could  be  riglitfuUy  made 
(citing The  Apolloii,  9  Wheat,  S&l).  Cucullu  v. 
Lousiuna  State  Ins.  Co.,  17  Martin  (La.),  46i. 


INCREASE,  OR  CHANGE  OF  RISK. 

I.  Of  matter  that  does  not  vitiate. 

II.  VITIATE. 

III.  Questions  for  the  jury. 

IV.  Of  the  evidence. 
V.  Of  Construction. 

VI.  Op  Waiver. 

I.  Of  matter  that  does  not  vitiate. 

1 .  On  a  cotton  factory.  Stipulated :  "  If 
the  risk  shall  be  increased  in  any  manner 
within  the  control  of  the  insured,  the  policy 
shall  be  void."  There  was  a  wooden  bulk  head 
at  the  pond  from  which  water  to  drive  the 
wheel  and  pump  was  supplied.  Being  de- 
cayed and  in  bad  condition,  it  was  removed 
by  the  insured,  and  one  of  stone,  different  in 
size  and  form,  substituted.  Several  days  were 
required  for  this  work,  and  while  the  water 
was  diverted,  the  fire  occurred.  The  old  bulk 
head  might  have  been  taken  out  and  replaced 
by  one  of  similar  materials  in  one  day.  Held, 
where  tliere  is  no  express  provision  in  the 
contract  involving  a  relinquishment  of  the 
right  to  perform  the  ordinary  acts  of  owner- 
ship, such  as  are  usually  exercised  by  owners 
over  their  own  property,  or  restricting  the 
party  insured  as  to  what  he  may  do  upon  his 
own  property,  he  has  the  right  to  make  any 
repairs  required  to  render  the  premises  useful 


for  the  purposes  to  which  they  are  devoted ;  that 
the  substitution  of  the  new  bulk  head  was  re- 
pairs, though  the  materials  and  size  were  not 
the  same  as  the  old.  Toumsend  v.  Northwett- 
em  Ins.  Co.,  18  N.  Y.,  108. 

2.  Stipulated:  "To  be  void  if  the  risk  shall 
be  increased  by  any  means  whatever.'"  Tlie 
dwelling  house  was  occupied  by  Mrs.  H.  and 
two  children,  and  a  number  of  oilier  persons 
resided  with  her  as  boarders,  an  average  of 
ten.  Held,  not  evidence  that  the  risk  was  in- 
creased. Manley  v.  Ins.  Co.  of  North  America, 
1  Lans.,  20. 

3.  A  building  insured  as  "A  shoe  manu- 
factory." Held,  the  drawing  of  a  lottery,  with 
the  consent  of  insured,  did  not  affect  the  pol- 
ic}'.  Boardman  v.  Merrimac  Mutual  Fire  Ins. 
Co.,  8  Cu5h.,  583. 

4.  The  acts  of  the  lessees,  though  they  in- 
creased the  hazard,  arc  no  defense  to  an  action 
brought  by  the  insured  for  the  loss,  unless 
they  were  done  with  the  consent  of  the  in- 
sured. Sanford  v.  Mechanics  Mutual  Fire  Ins. 
Co.,  12  Cush.,  541. 

5.  The  policy  prohibited  using  the  building 
for  purposes  other  than  those  mentioned  in 
the  application.  The  sherifl"  levied  an  execu- 
tion, and  sold  part  of  the  goods.  Held,  the 
use  of  the  building  was  within  the  control  of 
the  insured;  but  the  selling  of  the  goods  at 
auction  in  it  did  not  of  itself  enhance  the  risk. 
Rice  V.  Tower,  1  Gray,  426. 

6.  The  tenants  of  insured  kept  straw,  which 
materially  increased  the  risk.  Held,  it  did  not 
avoid  the  policy.  White  v.  Mutual  Fire  Ass. 
Co.,  8  Gray,  5C6. 

7.  Stipulated:  "If  the  situation  or  circum- 
stances affecting  the  risk  shall  be  so  altered 
or  changed  as  to  increase  it,  the  policy 
shall  be  void."  A  dummy  engine  had  been 
used  near  the  premises  insured  as  often  as  oc- 
casion required.  Held,  subsequent  use  of  the 
engine,  though  it  increased  the  risk,  w.'js  not 
to  be  deemed  an  alteration  or  cliange  aU'ecting 
the  policy.  Commomcealth  v.  Hide  and  Leather 
Ins.  Co.,  112  Mass.,  136. 

8.  It  was  insured  as  a  paper  mill.  The  rag 
cutter  and  duster  were  displaced,  and  a  pair 
of  stones  put  in  their  place,  and  used  for  grind- 
ing.  In  the  conditions  annexed,  grist  mills 
were  not  among  the  risks  enumerated  haz;ird. 
ous  or  extra  hazardous,  but  they  were  in  the 
memorandum  relating  to  special  risks,  among 
which  were  paper  mills.    The  jury  found  spe- 

32.'; 


651 


INCREASE,  OR  CHANGE  OF  RISK. 


652 


Of  matter  that  does  not  vitiate. 


cially  that  using  the  stones  for  grinding  did 
not  increase  the  hazard.  Held,  no  defense  to 
the  action.  Wood  v.  Hartford  Fire  Ins.  Co., 
13  Conn.,  533. 

9.  The  application  stated  there  was  one 
stove  in  the  house.  At  a  subsequent  time, 
another  was  put  in  the  place  of  an  open  fire. 
Held,  it  did  not  appear  that  the  risk  was  in- 
creased. Newhall  v.  Union  Mutual  Fire  Ins. 
€'o.,52Me.,  180. 

10.  On  a  two  story  brick  and  frame  build- 
ing, "Used  as  a  sulphuric  acid  factory."  In- 
sured erected  a  shed  between  two  buildings, 
for  the  purpose  of  protecting  the  necessary 
apparatus  and  machinery.  Held,  if  there  was 
evidence  in  the  case  tending  to  show  that  the 
particular  shed  was  a  proper,  usual,  and  neces- 
sary protection  for  the  machinery  and  appa- 
ratus, the  building  of  it  did  not  affect  the  lia- 
bility of  insurer.  Washington  Fire  Ins.  Co.  v. 
Damson,  30  Md.,  91. 

11.  The  application  described  the  premises 
insured,  as  "A  dwelling  house  with  some 
boarders."  Held,  it  was  a  mere  representa- 
tion, and  not  an  express  warranty;  and  in- 
sured were  entitled  to  recover,  notwithstand- 
ing, at  a  time  long  prior  to  the  fire,  the  prem- 
ises were  used  for  a  purpose  more  hazardous 
than  at  the  time  the  policy  was  made  (this 
case  admits  that  the  New  York  cases  are  all 
the  other  way ;  Mead  v.  N.  Y.  Ins.  Co.,  7  N. 
Y.,  530;  Murdock  v.  Chenango  Mut.  Ins.  Co., 
2  id.,  210;  Hannings  v.  Same,  2  Denio,  75). 
New  England  Fire  and  Marine  Ins.  Co.  ii.  Wet- 
more,  32  111.,  221. 

12.  Alterations  by  the  owner  increasing  the 
risk  were  prohibited,  unless  an  additional  pre- 
mium and  deposit  be  settled  and  paid  by  an 
agreement  with  the  directors.  Tenant  erected 
an  addition  to  the  house,  which  subsequently 
took  fire  from  a  defect  in  the  stove-pipe.  No 
■consent  or  agreement  had  ever  been  obtained 
by  the  directors  to  make  the  alteration.  Held, 
it  was  proper  to  tell  the  jury  that  the  alteration 
did  not  aflect  the  right  of  the  insured  to  re- 
cover, if  he  was  not  aware  of  it,  and  it  was  not 
communicated  to  him  before  the  loss.  Padel- 
ford  V.  Providence  Mutual  Fire  Ins.  Co.,  8  R. 
I.,  102. 

13.  Stipulated:  "If  the  risk  shall  be  in- 
creased by  the  erection  of  buildings  or  by  the 
use  or  occupation  of  neighboring  premises,  it 
shall  be  the  duty  of  the  insured  to  notify  this 
company  thereof;   and  this  comjiany  reserves 

326 


the  right  to  terminate  this  insurance  at  any 
time  by  giving  notice  of  their  intention  to  tho 
insured."  Held,  if  the  risk  was  increased, 
and  insurer  had  notice  of  the  fact  from  any 
person  other  than  the  insured,  and  neglected 
to  cancel  it,  the  policy  remained  valid. 
Eclipse  Ins.  Co.  v.  Schoemer,  2  Cin.  Sup.  Ct., 
474.  And  the  condition  did  not  oblige  the  in- 
sured to  ascertain,  at  his  peril,  and  notify  the 
company  of  the  existence  of  facts  which  in- 
creased the  risk;  that  anj'thiug  which  did  in- 
crease  it,  of  which  he  had  not  knowledge,  and 
could  not  by  the  lawful  exercise  of  diligence 
ascertain,  did  not  affect  his  right  to  recover. 
Ibid. 

14.  On  brick  tavern-house.  Stipulated:  "In 
case  Ihe  premises  be  altered,  changed  or  used 
for  the  purpose  of  carrying  on  or  exercising 
therein  any  trade,  business  or  vocation  in  tho 
conditions  and  by-laws  annexed,  so  as  to  in- 
crease  the  hazard,  so  long  as  the  same  shall 
be  appropriated,  applied  or  used,  this  policy 
shall  cease,  and  be  of  no  force  or  effect." 
Insurers  pleaded  that  the  plaintiff  had  posses- 
sion of  the  building  next  east  and  south,  and 
adjoining  the  building  insured;  that  the  same 
was  used  bj'  the  tenants  of  the  insured,  with 
his  consent,  for  the  purpose  of  manufacturing 
laths  and  spokes,  which  increased  the  risk  of 
loss  by  fire  to  the  building,  insured.  Held,  the 
plea  was  no  answer  to  the  action,  for  in  the 
absence  of  all  stipulations  in  the  contract  ou 
the  subject,  the  general  maxim,  sic  utere  tuo,  vt 
alienum  non  loedas,  must  govern  the  rights  of 
the  parties.  Miller  v.  Western  Farmers  Mut. 
Ins.  Co.,  1  Handy,  208. 

15.  A  shed  was  erected  adjacent  to  the 
premises  insured,  which  increased  the  hazard. 
The  policy  stipulated,  if  the  risk  should  be 
increased  by  the  erection  of  buildings,  or  by 
any  other  cause,  the  company  might  rescind 
the  contract.  Held,  the  increase  of  risk  did 
not  vitiate  the  contract;  the  insurer  ought  to 
have  rescinded,  if  the  risk  was  increased 
Commercial  Ins.  Co.  v.  Mehlman,  48  111.,  313. 

1 6.  The  fact  that  carpenters  are  erecting  a 
building  adjoining,  and  thereby  increasing 
the  risk  of.  that  insured,  does  not  affect  the 
policy.  Soutliern  Insurance  and  Trust  Co.  v. 
Lewis,  42  Ga.,  587. 

17.  "  On  buildings,  part  of  the  lower  story 
used  as  a  st.able,  coach-house  and  boiler-house; 
no  steam  engine  emploj-ed  on  the  premises; 
the  steam   from  said  boiler  being  used  for 


€53 


INCREASE,  OR  CHANGE  OF  RISK, 


654 


Of  matter  that  vitiate8. 


heating  water  and  warming  the  aliops.  Melt- 
ing tallow  by  steam  in  saiil  boiler-house,  ami 
the  use  of  two  pipe-stoves  in  said  buihling  are 
jillowed.  Warranted  that  no  oil  be  boiled  nor 
any  process  of  japanning  leather  be  carried 
ou  therein,  nor  in  any  building  adjoining 
thereto."  Stipulated:  "If,  after  the  insurance 
«hall  have  been  effected,  the  risk  shall  be  in- 
creased by  any  alteration  of  circumstances,  and 
the  same  shall  not  be  indorsed  ou  the  policy  by 
an  agent  of  the  company,  and  a  higher  pre- 
mium paid  if  required,  such  insurance  shall 
be  of  no  force."  It  was  a  special  risk.  After 
the  policy  was  effected,  a  steam  engine  was 
put  up  into  the  stable,  supplied  with  steam 
from  a  boiler  insured  by  the  policy,  of  which 
insurers  had  not  any  notice;  but  the  jury 
found  specially  that  the  risk  was  not  increased. 
Held,  insured  was  not  bound  to  give  notice  of 
the  alteration  unless  the  risk  was  increased ; 
that  as  it  was  found  that  no  increase  of  risk 
liad  occurred,  the  plaintiffs  were  entitled  to 
judgment  (reversing  s.  c,  p.  330).  Stokes  v. 
■Cox,  1  H.  &  N.,  533;  3  Jur.  (N.  S.),  45;  3G  L. 
J.  E.\.,  113;  BaxencUile  v.  IlanUng,  4  H.  &  N., 
445 ;  28  L.  J.  Ex.,  336. 

18.  "On  granary,  etc.,  and  kiln  for  drying 
-corn,  in  use,  communicating  therewith."  Stip- 
ulated: "To  be  void,  unless  the  buildings  are 
accurately  described  and  the  trades  carried  on 
therein  specified;  and  anj- alteration  or  risk 
•of  fire  increased  shall  be  noticed  and  in- 
dorsed, or  the  policy  shall  be  void."  Insured 
permitted  bark  to  be  dried  in  the  kiln  grates, 
which  was  the  cause  of  the  fire.  Held,  no 
violation  of  the  contract,  though  a  higher  rate 
of  premium  would  have  been  charged  for  in- 
suring the  premises  as  a  bark  kiln.  Shaui  v. 
Rohherds,  6  A.  &  E,,  75 ;  1  N.  &  P.,  279 ;  G  L. 
J.  (N.  S.),  K.  B.,  106. 

19.  The  terms  of  the  policy  prohibited  any 
increase  of  risk  within  the  control  of  the  in- 
sured. Insurer  pleaded  the  risk  was  increased 
by  means  within  control  of  the  insured.  It 
appeared  that  the  tenant  made  alterations 
which  increased  the  risk.  Held,  the  plea  was 
not  supported,  for  though  the  landlord  had 
the  right  to  enter  and  determine  the  lease  be- 
•cause  of  the  alterations,  he  was  not  bound  to 
•do so;  that  the  alterations  could  not  affect  the 
rights  of  the  insured,  unless  they  were  made 
■with  his  knowledge  and  consent.  Heneker  v. 
British  American  Ass.  Co.,  14  U.  C.  C.  P.,  57. 

20.  The  jury  found  that  erecting  a  chimney 


increased  the  risk,  but  that  in  other  respects 
it  was  diminished.  Hiild,  this  case  was  dis. 
tinguished  from  Sleacker  v.  British  American 
Ass.  Co.,  14  U.  C.  C.  P.,  57;  hecce  the  verdict, 
whicli  was  for  the  plaintiff,  would  not  be  dis 
turbed.  Date  r>.  Oore  District  Mutual  Fire 
Ins.  Co.,  15  U.  C.  C.  P.,  175. 

21.  Stipulated:  "Any  increase  of  risk  after 
effecting  the  insurance  shall  avoid  the  policy, 
and  no  policy  shall  take  effect  until  payment 
of  premium."  The  application  was  made  in 
March,  1861,  and  accepted,  not  to  take  ef- 
fect until  certain  alterations  should  be  made 
in  the  premises  described.  No  steps  were 
taken  to  complete  the  contract,  until  Januaiy, 
1802.  The  risk  was  increased  after  the  appli- 
cation  was  made,  but  before  payment  of  pre 
mium  or  delivery  of  policy.  Held,  the  risk 
was  increased  before  the  insurance  was  ef- 
fected, and  was  no  defense  to  the  action 
Fourdiner  v.  Hartford  Fire  Ins.  Co.,  15  U.  C. 
C.  P.,  403. 

22.  The  plaintiff  having  purchased  a  mort- 
gage on  furniture  and  other  personal  property, 
took  possession  of  the  same  for  the  purpose 
of  foreclosure,  and  immediately  leased  the 
property  to  P.,  who  remained  in  possession  as 
tenant  until  the  fire  occurred.  The  policy 
was  made  to  P.,  the  mortgagor,  payable  in 
case  of  loss  to  H.,  the  mortgagee.  Held,  if 
the  plaintiff  acted  in  good  faith,  he  would  be 
protected  by  the  provisions  of  Gen.  Stat.,  ch. 
157,  sec.  2,  but  insurers  must  be  allowed  to 
deduct  from  the  damages  the  difference  be- 
tween the  premium  charged  and  that  which 
would  have  been  charged  had  the  act  of 
taking  possession  been  made  known  to  insur- 
ers.  Hadley  v.  New  Hampshire  Fire  Ins.  Co., 
55  N.  H.,  110., 

II.  Of  mattek  that  titiates. 

1.  If  the  conditions  annexed  to  a  policy 
prohibit  any  increase  of  risk  by  any  means 
within  the  control  of  the  insured,  he  has  no 
right  to  erect  buildings  on  his  own  premises 
which  increase  it,  and  doing  so  voids  the  pol- 
icy. Murdoch  o.  Chenango  County  Im.  Co.,  3 
N.  Y.,  210. 

2.  On  merchandise,  hazardous  and  not  haz- 
ardous,  including  cabinet  ware.  Stipulated: 
"To  be  void  if  the  premises  shall  be  used  for 
carrying  on  any  trade  or  occupation,  or  for 
keeping  therein  certain  articles  prohibited,  or 


655 


INCREASE,  OR  CHANGE  OF  RISK. 


656 


Of  matter  that  vitiates. 


if  the  risk  shall  be  increased  by  means  within 
the  control  of  the  insured."  Part  of  the  prem- 
ises was  used  for  putting  together  and  finish- 
ing chairs,  which  required  a  number  of  work- 
men, and  the  keeping  of  certain  of  the  articles 
prohibited,  by  which  the  risk  was  increased. 
Held,  insurers  were  released.  Aj>pl('bi/  v.  Aalor 
Fire  Ins.  Co.,  54  N.  Y.,  353. 

3.  Policy  stipulated  that  the  bull  ings  in- 
sured should  not  be  occupied  so  as  to  increase 
the  risk.  Held  (upon  positive  proof  that  the 
use  of  the  premises  as  a  livery'  stable  would  in- 
crease the  rate  of  premium  a  half  per  cent.), 
there  was  a  material  increase  of  risk.  Holihy 
V.  Dana,  17  Barb.,  111. 

4.  On  goods  —  prohibiting  any  increase  of 
risk  within  the  control  of  insured.  He  rented 
part  of  the  premises  to  other  persons,  who 
used  the  same  for  purposes  more  hazardous 
than  the  risk  insured.  Held,  an  increase  of 
risk  within  his  control.  AppUhy  v.  Fireman's 
Fund  Ins.  Co.,  45  Barb.,  454. 

5.  Insured  described  the  property  in  his 
application  as  a  dwelling  house,  and  it  was  in- 
sured as  such.  Held,  the  description  was  a 
■warranty  that  the  building  was  a  dwelling 
house,  and  used  as  such  exclusively;  that  oc- 
cupying a  portion  of  it  as  a  billiard  saloon, 
restaurant  and  bar  room  was  a  breach  of  the 
•warranty,  if  the  rate  of  premium  and  hazard 
was  thereby  increased.  Snrsjield  v.  Metropoli- 
tan Ins.  Co.,  61  Barb.,  479;  s.  c,  43  How. 
Pr.,  97. 

6.  Stipulated :  "  If  the  risk  has  been  changed, 
either  within  itself,  or  by  adjacent  buildings, 
insured  shall  give  notice  thereof  in  writing  as 
early  as  possible  to  tlie  directors,  and  shall 
pay  such  additional  premium  as  they  shall  de- 
termine." Insured  erected  a  small  addition  to 
the  store,  which  he  intended  to  use  as  a  brew- 
ery. Notice  of  it  was  not  given  to  the  com- 
pany. A  few  days  before  the  tire  occurred,  a 
quantity  of  hay  was  placed  in  that  addition, 
from  which  a  cow  was  fed.  The  hay  took 
fire.  Held,  the  verdict  must  be  set  aside,  for  it 
was  clear  that  the  risk  had  been  increased. 
Francis  v.  Somenille  Mut.  Ins.  Co.,  35  N. 
J.,  78. 

7.  The  charter,  being  part  of  the  contract, 
provided  :  "  If  any  alteration  shall  be  made  in 
the  building,  whereby  it  is  exposed  to  greater 
}iazard,  the  policy  shall  be  void."  The  ten- 
ants put  in  stores  which  increased  the  risk, 
but  did  not  cause  the  loss.    Held,  tlie  policy 

328 


was  void.    Merriam  v.  Middlesex  Mutual  Fire 
Ins.  Co.,  21  Pick.,  103. 

8.  On  dwelling  house.  The  policy  prohib- 
ited any  occupation  or  use  of  the  premises  for 
purposes  deemed  hazardous  or  extra  hazard- 
ous, specified  in  the  memorandum.  Sail 
makers  were  designated  in  the  memorandum 
as  hazardous,  and  confectionerj'  and  confec- 
tionery manufacturers,  as  extra  hazardous. 
The  property  was  subject  to  a  mortgage.  The 
mortgagee  took  possession  for  the  purpose  of 
foreclosure,  and  let  the  upper  part  of  the  build- 
ing for  a  sail  loft;  the  sail  makers  put  in  their 
tools,  but  had  not  commenced  work  when  the 
fire  occurred.  Held,  the  policy  was  void. 
Withei-ell  V.  City  Fire  Ins.  Co.,  16  Gray,  270. 

9.  Stipulated:  "Whenever  a  building  in- 
sured  shall  be  altered,  enlarged,  or  appropri- 
ated to  any  purposes  other  than  those  herein 
mentioned,  or  the  risk  otherwise  increased,  by 
the  act  or  with  the  knowledge  or  consent  of 
the  insured,  without  the  consent  of  the  presi- 
dent first  obtained  in  writing,  this  policy 
shall  be  void."  Held,  an  alteration  to  the 
buildings  not  incidental  to  their  ordinary 
uses,  made  by  the  tenant  with  the  knowledge 
of  the  insured,  which  increased  the  risk 
though  it  did  not  cause  the  fire,  avoided  the 
policy.  Lyman  v.  State  Mut.  Fire  Ins.  Co.,  14 
Allen,  329. 

1 0.  Stipulated :  "  If  the  situation  or  circum- 
stances affecting  the  risk  be  so  altered  or 
changed  by  or  with  the  advice,  agency  or  con- 
sent of  the  insured,  so  as  to  increase  the  risk 
thereupon,  the  policj'  shall  be  void."  Insured 
erected  a  building  on  the  adjoining  lot  which 
increased  the  risk.  Held,  the  policy  was  void. 
Allen  V.  Massasoit  Ins.  Co.,  99  Mass.,  100. 

11.  Seven  stoves  were  set  up,  of  which  no- 
tice was  given  to  the  insurers,  who  refused  to 
continue  the  policy,  or  to  accept  an  additional 
deposit  for  an  increase  of  the  risk,  as  bj'  the 
terms  of  the  contract  they  had  the  right  to  do. 
Held,  insurers  must  be  discliarged.  Fabyan 
V.  Union  Mutual  Fire  Ins.  Co.,  38  N.  H.,  20.S. 

12.  Policy  to  S.  Stipulated:  "If  the  risk 
shall  be  increased  by  the  insured  or  others, 
citlier  by  change  of  circumstances,  or  in  any 
other  way,  the  policy  shall  be  void,  unless  an 
additional  premium  is  paid."  Held,  parties 
have  a  right  to  frame  their  contracts  as  they 
please,  and  this  was  a  valid  stipulation,  bind- 
ing upon  the  insured.  Shepherd  v.  Union  Mw- 
tual  Fire  Ins.  Co.,  38  N.  H.,  333. 


657 


INCREASE,  OR  CHANGE  OF  RISK. 


fi5» 


Of  matter  that  vitiates, 


!.■{.  Stipuhiteil:  "If  the  risk  shall  be  ma- 
terially  increased,  notice  tliereof  shall  be  given 
to  the  insurer  immediately,  tliat  the  rate  of 
insurance  may  be  increased,  or  the  policy  can- 
celed, at  the  option  of  either  party."  Held, 
if  the  risk  was  materially  increased,  and  the 
insured  failed  to  give  notice  of  it,  the  policy 
became  absolutely  void.  Kern  v.  South  St. 
Louis  Mut.  Ins.  Co.,  40  Mo.,  19. 

14.  Stipulated:  "  In  case  of  any  alteration, 
etc.,  to  the  building  insured,  application  must 
be  made  to  the  secretary,  or  any  agent,  who 
shall  examine  the  premises,  and  certify  his 
opinion  whether  the  hazard  be  thereby  in- 
creased." A  steam  engine  was  put  up  and 
used  in  the  premises  for  nearly  a  year,  and  for 
the  purpose  of  showing  notice  to  the  com- 
pany, defendant's  agent  testified:  "Plaintiff 
told  me,  wheu  we  were  fixing  tlie  papers,  he 
contemplated  putting  au  engine  into  the 
iiill.  I  told  him  to  leave  noti've  with  X>., 
«nd  I  would  come  up.  Some,  time  aft"!,  D. 
«aw  a  boiler  passing,  and  supposing  it  was 
«;oing  into  the  mdl,  told  the  a^eiit  "  Further 
evidence  was  given  to  show  that  other  persons 
oad  talked  wiiJi  the  agent  «.oout  the  boiler. 
/TeW,  the  evidence  was  fsa'Scient  to  establish 
«otice;  therefore  insdvprs  were  discharged. 
Syk^  V  Perry  Co^JcVf  Mutual  Fire  Ins.  Co.,  34 
Penn.  St.,  79. 

15.  The  policy  provided:  "  It  shall  be  the 
riatv  uf  insured  to  give  notice  to  the  secretary 
of  any  material  and  manifest  increase  of  the 
risk  which  may  have  happened  without  his 
agency  or  consent,  and  insurers  may  agree 
with  insured  for  such  an  increase  of  premium 
as  Ihej'  deem  sufficient  to  cover  such  increase 
of  risk,  or  they  may  withdraw  such  insurance 
altogether;  and,  if  insured  shall  neglect  to 
give  notice,  or  refuse  to  comply  with  the  de- 
cision of  the  officers  of  the  company,  this 
policy  shall,  from  that  time,  be  void."  A 
blacksmith  shop  was  erected  on  land  adjoin- 
ing the  property  insured,  within  ten  or  twelve 
feet  of  its  south  side,  used  by  the  owner. 
About  sis  or  eight  months  thereafter,  the 
building  insured  was  consumed  by  fire,  origin- 
ating in  it,  and  the  blacksmith  shop  was  also 
burned  by  fire  communicated  from  the  store. 
Abou;  six  months  thereafter,  insurers  made  an 
assessment  on  the  policj'  in  suit  for  losses  oc- 
curring before  the  fire.  Held,  erecting  the 
blacksmith  shop  increased  the  risk  and 
avoided  the  policy;    making  and  collecting 


the  assesoment  did  not  estop  insurer  from 
treating  the  policy  as  void,  because  a  confirm- 
ation does  not  strengthen  a  void  estate;  when 
a  lease  is  ipso  facto  void  by  the  condition,  no 
acceptance  of  rent  afterwards  can  give  it  coun- 
tenance (citing  Finch  v.  Throckmorton,  Cro. 
Eliz.,  221).  Gardiner  v.  Piscataquis  Mutual 
Fire  Ini.  Co.,  38  Me.,  439. 

16.  On  dwelling  house.  Stipulated:  "When 
any  matcrinl  alteratioa  or  repairs  are  about  to 
be  made  in  the  premises,  which  increase  or 
vnry  the  risk,  information  shall  be  given  in 
writing  to  the  office,  and  permission  obtained 
from  the  directors  to  make  such  alterations  or 
repai/s,  and  in  default  thereof,  any  loss  hap- 
pening by  reason  of  making  such  repairs  shall 
not  be  paid  or  demanded.  Any  hazardous 
business,  trade  or  occupation  carried  on  on 
the  premises,  which  shall  increase  the  risk, 
shall  in  like  manner  be  notified,  and  permis- 
sion obtained  to  carry  it  on,  and  in  default 
thereof  this  policy  shall  be  void."  Held,  any 
increase  of  risk  occasioned  by  an  alteration  or 
occupation  of  the  premises  avoided  the  policy. 
Howell  V.  Baltimore  EquitaMe  Society,  IG  Md.» 
377. 

17.  "On  brick  flouring  mill,  engine  house, 
steam  engine,  and  machinery  thereto  belong- 
ing." The  by-laws  were  made  part  of  the 
contract,  and  they  stipulated:  "If  insured 
shall  alter  or  enlarge  a  building,  or  appropri. 
ate  it  to  purposes  other  than  those  mentioned 
in  the  policy,  so  as  to  increase  the  risk,  the 
same  shall,  ipso  facto,  become  void,  unless 
notice  thereof  shall  be  given  insurer."'  In- 
sured commenced  to  make  repairs  and  con- 
tinued them  for  about  three  months;  but  they, 
were  finished  a  few  weeks  before  the  firo 
occurred.  The  third  story  of  the  mill  had 
been  used,  a  few  weeks  prior  to  the  loss,  for 
the  manufacture  of  tubs  and  churns.  Held, 
insurers  were  released.  Harris  e.  Columbian 
Mut.  Ins.  Co.,  4  Ohio  St.,  285. 

18.  Stipulated:  "Every  increase  of  risk 
after  the  insurance  is  m.ade,  within  the  con- 
trol  of  the  insured,  shall  render  the  policy 
void."  Held,  if  there  were  evidence  tending 
to  show  that  the  risk  liad  been  increased  with, 
in  the  control  of  insured,  the  court  was  bound 
to  instruct  the  jury  that  the  policy  was  void. 
Dodge  County  Mut.  Ins.  Co.  v.  Rogers,  12  Wis., 
337. 

19.  After  the  policy  was  taken,  insured 
permitted  one  of  his  neighbors  to  store,  in 

329 


659 


INCREASE,  OR  CHANGE  OF  RISK. 


660 


Questions  for  the  jurj-. 


the  upper  story  of  the  buililing,  a  large 
■quautity  of  loose  hay.  Ilaj-,  pressed  in 
bales,  was  expressly  named  and  classed  as 
hazardous,  and  the  policy  stipulated  that  the 
risk  and  danger  of  fire  should  not  in  any 
manner  be  increased.  Notice  was  never  given 
to  insurer  of  the  storing  of  the  hay.  Held,  it 
was  an  increase  of  risl<,  notwithstanding  the 
specification  of  hazards  did  not  so  declare  it. 
Dittmer  v.  Oermaiiia  Ins.  Co.,  S3  La.  An.,  458. 
20.  Stipulated:  "If,  after  the  Insurance  is 
•effected,  the  risk  is  increased  by  any  means 
within  the  control  of  the  insured,  or  if  such 
buildings  shall,  with  the  assent  of  the  in- 
sured, be  occupied  in  any  way  so  as  to  render 
the  risk  more  hazardous  than  at  the  time  of 
insuring,  the  policy  shall  be  void."  Preced- 
ing this  stipulation,  certain  hazards  and  use 
of  the  premises  were  prohibited,  and  the  use 
to  which  the  premises  were  afterwards  applied 
was  not  mentioned  in  them.  Held,  the  gen- 
eral clause  was  not  to  be  restricted  by  the  pre- 
vious specification,  that  any  increase  of  risk 
vitiated  the  contract.  Boatwright  v.  j^tna 
Ins.  Co.,  1  Strob.,  281. 

21.  A  description  of  the  building  as  it  then 
stood  was  annexed  to  the  policy.  Its  value 
was  therein  stated  at  £6,000,  also,  "that  there 
was  on  the  roof  a  reservoir  containing  about 
600  gallons  of  water,  supplied  by  an  artesian 
well ;  that  a  constant  stream  of  water  could 
be  maintained  on  the  roof  by  working  the 
pump  in  the  lower  story ;  that  all  the  windows 
and  doors  were  supplied  with  tliick  iron  shut- 
ters, so  tliat  no  wood  work  was  exposed  exter- 
nally." A  third  story  was  added  at  a  cost  of 
£1,000,  and  alterations  were  made  in  the  ronf 
and  other  parts  of  the  building.  It  was  con- 
sumed in  the  San  Francisco  conflagration. 
Held,  the  description  amounted  to  a  warranty 
that  the  insured  would  not  voluntarily  do 
anything  to  varj'  that  description,  so  .as  to  in- 
crease the  risk ;  that  at  the  time  of  the  loss, 
i..e  building  did  not  correspond  with  the  de- 
scription named  in  the  policy,  and  insurers 
were  released.  Sillem  v.  Thornton,  3  El.  &  Bl., 
808;  18  Jur.,  748. 

22.  At  the  time  the  policy  was  made,  the 
premises  were  used  as  a  store.  They  were 
subsequently  used  as  a  printing  office,  which 
increased  the  risk.  Held,  the  policy  was  void. 
Hervey  v.  Mutual  Fire  Ins.  Co.,!!  U.  C.  C.  P., 
304. 

23.  The  policy  forbade  any  increase  of  risk 
330 


witliin  the  control  of  insured.  He  erected  a 
building  adjoining  that  insured,  and  put  into 
it  a  steam  boiler  for  the  use  of  the  premises, 
thereby  dispensing  with  the  use  of  stovee 
etc.  The  jury  found  that  it  incresised  the 
external  and  diminished  the  internal  hazard, 
and  that  tlie  whole  risk  was  thereby  dimin- 
ished. Held,  the  policy  was  void,  because  the 
external  risk  was  increased.  Heneker  v.  Brit- 
ish American  Ass.  Co.,  13  U.  C.  C.  P.,  99. 

24.  Defendant  pleaded  an  increase  of  risk 
contrary  to  a  stipulation  of  the  policy,  upon 
which  issue  was  t.aken.  It  was  proved  that  a 
furnace  had  been  taken  out  of  the  buildings, 
an  .addition  had  been  made  to  them,  a  boiler 
placed  in  it  in  which  steam  was  generated  and 
driven  into  the  main  building.  The  jury 
found  that  the  external  risk  was  in6reased 
and  the  internal  diminished,  and  the  altera- 
tions had  diminished  the  risk  generally. 
Held,  defendant  was  entitled  to  a  verdict  on 
the  plea  on  leave  reserved.  Lomas  v.  British 
American  Ass.  Co.,  22  U.  C.  Q.  B.,  310;  s.  c, 
Heneker  v.  Same,  13  id.  99. 

25.  On  cargo,  at  and  from  Leith  to  Gotten- 
burg,  with  liberty  to  seek  and  join  convoy, 
and  to  carry  simulated  papers  and  a  British 
license,  and  to  sail  under  any  flag;  and  iu 
case  of  loss,  capture,  seizure  or  detention  by 
any  power  whatsoever,  to  pay  the  loss  within 
two  months  after  receipt  of  advice  of  it  by 
insured.  A  British  cruiser  captured  her  by 
mistake  and  took  her  back  to  Leith  but  restored 
her  within  thirty  days.  Before  she  could  pro- 
cure convoy,  Sweden  declared  war  against 
Great  Britain,  and  all  importation  of  colonial 
produce  in  any  ship  was  forbidden.  Her 
cargo  consisted  of  sug.ar.  She  sailed  again 
with  a  new  license,  was  captured  and  con- 
demned as  prize  of  war.  Held,  the  second 
sailing  was  a  different  voyage  from  the  fiist; 
the  declaration  of  hostilities  changed  the 
risk.    Maxwell  v.  Brown,  1  S.  &  D.,  403. 

III.  Questions  foe  the  jury. 

1.  If  the  taking  of  gunpowder  as  cargo  is 
not  justified  by  the  usage  of  tlie  trade,  and 
therefore  not  contemplated  by  the  parties  as 
a  risk,  there  might  be  great  reason  to  contend 
that  if  it  increased  the  risk,  the  loss  w,as  not 
co\ered  by  the  policy.  Waters  v.  Merchants 
Louisville  Ins.  Co.,  11  Pet.,  213. 

2.  On  fire  works  and  merchandise,  hazard, 
ous  and  extra  hazardous    (the  classiflcaliou 


661 


INCREASE,  OR  CHANGE  OF  RISK. 


602 


Of  evidence  —  Of  construction. 


of  risks  annoxed  designated  fire  works  as 
specially  liazardous).  Stijiulated:  "  AVlienevcr 
any  articles  subject  to  legal  restriction  shall 
be  kept  in  quantities  greater  than  the  law  al- 
lows, or  in  a  manner  dillerent  from  that  pre- 
scribed by  law,  unless  tlie  use  or  keeping  is 
specially  provided  for  in  the  policy,  it  shall  be 
void."  A  city  ordinance  permitted  fire  works 
to  be  kept  for  sale,  but  prohibited  works  of 
brilliantly  colored  tires.  About  a  week  before 
the  fire  occurred,  insured  purchased  a  quantity 
of  signal  lights,  or  works  of  brilliantly  colored 
fires,  sold  all  except  a  few,  which  remained  in 
the  store  at  the  time  of  the  fire.  Held,  the  de- 
fendant was  entitled  to  have  the  question, 
whether  the  risk  was  increased,  submitted  to 
the  jury.  Jonei  v.  Fireman's  Fund  Ins.  Co., 
51  N.  y.,  318. 

ij.  Stipulated;  "If  the  premises  be  occu- 
pied or  used  so  as  to  increase  the  risk,  the  in- 
surer shall  have  the  right  to  terminate  the  pol- 
icy by  giving  notice  to  that  effect  and  refund- 
ing a  ratable  proportion  of  the  premium" 
Also:  "  If  the  risk  shall  be  increased  by  any 
means  within  the  control  of  the  insured,  the 
policy  shall  be  void."  Held,  the  only  question 
to  be  submitted  to  the  jurj-  was.  Had  the  risk 
been  increased  ?  Williams  v.  People's  Fire 
Ins.  Co.,  57  N.  Y.,  274. 

4.  Stipulated:  "If  the  premises  shall,  at 
any  time  when  fire  happens,  be  occupied  in 
whole  or  in  part  for  purposes  considered  haz- 
ardous, the  policy  shall  be  of  no  force  or 
efifect."  The  property  insured  was,  with  in- 
surer's consent,  removed  into  another  build- 
ing, in  which  alterations  were  subsequently 
made.  Held,  the  true  question  which  ought 
to  have  been  submitted  to  the  jury  was, 
whether,  at  the  time  the  lire  happened,  the 
building  containing  the  property  insured,  or 
an}-  part  of  it,  was  occupied  for  a  purpose 
more  hazardous  than  when  the  removal  took 
place,  so  as  to  make  the  risk  different  in  char- 
acter from  that  contemplated  by  the  parties; 
that  it  was  error  to  instruct,  "  To  defeat  a  re- 
covery, the  defendant  should  have  satisfactori- 
ly shown  that  tiie  fire  originated  in  the  hazard- 
ous use  of  the  premises  by  the  plaintifls,  with- 
out their  authority  or  acquiescence."  liobinson 
«.  Mercer  County  ifut.  Ins.  Co.,  37  N.  J.,  134. 
5.  Insured  was  inquired  of,  as  to  the  occu- 
pancy of  the  building,  and  was  told  that  in- 
surers would  not  insure,  if  gamblers  occupied 
a.  part  of  it.    Held,  it  was  for  the  jury  to  de- 


cide whether  there  were  gamblers  in  it,  and 
whether  the  risk  was  thereby  increased.  Lyon 
V.  Commercial  Ins.  Co.,  2  Rob.  (La.),  26(i. 

IV.       Or  EV^IDENCE. 

1 .  Stipulated :  "  If,  after  assurance  is 
effected  on  any  building  or  goods,  or  if  tho 
risk  be  increased  by  the  erection  of  buildings, 
or  by  the  use  or  occupation  of  neighboring 
premises  or  otherwise,  prompt  notice  thereof 
shall  be  given  the  company  bj-  the  insured,  or 
if  for  any  other  cause  the  company  shall  so 
elect,  it  shall  have  the  right  to  terminate  the 
insurance."  At  the  time  the  policy  was  made, 
a  small  stable  stood  about  thirty  feet  from  the 
insured  premises,  upon  land  owned  by  a 
third  part}^;  but  it  was  afterwards  removed 
fifteen  feet  nearer  the  insured  premises.  Evi- 
dence  of  that  removal  was  excluded  from  the 
jury.  The  fire  occurred  in  the  insured  prem- 
ises, not  attributable  to  the  removal  of  the 
stable.  Held,  the  evidence  was  not  admissi- 
ble, because  no  ofter  was  made  to  show  that 
the  risk  was  increased.  Joya  ii.  Maine  Ins. 
Co.,  45  Me.,  168. 

2.  The  application  for  the  renewal  stated  that 
tho  application  and  deposit  note  on  which  the 
policy  was  originally  predicated  should  con- 
tinue in  force,  and  that  the  condition,  situa- 
tion, value  and  hazard  of  the  risk  had  not 
been  materially  altered.  In  the  body  of  the 
policy  the  application  was  referred  to,  and 
warranted  to  contain  ajUst,  full  and  true  ex- 
position of  all  facts  and  circumstances  per- 
taining to  the  condition,  situation,  value  and 
risk  of  the  property,  so  far  as  known  to  the 
insured,  and  material  to  the  risk.  Held,  evi- 
dence tending  to  show  that  the  risk  had  been 
materially  altered  by  a  change  in  the  occu- 
pancy of  the  building  was  admissible,  notwith- 
standing the  statute  of  1801,  ch.  l.')2.  Barre 
Boot  Co.  V.  Milford  Mutual  Fire  Ins.  Co.,  7 
Allen,  42;  Campbell  v.  Charter  Oak  Fire  and 
Marine  Ins.  Co.,  id.,  45,  note. 

Y.  Of  consteuction. 

1.  The  risk  was  taken  on  the  report  of  the 
company's  surveyor.  Stipulated:  "  Insiurauce 
on  property  out  of  the  cities  of  New  York 
and  Brooklyn  must  be  made  on  the  written 
representations  of  the  applicant,  and  all  insur- 
ances, original  or  renewed,  shall  be  considered 
as  made  under  the  original  representation,  ia 

All 


6G3 


TNCRI^ASE,  OR  CHANGE  OF  RISK. 


664 


Of  const  raction. 


BO  far  as  it  may  not  be  varied  by  a  new  repre- 
sentations in  writing-,  wliicli  in  all  cases  it  shall 
be  incumbent  on  the  party  to  make,  where 
the  risk  has  been  changed,  either  in  itself  or 
by  surrounding  or  adjacent  buildings;  and  if 
at  or  before  the  renewal  of  any  policy  the  risk 
lias  been  Increased  by  the  erection  of  build- 
ings, or  by  the  use  or  occupation  of  the  prem- 
ises insured,  or  of  the  neighboring  premises, 
and  the  insured  shall  fail  to  give  information 
thereof,  the  policy  or  renewal  shall  be  void." 
After  the  policy  was  issued,  a  bakery  was  put 
into  the  building.  Held,  the  notice  of  change 
or  increase  of  risk  was  required  only  in  cases 
where  the  insurance  had  been  made  upon 
•written  representations.  Liddlev.  Market  Ins. 
Co.,  29  N.  Y.,  184;  s.  c,  4  Bos.,  179. 

2.  On  certain  premises  known  as  Smith's 
carpet  factory,  and  on  stock  wrought,  and  not 
wrought,  and  in  process  of  being  wrought,  in 
the  building."  The  printed  conditions  pro- 
hibited the  use  of  the  premises  for  any  pur- 
pose hazardous  or  extra  hazardous,  and  for 
any  purpose  specified  in  the  memorandum  of 
special  rates.  The  purposes  enumerated  in 
the  special  rates  were,  among  others,  wool 
mills,  wheel-wrights,  and  wool  waste,  and  gen- 
erally all  mills  and  manufacturing  establish- 
ments requiring  the  use  of  fire  heat,  not  be- 
fore enumerated.  Insured  suspended  the  work 
of  carpet  making,  and  put  in  thirteen  hand 
looms  for  weaving  army  blankets;  the  looms 
being  made  largely  of  the  machinery  used  in 
manufacturing  carpets,  and  the  premises  were 
used  for  making  blankets.  Held,  substituting 
the  making  of  blankets  for  carpets  did  not 
affect  the  policy,  for  it  was  not  such  a  change 
or  different  use  as  was  contemplated  by  the 
contract;  that  there  was  no  warranty  that  the 
use  of  the  premises  stated  in  the  policy  should 
be  continued.  Smith  v.  Mechanics  and  Traders 
Inn.  Co.,  32  N.  T.,  399 ;  s.  c,  29  How.  Prac,  384. 

B.  "  On  the  brick  and  frame  buildings,  priv- 
ilege to  be  occupied  as  hide,  fat-melting, 
slaughter  and  packing  houses,  stores  and 
dwellings,  and  for  other  extra  hazardous  pur- 
poses." A  classification  of  hazards  annexed, 
placed  the  risk  described  under  the  class  spe- 
cially hazardous.  Any  use  or  occupation  of 
the  premises  for  purposes  designated  hazard- 
ous, extra  hazardous,  or  specially  hazardous, 
was  prohibited  except  by  consent  in  writing. 
A  part  of  the  premises  was  used  for  distilling 
purposes,  a  risk  specially  hazardous.  Held, 
333 


the  words,  "  Other  extra  hazardous  purposes," 
must  be  construed  to  mean  purposes  in  the 
same  class  of  liazardous  as  the  risk  described. 
Reynolds  v.  Commerce  Fire  Ins.  Co.,  47  N.  T., 
507. 

4.  Stipulated :  "  If,  subsequent  to  the  ap- 
plication,  any  new  facts  shall  exist,  either  by 
change  of  any  fact  disclosed  in  the  applica- 
tion, the  erection  or  alteration  of  any  build- 
ing, the  carrying  on  of  any  hazardous  trade, 
the  deposit  of  any  hazardous  goods  in  or  near 
tlie  property  insured,  by  tlio  assured  or  others, 
which  increases  the  risk,  or  which  it  would 
have  been  necessary  to  state,  had  it  existed  at 
the  time  the  application  was  m-ide,  the  policy 
shall  be  void,  unless  written  notice  thereof 
shall  be  given  the  directors  and  their  written 
consent  obtained,  signed  by  the  secretary,  and 
an  additional  premium  and  deposit  paid." 
Held,  if  an  alteration  increased  the  risk,  and  it 
came  within  the  scope  of  the  question  asked, 
though  not  in  the  judgment  of  others  mate- 
rial  to  the  risk,  it  must  be  communicated,  or 
the  policy  is  void.  Cahert  v.  Hamilton  Mut. 
Ins.  Co.,  1  Allen,  308;  Ecans  v.  Trimountain 
Mut.  Fire  Ins.  Co.,  9  id.,  329. 

5.  Stipulated:  "In  case  the  buildings  shall 
be  used  for  the  purpose,  of  carrying  on  any 
trade,  etc.,  which  shall  increase  the  risk,  as 
described  in  the  application  and  survey,  the 
policy  shall  be  void,  uuless  the  same  shall  be 
agreed  to  by  insurers  by  indorsement  upon 
the  policy."  Held,  the  actual  prior  use  of  the 
property,  known  to  insurers,  wa.s  not  the 
standard  by  which  an  increase  of  risk  was  to 
be  estimated.  It  was  to  be  measured  by  the 
description  mentioned  in  the  application. 
State  Mutual  Fire  Ins.  Co.  v.  Arthur,  30  Penn. 
St.,  315. 

6.  The  policy  provided  in  case  of  any  ma- 
terial increase  of  risk  to  the  property  insured, 
such  must  be  notified  to  the  company,  and 
written  permission  obtained  therefor  from  the 
secretary,  for  which  such  charge  as  may  be 
proper  must  be  paid.  Held,  an  additional 
risk  was  not  the  same  as  material  increase  of 
risk,  for  additional  risk  would  not  defeat  the 
right  of  the  insured  to  recover,  unless  it  wa.s 
material.  Allen  v.  Mutual  Fire  Ins.  Co.,  3 
Md.,  111. 

7.  The  policy  stipulated  that  if  the  risk 
shall  be  changed  or  increased,  the  contract 
shall  be  void  ;  but  further  on,  the  contract  pro- 
ceeded to  prohibit  the  use  of  the  premises  foi 


665 


INCUMBRANCES. 


666 


What  vitiates. 


certain  purposes,  and  then  proceeded :  "  Then 
and  from  thenceforth  so  long  as  the  same  sliall 
oe  so  appropriated,  applied  or  used,  tliese 
presents  shall  cease  and  be  of  no  force  or 
eflect."  The  premises  were  used  for  a  pur- 
pose,  increasing  the  hazard,  but  that  use  had 
been  discontinued  before  the  fire.  Held,  when 
the  improper  use  of  the  premises  ceased,  then 
the  policy  was  in  full  force  and  efTect  (citing 
Lounsbury  v.  Protection  Ins.  Co.,  8  Conn., 
450;  Joyce  v.  Jlaine  Ins.  Co.,  45  Me,  1G8). 
New  England  Fire  and  Marine  Ins.  Co.  v.Wet- 
more,  33  111.,  231. 

8.  The  policy  forbade  any  use  of  the  prem- 
ises which  might  increase  the  risk,  and  then 
it  proceeded  in  these  words:  "Then  and 
from  thenceforth,  so  long  as  the  same  shall  be 
applied  or  used,  these  presents  shall  cease  and 
be  of  no  force  or  eflfect."  Held^  the  keeping 
of  any  of  tlie  forbidden  articles  did  not  ren- 
der the  policy  void  absolutely,  but  merely  sus- 
pended it,  while  the  premises  were  so  used. 
Phmnix  Ins.  Co.  v.  Lawrence,  4  Met.,  Ky.,  9. 

VI.  Of  waiver. 

The  insurer  reserved  the  right  to  cancel  for 
an  increase  of  risk,  by  paying  to  insured  the 
unearned  premium.  The  risk  was  increased, 
insurer's  agent  had  notice  of  it.  and  did  not  ex- 
ercise the  right  to  cancel.  Held,  the  forfeiture 
which  resulted  from  the  increase  of  risk  was 
thereby  waived,  and  the  waiver  extended  not 
only  to  the  breach  tliat  had  occurred  before 
the  notice,  but  to  those  resulting  from  a  con- 
tinuation of  the  increased  risk.  Viele  v.  Oer- 
mainia  Ins.  Co.,  26  Iowa,  9. 


INCUMBRANCES. 

(SeeBsTOPPEL;  Principal  akd  Agent.) 

I.  What  vitiates. 
II.  When  insurmks  connot  urge,   as  a 

DEFKNSE. 

III.  What  are  not. 

IV.  Op  ookstruction. 

I.  What  vitiates.         ' 

1.  The  application,  being  part  of  the  con- 
tract, provided, "  If  the  insured  shall  suifer  any 


judgment  or  decree,  operating  as  a  lien  upon 
said  proijerty,  or  any  part  thereof,  to  pass 
against  him,  the  policy  shall  be  void  unless 
he  shall  represent  the  same  in  writing,  stating 
in  whose  favor,  etc.,  and  the  directors  shall 
have  the  right  to  ccmsent  to  the  same  or  to 
cancel  tlie  policy.  The  defendant  oilered  to 
prove  that  several  judgments  were  rendered 
against  the  insured  after  the  making  of  the 
policy,  which  became  liens  upon  the  prem- 
ises, of  which  they  were  not  notified.  Held, 
it  was  error  to  reject  the  evidence,  for  if  it 
was  true,  no  recovery  could  be  had  upon  the 
policy.  Eagan  v.  Mutual  Ins.  Co.,  5  Denio, 
326. 

2.  In  the  application,  the  following  inquir- 
ies were  propounded :  "  Have  you  the  title  to 
the  premises?  Are  they  incumbered  by  mort- 
gage or  otherwise?  If  so,  for  what  sum,  to 
whom,  and  what  is  the  value  of  the  properly 
thus  incumbered?"  Answers:  "Yes;  no 
incumbrance;  estimated  value,  $4,000."  To 
which  was  added:  "The  applicant  hereby 
covenants  and  agrees,  that  the  foregoing  is  a 
just,  full,  and  true  exposition  of  all  tlie  facts 
and  circumstances  in  regard  to  the  condition, 
situation,  value,  and  risk  of  the  property  to 
be  insured,  so  far  as  the  same  are  known  to 
the  applicant  and  are  material  to  the  risk." 
Held,  an  incumbrance  existing  on  the  prop- 
erty made  by  the  insured  was  material,  and  a 
failure  to  disclose  it  was  a  breach  of  the  con- 
tract which  released  the  insurers.  Shoemaker 
V.  Glen  Falls  Ins.  Co.,  60  Barb.,  84. 

3.  If  the  insured  answer  that  there  is  no  in- 
cumbrance on  the  building,  it  is  a  material 
representation,  and  avoids  the  policy,  if  the 
evidence  shows  it  was  unture.  Davenport  v. 
New  England  Mut.  Fire  Ins.  Co..  0  Cush  ,  340. 

4.  Insured  was  required  to  state  in  the 
printed  application  his  interest  in  the  jirop- 
erty.  Question:  "Is  the  property  incum- 
bered; if  so,  how  much?"  Answer.  "About 
$3,000."  It  was  in  fact  mortgaged  for  |4,000. 
Held,  the  policy  was  void.  Hayward  v.  New 
England  Mutual  Fire  Ins.  Co.,  10  Cush.,  444. 

5.  By-law  of  mutual  company  provided, 
"The  policy  shall  be  void,  unless  the  true 
title  of  the  insured,  be  expressed  in  the  appli- 
cation." Insured  was  but  a  pai't  owner  of  the 
property.  Held,  the  policy  was  void.  Held, 
also,  where  the  application  states,  "There  is 
no  incumbrance  upon  the  property,"  and  the 
fact  is,  it  h,is  been  sold  for  taxes,  tlie  policy  is 

33:i 


667 


INCUMBRANCES. 


669 


What  vitiates. 


void,  aotuithstanding  insured  has  the  riglit  to 
rt'deem;  for  the  law  gives  the  purchaser  alien 
for  the  price  paid  with  ten  per  cent,  interest 
and  costs.  Wilbur  v.  Bmnditch  3Iiitw.il  Fire 
Ins.  Co.,  10  Gush.,  44.6.  And  the  fact  that  the 
insured  acted  lonafide  is  immaterial.    Ibid. 

6.  Building  and  stock  in  -trade,  insured  for 
separate  sums  in  one  policy,  conditioned  to  he 
void,  if  the  estate  tvas  iucumhered.  There 
■was  an  incumbrance  on  some  of  the  stock,  and 
all  the  realty.  Held,  the  policy  was  void  as  to 
both  subjects.  Friesmuth  v.  Agawan  Mutual 
Fire  Ins.  Co.,  10  Cusli,,  587. 

7.  Stipulated:  "To  be  void,  if  application 
does  not  contain  true  statements  of  title,  con- 
dition, situation,  value  and  risk."  Question 
in  the  application :  "  Is  the  property  incum- 
bered, to  whom,  and  what  amount?"  Answer. 
"  About  |4,000,  to  A.  B."  Tliere  was  a  mort- 
gage on  real  and  personal  property,  $3,600,  to 
A.  B  ,  and  another  on  the  really  to  J.  P.,  $1,100. 
Held,  the  policy  was  void.  Broicn  v.  People's 
Mut.  Ins.  Co.,  11  Gush.,  280. 

8.  The  application  was  made  part  of  the 
contract,  and  it  provided  unless  the  applicant 
shall  represent  truly  "  his  title  and  interest 
therein,  and  also  all  incumbrances,  and  the 
amount  and  nature,  tliereof,  this  policy  shall 
be  void."  Held,  it  was  void,  because  the  prem- 
ises were  subject  to  a  mortgage,  although  it 
■was  made  beforp.  title  acquired,  and  not  re- 
corded till  after  the  insurers'  lien  attaclied. 
Packard  v.  Agawam  Mutual  Fire  Ins.  Co.,  2 
Gray,  334. 

9.  In  answer  to  a  question  propounded  in 
the  application,  insured  stated  that  there  was 
no  incumbrance  on  the  property.  There  was 
au  incumbrance  on  it.  Held,  a  misrepresenta- 
tion of  a  fact  specifically  inquired  of  by  insurer 
cannot  be  deemed  immaterial,  for  insurer,  by 
inquiring,  implies  that  he  considers  it  material, 
and  in  making  the  contract,  he  has  a  right  to 
judge  what  is  material,  and  to  prescribe  the 
terms  on  which  be  will  treat  (citing  1  Phil. 
Ins.,  sec.  542).  Hence,  insurers  were  dis- 
charged. Draper  v.  Charter  Oak  Fire  Ins.  Co., 
2  Allen,  569. 

10.  On  buildings.  In  the  application  they 
■were  represented  as  valued  at  $7,000,  and 
mortgaged  for  $2,000.  There  was  anollier 
mortgage  for  $800,  covering  this  and  other 
property.  Insured  assigned  the  policy  to  se- 
cure the  payment  of  the  $2,000,  and  tlie  com- 
pany assented.    Held,  the  failure  to  disclose 

334 


the  ?800  mortgage  was  a  false  statement  in 
answer  to  a  direct  question,  rcndeiing  the  pol- 
icy invalid.  Buicditch  Mutual  Fire  Ins.  Co. 
■0.  Wimloic,  8  Gray,  38;  s.  c,  3  id,  413;  Falit 
V.  Conway  Mutual  Fire  Ins.  Co.,  7  Allen,  46 ; 
Towne  v.  Fitchburg  Mutual  Fire  Ins.  Co.,  T 
id.,  51. 

11.  Stipulated:  "  All  alienations  and  altera 
tions  in  the  ownership,  situation  or  state  ot 
the  property  insured,  in  any  material  matter, 
shall  make  void  any  policy  covering  such 
property,  unless  consented  to  or  approved  by 
the  directors  in  writing  ■within  thirty  days." 
Insured  made  a  mortgage  and  left  the  policy 
with  the  secretary  for  the  consent  of  the  direct- 
ors. It  was  not  obtained,  because  he  neglected 
to  sign  the  assignment  of  the  policy.  Held, 
a  violation  of  the  contract.  Edmands  f.  Mu- 
tual Safety  Fire  Int.  Co.,  1  Allen,  311 ;  Edet  v. 
Hamilton  Mutual  Int.  Co.,  3  id.,  363. 

12.  In  replj- to  a  question  in  the  applica- 
tion,  the  applicant  said:  "There  are  two  mort- 
gages for  .$2,700  in  all,  one  for  $1,150,  and  the 
second  for  $l,5o0.  The  first  mortgage  had  ac- 
cumulated interest,  $300,  which  was  not  dis- 
closed. Held,  the  policy  was  void.  Jacobs  t. 
Eagle  Mutual  Fire  Ins.  Co.,  7  Allen,  132. 

13.  The  application  was  made  a  part  of  tLe 
contract,  and  in  it  insured  was  asked  whether 
the  property  was  incumbered.  He  replied: 
"  No."  The  answer  alleged  the  property  was 
subject  to  a  mortgage  of  $400,  and  plaiutitf  re- 
plied that  defendants  had  waived  the  right  to 
object  to  the  claim  on  that  ground,  and  were 
estopped  to  deny  their  liability.  Held,  tho 
policy  wasToid,  notwithstanding  tlie  directors 
had  authorized  the  secretary  to  settle  the  claim 
of  plaintiff,  and  that  the  company  had  paid 
two  small  sums  to  an  attorney  of  plaintiff's 
creditors,  which  sums  were  charged  on  the 
company's  books  against  the  loss.  Murphy  v. 
People's  Equitable  Mutual  Fire  Ins.  Co.,  7  Al. 
len,  239. 

14.  The  policy  was  made  to  insure  tlie  in- 
terest of  a  mortgagee.  The  premises  insured 
were  subject  to  prior  mortgages  held  by  him. 
Held,  they  ought  to  have  been  disclosed;  a 
concealment  of  them  avoided  the  policy. 
Smith  V.  Columbia  Ins.  Co.,  17  Penn.  St.,  253. 

15.  Stipulated:  "If  an  incumbrance  shall 
be  exliibited  upon  the  property  insured  sufli- 
cient  to  reduce  the  real  interest  of  the  insured 
in  the  same  to  a  sum  only  equal  to  or  belo^w 
the  amount  insured;  or  if  it  shall  be  levied 


GGO 


INCUMBRANCES. 


670- 


What  vitiates. 


upon  or  taken  into  custody  or  execution  by 
other  process  at  hvw  or  equity,  and  insured 
shall  neglect  to  obtain  consent  of  the  company 
thereto,  the  policy  shall  be  void."  Judgments 
were  subsequently  entered  against  insured  to 
an  amount  very  much  greater  than  the  value 
of  the  property,  of  which  insurers  had  not 
any  notice.  Ileld,  they  were  released.  Brown 
V.  Commonwealth  Mut.  Ins.  Co.,  41  Penn.  St.  187. 

16.  Stipulated:  "To  bo  void  if  the  insured 
shall  fail  to  disclose  the  amount  and  nature 
of  all  incumbrances,  or  fail  to  secure  the  con- 
sent of  the  company  to  any  incumbrances 
that  may  be  executed  upon  the  propertj',  or 
any  levy  of  execution  upon  it  during  the  life 
of  the  policy.  Held,  the  contract  assuuiCb 
that  the  risk  is  increased  whenever  the  prop, 
erty  shall  be  incumbered  or  execution  levied; 
that  there  is  no  question  for  the  jury  as  to  an 
increase  of  the  risk;  that  a  levy  of  two  e.Ke- 
cutions  on  the  personal  property  amounting 
to  nearly  .$300  was  a  breach  of  the  condition. 
Pennsylvania  Ins.  Co.  v.  Oottsman,  48  Penn. 
St.,  151. 

]  7.  Stipulated :  "  The  representations  in  the 
application  shall  be  a  warranty  on  the  part  of 
the  insured.  The  statement  as  to  incum- 
brances was  untrue  in  fact.  Held,  insured 
could  not  prove  that  this  occurred  by  his  mis- 
take. Cooper  V.  Farmers  Ins.  Co.,  50  Penn.  St., 
299. 

18.  The  application  contained  tlic  follow- 
ing question,  answer  and  covenaut:  "Is  the 
property  incumbered  by  mortgage  or  other- 
wise?" Answer;  "No."  The  applicants  cov- 
enanted: "The  facts  stated  in  the  application 
are  a  true  exposition  of  all  facts  and  circum- 
stances in  regard  to  the  condition,  situation, 
value  and  risk  of  the  property  to  be  insured, 
so  far  as  the  same  are  known  to  the  applicants, 
and  are  material  to  the  risk."  Held,  a  failure 
to  disclose  the  existence  of  a  mortgage  for 
$5,000  was  a  material  omission,  which  re- 
leased the  insurers.  Patten  v.  Merchants  and 
Farmers  Mutual  Fire  Ins.  Co.,  38  N.  H.,  338. 

19.  The  defendant  made  a  policy  upon  the 
plaintift"'s  dwelling  house,  at  the  instance  of 
a  person  in  the  habit  of  taking  applications 
and  forwarding  them  to  the  company.  The 
plaintiff  received  the  policy,  application  and 
premium  note,  but  never  signed  the  two  latter, 
nor  were  they  evof  deliverd  to  the  company, 
nor  was  any  premium  ever  paid.  The  appli- 
cation represented  the  property  as  unincum- 


bered. Held,  the  application  was  a  part  of  the 
contract,  because  the  policy  expressly  referred 
to  it;  thitt  if  the  property  insured  was  incum- 
bered, the  policy  was  void.  Guhagan  v.  Union 
Mutual  Fire  Ins.  Co.,  43  N.  II.,  17G. 

20.  Stipulated  :  "  Any  incumbrance  upon 
the  properly  hereby  insured,  whether  existing 
at  the  time  of  issuing  this  policy,  or  imposed 
subsequently,  must  be  assented  to  by  the  com- 
pany; otherwise  the  policy  shall  be  void." 
Held,  a  judgment  lien  was  an  incumbrance 
which  vitiated  the  policy.  Bowman  v.  Frank- 
lin Fire  Ins.  Co.,  40  Md.,  620. 

21.  Insurer's  charter  provided  that  insu- 
rance might  be  made  in  cases  where  insured 
liad  a  title  in  fee  simple  unincumbered ;  but 
if  insured  has  a  less  estate  therein,  or  if  the 
property  is  incumbered,  policies  shall  be  void 
unless  the  true  title  and  incumbrances  on  the 
same  are  expressed  therein.  The  property 
was  incumbered  by  two  mortgages.  Held,  the 
policy  was  void.  Battles  v.  York  County  Mvt. 
Fire  Ins.  Co.,  41  Me.,  208. 

22.  When  the  policy  was  made,  there  was 
a  subsisting  mortgage  on  the  properly  insun'd, 
of  which  insurers  hud  notice;  but  the  right 
of  redemption  was  seized  on  execution  against 
instned,  and  sold.  Held,  it  was  an  incum- 
brance upon  the  estate  of  insured,  and  was  a 
violation  of  a  condition  stated  in  the  contract, 
which  prohibited  any  incumbrance  by  sale, 
mortgage,  assignment,  bond  or  otherwise. 
Campbell  v.  Hamilton  Mut.  Ins.  Co.,  51  Me.,  69. 

23.  The  charter  of  a  mutual  insurance 
company  pro\  ided  that  none  but  fee  simple, 
unincumbered  estates  should  be  insured.  The 
insured  failed  to  pay  certain  assessments. 
This  action  was  brought  to  recover  them,  but 
it  appeared  that  the  estate  was  incumbered. 
Held,  the  action  could  not  be  maintained,  for 
the  policy  was  void.  Ingrains  v.  Mutual  Ass. 
Soc.,  1  Rob.  (Va.),  001. 

24.  The  act  of  incorporation  created  a  hen 
against  the  property  insured  in  favor  of  the 
insurer;  and  it  also  provided  that  an  aliemu 
lion  of  the  property  should  avoid  the  policy. 
Held,  a  mortgage  affected  the  lien  and  an- 
nulled the  policy,  but  the  insured  continued 
liable  upon  the  premium  note  until  the  policy 
was  surrendered.  McCulloch  v.  Indiana  Mu- 
tual Fire  Ins.  Co.,  8  Black!'.,  50. 

25.  The  chailer  required  the  nature  and. 
extent  of  the  estate  to  be  disclosed,  if  it  were 
less  than  fee  simple.    The  premises  were  in- 

33S 


071 


INCUMBRANCES. 


672 


When  insurers  cannot  urge  as  a  defense. 


cumbered  b}'  mortgage,  which  was  not  dis- 
closed. Ueld,  the  policy  was  void.  Addison 
V.  Kentucky  Ins.  Co.,  7  B.  Mon.,  470. 

26.  Policy  founded  upon  an  application  in 
which  insured  was  asked :  "  Bo  you  own  the 
land  ?  Is  it  unincumbered  by  mortgage  or 
•otherwise?"  Insured  answered:  "Yes."  In 
order  to  secure  tlie  payment  of  a  large  sum 
•of  mimey,  he  had  executed  a  mortgage,  which 
liad  not  been  recorded  wiien  the  policy  was 
made.  Held,  an  incumbrance,  which  avoided 
the  policy.  Hutchins  v.  Cleceland  Mut.  Ins.  Co., 
11  Ohio  St.,  477. 

27.  Charter  declared  policy  void,  if  insured 
should  fail  to  state  in  the  application,  any  in- 
cumbrance on  the  insured  premises.  There 
■was  a  deed  of  trust  outstanding  against  the 
premises.  A  memorandum  upon  the  policy 
stated  insurer  would  not  be  bound  by  any 
statement  made  to  the  agent  uot  inserted  in 
the  application.  Held,  it  was  not  competent 
for  insured  to  prove  that  he  mentioned  to  the 
agent  the  existence  of  the  trust  deed,  and  that 
the  agent  told  him  it  was  so  small  it  need  not 
be  stated.  Loehner  i\  Home  Mut.  Ins.  Co.,  17 
Mo.,  247;  19  id.,  628. 

28.  Stipulated:  "Property  mortgaged  to 
the  amount  equal  to,  or  exceeding  one-half  its 
value,  will  not  be  insured;  and  any  policy 
issued  or  existing  on  property  thus  mortgaged, 
shall  be  null  and  void."  In  the  application, 
he  was  asked  what  incumbrances  were  on  the 
property  insured.  He  answered:  "$4,000." 
He  stated  that  he  was  the  owner  of  the  land 
upon  which  the  buildings  were;  that  Wake- 
man  was  to  hold  .§4,000  as  collateral  securit}-, 
to  pay  a  certain  mortg.ige.  The  propertj'  did 
not  exceed  in  value  $9,400.  There  were  in 
fact,  two  mortgages,  amounting  to  the  sum  of 
$6,050.  Held,  the  policy  was  void.  Van 
Buren  v.  St.  Joseph  County  Village  Ins.  Co., 
28  Mich.,  y98. 

29.  Policy  issued  upon  an  application 
which  was  tilled  up  by  the  company's  agent 
from  statements  made  by  the  insured.  The 
policy  prohibited  any  incumbrance  after  the 
application  shall  have  been  made  and  sub- 
scribed. Insured  never  read  the  policy,  being 
ignorant  of  the  English  language,  but  kept  it 
in  his  possession  for  about  two  years.  He  in- 
cumbered the  property,  of  wliich  insurers  had 
not  any  notice.  Held,  he  was  not  entitled  to 
recover.  Fuller  t.  Madison  Mut.  Ins.  Co.,  36 
Wi3.,  599. 

3.i6 


30.  Stipulated:  "Policy  issued  upon  in- 
cumbered property  shall  be  void,  unless  the  ex- 
istence of  the  incumbrance  is  expressed  there, 
in."  Held,  verbal  notice  of  "m.  incumbrance 
could  not  be  received  to  save  the  forfeiture  of 
the  policy.  Smith  t.  Fanners  Mutual  Fin 
Ins.  Co.,  19  Ohio  St.,  287. 

31.  The  defendant  pleaded  false  representa- 
tion as  to  title;  that  plaintiff  represented  the 
property  as  unincumbered,  whereas  it  was 
mortgaged  for  £94,  which  was  established  by 
proof.  Held,  the  policy  was  void  under  Con- 
sol.  Stat.  U.  C,  ch.  52,  sec.  27.  Meema  v.  Ni- 
agara  District  Ins.  Co.,  22  U.  C.  (Q.  B.),  214. 

II.  When  insukees  cankot   uege  as 

A   DEFENSE. 

1.  There  was  a  sale  of  the  property  under  a 
mortgage  prior  to  the  making  of  the  insur- 
ance. The  question  inserted  in  the  applica- 
tion as  to  mortgages  or  incumbrances  was  not 
answered.  The  application  was  made  part  of 
the  policy,  and  the  insured  covenanted  tliat 
the  matters  stated  in  it  were  a  true  exposition 
of  all  the  facts  and  circumstances  in  regard  to 
the  situation,  condition  and  value  of  the  prop- 
erty insured  so  far  as  known  to  him  and  ma- 
terial to  the  risk.  Under  the  Minnesota  stat- 
ute, the  purchaser  at  the  foreclosure  sale  did 
not  acquire  title  unless  the  mortgagor  fail-id 
for  one  year  Xo  redeem  the  property.  Held,  if 
the  aiiplication  was  filled  up  by  the  agent  of 
insurer  and  was  not  explained  to  insured,  and 
insured  signed  it  without  being  apprised  of  its 
contents,  and  no  inquiries  were  made  of  in- 
sured respecting  incumbrances,  then  insurer 
waived  any  right  to  have  a  disclosure  of  the 
existence  of  the  mortgage  or  incumbrance 
upon  the  property.  Geib  v.  International  Ins. 
Co.,  IDil.  Cir.  0.',  443. 

2.  The  son  of  insured  made  application  for 
the  insurance,  and  informed  insurer's  agent 
that  there  was  a  mortgage  on  the  property. 
Held,  it  was  notice  to  insurer,  though  not 
mentioned  in  the  application  which  required 
it  to  be  stated  therein.  Masters  v.  Madison 
County  Mutual  Ins.  Co.,  11  Barb.,  6'24. 

3.  Stipulated:  "Applications  shall  be  in 
writing,  according  to  the  printed  forms  pre- 
pared by  tlie  company,  and  must  specify 
wliether  the  property  is  incumberec  and  if 
so,  by  what  and  to  what  amount ;  also,  any 
misrepresentations  or   concealment  touching 


CT3 


INCUMIiKANCES. 


GTl 


What  are  not. 


the  risk  shall  avoid  the  policj-."  The  appli- 
cation represented  that  the  property  was  not 
incumbered;  but  it  was  written  by  defend- 
ant's agent,  who  signed  the  plaintiff's  name 
to  it,  and  he  knew  that  there  was  a  mortgage 
on  the  premises  when  he  made  a  prior  policy 
upon  the  same  premises,  which  he  canceled, 
and  for  which  he  gave  this  in  exchange.  Held, 
the  incumbrance  was  no  defense  to  the  action. 
Ileld,  also,  judgment  liens  not  disclosed  did 
not  affect  the  right  of  the  plaintiff  to  recover. 
Owen  V.  Farmers  Joint  Stock  Ins.  Co.,  57  Barb., 
518;  8.  c,  10  Abb.  Pr.  (N.  S.),  166  n. 

4.  The  insured  did  not  warrant  against  in- 
cumbrances ;  the  propertj'  was  subject  to  mort- 
gage and  large  judgment  liens  and  mechanics' 
liens.  Held,  it  was  not  error  for  the  court  to 
refuse  to  instruct  as  matter  of  Law  that  the 
failure  to  disclose  these  avoided  the  policy, 
for  it  was  a  question  of  fact  whether  or  not 
the  concealment  was  willful  and  fraudulent. 
Cumberland  Valley  Mutual  Protection  Co.  v. 
Mitchell,  48  Pcnn.  8t.,  ;)74. 

5.  Stipulated:  "  If  the  interest  of  insured 
be  other  than  an  entire,  unconditional  owner- 
ship, for  the  use  and  benefit  of  insured,  it 
must  be  so  represented  and  expressed  in  the 
■written  part  of  this  policy,  otherwise  it  shall 
he  void."  At  the  time  the  policy  was  made, 
the  premises  were  incumbered  by  mortgages. 
Held,  no  violation  of  tlie  condition  (citing 
■Washington  Fire  Ins.  Co.  r.  Kelly,  32  Md., 
421;  Bowman  v.  Franklin  Fire  Ins.  Co., 40  id., 
€20  (Ct.  of  App.  Md.).  Clay  Fire  and  Marine 
Ins.  Go.  V.  Beck,  5  Ins.  L.  J.,  289. 

6.  On  certain  property,  subject  to  a  mort- 
gage. Stipulated:  "If  any  proceedings  for 
the  sale  of  ti-.e  property  insured  sliall  be  had, 
commenced  or  taken  without  the  company's 
consent,  the  policy  shall  be  void."  Held, 
■where  insurance  is  taken  upon  mortgaged 
property  and  tlie  insurer  is  notified  of  tlie 
mortgage,  he  must  be  held  to  understand 
that  proceedings  may  be  taken  at  any  time 
to  foreclose  when  the  mortgage  is  overdue. 
The  mere  commencemrnt  of  foreclosure  pro- 
ceedings cannot  annul  the  contract.  There  is 
no  breach  of  the  condition  till  a  right  to 
make  the  sale  has  been  acquired.  Michigan 
State  Ins.  Co. «.  Leicis,  30  Mich.,  41. 

7.  The  policy  provided  that  it  should  be 
void  if  the  premises  were  incumbered,  unless 
the  true  title  of  insured  and  the  incumbrance 
be  expressed  therein.     In  answer  to  a  question 


stated  in  the  application,  insured  said:  "In- 
cumbered  to   the   amount   $ ."    Held,   if 

insurers  desired  to  know  the  amount  of  incum- 
brance,  they  ought  to  have  withheld  the  policy, 
for  it  would  be  unjust  to  presume  insurers 
guilty  of  so  great  a  villainy  as  to  issue  a  policy 
they  knew  at  the  time  was  void  and  value- 
less. Dersche  r.  St.  Louis  Mutual  Fire  and 
Marine  Ins.  Co.,  31  JIo.,  5.55. 

8.  Certain  persons,  acting  as  agents  for  sev- 
eral companies,  issued  policies  upon  mill 
property,  and  made  the  loss,  if  any,  payable 
to  certain  persons,  who  held  certain  incum- 
brances upon  it.  Held,  insurers  could  not 
defend  on,  the  ground  that  the  property  was 
incumbered  without  notice  to  them,  contrary 
to  the  stipulations  in  the  policies,  for  it  was 
the  duty  of  their  agents  to  report  the  fact,  and 
afford  their  principals  an  opportunity  to  can- 
cel if  they  desired.  Insurance  Go.  of  North 
America  v.  McDowell,  50  111.,  120. 


III.  What  aee  not. 

1.  Stipulated:  "In  case  an  incumbrance 
shall  fall  or  be  executed  upon  the  property 
insured,  sufficient  to  reduce  the  real  interest 
of  the  insured  in  the  same  to  a  sum  only 
equal  to  or  below  the  amount  insured,  and  the 
insured  shall  neglect  or  fail  to  obtain  the  com- 
pany's consent  to  it,  the  policy  shall  be  void." 
A  mortgage  was  executed  by  the  insured  lo 
secure  the  mortgagee  against  liability  upon 
certain  indorsements.  Held,  the  real  interest 
of  the  insured  in  the  property  was  not  reduced 
by  the  mortgage,  and  that  therefore  the  insurer 
was  liable  for  the  loss.  Viall  ■!).  Genesee  Mut. 
Ins.  Co.,  19  Barb.,  440. 

2.  Policy  prohibited  all  incumbrances.  In- 
sured had  given  a  deposit  note  for  another 
policy,  and  the  company  acquired  a  lien  upon 
the  property  for  the  premium.  But  insured 
had  increased  the  risk,  contrary  to  the  condi- 
tions of  the  other  policy.  Held,  the  other 
policy  was  void,  and  the  lien  fell  with  it; 
therefore,  there  was  no  incumbrance.  Jack- 
son V.  Farmers  Mutual  Fire  Ins.  Co.,  5  Gray,  58. 

3.  Insured  was  asked  to  state  whether  lliere 
was  any  incumbrance  on  the  property.  He  re- 
replied,  "None,"  and  covenanted  that  any 
untrue  answer  should  render  the  policy  void. 
There  was  a  judgment,  but  it  was  limited,  and 
did  not  extend  to  the  property  insured.    Held, 

337 


675 


INCU  JIBRANCES  —  INDEMNITY. 


67G 


Of  construction,  etc. 


no  incumbrance.  Somerset  Ins.  Co.  v.  McAn- 
ally,  40  Penn.  St.,  41. 

4.  An  incumbrance,  made  after  the  policy, 
does  not  affect  it.  Dutton  v.  New  England 
Mntwd  Fire  Ins.  Co.,  29  N.  H.,  153. 

.5.  Insured  stated  in  tlie  application  that  the 
property  was  his,  and  that  it  -was  not  incum- 
bered. The  legal  title  was  in  the  insured,  but 
some  years  prior  thereto  he  had  made  a  bond 
to  convey  the  premises  on  certain  conditions 
specified.  The  bond,  by  its  owq  terms,  had 
expired  before  the  application  was  made;  but 
insured  had  waived  performance  of  its  condi- 
tions, and  the  obligee  had  a  subsisting  equit- 
able  right  under  the  bond.  Held,  it  was  not 
an  incumbrance.  Ncwhall  t.  Union  Mutual 
Fire  Ins.Co.,  52  Me.,  180. 

6.  Stipulated :  "  If  the  policy,  or  any  inter- 
est therein,  be  assigned,  unless  this  company 
shall  assent  thereto  by  indorsement  thereon, 
it  shall  be  null  and  void."  Insured  executed 
a  chattel  mortgage  on  the  property,  and 
promised  to  keep  it  insured  for  the  benefit  of 
mortgagee.  Held,  not  an  assignment  to  which 
the  company's  consent  must  be  procured  and 
indorsed.  Prows  v.  Ohio  Valley  Ins.  Co.,  2 
Cin.  S.  C,  14. 

7.  There  was  an  outstanding  incumbrance 
by  mortgage,  but  the  mortgagee  had  accepted 
the  personal  responsibility  of  another  person, 
and  agreed  to  treat  the  mortgage  as  paid.  Held, 
not  an  incumbrance  within  the  terms  of  the 
contract.  Hawkes  v.  Dodge  County  Mutual 
Ins.  Co.,  11  Wis.,  188. 

8.  All  incumbrances  were  prohibited.  In- 
sured executed  a  mortgage  upon  the  property 

■  insured,  but  it  was  not  stamped  nor  delivered 
when  the  loss  occurred.  Held,  not  an  incum- 
brance. Olmstead  v.  Iowa  Mutual  Ins.  Co.,  24 
Iowa,  503. 

iV".    Of  consteuction. 

1.  The  policy  provided:  "  Reference  being 
had  to  the  application  of  M.  &  E.,  which 
forms  a  part  of  the  policy,  for  a  more  particu- 
lar description  of  the  property  insured."  In- 
sured stated,  in  the  application,  in  reply 
to  a  question,  that  there  were  no  incum- 
brances on  the  property.  The  records  dis- 
closed a  number  of  judgment  liens  against 
it.  Held,  the  application  was  a  part  of  the 
policy,  for  the  purposes  of  description  only; 
Uiat  matters  staled  in  it  were  not  warran- 
338 


ties;  that  whether  insured  willfully  and 
fraudulently  concealed  information  touching 
the  incumbrances  was  a  question  of  fact  for 
the  jury,  for  fraud  is  not  an  inference  of  law, 
but  one  of  fact.  Cumberland  Valley  Mutual 
Protection  Co.  v.  Mitchell,  48  Penn.  St.,  374. 
2.  In  the  application,  the  following  ques- 
tions were  propounded :  "  Is  the  property 
owned  or  operated  by  the  applicant?"  Ans. 
"  Yes."  "  Is  any  other  person  interested  io 
the  property?  If  so,  state  the  interest."  Ans. 
"No."  "Incumbrance;  is  there  any  on  the 
property?"  Ans.  "Held  by  contract."  The 
insured  was  in  possession  under  a  contract  to 
purchase,  having  paid  only  a  part  of  the  pur^ 
chase  money.  Held,  the  answers  must  be  ta^ 
ken  and  construed  together ;  that  taken  as  a 
whole  they  were  true,  for  it  was  fairly  to  be 
inferred  that  the  property  was  incumbered  by 
a  lieu  for  the  purchase  money  in  favor  of  the 
vendor.  Lorillard  Fire  Ins.  Co.  v.  McCulloch, 
21  Ohio  St.,  176. 

3.  Plea  that  the  policy  was  made  upon  con- 
dition that  if  the  insured  should,  after  insur. 
ance  made,  incumber  the  property,  the  policy 
should  be  void;  that  the  policy  was  assigned, 
and  the  assignee  incumbered  it.  Held,  the 
plea  was  bad,  for  the  incumbrance  was  not  by 
the  insured.  Richardson  v.  Canada  Farmers 
Mutual  Ins.Co.,  16  U.  C.  C.  P.,  430. 

4.  One  of  the  rules  of  the  company  pro- 
vided: "No  vessel  which  is  mortgaged  shall 
be  insured,  unless  the  mortgagee  give  a  writ- 
ten guaranty  to  the  satisfaction  of  the  com- 
mittee, for  the  payment  of  all  demands  on  said 
vessel.  Insured  subsequently  mortgaged  her. 
Held,  the  rule  did  not  apply  to  mortgage* 
made  subsequently  to  the  date  of  the  policy. 
Hutchinson  i\  Wright,  25  Beav.,  444;  4  Jur. 
iN.  S.),  749 ;  27  L.  J.  Chan.,  834. 


'  DiDEMNITT. 

1.  Where  there  are  several  policies  upon  the 
same  propertj',  the  insured  can  have  but  one 
indemnity,  and  this  he  may  recover  from  any 
one  of  the  insurers,  if  it  does  not  exceed  the 
sum  insured,  and  those  who  pay  have  the 
right  to  recover  contribution  f.-om  those  who 
have  not  paid.  Cromie  v.  Kentucky  and  Loui- 
siana Mut.  Ins.  Co.,  15  B.  Mon.,  433. 


677 


INSANITY. 


678 


What  is  ev-idence  of  —  What  is  not  evidence  of. 


2.  Declaration  on  a  jiolicy  of  insurance 
stated  tliat  J.  S.,  before  liis  bankruptcy,  sub- 
scribed the  policy,  and  then  averred  the  loss 
on  the  ship  Deliance,  valued  at  £2,500.  Plea: 
that  the  plaintiff  caused  a  certain  otiier  policy 
to  be  made  on  the  ship  valued  at  £3,500;  in 
case  of  loss  or  average,  the  adjustment  to  be 
made  irrespective  of  any  other  insurance  for 
account  of  the  plaintiffs  upon  the  same  ship, 
upon  the  same  interest,  and  upon  the  same 
voyage,  and  that  the  insurers  thereof  had  paid 
the  same  to  the  plaintiffs,  who  accepted  the 
same  as  the  agreed  indemnity  for  the  loss.  Re- 
plication de  injurid.  Held,  the  plea  was  good, 
for  the  payment  by  one  insurer  operated  as  a 
satisfaction  for  the  other.  Ileld,  aho,  the  re- 
plication was  bad  because  the  plea  admits  the 
breach,  but  sets  up,  by  way  of  defense,  matter 
ex  post  facto,  namely,  satisfaction  from  other 
parties.  Morgan  v.  Price,  4  Exchr.,  615 ;  19  L. 
J.  Ex.,  201. 


INSANITY. 

(See  Onus  Probandi;  Presumptions;  Scicide.) 

I.  Wh.1t  is  evidence  op. 

II.  NOT  EVIDENCE  OP. 

I.  What  is  evidence  of. 

Upon  the  question  of  insanity,  it  ap- 
peared that  the  person  insured  liad  perfoiined 
a  great  deal  of  overwork;  that  his  health  had 
failed,  his  spirits  were  depressed;  abandoned 
his  employment  and  became  comparatively 
idle;  had  pains  in  the  head ;  exhibited  a  great 
deal  of  unusual  reserve  in  social  intercourse; 
was  restless  and  unable  to  sleep;  his  counte- 
nance became  alternately  flushed  and  pale; 
■was  Jealous  of  his  brother-in-law;  his  sense  of 
hearingwas  false,  suggesting  what  was  unreal ; 
had  a  restless,  wild  appearance,  starting  and 
looking  suddenly  from  time  to  time,  as  if  in 
cxpectati(m  or  fear  of  something  approaching; 
supposed  there  was  an  attempt  to  poison  liim ; 
apprehended  an  endeavor  to  arrest  him;  and 
that  he  labored  under  a  belief  that  reports 


prejudicial  to  his  character  were  in  circula- 
tion.  Held,  proper  testimony  to  sustain  the 
issue  of  insanity.  Gay  v.  Union  Mutual  Life 
Ins.  Co.,  9  Blatch.,  143. 


II.  "What  is  not  evidence  of. 

1.  "To  be  void  in  case  he  should  die  by  his 
own  hand."  Up  to  a  short  time  before  he 
killed  himself,  lie  was  a  genial,  sociable,  and 
apparently  happy  man.  Suddenly,  he  became 
taciturn,  absent  minded,  moody  and  unhappy, 
with  severe  pains  in  the  head,  restless  and 
haggard  in  appearance,  refusing  to  see  per- 
sons who  called  on  him,  saying  that  he  could 
not  sufficiently  collect  his  tlioughts.  It  also 
appeared  that  he  was  greatly  embarrassed, 
financially ;  had  appropriated  moneys  intrusted 
to  him  for  investment;  had  committed  forger- 
ies, one  of  which  had  been  detected;  and  that 
he  could  no  longer  prevent  the  discovery  of 
others.  Held,  an  order  of  nonsuit  was  prop- 
erly granted;  the  evidence  showed  that  his 
condition  was  the  result  of  his  dishonesty. 
McClnre  v.  Mutual  Life  Ins.  Go.,  55  N.  Y.,  651. 

2.  "To  be  void  if  insured  shall  die  by  his 
own  hand."  It  appeared  that  he  had  caused 
his  own  death  by  the  use  of  a  pistol ;  there 
were  indications  that  he  had  taken  poison. 
He  left  a  letter  addressed  to  his  brother,  in 
which  he  said  he  had  sull'ered  a  long  time  in 
the  fear  of  becoming  insane,  in  consequence 
of  a  disease  with  which  he  was  afflicted,  which 
he  had  endeavored  to  cure,  but  had  finally 
given  up  all  hope  of  doing  so,  and  that  he  had 
endeavored  to  put  an  end  to  his  sufl'erings  by 
poison,  which  he  had  carried  several  daj's. 
He  was  a  Spiritualist,  and  the  disease  with 
which  he  was  afilicted  tended  to  produce  a 
morbid  mental  condition,  one  of  the  precursors 
of  insanity.  Immediately  precedinghis  death, 
he  appeared  to  be  somewhat  excited;  was 
absent  minded ;  beyond  this  there  was  no  evi- 
dence tending  to  show  mental  aberration. 
Held,  the  evidence  was  not  sufficient  to  estab- 
lish such  a  condition  of  insanity  as  would 
entitle  his  representatives  to  recover.  Fowler 
V.  Mutual  Life  Ins.  Co.,  4  Lans.,  203. 

3.  Suicide  is  not  prima  facie  evidence  of 
insanity.  St.  Louis  Mutual  Life  Ins.  Co.  v. 
Graves,  6  Bush.,  268. 


S3» 


C79 


IN  PORT  — INSPECTION'  OF  BOOKS  AND  PAPERS. 


680 


When  vessel  shall  be  deemed  in  pott  —  When  not  deemed  in  port. 


IN  PORT. 

I.  When  vessel  sh.ill  be  deemed  in  pout. 

II.  NOT  IN  PORT! 

I.  "When-  vessel  shall  be  deemed  in 

POKT. 

1.  At  and  from  Leith  to  Shethmd,  thence  to 
Barcelona,  and  at  and  from  thence  to  two 
other  ports  in  Spain,  and  to  a  port  in  Great 
Britain.  A  prevailing  plague  prevented  dis- 
charge of  the  cargo  at  Barcelona,  and  she  was 
ordered  to  Tarragona,  where  she  unloaded 
and  proceeded  to  Bay  of  Saloe,  about  five 
miles  west  of  Tarragona,  to  take  her  home 
cargo,  where  slie  was  driven  ashore  and  lost. 
Held,  Saloe  was  a  port  within  the  meaning  of 
tlie  policy.  Sea  Ins.  Co.  v.  Gavin,  5  S.  &  D., 
525;  2  Scot.  Jur.,  239;  affirmed,  2  Dow.  &  C, 
129;  4  Bli.  (N.  S.),  578. 

2.  On  cargo,  stipulated:  "The  insurers  talie 
no  risic  in  port,  but  sea  risli."  She  was  driven 
ashore  200  yards  high  and  dry  above  high 
water  mark.  Two  days  afterwards,  soldiers 
from  a  French  battery  came  on  board  and  set 
fire  to  ship  and  cargo,  and  -both  were  con- 
sumed. Held,  insurers  were  not  responsible 
for  the  loss,  because  it  was  a  loss  in  port,  and 
not  by  perils  of  the  sea.  Patrick  t.  Commercial 
Ins.  Co.,  11  Johns.,  14. 

II.  When  vessel   shall  be  deemed 

NOT    IN    PORT. 

1.  On  ship  to  Nantz,  France:  "Warranted 
not  to  abandon  in  case  of  capture  or  detention 
until  six  months  after  notice  thereof,  or  until 
condemnation,  free  from  seizure  or  detention 
in  port,  and  not  to  abandon  in  consequence 
of  being  turned  away  or  having  been  carried 
into  any  British  port.  Two  British  cruisers, 
by  indorsement  on  her  register,  forbade  her 
entering  any  French  port."  In  a  gale,  in  which 
she  cut  away  some  spars,  she  made  for  Belle 
Isle  to  take  a  pilot,  and  took  one  about  a 
league  and  a  half  from  the  principal  fort.  She 
laj'  at  anchor  under  the  protection  of  the  fort  in 
fear  of  being  boarded  by  British  cruisers  which 
were  off  each  end  of  the  island.  She  was 
boarded  by  an  armed  boat  from  the  port,  and 
carried  within  pistol  shot  of  the  fort  and  there 
anchored  on  tlie  ground  that  she  liad  been 
340 


boarded  by  the  English.  She  was  dismantled 
by  tlie  French.  Tlie  cargo  was  delivered  to 
the  consignees,  upon  security  to  abide  the 
event  of  the  trial.  6,348  livres  were  expended 
about  the  ship's  business,  705  of  which  were 
incurred  by  the  captain's  going  to  attend  the 
delivery  of  the  cargo;  all  other  charges  were 
for  the  ship.  Held,  she  was  not  seized  in  port, 
and  the  insurers  were  liable.  Watson  v.  Ma- 
rine Ins.  Co.,  7  Johns.,  57. 

2.  "Warranted  free  from  capture  in  port." 
She  was  captured  within  the  head  lands  at  the 
mouth  of  the  river,  but  not  within  the  limits 
of  any  port.  Held,  the  warrantj-  did  not  ap- 
ply.   Baring  v.  Vaux,  2  Camp.,  541. 

3.  "  Warranted  in  port,  October  19th."  She 
was  insured  from  Hamburg  to  Vigo.  She 
was  in  the  port  of  Cushaven,  about  ninetj' 
miles  below  and  outside  of  the  port  of  Ham- 
burg October  IJHh.  Held,  insurer  was  not 
liable  for  anything  but  the  premium.  Colby  c. 
Hunter,  1  Moo.  &  'SI.,  81 :  3  C.  &  P.,  7. 

4.  "  Warranted  free  of  capture  or  seizure  iu 
port  or  ports."  She  was  bound  for  Pillau,  the 
entrance  to  which  was  made  difficult  by  a 
shifting  bar  on  which  the  water  was  too 
shallow  to  admit  vessels  deeply  laden;  out- 
side of  this  bar  was  a  station  called  Pillau 
Roads,  where  it  was  usual  for  deeply  laden 
ships  to  come  to  and  lighten,  then  to  pass  into 
tlic  harbor.  She  came  to  anchor  in  the  roads. 
The  pilot  would  not  permit  anything  to  be 
unloaded  till  her  papers  were  examined  and 
approved  in  the  custom  house.  While  lying 
in  the  roads  she  was  captured.  Held,  the 
meaning  of  the  warranty  was,  that  the  insurer 
should  be  discharged  if  the  enemy  got  into 
port  by  land  and  took  her;  that  when  she  was 
captured  she  was  at  sea.  Brown  v.  Tierney,  1 
Taunt.,  517. 


INSPECTION  OF  BOOKS  AND  PAPERS. 

1.  The  books  of  a  corporation  are  evidence 
against  it,  and  their  production  can  be  com. 
pelled  by  subpmna.  duces  tecum.  McCullonqh  v. 
Talladega  /«.«.  Co.,  46  Ala.,  376. 

2.  The  insurer  has  a  right  to  the  inspection 
of  everytliing  relating  to  the  transaction  iu 
dispute.  If  there  be  any  doubt  as  to  the  pur- 
chase,  shipment  or  value  of  the  goods,  9r  on 

i  any  question  as  to  false  papers,  the  insurer 


681 


INSTRUCTIONS. 


683 


Miscellaneous. 


lias  llie  right  to  inspect  the  boi)ks  of  the  in- 
sureit  in  relaliou  to  those  niiitters,  but  lie  lias 
not  any  right  to  inspect  as  to  matters  not  con- 
nected witli  the  transaction.  Jatnon  v.  Solarte, 
2  You.  &,  Coll.,  137;  6  L.  J.  (N.  S.),  E.\ .  Eq., 
75. 

a.  Tlie  ]ilaintifr  .applied  for  an  order  to  al- 
low her  to  inspect  llie  reports  made  to  the 
company  by  the  friends  of  the  insured  in  re- 
spect of  his  healtli  and  habits,  also  the  report 
of  the  company's  medical  examiner.  Held, 
she  was  entitled  to  inspect  them.  Mahony  ». 
National  Widoics  Life  Ass.  Fund,  6  L.  R.  C. 
P.,  252 ;  40  L.  J.  C.  P.,  203 ;  34  L.  T.  (N.  S.), 
548;  19  W.  R.,  732. 

4.  Tlie  court  made  au  order  tliat  the  plaint- 
iffs answer,  on  affidavit,  what  documents  were 
in  their  possession  or  power  relating  to  ship, 
voyage  and  alleged  loss.  One  of  the  plaintiffs 
answered,  scheduling  csrtain  documents,  and 
offered  io  grant  inspection  of  them.  As  to 
otliers,  namely:  letters  between  the  master 
and  the  insured,  they  refused  to  allow  them  to 
be  inspected.  Held,  under  14  and  15  Vict ,  ch. 
99,  sec.  6,  insured  must  lay  before  insurer 
everything  that  throws  light  upon  the  trans- 
action.    Rayner  e.  Ititson,  6  B.  &  S.,  888. 


INSTRUCTIONS. 

1.  If  no  evidence  h.as  been  given  upon  a 
particular  point,  the  court  must  refuse  an  in- 
struction relating  to  it.  Insurance  Co.  v. 
Piaggio,  16  Wall.,  378. 

2.  Whether  a  written  application  had  been 
filed  with  the  defendants,  and  by  them  with- 
held from  the  jury,  was  submitted  by  the 
court,  who  said,  ''If  you  find  that  fact  to  be 
true,  it  raises  a  presumption  against  the  de- 
fendants." Held,  error  that  must  I'everse,  be- 
cause there  was  nothing  in  the  case  to  warrant 
'he  submission.  Burr  v.  Broadway  Ins.  Co., 
IG  N.  Y.,  3G7. 

3.  Tlie  court  instructed  the  jury  that  the 
plaintiff  was  entitled  to  recover  the  amount  of 
dam.age  actually  sustained  by  the  fire,  if  the 
jury  believed  that  tlic  loss  had  not  been  re- 
paired within  the  time  stated  in  the  policy, 


or  tlie  money  had  not  been  paid.  Held,  error; 
for  that  was  assuming  that  the  plaintiff  had  in 
all  other  respects  complied  witli  the  condi. 
tions  of  the  contract.  Fran/clin  Fere  Ins.  Co., 
0.  Hamill,  (i  Gill,  87 ;  5  Md.,  170. 

4.  The  court  submilted  to  the  jury  the  ques- 
tion whetlicr  tlic  risli  was  materially  increased, 
because  the  vessel  did  not  sail  till  after  the 
beginning  of  June.  Held,  error,  because  there 
was  no  evidence  upon  which  to  found  the  in. 
struction.  Application  for  insurance  on  cargo. 
She  was  laden  with  mules  and  asses.  There 
was  conflicting  evidence  as  to  whether,  in 
mercantile  understanding,  the  word  "cargo" 
included  live  stock.  There  w.as  evidence  given 
in  behalf  of  insured,  that  a  cargo  of  mules  and 
asses  was  not  more  hazardous  than  any  other 
cargo.  The  court  instructed  the  jury:  "That 
insured  was  guilty  of  a  concealment  fatal  to 
the  policy,  provided  the  jury  should  believe 
that  the  risk  was  materially  increa.sed  by  the 
cargo  being  mules  instead  of  a  dead  cargo." 
Held,  error;  lor  the  court  determined  the  ques- 
tion of  fact  for  the  jury,  thereby  throwing  out 
of  the  case  the  testimony  which  tended  to 
show  that  the  term  "cargo"  would,  according  to 
mercantile  understanding,  include  mules  and 
asses.  Allegre  v.  Maryland  Ins.  Co.,  3  G.  &  J., 
136. 

5.  Where  there  is  no  prayer  for  special  in- 
struction,  the  judge  is  answerable  only  for 
errors  of  commission.  Klein  v.  Franklin  Ins. 
Co.,  13  Penn.  St.,  247. 

6.  The  court  below  charged  that  a  certain 
portion  of  the  testimony  did  not  prove  what 
the  defendant  claimed  for  it.  Held,  the  court 
went  beyond  its  powers.  Southern  Life  Ins. 
Co.  V.  Wilkiri.Hon,  53  Ga.,  535. 

7.  Insurer  asked  forty-six  instructions,  many 
of  them  of  great  length ;  a  large  number  were 
refused.  Held,  if  it  appears  that  such  wero 
given  as  were  applicable  to  the  case,  the  oth- 
ers  will  not  be  considered.  liockford  Ins.  Co. 
V.  Nehon,  65  III.,  415. 

S.  The  court  instructed  the  jury  that  if  they 
believed  the  testimony  of  a  witness  named, 
they  might  find  for  the  defendant.  Held,  no 
error,  although  there  wsis  other  evidence  in 
the  case  conflicting  with  his.  Quin  t>.  iVti- 
tional  Ass.  Co.,  1  Jones  &  Carey,  31C. 


341 


C83 


INSURABLE  INTEREST. 


6S4 


What  confers. 


INSURABLE  INTEREST. 

[See  AiiEU ATios ;  Fob  Accodst  op  Wnoai  it  may  Con- 
cebn;  In  Trust,  or  on  Consigsmeht,  or  on  Com- 
mission; Title;  Wife's  Policy.) 


I.  What  confers. 

(a)  Life. 

(b)  Property. 

II.  What  does  not  confer. 

(a)  Life. 

(b)  Property. 
III.  What  divests. 

(a)  Life, 
(h)  Property. 
IV.  What  does  not  ditest. 

V.  INTEREST  >rCST  BE  DISCLOSED. 

VI.  NEED  NOT  BE  DISCLOSED. 

VII.  Who  canxot  insure. 
VIII.  "  Interest  or  no  interest." 
IX.  What  proof  is  necessary. 
X.  Evidence  op. 

.  I.  What  confers. 
(a)  Life. 

1.  Policy  on  the  life  of  H.,  assigned  to  S 
with  the  company's  consent,  as  security  for  a 
debt.  Held,  the  assignee  could  recover  the 
whole  sum  insured,  although  the  debt  of  H. 
was  a  much  smaller  amount;  but  if  H.  and  S. 
confederated  together  to  procure  the  policj' 
for  the  benefit  of  S.,  who  was  not  nor  had  not 
agreed  to  become  a  creditor  of  H.,  with  the 
view  of  having  the  same  assigned  thereafter  to 
S.,  without  consideration,  and  not  as  security 
for  a  debt  due,  or  to  become  due,  or  for  any 
other  purpose,  such  a  contrivance  would  viti- 
ate the  policy,  and  no  recovery  could  be  had 
on  it,  for  the  law  will  not  uphold  a  policy 
made  or  fraudulently  contrived  to  be  made  for 
the  benefit  of  a  person  who  has  no  insurable 
interest  in  the  risk.  Sicick  v.  Home  Life  Ins. 
Co.,  2  Dil.  Cir.  C,  160. 

2.  S.  obtained  a  policy  on  his  life  for  his 
benefit.  Held,  he  had  a  right  to  dispose  of  it 
in  any  way  or  to  any  person  he  pleased,  and 
the  fiict  that  his  assignees  had  no  interest  in 
his  life,  was  no  defense  to  the  action.  Valton 
V.  National  Life  Fund  Ass.,  20  N.  Y.,  32:  s. 
c,  23  Barb.,  9;  40  N.  Y.  (1  Keyes),  21 ;  4  Abb. 
Dec,  437 ;  17  Abb.  Prac,  208. 

343 


3.  The  creditor  insured  the  life  of  his 
debtor,  but  the  statute  of  limitations  had  run 
against  tlie  debt.  Held,  he  had  an  insurable 
interest.  Rawls  v.  American  Mutual  Life  Ins. 
Co.,  27  N.  Y.,  382;  s.  c,  86  Barb.,  357. 

4.  Policy  procured  by  M.  on  his  own  life; 
premiums  paid  by  him,  •'  Loss,  if  any,  payable 
to  the  plaintiff."  Held,  the  question  of  insur- 
able interest  could  not  arise,  for  it  was  in 
effect  a  policy  to  himself,  assigned  by  him  to 
the  plaintiff.  Malloryv.  Travelers  Ins.  Co.,  47 
N.  Y.,  53. 

5.  Prior  to  the  issuing  of  the  policy,  an  as- 
sociation was  formed  of  persons  desirous  of 
going  to  California  to  engage  in  mining  pur- 
suits, for  their  joint  benefit  and  at  their  joint 
expense,  under  the  name  of  the  "  Brothers' 
Mining  and  Trading  Company  of  New 
Haven."  A.  became  a  member  and  paid  his 
share,  $200.  A  ship  was  purchased,  but  she 
proved  unseaworthy,  and  another  was  bought 
and  A.  paid  his  proportion  of  the  purchase. 
A.  assigned  all  his  interest  in  the  association 
to  B,  together  with  all  his  right  in  the  moneys 
advanced,  and  the  funds,  assets  and  profits  of 
the  company.  A.  effected  insurance  on  the 
life  of  B.  for  $1,000.  Held,  he  had  a  valid 
insurable  interest  in  the  life  of  B.,  and  could 
recover  the  sum  insured.  Hoyt  v.  New  York 
Life  Ins.  Co.,  3  Bos,  440. 

6.  A  single  woman,  dependent  on  her 
brother  for  support  and  education,  has  an  in- 
surable interest  in  his  life.  Lord  v.  Ball,  13 
Mass.,  115. 

7.  F.,  at  twenty  years  of  age,  worked  in  a 
factory  in  Manchester,  Conn.,  and  resided 
with  his  father,  who  with  other  children 
worked  in  the  same  factory  and  received  the 
wages  of  all,  which,  with  his  own,  constituted 
the  principal  support  of  the  family.  The 
father  relinquished  any  claim  to  son's  ser- 
vices in  order  that  he  might  join  C.  in  a  trad- 
ing expedition  to  California.  C.  paid  |300 
for  F.'s  membership  in  the  expedition,  F. 
agreeing  to  pa}'  C.  one  half  of  his  earnings. 
The  father  supplied  F.  with  an  outfit  and  pro- 
cured this  policy  on  his  life.  Held,  the  father 
who  supports,  educates  and  maintains  his  son 
under  21  years  of  age,  is  entitled  to  his  earn- 
ings, and  may  maintain  an  action  for  them: 
that  by  relinquishing  his  right  to  the  son's 
earnings  for  him  to  enter  into  the  adventure, 
by  necessary  implication,  the  father  acquired 
an  interest  to  a  share  of  its  benefits  and  ad- 


<5S5 


INSURABLE  INTEREST. 


689 


What  confei-s. 


vantages ;  the  nearness  or  remoteness  of  the 
«haiice  was  immaterial,  for  the  parties  regu- 
lated that  by  llic  rate  of  ])reuiium  and  llie 
«um  insured;  the  only  thing  necessary  to  take 
the  case  out  of  a  wager  policy  was,  that  in- 
turod  had  some  interest  in  the  life  of  the 
■cestui  que  vie.  Loomis  v.  Eagle  Life  and  Health 
Jns.  Co.,  6  Gray,  390. 

8.  Insured  was  a  creditor  of  D.  to  the 
ivmount  of  $140.  A  policy  was  eflected  on 
the  life  of  D.,  iu  the  name  of  the  creditor,  f<>r 
$1,000;  D.  paid  the  premiums.  Held,  the 
cr'editor  was  entitled  to  recover  the  whole 
amount  insured;  that  the  creditor  was  inter- 
€sled  in  the  life  of  D.  as  debtor  to  the  amount 
of  his  debt,  and  as  to  the  balance,  he  was  in- 
terested as  trustee  for  the  widow  of  D.  Amcri- 
can  Life  and  Health  Ins.  Co.  v.  Robertsliam,  20 
Penn.  St.,  189. 

9.  The  son  has  an  insurable  interest  iu  the 
life  of  his  father.  Kane  v.  Reserve  Mutual  Life 
Ins.  Co.,  9  Phila.,  234. 

10.  M.  and  the  plaintifl',  together  w-ith  cer- 
tain other  persons,  entered  into  an  as.sociatiou 
for  mining  and  trading  in  California.  The 
plaintifl  owned  one  share  in  the  enterprise, 
advanced  $000  as  capital,  and  procured  M.  to 
go  out  as  his  substitute ;  who  died  there,  but 
the  assets  of  the  company  were  divided  in 
California  before  his  death.  Prior  to  the  de- 
parture of  M.,  the  plaintiti'  effected  insurance 
on  his  life,  for  the  use  and  benetit  of  the 
plaintiff,  to  the  amount  of  $500.  and  for  the 
benefit  of  the  life  insured  other  $500.  Held, 
a  valid  contract;  for,  until  the  legislature 
shall  interfere,  the  courts  will  adhere  to  the 
common  law  as  they  find  it  established ;  but, 
if  that  were  not  so,  still  there  was  sufficient 
interest  proven,  for  it  was  enough  if  an  indi- 
rect advantage  might  result  to  the  insured  by 
•a  continuance  of  the  life  insured  (citing  Val- 
ton  «.  National  Life  Ass'n,  20  N.  Y.,  32;  s.  c, 
Angel  on  Ins.,  826,  note).  Trenton  Mutual 
Life  and  Fire  Ins.  Co.  v.  Johnson,  24  N.  J.,  570. 

11.  The  mere  relationship  of  a  brother  is 
not  such  an  interest  as  will  support  a  policy 
of  life  insurance;  the  interest  required  to 
make  such  a  contract  valid  must  be  of  a  pe- 
cuniary nature.  A  father,  entitled  to  the 
•wages  of  his  minor  son,  has  an  insurable  in- 
terest in  the  son's  life.  Loomis  v.  Eagle  Life 
Ins.  Co.,  0  Gray,  396.  A  sister,  dependent 
<in  her  brother  for  education  and  support,  has 
an   insurable   interest   in   the    brother's    life. 


Lord  V.  Dall,  12  Mass.,  115;  Lewis  v.  Phoenix 
Mutual  Life  Ins.  Co.,  39  Conn.,  100. 

12.  The  person  whose  life  was  insured  was 
indebted  to  the  plaintill'  upon  a  promissory 
note  barred  by  the  statute  of  limitations. 
Held,  it  was  still  sufficient  to  sustain  the 
plaintiff's  insurable  interest  in  the  life  of  his 
debtor.  Mowry  v.  Home  Life  las.  Co.,  9  R.  I., 
346.  That  if  the  plaintifl"  had  an  interest  at 
the  commencement  of  the  policy,  it  was  not 
necessary  for  that  to  continue  up  to  the  time 
the  suit  was  brought  (citing  Rawls  ®.  AmeiH- 
cau  Mutual  Life  Ins.  Co.,  36  Barb.,  357).  Ibid. 

13.  Policy  to  the  father  upon  the  life  of  his 
minor  son,  who  was  about  to  proceed  to  Call- 
fornia,  and  to  whom  he  made  large  advances. 
Held,  if  the  child  be  injured,  the  parent  is 
entitled  to  an  action ;  and  the  parent  has  a 
pecuniary  interest  in  the  child's  life,  which 
the  law  will  protect  and  enforce,  and  which  is 
insurable.  Mitchell  v.  Union  Life  Ins.  Co.,  45 
Me.,  104. 

14.  There  was  a  contract  of  marriage  exist. 
ing  between  insured  and  C,  upon  whose  life 
a  policj'  was  made,  payable  to  the  insured. 
The  premium  was. paid  by  her.  Held,  the 
policy  was  not  void  at  common  law;  there 
was  nothing  in  the  case  to  show  that  it  was  a 
mere  wager;  that  a  valid  contract  of  marriage 
between  the  insured  and  the  deceased  was 
sufficient  interest  to  maintain  the  action. 
Chisholm  v.  National  Capitol  Life  Ins.  Co.,  53 
Mo.,  213. 

15.  A.  was  indebted  to  various  persons, 
£80,000.  B.  agreed  to  pay  the  creditors  iu 
half  yearly  installments,  so  that  the  whole 
would  be  discharged  in  five  years.  Insured 
was  a  creditor  who  consented  to  the  agree- 
ment, and  insured  the  life  of  B.  to  the  amount 
of  his  debt.  Held,  he  had  a  right  to  insure  it. 
Von  Lindenau  v.  Deshorough,  3  C.  &  P.,  353 ; 
7  L.  J.  K.  B.,  43 ;  3  M.  &  R.,  45 ;  8  B.  «&  C,  580. 

16.  The  Anchor  Co.  had  insured  A.'s  life 
iu  four  separate  policies,  £3,000  in  all,  for  the 
use  of  W.  The  A.  Co.  reinsured  £1,000.  The 
A.  Co.  and  W.  agreed  that  W.  should  deliver 
up  the  A.  Co.'s  policies,  in  consideration  of 
an  annuity  granted  by  the  A.  Co.  to  W. ;  but 
one  of  the  directors  of  the  A.  Co.  continued, 
for  his  own  benefit,  to  paj'  the  premiums  upon 
one  of  the  reinsurance  policies,  and  after 
death  the  reinsured  brought  suit  as  trustee,  to 
recover  the  sum  reinsured.  HeM,  when  the 
A.  Co.  procured  the  reinsurance,  it  had  an  in- 

343 


6S7 


INSURABLE  INTEREST. 


688 


What  confers. 


surable  interest  in  the  lite  reinsured,  wliich 
was  to  he  measured  by  the  interest  at  tlie 
time  of  effecting  the  policy;  and  this  was 
not  to  be  reduced,  because  at  the  time  of  death 
that  was  less  than  at  the  time  the  policy  was 
effected ;  that  if  there  was  an  interest  at  the 
time  of  issuing  the  policy,  recovery  could 
be  had  in  exact  conformity  with  the  words 
of  the  contract  itself.  Dulhi/  i:  India  and 
London  Life  Ass.  Co.,  15  C.  B.,  365;  see 
this  case,  4  DeG.  &  S.,  4G3;  24  L.  J.  C. 
P.,  2. 

17.  H.  granted  an  annuity  to  the  plaintiff's 
late  brother,  which  he  bequeathed  to  persons 
not  parties  to  this  insurance.  The  plaintiff 
was  the  executor,  and  had  been  directed  by 
the  deceased  to  make  the  insurance  on  the 
life  of  H.  Held,  he  had  such  an  interest  in 
the  life  as  would  enable  him  to  maintain  the 
action.  Tidsicell  v.  Ankerstcin,  Peakes  N.  P. 
C,  204. 

18.  B.  purchased  a  legacy  to  which  D. 
would  be  entitled  on  attaining  the  age  of 
thirty.  B.  insured  the  life  of  D.  for  two  years, 
April  9,  1850.  D.  attained  the  age  of  thirty 
years,  January  10,  1853,  and  died  .January  22, 
1852.  The  insurers  resisted  the  claim,  on  the 
ground  that  the  plaintiff  had  ceased  to  have 
any  interest  in  the  life  of  the  person  insured. 
neld,  policies  on  fire  and  marine  risks  are 
contracts  to  indemnify  against  a  loss  which 
the  parties  may  sustain  in  consequence  of  the 
perils  contracted  against;  that  the  contract  of 
life  insurance  is  not  a  contract  of  indemnity, 
but  an  agreement  for  a  certain  consideration 
from  insured  to  insurer;  that  the  latter  will 
pay  to  the  former  at  the  death  of  the  person 
named,  a  certain  sum  of  money  (citing  Dal  by 
■v.  India  and  London  Life  Ass.  Co.,  15  C.  B., 
365).  Law  v.  London  Indisputahle  Life  Policy 
Co.,  1  Jur.  (N.  S.),  178;  24  L.  J.  Ch.,  19G;  1 
Kay  &  J.,  223. 

19.  Plaintiff  effected  a  policy  on  the  life  of 
A.,  his  wife's  daughter  by  a  former  husband. 
The  only  interest  proved  was,  that  before 
A.  married  and  while  a  minor,  she  boarded 
and  lodged  in  his  family,  from  1816  to  1823. 
There  was  not  any  averment  of  interest  in 
the  declaration.  Held,  it  was  not  necessar}» 
to  decide  whether  an  insurance  on  life  in 
Ireland  must  be  on  interest;  that  the  plaint- 
iff was  entitled  to  judgment.  Shannon  v.  Nu- 
gent, Hayes,  536, 


^  (b)  Property. 

20.  The  person  for  whose  benefit  the  in- 
surance was  made  was  surety  for  the  prop- 
erty restored,  pending  the  issue  of  an  ap- 
peal, taken  by  the  captor,  from  the  decree 
of  restitution.  Held,  he  had  an  insurable  in- 
terest in  it.  Sussell  v.  Union  Ins.  Co.,  4  Dall., 
421. 

21.  Insured  advanced  a  sum  of  money  to 
the  ship  owner,  in  consideration  of  which  he 
had  a  right  to  fill  up  three-eighths  of  the  ton- 
nage of  the  ship  for  that  voyage  with  goods  of 
his  own  or  the  property  of  others.  He  in- 
sured "on  freight  advanced  here,  and  which, 
by  agreement,  is  valued  at  .f  13,500."  Held,  he 
had  an  insurable  interest,  and  it  was  well 
described.     Sansom  v.  Ball,  4  Dall.,  459. 

22.  Five  persons,  trustees  of  a  religious 
society,  held  the  legal  title  to  the  church 
building  in  trust  for  the  society.  One  of  the 
trustees  was  the  agent  for  two  insurance  com- 
panies. He  made  this  policy  upon  the  build- 
ing to  A.,  one  of  the  trustees;  loss  payable  to 
M.,  the  treasurer  of  the  society,  who  paid  the 
premium  from  his  own  private  means.  The 
society  was  indebted  to  A.  |15,000,  and  he  was 
indebted  to  M.  to  a  large  amount.  Held,  if  he 
insured  the  property  with  the  assent  of  his 
cotrustees,  for  the  benefit  of  the  cextui  que 
trust,  insurers  cannot  complain  that  the  char- 
acter of  the  interest  was  not  incorporated  in 
the  policy,  unless  that  interest  would  have 
had  an  influence  on  them  not  to  underwrite  at 
all,  or  not  to  underwrite  except  at  a  higher 
premium  than  that  actually  paid  ;  and  whether 
that  would  have  enhanced  the  premium  was  a 
question  for  the  jury.  Insurance  Co.  v.  Chase, 
5  Wall.,  509. 

23.  Advances  made  in  a  foreign  port  to 
a  vessel  to  equip  and  enable  her  to  procure  a 
cargo  for  her  port  of  destination,  are  prima 
facie  made  on  the  vessel's  credit,  and  as  such 
are  a  lien  on  the  vessel,  and  give  an  insurable 
interest  in  her  to  the  lender.  Insurance  Co.  v. 
Baring,  20  Wall.,  159.  ^■' 

24.  A  person  in  possession  had  a  contract 
for  a  deed  for  part  of  the  premises  .and  a  deed 
of  another  part,  and  he  insured  the  whole. 
Held,  he  had  an  insurable  interest.  Columbian 
Ins.  Co.  V.  Lawrence,  3  Pet.,  25. 

25.  Policy  to  one  on  freight.  To  establish 
his  right,  he  produced  a  bill  of  sale  to  himself 


344 


689 


INSURABLE  INTEREST. 


GOO 


What  confere. 


and  another,  and  htr  register  to  hhiiself  and 
the  same.  Held,  he  was  entillcd  to  recover  a 
moiety  of  her  freight  and  not 'the  whole.  Old 
V.  Euijle  Ins.  Co..  4  Mason,  173. 

26.  K.  mortgaged  tlie  property  to  S.,  and  it 
■n  IS  I'orecloscd.  C.  procured  judgment  against 
K  Tlie  property  was  levied  upon  and  bought 
by  C,  and  he  insured  it  for  one  year,  whicli 
wai  subsequently  renewed  for  another,  with- 
in which  (eighteen  months  after  the  execu- 
tion of  the  policy),  the  premises  were  burned. 
Held,  ho  had  an  interest  which  authorized 
him  to  insure  it.  Curtis  "o.  Home  Ins.  Co.,  1 
Bissell,  485. 

27.  Under  a  general  policy  on  goods,  if  the 
insured  have  an  interest  in  them,  that  is  sulB- 
cient,  and  it  is  immaterial  whether  it  is  a 
distinct  or  an  undivided  share.  Lawrence  v. 
Vim  Home,  1  Caines,  276.  , 

28.  One  who  purchases  a  ship,  paying  part 
of  the  purcliase  money,  has  an  insurable  in- 
terest in  her,  notwithstanding  she  is  to  re- 
main in  the  name  of  the  vendor  till  all  of  the 
purchase  money  is  paid.  Kenney  v.  Glarkson, 
1  Johns.,  385. 

2!>.  The  insured  purchased  the  property 
and  insured  it,  but  he  had  not  paid  all  the 
purchase  money,  and  was  not  to  have  a  deed 
of  conveyance  until  all  was  paid.  The 
properly  was  consumed  before  all  was 
paid.  Held,  he  had  an  insurable  interest. 
McQioney  c.  PUmiix  Fire  Ins.  Co.,  1  Wend., 
85. 

30.  Insured  was  in  possession  of  the  land 
on  which  the  insured  buildings  were  erected, 
but  his  wife  had  the  legal  title,  acquired  from 
J.,  to  whom  plaintift"  had,  at  the  same  time, 
conveyed  the  land  without  consideration,  for 
the  purpose  of  having  him  reconvey  to  his 
wife.  It  was  verbally  agreed  between  plaintiff 
and  his  wife  at  the  lime  the  conveyance  was 
executed,  that  she  should  convey  to  him  a  life 
estate.  The  couve3'ance  was  executed  by  the 
wife,  but  insured  remained  in  possession,  cul- 
tivated the  land  on  his  own  account,  and  used 
the  proceeds  in  the  support  of  his  family. 
Held,  it  vested  in  the  wife  a  remainder,  de- 
pendent upon  a  precedent  estate  for  life  in  the 
luisband,  which  gave  to  him  an  insurable  in- 
terest in  the  preixiises.  Redjkld  v.  Holland 
Purchase  Ins.  Co.,  56  N.  Y.,  354. 

31.  Plaintifl'  leased  to  B.  certain  premises, 
with  the  right  to  purchase,  at  a  price  stated, 
the  term  to  commence  April  1,  1861.    B.  paid 


an  installment  of  rent  in  advance,  and,  intend- 
ing lo  make  improvements,  procured  a  policy 
for  fy,000,  in  the  name  of  plaintifl".  "  Lots, 
if  any,  payable  to  B.,"  which  was  intended  fur 
the  benefit  of  lessor  and  lessee,  of  which  de- 
fendants were  fully  notified.  B.  took  posses- 
sion, but  made  no  improvements,  and  a  loss 
occurred  to  the  amount  of  $2,100.  B.  assigned 
his  interest  in  the  policy  to  plaintilV.  Held, 
the  plaintitf  was  entitled  to  recover  to  the  full 
extent  of  the  damage.  Hand  c.  Williumaburyk 
City  Fire  Ins.  Co.,  57  N.  Y.,  41. 

32.  The  only  interest  which  the  insured 
had  in  the  premises  was  an  agretmeut  made 
by  N.,  in  which  she  admitted  as  due,  the  sum 
of  $700,  and  $25  per  month,  from  July  14, 1863, 
all  of  which  she  agreed  should  be  a  lieu  upon 
her  property.  Insured  afterwards  intermar- 
ried with  N.,  and  insured  her  properl}-.  Heldy 
a  valid  insurable  interest.  liahrbach  v.  JEtru» 
Ins.  Co.,  1  N.  Y.  S.  C,  339.  ,  . 

33.  The  property  was  insured  lo  the  plaints 
iff  as  owner.  He  had  the  equitable  title. 
Held,  sufficient,  so  long  as  there  was  no  mis- 
representation or  concealment,  either  as  to  lUc 
title  or  incumbrances.  Duhn  v.  Fanners 
Joint  Stock  Ins.  Co.,  5  Lans.,  275. 

34.  Common  carriers  have  an  insurable  in- 
terest in  the  goods  they  carry,  whether  they 
carry  by  their  own  vessels  or  by  vessels  char- 
tered. Chase  v.  Washington  Mut.  Ins.  Co., 
12  Barb.,  595. 

3.">.  B.  had  a  lease  of  the  premises,  and 
agreed  to  pay  the  necessary  premium  to  insure 
them  for  the  sum  of  $5,000.  He  subsequently 
agreed  to  keep  the  premises  insured  for  the 
plaintitf,  and  effected  this  policy  on  "his 
building,  loss,  if  any,  payable  to  plaintiff." 
Held,  the  words  "  his  building"  did  not  war- 
rant that  he  had  title  to  the  property;  that  if 
he  hail  any  insurable  interest  he  could  main- 
tain the  action  to  that  extent;  that  his  agree- 
ment to  keep  the  premises  insured  lo  the 
amount  of  $5,000  gave  him  a  right  to  recover 
that  sum.  Lawrence  v.  St  Marks  Fire  Ins.  Co., 
43  Barb.,  479. 

36.  Insured  contracted  to  purchase,  and 
the  owner  contracted  with  the  insured  to  sell 
the  properly.  Held,  he  had  the  right  to  insure 
it.  Mauley  V.  Insurance  Co.  of  North  Ameriea, 
1  Lans.,  20. 

37.  A.  borrowed  money  of  B.  to  buy  a  cargo, 
and  assigned  il  to  B.,  made  an  invoice  of  it 
and  took  a  bill  of  lading  in  B's  name.    B.  wa»- 

343 


691 


INSURABLE  INTEREST. 


692 


^Vhat  confers. 


to  take  his  debt  from  the  proceeds,  if  sufficient, 
and  tlie  surplus,  if  any,  to  be  paid  to  A.  In 
case  of  loss,  B.  to  receive  the  insurance,  which 
-n-as  made  in  A.'s  name;  and  in  either  case,  if 
B.  should  not  be  fully  paid,  A.  was  to  be  ac- 
•countable  to  B.  for  the  balance,  the  assignment 
and  insurance  being  a  pledge  or  security  for 
the  debt.  Held,  A.  had  an  insurable  interest 
in  the  cargo,  that  he  was  entitled  to  recover, 
though  the  nature  of  it  was  not  made  known 
to  insurer.  Locke  v.  North  American  Ins.  Co., 
13  Mass.,  61. 

38.  The  hirer  of  a  vessel  who  contracts  with 
Ihe  owner  to  make  insurance  has  an  insura- 
ble interest  in  her,  which  need  not  be  disclosed 
to  insurer,  unless  questioned  about  it.  Bartlet 
V.  Walter,  13  Mass.,  267. 

39.  The  insured  has  an  insurable  interest 
in  the  thing  insured,  notwithstanding  he  has 

%assigned  it,  in  trust,  for  the  payment  of  his 
debts ;  and  that  interest  extends  to  the  whole 
-value  of  the  thing  insured  at  the  time  of  the 
loss.  Lazarus  v.  Commonwealth  Ins.  Co.,  19 
Pick.,  81. 

40.  One  of  three  persons  who  contract  for 
the  purchase  of  a  ship,  pajing  part  cash,  giv- 
ing their  joint  and  several  notes  for  the  bal- 
ance, and  taking  possession,  has  the  right  to 
insure  her  for  whom  it  may  concern,  loss,  if 
anj-,  payable  to  the  vendor ;  aud  the  insured 
may,  in  an  action  in  his  own  name  alone,  re- 
cover for  a  total  or  a  partial  loss,  aider  v. 
Ocean  Ins.  Co.,  20  Pick.,  259. 

41.  A  commission  merchant,  to  whom  the 
cargo  is  consigned  for  sale,  has  an  insurable 
interest  in   it  to  the  extent  of  his  expected 

■commissions.  Putnam  v.  Mercantile  Marine 
Ins.  Co.,  5  Met.,  386. 

42.  "On  house,  barn  and  furniture."  In- 
sured and  his  father  transacted  business  to- 
gether. The  land  on  which  the  building 
stood  was  in  the  name  of  the  father.  The 
entire  earnings  of  both,  from  labor,  profits 
and  all  other  sources,  were  put  into  a  com- 
mon fund,  from  which  each  drew  without 
any  particular  account  of  contributions  or  re- 
ceipts, and  from  this  fund  the  building  was 
bought  by  the  son,  and  removed  to  the  land, 
where  it  was  burned.  Held,  it  was  joint  prop- 
erty; that  the  insured  had  an  equitable  inter- 
est in  it,  though  it  stood  on  the  land  of  his 
father;  that  he  was  entitled  to  recover  one- 
half  of  its  value.  Converse  v.  Citizens  Mut.  Ins. 
•Co.,  10  Cush.,  37. 

346 


43.  Plaintiffs  hired  the  vessel  and  were  to 
pay  owners  for  the  round  voyage  $700,  from 
Portsmouth  to '  Guayama  and  back  to  the 
United  States,  agreeing  to  insure  the  freight 
for  that  amount,  which  thej-  did.  Held,  they 
could  maintain  the  action  in  their  own  names 
for  a  total  loss,  if,  during  performance  of  the 
vo3'age  and  before  freight  was  due,  she  was 
lost  by  perils  insured  against.  Silloway  v. 
Neptune  Ins.  Co.,  13  Gray,  73. 

44.  Policy  to  A.  and  E.  on  their  frame 
church  building.  The  land  was  conveyed  to 
them  three  years  before  the  date  of  the  policy-, 
and  thej"  gave  a  bond  for  a  deed  of  the  land 
to  C,  the  treasurer  of  a  religious  society.  The 
society  erected  the  building  without  any  agree- 
ment that  they  should  hold  it  as  personal 
propert}-,  or  that  it  might  be  removed;  but 
with  an  understanding  that  the  land  should 
be  held  for  and  conveyed  to  them.  Held,  it 
was  a  part  of  the  realty,  and  A.  and  E.  were 
entitled  to  insure  and  to  recover.  Oakman  v. 
Dorchester  Mutual  Ins.  Co.,  98  Mass.,  57. 

45.  A.  made  expenditures  for  his  own  ben- 
efit upon  the  house  of  the  defendant,  with  the 
defendant's  approval.  Held,  he  had  an  insur- 
able  interest  in  it.  Looney  n.  Looney,  116 
Mass.,  283. 

46.  The  wife  purchased  the  propertj*  from 
the  executors  of  her  father's  estate.  She  had 
issue  of  her  husband,  and  he  insured  the  prop- • 
erty  in  his  own  name.  Held,  when  the  hus- 
band  effects  insurance  on  houses  in  the  posses- 
sion of  himself  and  wife,  though  the  title  be 
in  her  alone,  the  law  will  presume  that  she 
ratifies  his  act;  and  this,  coupled  with  his 
rights  as  tenant  by  the  curtesy-,  will  enable 
him  to  maintain  an  action  in  his  own  name 
upon  the  policy  made  in  his  own  name.  Har- 
ris V.  York  Mut.  Ins.  Co.,  50  Penn.  St.,  341. 

47.  "  On  frame  coal-breaker,  structure, 
schutes,  etc.,  trestle,  engine  and  boiler-house, 
and  all  wood  work  connected ;  on  breaker- 
engine,  rollers,  screens,  belts,  etc.,  and  all 
connected  machinery.  This  to  insure  all  their 
working  interest."  Insured  were  lessees  of 
the  premises,  with  the  right  to  use  the  prop- 
erty insured,  with  covenants  to  keep  it  in- 
sured, and  to  maintain  and  keep  it  in  good 
order  and  condition.  Held,  the  term  "work- 
ing interest "  was  not  to  be  regarded  as  a  tech- 
nical term,  but  to  be  treated  as  comprehending 
the  entire  insurable  interest  which  the  plaint- 
ifls  had  in  the  property  by  virtue  of  their 


693 


INSURABLE  INTEREST. 


694 


What  coiifei-s. 


lease;  that  their  iusuiablc  interest  was  there- 
fore equal  to  the  value  of  the  property  whieh 
they  were  bound  to  replace,  and  was  uot  lim- 
ited i:  the  value  of  its  use.  Imperial  Fire 
Ins.  Cc.  V.  Murray,  73  Penn.  St.,  13. 

48.  The  C.  B.  Co.  advanced  to  B.  money 
and  machincrj'  to  the  amount  of  if3,000;  he 
■was  to  deliver  a  quantity  of  fish  scrap  at  Booth 
Bay,  to  store  it,  ship  it  as  wanted,  and  keep  it 
insured  for  the  benefit  of,  and  free  of  e.\pense 
to,  the  C.  B.  Co.  This  policy  was  obtained  in 
the  name  of  that  company,  all  the  facts  per- 
taining to  the  transaction  being  stated  to  in- 
surer's agent.  B.  obtained  insurance  in  an- 
other company  upon  his  own  interest.  At  the 
time  of  the  tire,  none  of  the  scrap  had  been 
•weighed  nor  separated,  nor  had  any  formal 
delivery  of  it  been  made  to  the  plaintiffs.  Held, 
plaintiffs  had  an  insurable  interest  to  the 
amount  insured,  |2,000.  Cumberland  Bone  Co. 
V.  Andes  Ins.  Co.,  64  Jle.,  4GG. 

49.  A.  held  licus  against  the  property,  was 
appointed  trustee  to  sell  it.  lie  sold  it;  but 
aieither  the  purchase  money  was  paid  nor  the 
s.ale  ratified.  The  charier  conferred  power  to 
insure  any  kind  of  pioperty,  but  its  principal 
object  was  to  create  a  mutual  company,  and 
make  the  premium  notes  liens  on  the  land  in- 
sured. Held,  the  expression,  any  kind  of 
property,  included  personal  property;  and 
hence  the  interest  was  sufficient  to  support,  the 
.policy.  Allen  v.  Mutual  Fire  Inn.  Co.,  3  Md.,  111. 

.50.  Plaintiffs  were  lumber  merchants.  They 
sold  lumber  to  D.  for  him  to  erect  two  houses ; 
but  being  unwilling  to  furnish  it  upon  the  credit 
of  D.  alone,  they  and  D.  agreed  that  he  sliould 
insure  for  tlieir  benefit  upon  tlie  lumber  before 
it  w-as  used,  and  on  the  houses  as  it  was  worked 
into  them.  D.  procured  a  policy  in  the  name 
of  the  plaintiffs,  first  upon  the  lumber,  and 
afterwards  upon  the  two  houses.  They  were 
entirely  destroyed  by  fire  .January  9th,  before 
they  were  finished.  The  agruemeal  between 
plaintiffs  and  D.  was  not  made  known  to  in- 
surora,  but  the  statute  of  the  slate  conferred  a 
lien  in  favor  of  material  men  for  supplies  used 
upon  buildings.  Held,  the  plaintiffs  had  an 
insurable  interest  in  the  buildings,  and  the 
subject  was  well  described.  Franklin  Fire 
Ins.  Co.  V.  Coates,  U  Md.,  285. 

51.  If  the  subject  matter  and  nature  of  the 
risk  are  set  forth  in  the  policy,  without  any 
representation  as  to  the  nature  of  the  interest 
of  the  insured,  any  insurable   interest  in  the 


property  w  ill  enable  the  insured  to  recover. 
JIarfJord  Protection  Ins.  Co.  v.  Ilaifncr,  2  Oliio 
St.,  452. 

52.  Builders  who  are  to  receive  compensa- 
tion upon  the  performance  of  work  have  an 
insurable  interest  in  it.  Protection  Ins.  Co.  v. 
//oH,  15B.  Mon.,  411. 

53.  Tlie  money  to  be  collected  on  the  pol- 
icy  was  to  be  applied  in  satisfaction  of  certain 
promissory  notes  secured  by  the  property  in- 
sured. Held,  the  indorscrs  had  such  an  inter- 
est as  would  enable  them  t')  maintain  the  action 
for  their  liability  as  assignors  continued  in 
them  an  interest  in  the  property  insured.  Neu) 
England  Fire  and  Marine  Ins.  Co.  v.  Wetmore, 
33  111.,  231. 

54.  Wood  was  cut,  hauled  and  piled  on  the 
line  of  a  railroad  under  an  agreement  that  th(; 
railroad  company  should  take  it  and  paj'  for 
it,  within  a  time  named.  When  measured  b}' 
the  railroad  companj',  it  was  to  be  treated  as 
delivered  and  under  the  control  of  the  rail- 
road. Held,  insured  had  a  riglit  to  insure  and 
recover  for  it.  Home  Ins.  Co.  v.  Heck,  65  III.,  111. 

55.  The  husband  made  a  verbal  gift  of  a  lot 
to  his  wife  and  abandoned  her;  with  her  own 
money  she  erected  the  house  and  occupied 
the  place  as  a  homestead.  Held,  she  had  a 
right  to  it,  free  from  forced  sale,  to  the  extent 
of  $1,000;  that  equity  would  have  restrained 
the  husband  from  dispossessing  her,  and 
would  have  charged  the  property  with  all  the 
mcmey  expended  by  her  upon  it;  and  there- 
fore she  h.id  au  ownership  which  gave  her  an 
insurable  interest  in  the  property.  Rockford 
Ins.  Co.  v.  Nelson,  65  111.,  415. 

56.  The  interest  of  the  assured  was  that  of 
a  mechanic's  lien.  Held,  an  insurable  interest. 
Carter  v.  Humboldt  Fire  Ins.  Co.,  12  I(jwa,  287; 
Stout  V.  City  Fire  Ins.  Co.,  id.,  371. 

67.  T.  erected  the  building.  Held,  evidence 
of  an  insurable  interest.  MitclMti.  Home  Ins. 
Co.,  32  Iowa,  421. 

58.  On  a  dwelling  house.  It  was  sold  un- 
der  an  execution  against  the  owner  and  struck 
off  to  insured,  who  neither  paid  any  money 
nor  took  a  deed  of  it.  An  arrangement  was 
made  by  insured  with  the  creditors;  all  facts 
in  relation  to  the  title  and  interest  of  insured 
were  fully  disclosed  to  insurer's  agent,  before 
the  risk  was  accepted.  Held,  a  valid  insurable 
interest,  suflicient  to  sustain  the  action  for  the 
sum  insured.  uEtna  Ins.  Co.  v.  Miers,  5  Sneed, 
139. 

347 


695 


INSURABLE  INTEREST. 


C96 


What  confers. 


.59.  The  insured  had  possession  of  goods 
and  insured  them.  Ileld,  the  owner  might 
adopt  tlie  contract.  Durand  E.  Thouron,  1 
Porter  (Ah>.),  238.  Nor  is  it  necessary  that  the 
adoption  sliould  be  made  before  loss.  But  it 
must  be  made  within  a  reasonable  time. 
Watkiiia  v.  Ihirand,  id.,  251. 

60.  A  builder  contracted  with  the  lessee  of 
certain  land  to  erect  a  building  upon  it  for  a 
sum  certain.  He  procured  a  decree  in  chan- 
cery, making  his  lien  paramount,  and  insured 
the  building.  Held,  he  was  entitled  to  pro- 
■vide  against  a  contingency  which  might  re- 
sult to  his  prejudice,  without  making  him 
liable  on  the  lessee's  covenant  to  insure,  and 
that  the  policy  did  not  enure  to  the  lessor  or 
his  assigns.  Merchants  Ins.  Co.  v.  Mazange, 
23  Ala.,  168. 

61.  The  insured  had  an  absolute  interest  in 
three-fourths  of  18,000  lbs.  of  cotton  seed,  and 
was  actual  owner  of  two  bales  of  cotton. 
The  cotton  press  was  built  by  him;  he  bought 
the  castings  and  gin  stand  of  others,  and  re- 
paired the  gin  house.  He  was  sub-lessee  of 
the  premises,  but  his  lessor  sold  to  M.  & 
F.,  who  took  possession,  but  insured  retained 
his  connection  with  the  property  until  after 
the  fire,  when  he  voluntaril}-  left.  Held,  he 
had  an  insurable  interest.  Georgia  Home  Ins. 
Co.  V.  Jones,  49  Miss.,  80. 

62.  If  the  plaintiff  had  some  interest  in 
any  or  all  of  the  property  insured,  whether 
slight  or  contingent,  legal  or  equitable,  fairly 
represented  or  made  known  to  the  defendant 
or  its  agent  at  the  time  the  contract  was  made, 
he  can  maintain  the  action.  Fenn  v.  JTeio  Or- 
leans Mutual  Ins.  Co.,  53  Ga.,  578. 

63.  A  person  who  has  several  interests  in  a 
cargo,  viz:  As  partner  in  y~s<  consignee  of  the 
whole,  and  a  lien  on  the  whole  for  advances, 
may  protect  them  all  by  one  insurance,  with- 
out expressing  either  the  number  or  nature  of 
interests.  Carruthers  v.  Shedden,  6  Taunt.,  13 ; 
s.  c,  1  Marsh.,  416. 

64.  D.  consigned  wool  to  S.  in  London,  with 
directions  to  S.  to  hold  16  bags  of  it  for  a 
house  in  Halifax,  and  the  remainder  for  H. 
D.  was  indebted  to  H.  £500,  but  H.  gave  no 
orders  for  the  goods.  Held,  K.  had.  an  insur- 
able interest,  and  that  D.  was  trustee  for  H. 
Hill  V.  Seoretan,  1  B.  &  P.,  315. 

6.5.  Bills  of  lading  were  sent  to   the  ship- 
per's general  agent,  to  be  delivered  to  the  con- 
signee, who  refused  to  receive  them  or  to  ac- 
348 


cept  the  bills  drawn  against  the  shipment. 
The  shipper's  agent  accepted  the  shipper's 
draft  for  £300,  and  insured  in  his  own 
name,  informed  his  principal,  who  approved 
his  conduct.  Held,  the  insured  was  to  be 
considered  as  having  received  orders  to  insure 
because  his  act  was  approved  by  his  princi- 
pal.    Wolfe  t.  Horncastle,  1  B.  &  P.,  316 

66.  Certain  commissioners  were  appointed 
under  35  Geo.  Ill,  ch.  80,  for  the  care,  sale  and 
management  of  ships  and  cargoes,  the  i^roper- 
ty  of  the  subjects  of  the  United  Provinces, 
brought  into  the  ports  of  the  United  King- 
dom, to  be  detained  provisionally.  Held,  the 
commissioners  had  an  insurable  interest  in 
them,  and  they  had  a  right  to  recover  for  a 
loss  which  happened  after  proclamation  to 
make  general  reprisals  against  the  Dutch. 
Lucena  i\  Crawford,  3  B.  &  P.,  75;  Crauftird  v. 
Hunter,  8  Term,  13 ;  reversed,  H.  L ,  and  a 
venire  de  novo  awarded,  5  B.  &  P.,  270.  But  it 
was  afterwards  tried  in  king's  bench,  the  inter. 
est  being  averred  in  the  king,  and  judgment 
given  for  plaint  ill",  which  was  subset^uently 
affirmed  in  the  H.  of  L.  (Ed.) 

67.  Common  carriers  on  canal  insured  od 
"  goods  and  merchandise."  Held,  sufficient 
to  cover  their  interest;  for,  in  general,  it  is 
enough  if  the  subject  matter  be  rightly  de- 
scribed. Crowley  v.  Cohen,  3  B.  &  Ad.,  478 ; 
1  L.  J.  (N.  S.),  K.  B.,  158. 

68.  A  squadron  of  ships  of  war,  assisted  by 
land  forces;  captured  two  Spanish  registered 
ships.  Held,  under  the  prize  act  19  Geo.  Ill, 
ch.  67,  the  officers  and  crew  had  an  insurable 
interest  in  them  before  condemnation.  Ze 
Cras  B.  Hughes,  3  Doug.,  81. 

69.  The  captors  had  a  present  possession  oi 
the  ship  and  a  right  of  property  in  her,  subject 
to  be.  released  by  the  crown,  before  condemna- 
tion, or  bj'  sentence  of  restoration.  Held,  th& 
captors  had  a  right  to  insure.  Stirling  s. 
Vaugnan,\l  East, 619;  s.  c,  2  Camp.,  225. 

70.  Policy  to  one  as  agent  for  himself  and 
others  concerned.  The  subject  was  a  priz& 
taken  at  Montevideo,  when  it  was  captured 
by  naval  and  army  forces  acting  conjointlj'. 
Held,  the  captors  had  an  insurable  interest 
in  her  from  the  moment  of  capture.  Stir- 
ling V.  Vaughan,  2  Camp.,  225;  s.  c,  11  East, 
619. 

71.  After  proclamation  of  the  king  in  coun- 
cil,  for  the  detention  of  Danish  vessels,  an 
armed  ship  in  the  king's  service,  took  posses 


<>97 


INSURABLE  INTEREST. 


698 


What  confers. 


sion  of  the  ship,  which  was  afterwards  insured 
by  order  of  the  officers  whose  duty  it  was  to 
t:ike  care  of  the  property.  The  interest  was 
averred  in  the  king.  Udd,  by  adojitiug  tlie 
act  of  possession,  lliere  was  an  insurable  inter- 
est in  tlie  king;  and,  by  adopting  tlic  insur- 
ance, that  gave  the  king  an  interest  in  the 
J.olicy,  sufficient  to  maintain  the  action. 
Mouth  J).  Thompson,  13  East,  274;  s.  c,  11  East, 
438. 

72.  Tlie  Ross  belonged  to  A.,  and  the  At- 
lantic to  F.;  botli  laden  with  West  India  pro- 
duce for  England  were  insured  with  their 
cargoes  and  were  captured.  C.  was  author- 
ized to  obtain  restitution,  to  presecute  or  com- 
promise, to  pay  money,  or  appropriate  cargo 
for  that  purpose.  Both  ships  and  a  part  of 
their  cargoes  were  restored  at  Corunna  f(<r 
the  benefit  of  the  owners  of  ships  and  cargoes 
«/i  masse.  C.  refitted  both  and  drew  upon  A. 
for  all  his  expenses,  which  drafts  were  paid, 
lie  consigned  the  Atlantic  to  A.,  and  while 
preparing  for  her  voyage,  she  was  captured  by 
the  French  forces  at  Corunna.  Held,  A.  had 
an  insurable  interest  and  could  recover  the 
sum  insured.  Robertson  v.  IlamUton,  14  East, 
522. 

73.  The  assured,  an  American,  had  no 
beneficial  interest  in  the  ship.  He  was  trus- 
tee merely,  holding  the  ownersliip  to  secure  a 
large  sum  of  money  advanced  to  her  real 
owner,  an  Englishman.  The  law  of  America 
required  the  beneficial  owner  to  make  the 
oath  of  ownership.  Ucld,  the  beneficial  owner 
had  such  an  interest  as  would  support  the 
policy.     Rhind  «.  Wilkinson,  2  Taunt.,  237. 

74.  The  indorsement  and  delivery  of  a  bill 
of  lading  to  a  creditor  convoys,  prima  facie,  all 
the  indorser's  property  in  the  goods;  but  if  it 
appears  that  it  was  intended  to  bind  the  net 
proceeds,  in  case  the  goods  should  arrive,  the 
indorser  retains  a  valid  insurable  interest. 
llibbert  v.  Carter,  1  Term,  745. 

75.  Ship  abandoned  by  her  crew  was  taken 
by  salvors  and  brought  into  port,  and  owner, 
upon  application  in  admirality,  on  entering 
into  recognizance  for  the  salvage,  obtained 
possession  of  her  with  her  cargo,  and  then 
effected  an  insurance  to  cover  "the  average 
e.vpenses  which  he  might  have  to  pay  in 
respect  to  the  claim  of  the  salvors."  The 
amount  of  the  salvage  was  ascertained  by 
agreement  and  paid  by  the  insured.  She  was 
totally  lost.     Held,  the  insured  had  a  lien  on 


the  cargo  for  contribution,  which  gave  him 
an  insurable  interest  in  it,  for  which  he  was 
entitled  to  recover  of  his  insurer.  Briggs  v. 
Merchants  and  Traders  Ass.  Co.,  13  Q.  B.,  167; 
18  L.  J.  Q.  B.,  178;  13  Jur.,  787. 

76.  Insured  contracted  to  buy  6,000  bags  of 
rice,  to  arrive  before  the  end  of  May,  and 
then  contracted  to  sell  them  at  an  advance, 
and  insured  "At  and  from  Madras  to  London, 
on  profits  on  rice."  She  took  in  a  part  and 
was  ready  to  take  balance,  but  was  injured  by 
perils  of  the  sea,  prevented  from  performing 
the  voyage,  and  the  rice  on  board  was  spoiled. 
Held,  he  had  an  insurable  interest.  U'Swiney 
V.  Royal  Exchange  Ass.  Co.,  14  Q.  B.,  634;  IS) 
L.  J.  Q.  B.,  222;  18  L.  J.  Q.  B.,  193. 

77.  It  appeared  that  the  goods  had  been 
concealed  from  his  creditors.  Held,  he  still 
had  an  insurable  interest  in  them.  Govlstone 
V.  Rotjol  Tns.  Co.,  1  F.&  F.,  270. 

78.  Insured  chartered  her  at  Montevideo 
for  the  Falkland  Islands,  thence  to  Santa  Cruz 
for  a  cargo  of  guano,  thence  for  a  port  in 
Europe.  Freight  £2.50  per  month.  £250  to  be 
l)aid  when  she  sailed  from  the  Falkland 
Island.s,  balance  at  the  port  of  discharge.  She 
arrived  at  the  Falkland  Islands  and  delivered 
her  cargo.  The  master  received  the  £'250  and 
she  proceeded  to  Santa  Cruz,  took  in  some 
guano,  returned  to  Montevideo  and  filled  up 
with  hides.  Before  she  sailed  thence,  a  new 
agreement  was  made  with  the  charterers,  by 
which  she  was  to  go  to  Havre  at  the  same  rate 
of  freight,  commencing  March  26th ;  freight 
to  be  paid  at  port  of  discharge,  less  £2-50,  which 
sum  it  was  stated  the  master  had  received 
on  account  of  tiiat  charter  party.  The  policy 
was  written,  "  Lost  or  not  lost  from  Monte- 
video to  Havre  on  £450  freight  advanced." 
She  was  totally  lost  between  Montevideo  and 
Havre.  Held,  the  ,€250  was  not  a  separate 
sum  to  become  due  on  her  arrival  at  the 
Falkland  Islands;  it  was  only  a  portion  of 
the  entire  sum  payable  at  that  place;  and 
the  whole  still  remained  at  risk;  the  first 
charter  party  was  annulled,  and  the  money 
paid  was  a  part  of  the  entire  sum  to  be  paid 
under  the  new  charter  party,  which  gave  to 
the  insured  a  good  insurable  interest.  Ellis 
V.  Lafone,  8  E.\chr.,  546;  17  Jur.,  213;  22  L.  .1. 
Ex.,  124. 

7i).  There  was  an  agreement  that  the  freight 
should  be  liable  for  advances  made  by  plaint, 
ifts  foV  the  vessel,  and  for  advances  so  made, 

349 


699 


INSURABLE  INTEREST. 


700 


What  does  not  confer. 


the  master  drew  upon  M.  &  Co.,  the  vessel's 
consignees;  but  they  refused  to  accept  the 
dr.ift,  and  it  was  indorsed  to  G.,  who  insured 
as  "  advance  on  account  of  freight,"  for  the 
benefit  of  the  indorsers  who  had  cashed  the 
master's  draft.  Held,  the  insured  had  such  an 
interest  as  would  support  the  policy,  and  th.it 
it  was  correctly  described  "  as  advances  on  ac- 
count of  freight."  Wilson  V.Martin,  llExchr., 
684;  25  L.  J.  Ex.,  217. 

80.  An  equitable  interest  is  insurable,  for 
both  trustee  and  cestui  que  trust  have  the  right 
to  insure  their  interests  separately.  Ex  parte 
Houyhtoii  <£•  GribUe,  17  Ves.  .Jun.,  251. 

81.  She  was  captured  by  a  noncommis- 
sioned vessel,  and  insured  by  captoi-s.  Held, 
they  had  an  insurable  interest  in  her.  Telton 
11.  Smith,  Faculty  Dec.  1801  to  1807,  p.  7. 

82.  £600  on  freight,  valued  at  £1,500,  fropi 
Odessa  to  London  or  iSfew  Castle,  both  or 
either.  She  was  chartered  from  Odessa  to 
Rotterdam,  but  war  being  declared,  the  master 
was  instructed  to  go  to  Hamburg  or  Biemen, 
but  to  enter  London  or  New  Castle  on  his 
passage,  where  he  would  find  orders  to  dis- 
charge at  New  Castle  or  to  proceed  to  one  of 
the  places  mentioned.  She  was  captured  be- 
fore she  reached  England.  Held,  insured  had  a 
valid  insurable  interest  as  to  a  part  of  the  voy- 
age. Brown  V.  Sail,  Faculty  Dec,  1808  to 
1810,  p.  550. 

II.    What  does  not  coxfee. 
(a)  Life. 

1.  Policy  on  a  life, payable  to  the  executors, 
etc.  An  assignment  of  the  policy  was  prohibit- 
ed. The  insured  paid  the  lirst  premium,  but 
afterwards  declined  to  keep  the  policy  in 
force,  refused  to  pay  the  premium,  and  the  pol- 
icy lapsed.  After  the  second  premium  became 
due  and  the  policy  had  lapsed  for  non-pay- 
ment of  it,  insured  assigned  the  policy  to  H., 
and  the  insurer  consented  to  the  assignment. 
H.  was  not  a  creditor  of  insured,  and  had  no 
insurable  interest  in  the  life  insured.  H.,  by 
an  agreement  with  the  company,  revived  the 
policy  by  paying  the  overdue  premium.  Held, 
the  forfeiture  of  the  policy  had  been  cured; 
but  that  a  policy  to  H.  upon  the  life  of  insured 
would  have  been  absolutely  void  for  want  of 
interest;  that  a  purchase  of  the  policy  by  and 
assignment  of  it,  with  the  consentof  insurer,  to 
350 


one  who  had  no  interest  in  the  life  insured, 
was  a  mere  wager,  which  rendered  the  pur- 
chaser  interested  in  the  early  death  of  the  as- 
sured, hence  the  law  would  not  uphold  the 
purchase  nor  aid  the  purchaser  to  recover 
(citing  Stevens  v.  Warren,  101  Mass.,  564). 
Franklin  Life  Ins.  Co.  v.  Hazzard,  41  Ind.,  116. 
(But  see  St.  John  x.  American  Mutual  Life 
Ins.  Co.,  13  N.  Y.,  31 ;  Valton  v.  National  Load 
Fund  Life  Ass.  Co.,  80  N.  T.,  32;  Ashley  v. 
Ashley,  3  Sim.,  149.) 

2.  Under  the  statute,  14  Geo.  Ill,  ch.  48,  sec. 
1,  the  party  for  whose  benefit  a  policy  is  made 
upon  the  life  of  another,  must  have  a  pecuni- 
ary  interest  in  that  life.  Held,  a  policy  on  the 
life  of  the  son  for  the  father,  without  pecuniary 
interest,  was  void.  Halford  v.  Kymer,  10  B.  <fc 
C,  724;8L.  J.  (K.  B.),  311. 

3.  The  son  caused  his  father  (a  pauper)  to 
make  the  proposal  for  the  policj-,  and  imme- 
diately thereafter  to  make  a  will  bequeathing 
to  him  the  benefit  of  it.  The  premium  w.is- 
paid  by  the  son.  The  jury  were  instructed  if 
they  believed  it  was  procured  by  the  son  for 
his  own  use  and  benefit,  and  in  reality  it  wis 
his  act  and  not  his  father's,  they  should  li^d 
for  the  defendant,  under  the  statute,  14  Geo. 
Ill,  ch.  48,  sec.  1.  Shilling  v.  Acciderdal  Death 
Ins.  Co.,  1  F.  &  F.,  116;  s.  c.  in  Exch.  Pleas,  % 
H.  &  N.,  42;  26  L.  J.  Ex.,  266;  27  id.,  16. 

4.  A.  became  indebted  to  a  bank.  P.,  one 
of  the  partners,  told  him  that  during  P.'s  life, 
he  would  never  be  called  upon  to  pay  the 
money.  Thereupon  A.  procured  insurance 
upon  P.'s  life,  £5,000.  The  bank  stopped  pay- 
ment after  the  decease  of  P.,  and  A.  collected 
the  money  and  paid  it  over  to  the  bank.  Prior 
to  the  death  of  P.,  A.'s  debt  increased  to 
£6,000,  and  he  procured  additional  insurance 
£2,500- on  the  life  of  P.,  and  this  action  was 
brought  to  enforce  payment.  Held,  lie  had  no 
insurable  interest  in  the  life  of  P.,  within  tho 
meaning  of  14  Geo.  Ill,  ch.  48,  sec.  1 ;  that 
the  payment  of  the  £5,000  on  the  first  policy 
was  under  the  same  statute  a  bar  to  this  action. 
Hehdon,  v.  West,  3  B.  &  S.,  579;  9  Jur.  (N.  S.), 
747;  32  L.  J.  Q.  B.,  85;  11  W.  R.,  422;  7  L.  T. 
(N.  S.),  854. 

(b)  Property. 

.5.  A  letter  directing  insurance  to  be  made 
recited:  "  |30,000,  covering  the  premium  oa 
brig  Fame  and  cargo,  at  and  from  Bergen  to 


701 


INSURABLE  INTEREST. 


70a 


What  does  not  confer. 


Boston,  warrantee)  to  sail  iluiing  the  winter, 
tor  account  and  risk  of  Leonard;  it'  you  can 
leave  out  the  warranty  without  niucli  all'ecting 
the  premium,  it  would  be  better."  Ilelit,  there 
was  nothing  in  the  letter  indicating  that  Leon- 
ard was  acting  as  agent,  and  therefore  it  au- 
thorized an  insurance  to  be  made  for  Leonard 
only.  Assuming  that  a  mere  prize  agent,  as 
such,  has,  without  any  authority  for  that  pur- 
pose, a  right  to  insure  f(U'  the  benelrt  of  the 
captors,  still  if  the  insurance  made  does  not 
appear  to  have  been  authorized  by  that  agent, 
the  captors  cannot  avail  themselves  of  it.  Sea- 
mans  !).  Loring,  1  Maso  n,  127. 

6.  The  ship  was  badly  damaged  by  perils 
of  the  sea,  so  that  she  was  not  worth  repair- 
ing, and  the  master  ofi'ered  her  cargo  at  public 
auction;  but  finding  it  could  not  be  sold,  ex- 
cept at  a  great  sacrifice,  he  bought  it  in  to 
prevent  a  loss,  shipped  it  in  another  vessel, 
and  advised  his  owners  of  the  proceedings. 
Held,  he  had  no  insurable  interest  in  it.  But 
it  seems  the  insurers  had  accepted  an  aban- 
donment when  it  was  known  that  the  fir.st 
ship  could  nt)t  be  repaired.  Barker  v.  Marine 
Ins.  Co.,  2  Mason,  309. 

7.  The  marshal  seized  the  vessel  under  a 
warrant  from  the  district  court,  and  she  re- 
mained in  his  custody  until  the  case  was  dis- 
posed of.  He  insured  her,  and  taxed  the  ex- 
pense as  costs  in  the  case.  Ildd,  he  had  no 
right  to  eflect  the  insurance,  and  the  expense 
was  not  properly  chargeable  against  any  of  the 
parties.  Burke  ».  Brig  M.  P.  Rich,  1  Clifl".,  509. 

8.  Ship  arrived  at  Newport  with  cargo,  the 
property  of  B.  She  needed  repairs,  which 
were  made  to  the  amount  of  $9,005.30;  he  paid 
it,  and  insurance  was  made  from  Newport  to 
Londonderry  to  him  on  sliip  to  the  amount  of 
$8,500.  She  sailed  March  7th  from  Newport, 
and  arrived  near  Londonderry.  On  her  way 
up  she  ran  aground,  and  was  not  got  oft  till 
April  12th.  Upon  survey  made  there,  she  was 
sold  and  purchased  by  the  captain,  as  agent  of 
the  owner,  for  $2,200.  She  could  not  have 
been  repaired  at  Londonderry  for  less  than 
$8,200.  Held,  insured  had  no  insurable  inter- 
est in  the  vessel,  for  he  had  no  lien  for  the 
money  expended.  Burhannn  v.  Ocean  Ins  Co., 
6  Cow.,  318. 

9.  The  lessees  of  a  farm  for  a  term  of  years 
covenanted  to  fodder  the  stock  on  the  farm 
with  the  hay  that  should  grow  thereon ;  that 
they  would    neither    sell    dispose  of,   carry 


away,  nor  suffer  to  be  carried  away,  any  of  the 
hay  without  the  consent  of  the  lessors.  They 
made  a  bill  of  sale  of  the  hay  and  straw,  and 
the  purchaser  took  possession  and  procured 
this  policy  to  insure  it.  He  knew  of  the  con- 
ditions of  the  lease.  Held,  the  lessees  had  no 
property  in  the  hay  which  they  could  dispose 
of  by  sale;  that  the  plaintiff"  had  not  an  insur- 
able interest  sufficient  to  maintain  the  action. 
Heald  v.  Builders  Mat.  Im.  Co.,  Ill  Mass.,  38. 

10.  The  projectors  of  a  corporation  erected 
a  hotel  upon  land  the  property  of  the  state,  but 
the  company  was  never  incorporated ;  all  of 
the  stockholders  transferred  their  interests  to 
the  creditors.  A.,  the  principal  stockholder, 
was  principal  creditor,  for  labor  and  materials- 
used  to  erect  the  building.  He  had  possession 
of  the  hotel  prior  to  the  transfer,  and  entire 
control  of  it  afterwai'ds,  and  insured  it.  Held, 
the  insured  had  not  such  an  interest  as  would 
authorize  him  to  insure.  Sweeny  v.  Franklin. 
Fire  Ins.  Co.,  20  Penn.  St.,  337. 

11.  Policy  to  F.  &  Co.  "For  account  of 
Avhom  it  may  concern,  loss  payable  to  them. 
On  the  outtits  of  schooner  Pilot  for  a  fishiu^j 
voyage  to  the  Banks  and  back,  to  a  port  of  dis 
charge  in  the  U.  8."  The  schooner  was 
owned  by  P.  Tha  master  obtained  the  outfits 
from  the  store  of  F.  &  Co.,  and  agreed  to  give 
them  the  customary  lien  on  the  outfits  and 
voyage  for  their  pay.  She  was  stranded,  badly 
damaged,  and  sold  with  the  outfits.  Held,  if 
the  outfit.s  were  sold  unconditionally  though 
subject  to  a  lien,  the  seller  waived  the  lien  wheu 
he  surrendered  them  to  the  purchaser;  the  out- 
fits would  be  worn  out  by  use,  s»  that  their 
identity  could  not  be  preserved,  and  there  was 
no  insurable  interest  in  the  seller  after  the  own- 
er of  the  vessel  had  entire  possession  of  them. 
Folsom  ».  Merchants  Mat.  Ins.  Co.,  38  Me.,  414. 

la.  Insured  were  sole  stockholders  of  the 
"  Dayton  Hydraulic  Company."  Held,  they 
had  no  insurable  interest,  in  the  property  for 
it  belonged  to  the  corporation.  Philips  v.  Knox 
County  Mut.  Ins.  Co.,  20  Ohio,  174. 

1 3.  The  person  on  whose  account  the  in- 
surance  was  made  was  interested  in  the  ship, 
but  it  did  not  appear  that  he  was  interested  in 
her  voyage,  nor  was  it  averred  in  the  declaralioD 
that  he  was  interested  in  it.  Held,  he  could 
not  recover  damages  caused  by  a  loss  of  the 
voyage,  though  that  had  been  been  proved. 
Pole  V.  Fitzgerald,  Willcs,  C41 ;  affirmed,  4  Bro 

P.  C,  439. 

351 


703 


INSURABLE  INTEREST. 


704 


What  does  not  confer. 


14.  K.  borrowed  mone}-  of  R.,  to  secure 
which,  he  drew  bills  in  favor  of  P.,  on  C's 
agent  in  Calcutta,  payable  thirty  day.s  after 
the  arrival  of  the  ship,  and  insured  describing 
liis  interest  as  "bills  of  exchange."  Held,  P. 
Jiad  no  insurable  interest.  Palmer  v.  Pratt, 
3  Bing.,  185 ;  9  Moore,  358. 

13.  "On  bounty  allowed  by  the  French 
government  on  the  tonnage  of  the  ship  Le 
Henri,  valued  at  £800."  The  law  of  France 
provided:  "  A  vessel  which  shall  have  fished 
either  in  the  Pacific  by  doubling  Cape  Horn, 
or  by  passing  through  the  Straits  of  Magellan, 
or  to  the  south  of  Cape  Horn  at  63"  of  latitude 
at  the  least,  sliall  obtain,  on  return,  a  supple- 
mental bounty,  if  she  brings  back  as  produce 
of  fishing,  one  half,  at  least,  of  her  burden ; 
or  if  slie  can  prove  in  a  navigation  of  si.xteen 
months  at  least,  she  caught  half  her  burden 
in  the  Atlantic,  and  then  went  into  the  Pacific- 
with  the  intention  of  catching  in  the  seas  be- 
yond Cape  Horn."  She  was  prevented  by 
■continued  bad  weather  from  taking  any 
whales,  and  was  totally  lost  off  the  Island  of 
Lemas.  ZTcM,  no  insurable  interest.  DeVaux 
■s.  Steele,  6  Bing.  (N.  C),  358 ;  8  Scott,  637. 

16.  A  agreed  with  B.  and  C.  to  send  two 
ships  annually  to  Jamaica,  for  which  they 
were  to  provide  cargoes  to  be  consigned  to 
him.  He  chartered  a  ship  to  proceed  from 
Bristol  to  St.  Thomas,  there  to  deliver  her 
outward  cargo,  proceed  thence  to  Jamaica  and 
take  a  cargo  consigned  to  him  by  B.  and  C; 
and  for  guarantying  the  home  cargo,  he  was 
to  receive  a  commission  of  twenty-seven  per 
cent,  on  the  home  freight.  She  was  captured 
between  St.  Thomas  and  Jamaica.  Held,  he 
could  not  recover,  because  he  had  no  insurable 
interest  when  the  loss  happened.  Knox  v. 
Wood,  1  Camp.,  543. 

17.  Money  was  loaned  to  the  master  to  be 
repaid  out  of  the  freight.  Seld,  the  lender  had 
no  insurable  interest.  Wilson  v.  Royal  Ex- 
change Ass.  Co.,  3  Camp.,  633. 

18.  The  master  borrowed  money  from  a 
merchant  for  necessary  repairs  and  disburse- 
ments, for  which  he  drew  bills  on  her  owner 
and  e.xecuted  an  instrument  which  purported 
to  hypothecate  vessel,  cargo  and  freight.  All 
interest  beyond  the  sum  necessarj^  to  insure 
and  cover  advances  was  forborne.  The  money 
was  made  payable  at  all  events;  master  and 
owner  taking  upon  themselves  the  risk  of 
voyage,  and  .subjecting  the  sliip  to  seizure  and 

352 


sale  in  admiralty  in  case  the  bills  should  b« 
dishonored.  Held,  the  hypothecation  could 
not  be  enforced  in  admiralty,  because  the  re- 
payment of  the  monej'  did  not  depend  upon 
the  arrival  of  the  vessel;  and  the  lender  had 
no  insurable  interest  in  the  ship.  Stainhank 
V.  Penning,  11  C.  B.,  51;  affirmed,  5to!n6ont  e. 
Shepard,  13  id.,  418. 

1 9.  The  mate  of  a  ship  was  to  receive  wages 
at  a  certain  rate  per  month,  and  three  slaves 
free  of  expense  on  her  arrival.  Held,  he  had 
no  insurable  interest  in  the  slaves!  Wehster  v. 
De  Tastet,  7  Term,  157. 

20.  S.  agreed  verbally  with  H.  to  purchase 
200  tons  of  oil  to  arrive,  100  by  the  Antelope 
and  100  by  the  Maria.  S.  insured  oil  and 
profits  thereon.  The  Antelope  arrived  and 
delivered.  The  Maria  was  lost  by  perils  of 
the  seas.  Held,  the  contract  with  the  seller 
could  not  have  been  enforced,  because  it  was 
not  in  writing,  and  therefore  S.  had  no  insur- 
able interest  in  the  oil.  Stockdale  v.  Dunlop, 
6  Mee.  &  W.,  224;  9  L.  J.  (N.  S,),  Ex.,  83;  4 
Jur.  681. 

21.  A  quantity  of  guano,  the  property  of 
D.,  shipped  by  S.  at  the  suggestion  of  M.,  con- 
signed to  M.  S.  was  named  as  the  shipper  in 
the  bill  of  lading.  M.  efiected  insurance, 
£1,200,  and  S.  made  insurance  upon  it,  £1,150; 
at  which  latter  sum  it  was  valued.  S.  arrived 
at  the  residence  of  M.  in  the  evening,  March 
7th,  informed  him  what  had  been  done,  and 
the  following  day,  M.  accepted  a  bill  for  the 
value  of  the  cargo.  Subsequently,  on  the 
same  day,  it  was  known  that  the  vessel  and 
cargo  were  lost  the  night  preceding.  S.  re- 
fused to  deliver  his  policy  to  M.,  and  rf  ferred 
him  to  liis  own  insurers.  M.  brought  suit 
upon  his  policy,  and  recovered  judgment,  and 
this  action  was  brought  by  S.  Held,  if  there 
was  a  completed  sale  to  M.,  the  fiict  that  S. 
held  the  shipping  documents  cast  no  liability 
upon  him  for  the  loss;  that  to  constitute  an 
interest  insurable,  it  must  appear  that  by  the 
proximate  effect  of  the  peril  insured  against 
damage  might  result  to  the  insured.  Sea- 
grave  V.  Union  Marine  Ins.  Co.,  1  L.  R.  C.  P., 
305:  1  H.  &  R.,  302;  13  Jur.  (N.  S.),  358;  35 
L.  J.  C.  P.,  172;  14  W.  R.,  690;  14  L.  T.  (N. 
S.),  479. 

22.  On  cargo,  at  and  from  Rangoon,  valued 
at  £5,500.  She  took  on  board  8,878  bags  of 
rice.  An  additional  400,  in  lighters  along- 
side, would  have  completed  the  cargo;   sho 


705 


INSURABLE  INTEKKST. 


706 


What  divests. 


suddenly  sprang  a  leak  and  went  down  with 
the  rice  on  board.  The  plaintiff  had  con- 
tracted for  the  purchase  of  a  full  cargo  of  rice, 
payment  by  seller's  draft  on  purchasers  at  six 
month's  sight,  witli  documents  attached. 
After  slie  went  down,  the  master  signed  bills 
of  lading  for  the  rice  that  was  on  board.  The 
sellers  drew  upon  the  insured,  and  the  drafts 
were  duly  accepted  and  paid.  Held,  though 
purchaser  had  the  right  to  reject  anything 
that  f(dl  short  of  a  full  cargo,  he  was  entitled 
to  elect  to  treat  that  whicli  was  on  board  as  a 
cargo,  the  title  to  which  would  pass  to  the 
purchaser  when  the  election  was  made,  and 
this  election  might  be  made  after  the  vessel 
went  down,  therefore  insured  had  an  interest 
in  the  property  lost,  sufficient  to  support  the 
policy.  Anderson  v.  Morice,  10  L.  K.  C.  P.,  58. 
Reversed  in  the  exchequer  chamber,  on  the 
ground  that  the  cargo  was  not  at  his  risk  un- 
der the  cnntract  of  sale,  until  the  loading  was 
complete,  therefore  he  had  not  such  an  insur- 
able interest  as  the  law  requires  to  make  tlie 
policy  attach,    s.  c,  id.,  609. 

III.  What  divests. 

(a)  Life. 

1.  Bill,  to  have  a  policy  delivered  up  and 
■canceled,  and  for  an  injunction  to  staj'  pro- 
ceedings at  law  upon  the  policy,  stated  that 
D.,  in  behalf  of  the  Anchor  Insurance  Com- 
pany, agreed  to  effect  an  insurance  with  the 
company  on  the  life  of  the  late  Duke  of  Cam- 
bridse  for  £1,000,  for  which  sum  the  com- 
pany's funds  were  liable  within  three  mouths 
after  proof  of  the  duke's  death;  that  D. 
«ffected  the  insurance  on  behalf  of  the  An- 
chor Company,  as  an  indemnity  in  part 
against  certain  insurance  for  £3,000  made  by 
the  Anchor  Company  lipon  the  same  life  in 
favor  of  Wright;  that  the  Anchor  Company's 
policies  with  Wright  were  canceled  ;  that  the 
interest  of  the  Anchor  Company  in  the  life  of 
the  duke  had  entirely  ceased  iVom  October 
18,  1848,  but  that  D.  had  kept  the  policy  in 
force  from  that  time  till  the  death  of  the  duke ; 
and  that  he  never  had  any  insurable  interest 
in  the  life  of  tbe  duke;  that  the  premiums 
were  not  paid  by  the  Anchor  Company  as 
was  supposed,  but  they  were  paid  by  I>.  out 
of  his  own  moneys.  Held,  the  bill  was  good 
upon  its  face,  and  th.it  the  demurrer  must  be 
23 


overruled.  But  sec  s.  c,  which  went  to  a  judg. 
ment  against  the  insurer,  15  C.  B.,  365.  India 
and  London  Life  Ass.  Co.  v.  Dall>y,4.  DeQ.  & 
S.,  462. 

2.  Policy  on  the  life  of  P.,  who  died  wliilc 
it  was  in  force.  P.  was  indebted  to  insured 
in  the  sum  insured,  at  the  time  of  his  death, 
and  died  insolvent.  After  his  death,  his  exec- 
utors paid  the  debt  to  the  insured.  Held,  the 
payment  of  the  debt  by  tlie  executors  was  a 
bar  to  the  action.    Oodsall  v.  Boldero,  9  East, 72. 

(b)  Propffi'ty. 

3.  Insured  alienated  the  property  before  the 
fire  occurred,  and  the  alienees,  to  maintain 
their  action  against  insurer,  offered  in  evi. 
dence  an  indorsement  upon  the  policy,  as  fol- 
lows: "For  value  received,  in  case  of  loss, 
pay  the  within  to  Fogg  and  Hearsay."  Held, 
not  sufficient  to  enable  them  to  maintain  the 
action.  Fogg  v.  Middlesex  Mutual  Fire  Ins. 
Co.,  10  Cush.,  337. 

4.  The  policy  prohibited  a  sale  of  the  prop- 
erty. The  insured  sold  it,  and  indorsed  the 
policj-:  "Payable,  in  case  of  loss,  to  E.  C. 
Bates."  Insurer  indorsed:  "  Consent  is  hereby 
given  to  above  indorsement."  Held,  neither  a 
knowledge  of,  nor  a  consent  to  the  sale  of  the 
goods  insured  was  to  be  implied  from  the 
indorsement;  also,  when  Bates  purchased  the 
goods,  and  a  loss  of  them  afterwards  occurred, 
the  loss  was  not  the  loss  of  the  insured,  and 
the  purchaser  h.ad  no  claim  against  the  insurer 
for  the  loss,  and  no  action  could  be  sustained 
upon  the  policy.  Bates  v.  Equitable  Ins.  Co., 
10  Wall.,  33. 

5.  Policy  to  R.,  "Loss,  if  any,  payable  to 
H.,  executor."  R.  held  the  premises  under 
a  lease  for  ten  years.  Before  the  term  ex- 
pired, the  lessee  executed  a  mortgage  of  his 
leasehold  estate,  and  notice  was  given  that  he 
had  assigned  his  lease  to  the  raortgagc-e,  and 
a  request  made  that  if  the  assignment  would 
invalidate  the  policy,  to  make  a  new  one  in 
the  name  of  the  mortgagee.  The  defendants 
suggested  that  insured  should  assign  the 
policy  to  the  mortgagee,  and  to  forward  it 
to  the  company's  office  for  attestation.  No 
further  attention  was  paid  to  the  suggestion, 
and  about  four  months  thereafter  the  premises 
were  consumed  by  fire.  About  ten  months 
before  it  occurred,  the  mortgagee  of  the  lease 
gave  the  notice  required  by  ch.  151,  sees.  6,  7 

853 


707 


INSURABLE  INTEREST. 


70S 


AYhat  divests. 


and  8  of  R.  S.  of  Mass..  of  his  intention  to  fore- 
close the  mortgage  for  breacli  of  condition, 
took  possession,  insured  acting  as  his  agent 
to  collect  the  rents,  and  so  continued  till  the 
time  of  the  fire.  Held,  insured  had  parted 
with  his  interest  in  the  property  before  the 
loss,  and  insurers  were  discharged.  Hidden  v. 
Slater  Mutual  Fire  Ins.  Co.,  3  Cliff.,  26i3. 

6.  She  was  bottomried  to  an  amount  exceed- 
ing her  value.  Seld,  her  owner  had  not  an 
insurable  interest  in  her.  Smith  v.  Williams, 
2  Caiaes  Cas.,  110. 

7.  The  vessel  was  under  bottomry  for  a  cer- 
tain amount.  Held,  as  to  that  amount  the  in- 
sured ceased  to  have  any  insurable  interest,  for 
it  was  in  effect  a  sale  of  his  iutererstpTO  tanto 
(citing  Watson  v.  Insurance  Co.  of  N.  A.,  3 
Wash.  C.  C,  1 ;  Smith  v.  Williams,  2  Gaines 
Cas.,  110;  1  Phil,  on  Ins.,  113).  Bead  v.  Mu- 
tual Safeti/  Ins.  Co.,  3  Sand.,  54. 

8.  C.  and  B.  agreed  that  B.  should  purchase 
of  C.  certain  land  for  a  consideration,  paj'able 
in  ten  equal  annual  sums ;  that  upon  making 
those  payments,  a  deed  of  conveyance  should 
he  executed ;  that  if  B.  should  fail  to  perform, 
C.  should  have  the  right  to  declare  the  contract 
void,  and  treat  B.  as  a  tenant  holding  over 
without  right,  and  might  take  possession  and 
expel  B.  He  made  default  and  was  notified 
by  C.  to  surrender  possession,  with  which  he 
complied.  Held,  all  the  insurable  interest  he 
ever  had  terminated  with  his  surrender.  Bir- 
mingham V.  Empire  Ins.  Co.,  43  Barb.,  457. 

9.  On  schooner  to  C.  &  S.  They  conveyed 
her  by  regular  bill  of  sale  to  W.,  who  enrolled 
her  in  his  name.  She  was  lost  after  the  date 
of  the  enrollment.  Held,  insured  had  no  in- 
terest at  the  time  of  the  loss.  Held,  also,  that 
the  parties  could  not  be  allowed  to  prove  that 
the  conveyance  was  fraudulent,  and  that  it  was 
intended  as  security  to  indemnify  W.  against 
loss  under  a  bond  made  by  him  in  an  action 
of  replevin  against  C.  &  S.  Hence  the  con- 
veyance must  be  deemed  conclusive.  Carroll 
V.  Boston  Marine  Ins.  Co.,  8  M.ass.,  515. 

10.  H.  mortgaged  to  T.  and  sold  his  equity 
to  insured.  T.  foreclosed,  and  L.  purchased. 
To  secure  part  of  the  purchase  money,  he  gave 
a  new  mortgage  on  the  same  premises  and 
sold  his  equity.  Subsequently,  T.  sold  the 
premises  by  virtue  of  the  power  given  in  the 
mortgage  made  by  L.  Held,  insured  could 
not  recover,  for  his  interest  was  gone.  Bailey 
r.  -lEtna  Ins.  Co ,  10  Allen,  286. 

354 


1 1.  "For  account  of  whom  it  maj'  concern. 
To  be  void  in  case  this  policy  or  the  interest 
insured  hereby  shall  be  sold,  assigned,  trans- 
ferred, or  pledged,  without  the  previous  con- 
sent in  writing  of  the  insurers."  At  the  date 
of  the  policy,  the  legal  title  was  in  F.,  to  whom 
she  had  been  conveyed  a  short  time  before, 
that  she  might  take  a  British  register  and  flag 
to  avoid  the  risk  of  Confederate  cruisers;  but 
the  equitable  ownership  remained  in  her 
former  owners.  G.  advanced  monej'  to  them 
to  a  large  amount,  and  she  was  largely  in  debt 
to  him  for  repairs  and  advances.  F.,  for  the 
purpose  of  securing  G.,  mortgaged  her  to  G. 
without  consulting  or  notifying  the  equitable 
owners.  Held,  f^ital  to  the  plaintiff's  right  to 
recover.  Atherton  v.  Phcenix  Ins.  Co.,  109 
Mass.,  33. 

1 2.  Policy  under  seal  to  J.  &  Sons,  for  one 
year,  to  continue  so  long  as  the  assured  or 
their  assigns  shall  pay  the  premium,  and  the 
company  shall  accept  and  receive  it.  The 
tirm  of  J.  &  Sons  was  composed  of  William, 
John,  and  B.  who  withdrew  from  the  firm 
during  the  first  year,  and  the  plaintiffs  W.  &  .T. 
continued  the  business  in  the  same  firm  name. 
The  day  preceding  the  expiration  of  the  policy, 
the  premium  was  paid  for  the  ensuing  year, 
and  receipted  as  from  J.  &  Sons,  stipulating 
in  the  receipt  that  "  the  policy  should  be  here- 
by continued  in  force  for  another  year."  A 
loss  occurred  about  two  months  thereafter. 
Held,  William  and  John  could  not  maintain 
the  action,  for  the  renewal  receipt  was  not  a 
new  contract,  it  was  a  mere  agreement  to  con- 
tinue the  policy  for  another  year;  whether  the 
agreement  was  a  specialty  or  simple  contract, 
no  action  could  be  maintained  upon  it  except 
by  the  parties  to  whom  it  was  made,  for  it 
was  a  joint  contract,  and  no  one  could  sue 
alone  upon  it.  Baltimore  Fire  Ins.  Co.  t.  Me- 
Goican.  16  Md.,  47. 

13.  Policy  made  to  F.,  D.  &  C.  upon  flour 
mill,  machinery  and  fixtures.  Stipulated :  "  If 
the  property  shall  be  sold  or  transferred,  or 
any  change  take  place  in  the  title  or  posses- 
sion,  whether  by  legal  process  or  judicial 
decree,  voluntary  transfer  or  conveyance, 
it  shall  be  void."  The  partnership  capital 
consisted  of  |5,221  by  F.,  |11,2T5  by  D., 
$11,565  by  C,  and  the  mill  property  (the  prop- 
erty insured)  by  F.  But  it  was  never  con- 
veyed to  the  partnership,  nor  to  any  person  in 
trust  for  the  partnership.    Held,  the  title  re- 


ro9 


INSURABLE  INTEREST. 


710 


^\^^at  divests. 


niained  in  the  individual  member,  subject  to 
the  particular  use  and  appropriation  during 
the  continuance  of  the  partnership,  and  upon 
its  dissolution  the  property  was  freed  from 
such  use,  hence  tlie  policy  was  void  from  the 
beginning.  Citizens  Fire  Ins.  Co.  v.  Doll,3a 
Md.,  80. 

1 4.  Insured  made  a  donatio  inter  vivos  of  the 
property  insured  by  deed.  Held,  it  left  him  no 
interest  in  it  at  the  timeof  the  loss,  though  there 
■was  an  understanding  between  the  donor  and 
donee,  that  the  former  should  receive  and  en- 
joy  the  rents,  and  though  it  was  proved  that 
he  did  continue  to  receive  them.  McGartyv. 
Commerciid  Ins.  Co.,  17  La.  (O.  S),  365. 

15.  The  assignee  of  H.  and  B.  sold  to  D., 
the  creditor's  interest  in  a  steamer,  payable, 
cash,  $5,000,  and  three  acceptances,  each 
$1,606.66,  payable  in  one,  two  and  three 
months  from  date,  with  vendor's  privilege  on 
the  steamer  until  final  payment.  D.  was  to  in- 
sure her  for  $5,000,  and  to  transfer  the  policy 
to  the  assignee.  D.  failed  to  pay  the  premium, 
aild  the  assignee  paid  it,  $957.75.  The  accept- 
ances  were  protested  for  nonpayment.  D. 
fraudulently  sold  his  interest  in  the  steamer, 
and  she  was  taken  by  tlie  United  States  mar- 
shal  for  debts  contracted  since  the  sale,  and 
■was  to  be  sold  April  22d.  The  foregoing  facts 
•were  presented  in  a  letter  to  the  president  of 
insurer,  and  he  was  requested  to  continue  the 
policy  from  its  expiration,  to  cover  the  as- 
signee's interest,  to  which  insurer  consented. 
She  was  sold  April  23d,  and  the  proceeds  dis- 
tributed. The  p(dicy  was  to  run  until  Novem-, 
ber  25th,  but  she  was  entirely  lost  September 
23d.  Held,  the  marshal's  sale  divested  the 
privilege  and  interest  of  the  assignee;  the 
assent  of  the  insurer  did  not  have  the  eflijct  of 
continuing  the  assignee's  insurable  interest; 
the  doctrine  of  estoppel  in  pais  did  not  pre- 
clude insurer  from  asserting  the  assignee's 
■want  of  insurable  interest,  for  the  assent  of 
insurer  did  not  change  the  assignee's  rights, 
nor  cause  him  to  act  so  as  to  alter  his  previous 
position ;  it  did  not  create  a  right,  nor  did  it 
confer  one  which  did  not  before  e.xist;  it  was 
a  case  where  the  parties  were  mistaken  .as  to 
the  continued  existence  of  the  assignee's  in- 
surable interest  after  the  marshal's  sale,  and 
the  assignee  was  therefore  not  entitled  to  re- 
cover anything.  Pike  v.  Merchants  Mut.  Ins. 
Co.,  26  La.  An.,  505. 


16.  The  lessee  of  certain  premises  procured 
insurance,  and  subsequently  assigned  tlie  Icaso 
and  policy.  Held,  insurers  were  discharged, 
for  insured  cannot  recover  unless  he  was  in- 
terested  in  the  property  insured  at  the  timo 
the  policy  was  made,  and  when  the  loss  oc 
curred.  Lynch  v.  Dalzell,  4  Bro.  P.  C,  431; 
Marsh,  on  Ins.,  698;  Sadlers'  Co.  v.  Badeock,  3 
Atk.,o54;  McCarty  v.  Commercial  Ins.  Co.,  17 
La.(0.  S.),365;  Kip,  in  re,  4  Edw.  Ch.,  86. 

17.  B.  consigned  a  cargo  of  deals  to  A., 
to  be  paid  for  by  bill  at  three  months,  which 
was  duly  accepted;  and  A.  made  insuranco 
on  them.  She  was  stranded.  The  deals  were 
saved,  but  not  worth  sending  forward.  Oa 
hearing  of  the  accident,  the  day  before  the 
bill  came  due,  he  made  an  offer  of  abandon- 
ment which  was  refused  ;  and  B.'s  agent 
stopped  the  goods  in.  transitu.  Held,  A.'3 
assignee  in  bankruptcy  could  not  recover 
on  the  i>olicy,  because,  after  the  stoppage  in 
transitu,  A.  had  no  interest  in  the  goods.  Clay 
V.  Harrison,  10  B.  &  C,  99;  8  L.  J.  K.  B.,  90; 
5  M.  &  R,  17. 

18.  Policy  to  Elizabeth  Marsh  &  Son  on 
ship.  Ship's  register  at  the  date  of  the  policy 
showed  that  she  belonged  to  Cummings,  Mc- 
Master  &  Co.  Held,  insured  could  not  recover, 
for  he  had  no  legal  evidence  of  ownershiix 
Marsh  v.  Robinson,  4  Esp.,  98. 

19.  Page  &  Chamberlain  instructed  abroker 
to  insure  Uieir  two-thirds  interest  in  a  ship. 
At  the  time  of  effecting  the  insurance.  Page  & 
Chamberlain  and  Banks  were  interested,  each 
one-third.  Before  the  loss.  Page  convej'cd  his 
third  to  Banks,  and  Chamberlain  &  Banks 
continued  owners  till  the  time  of  the  loss. 
Banks  insured  two-thirds  interest  in  another 
office  and  received  upon  it  a  total  loss.  Held, 
as  to  the  interest  of  Page,  no  recovery  could 
be  had  upon  it.  Pmeels  v.  Innes,  11  Mee.  & 
W.,  10;  13  L.  J.  E.X.,  163. 

20.  Insurer  made  a  policy  on  goods  for  D., 
who  sold  them  to  C,  to  whom  the  policy  w.as 
assigned  with  insurer's  consent.  C.  sold  them 
to  M.,  taking  his  notes  in  part  payment,  in- 
dorsed by  L.,  with  whom  M.  agreed,  that  the 
goods  should  be  sold  and  the  proceeds,  as  re- 
ceived, should  be  paid  over  to  L.  The  policy 
w.as  again  assigned  to  M.  with  insurer's  con- 
sent. Held,  on  demurrer  to  the  declaration,  L. 
had  not  any  insurable  interest.  Davis  v.  Home 
Ins.  Co.,  34  U.  C.  Q.  B.,  304. 


355 


711 


INSURABLE  INTEREST. 


712 


What  does  not  divest. 


IV.  What  does  not  divest. 

1.  Time  policy  on  ship.  Another  vessel 
smuggled  achaiu  cable. subsequently  purchas- 
ed and  put  on  board  the  ship  insured.  Uekl,  the 
insurance  on  the  ship  and  cable  was  valid ;  that 
property  foifeited  for  a  breach  of  the  revenue 
laws  does  not  vest  in  the  government  till  after 
seizure;  that  the  infraction  of  the  law  in  this 
case  was  covered  by  a  penalty;  the  vessel  re- 
ceiving the  smuggled  goods  was  not  liable  to 
forfeiture.  A  mere  liability  to  forfeiture  would 
not  avoid  the  contract  of  insurance  or  prevent 
a  recovery  for  a  loss  caused  by  an  independent 
peril.  Clark  v.  Protection  Ins.  Co.,  1  Story, 
109. 

2.  She  was  bottomried,  but  the  purchaser 
had  no  notice  of  the  fact.  Held,  he  could 
maintain  his  action.  Williams  «.  Smith,  2 
Caiues,  13. 

3.  In  August,  1850,  W.,  the  plaintiff,  owned 
one-eighth  of  the  propeller,  and  D.  owned 
five-sixteenths  of  her.  W.  and  D.  agreed  in 
writing  that  W.  should  sell,  and  D.  should  buy 
the  whole  of  W.'s  interest,  payable  in  two 
equal  sums,  January  1st  and  February  1st. 
D.  agreed  to  give  W.  a  bill  of  sale  of  his  five- 
sixteenths  to  secure  his  part  of  the  agreement, 
also  to  assign  his  policies  on  the  steamer  to 
W.,  and  to  effect  additional  policies  on  her 
and  her  freight,  to  the  value  of  W.'s  one-eighth, 
$10,(.00,  and  to  assign  them  to  W.  D.  agreed 
if  he  should  make  default,  then  all  of  his  inter- 
est should  vest  absolutely  in  W.,  and  D.  should 
forfeit  all  rights.  W.  agreed  to  reconvey  and 
reiissign  so  soon  as  D.  should  fulfill  his  part 
of  it.  In  June  following,  the  plaiulifT  pro- 
cured this  policy  on  the  freight  of  the  steamer 
for  one  year  from  April  2Gth,  preceding: 
"Loss,  if  any,  payable  to  the  plaintiff."  She 
was  sold  upon  an  execution  issued  against  D., 
at  San  Francisco,  and  subsequently  lost,  with 
n  full  freight  which  would  have  been  earned 
hut  for  the  disaster.  Held,  the  plaintifiT  was 
entitled  to  recover,  because  there  was  no  e\i- 
dence  to  warrant  a  jury  in  coming  to  the  con- 
clusion that  D.  had  fully  performed  his  part 
of  the  agreement.  Williams  v.  Insurance  Co. 
of  NoHU  America,  1  Hilt.,  345. 

4.  The  policy  did  not  require  the  insured  to 
disclose  the  exact  slate  of  his  title.  He  in- 
sin-cd  it  as  his  property,  had  a  contract  for  a 
deed,  and  was  in  possession,  but  had  nut  paid 
all  the  purchase  money.  he  «as  enti'hil 

858 


to  recover  the  amount  insured,  if  it  did  not 
exceed  the  value  of  the  premises,  ^tna  Fire 
Ins.  Co.  V.  Tyler,  16  Wend.,  385;  s.  C,  12  id., 
507. 

5.  "On  his  brick  building  on  Washington 
street,  •Brooklyn,  $1,500;  and  $1,.500  on  hia 
engine  and  boilers  therein  contained."  Stip- 
ulated: "  Property  held  in  trust  or  on  com- 
mission must  be  insured  as  such;  otherwise 
the  policy  will  not  cover  such  property." 
The  owner  conveyed  it  to  the  insured  in  trust 
to  sell  and  pay  debts,  and  insured  took  it  all 
into  possession.  Held,  he  was  entitled  to  re- 
cover the  whole  sum  insured  (citing  Tyler  b. 
^tna  Ins.  Co.,  12  Wend.,  507 ;  Oliver  v.  Green, 
3  Mass.,  133;  Lawrence  v.  Van  Horn,  1  Caines, 
27G;  Crowley  «.  Cohen,  3  B.  &  Ad.,  478;  Car- 
ruthers  j).  Shedden,  6  Taunt.,  14;  Kinney  v. 
Van  Horn,  1  Johns.,  385;  Rising  v.  Burnett, 
Marsh,  on  Ins.,  730;  Wolf  «.  Horncastle.  1  B. 

6  P.,  315).     White  v.  Hudson  River  Ins.  Co., 

7  How.  Pr.,  341 ;  s.  c,  15  id.,  288. 

6.  Insured,  the  consignee,  was  to  bear  all 
shipping  expenses,  to  sell  the  property  to  the 
best  possible  advantage,  not  below  the  invoice 
price;  the  profits,  if  anj-,  to  be  equ.ally  divided 
between  the  shippers  and  the  consignee,  but 
in  case  of  a  failure  to  sell,  the  consignee  was 
to  return  the  goods  to  shippers  free  of  all 
ch.arges,  or  pay  the  invoice  price  for  them. 
Held,  the  consignee  h.ad  the  right  to  insurft 
them.  Sturm  v.  Atlanlic  Mut.  Ins.  Co.,  6  J.  & 
Sp.  (N.  Y.),  281. 

7.  She  was  registered  under  the  act  of  con- 
gress,  December  31,  1792,  and  sold  to  F.,  aji 
unnaturalized  alien;  but  the  title  was  taken 
in  the  name  of  the  plaintiff  to  preserve  her 
national  character,  and  she  was  insured  in  the 
name  of  the  plaintiff,  who  mortgaged  her  to 
F.,  and  contracted  to  keep  her  insured.  Held, 
he  had  an  insurable  interest  and  could  main- 
tain the  action.  Wilkes  v.  People's  Fire  Ins. 
Co.,  19  N.  Y.,  184. 

8.  The  owner  of  ship,  mortgaged  by  him 
for  her  full  value,  has  an  insurable  interest  in 
her.    Higjinson  v.  Pali.  13  Mass.,  96. 

9.  Ship  valued ;  insured  "  for  whom  it  might 
concern."  Insured,  the  owner,  made  absolute 
bill  of  sale  of  her  to  .another  person,  July  1st, 
and  took  back  a  memorandum,  which  pro- 
vided that  the  proceeds  of  the  vessel  should  be 
appropriated  as  security,  by  the  vendee,  for 
indorsing  for  the  insured,  and  the  balance,  il 
any,  to  be  paid  to  a  creditor  of  the   i-    'ired. 


713 


INSURABLE  INTEREST. 


tU 


Wliat  does  not  divest. 


Aflervv.irds  .Hdililioiial  property  was  transfer- 
red, and  the  memoranduiu  was  exchanged  for 
a  writing  under  seal,  wherein  it  was  coven- 
anted that  the  proceeds  of  all  the  property 
should  be  applied  as  before  mentioned.  A 
loss  happened.  Held,  there  was  still  a  sul)sist- 
ing  interest  in  the  insured,  protected  by  the 
policy,  since  the  debts  on  account  of  which 
the  transfer  was  made  would  still  exist,  ex- 
cept so  far  as  they  should  be  discharged  by 
the  proceeds  of  the  property.  Gordon  v.  Mas- 
sachusetts Fire  and  Marine  Ins.  Co.,  2  Pick., 
249. 

10.  The  mortgagor's  equity  of  redemption 
had  been  sold  under  an  execution  against 
liim,  but  he  still  had  the  right  to  redeem.  Held, 
he  bad  an  insurable  interest.  Sti-ong  v.  Man- 
vfacturers  Ins  Co.,  10  Pick.,  40. 

11.  Insured  procured  a  policy  upon  a  ves- 
sel to  the  amount  of  her  value,  payable  to  him  ; 
he,  together  with  another  person,  had  bought 
her,  and  he  indorsed  the  notes  given  by  the 
other  person.  No  writing  passed  between  the 
parties.  Before  the  loss,  the  other  person  sold 
his  proportion  to  the  insured.  Held,  he  was 
entitled  to  recover  the  whole  amount  of  loss 
for  his  own  use.  Martin  v.  Fishing  Ins.  Co., 
20  Pick.,  389. 

12.  Insured  had  made  a  contract  to  sell  the 
property  insured,  and  had  received  an  instal- 
ment of  the  purchase  money.  Held,  no  de- 
fense to  the  action.  Boston  and  Salem  Tee  Co. 
-v.  Royal  Ins.  Co.,  13  Allen,  381. 

1.9.  Property  insured  against  fire  was  sold 
by  insured,  part  of  purchase  money  paid,  and 
the  vendor  (insured)  and  the  vendee,  agreed 
that  the  vendor  should  retain  possession  of  it 
and  the  policies,  till  full  payment  made.  It 
was  burned  before  payment,  and  a  creditor 
attached  the  claims  against  insurers.  Held, 
as  between  the  parties  to  the  sale,  the  possess- 
ion was  good;  that  as  to  the  answers,  the 
goods  were  the  property  of  insured  to  the  ex- 
tent of  the  unpaid  purchase  money.  Norcross 
v.  Insurance  Cos.,  17  Penn.  St.,  429. 

14.  An  agreement  to  sell  real  estate,  pur- 
chase money  not  received  nor  conveyance 
made,  does  not  divest  the  insured  of  his  inter- 
est nor  of  his  right  to  recover  of  the  insurer. 
Perry  County  Ins.  Co.  v.  Stewart,  19  Penn. 
St.,  45. 

15.  Insured  agreed  to  convey  the  premises, 
and  received  part  of  the  purchase  money. 
The  policy   was   in  form  an  insurance  upon 


the  building.  Held,  he  was  entitled  to  recover 
to  the  extent  of  the  unpaid  purchase  money, 
notwithstanding  the  lot  was  sufficient  to  cover 
the  debt.  Insurance  Co.  v.  Updegraff,  21  Penn. 
St.,  SI.'}. 

16.  Policy  upon  a  dwelling  house,  con- 
veyed by  insured,  but  no  purchase  money 
paid.  The  grantee  reconveyed  it  to  a  trustee 
to  secure  the  purchase  money.  Held,  the  con- 
veyance and  reconveyance  were  to  be  regarded 
as  one  transaction;  that  tlie  insured  retained 
an  insurable  interest  in  the  property,  and 
could  recover  to  the  extent  of  tliat  interest,  not 
exceeding  the  amount  insured.  Morrison  v. 
Tennessee  Marine  and  Fire  Ins.  Co.,  18  Mo., 
262. 

17.  A,,  the  owner,  mortgaged  to  B.  and  in- 
sured them,  and  then  he  sold  to  C.  Insurer 
consented  to  the  sale  and  an  assignment  of  the 
policy.     B.  proceeded  to  forecl(;se,  to  which 

A.  and  C.  were  made  parties,  and,  by  agree- 
ment, A.  and  C.  were  to  have  two  years  from 
the  day  of  sale  to  redeem ;  but  the  decree  was 
entered  giving  fifteen  months  to  redeem,  they 
were  sold  and  bid  in  by  the  agent  of  B.,  and 
within  the  fifteen  months  were  consumed  by 
fire.  Held,  under  the.  agreement  the  relations 
of  mortgagor  and  morlg.agee  were  continued; 

B.  acquired  no  new  estate  under  the  purchase; 
he  had  only  a  lien  until  the  time  to  redeem 
had  expired ;  A.  was  the  mortgagor  at  the  time 
of  the  loss,  and  he  had  the  right  to  insure  and 
recover  the  full  value  of  the  property  insured. 
Stephens  v.  Illinois  Mut.  Ins.  Co.,  43  111.,  327. 

1 8.  Insured  agreed  to  sell  the  property,  but 
a  loss  occurred  before  he  executed  the  agree- 
ment; but'he  completed  it  after  the  loss.  Held, 
he  had  the  right  to  recover  for  the  loss.  FirD 
and  Marine  Ins.  Co.  of  Wheeling  v.  Morrison, 
11  Leigh,  354. 

1 9.  A.  insured  f  800  upon  his  own  ship,  but 
being  greatly  indebted  to  B.,  he  deposited 
with  B.  several  securities,  and  also  made  aa 
absolute  assignment  of  the  sliip  to  B.  She 
was  afterwards  lost.  Ihld,  A.  had  a  sufBcicDt 
interest  in  the  ship,  at  the  time  of  the  loss,  to 
maintain  the  action,  for  the  assignment, 
though  absolute,  was  nothing  more  than  a 
pledge  or  security  for  the  debt.  Interlocutera 
of  the  Scotch  court  affirmed.  Alston  v. 
Campbell,  4  Bro.  P.  C,  476. 

20.  An  insolvent  debtor,  who  had  posses- 
sion of  the  goods,  though  they  have  vested  ia 
the  provisional  assignee,  has  an  insurable  in- 

3.57 


715 


INSURABLE  INTEREST. 


716 


What  interest  must  be  disclosed — What  interest  need  not  be  disdosed. 


teresl  in  them.    Marks  v.  IlamiUon,  7  Exch., 
323;  21  L.  J.  E.\.,  109;  16  Juv.,  152. 

21.  B.  sold  oats  to  A.,  to  be  shipped  by  J. 
from  Yonghal.  B.  afterwards  advised  A.  that 
J.  had  engaged  transportation  in  the  packet  for 
the  oats  on  A.'s  account,  and  A.  insured  them 
per  packet;  but  the  packet  refused  to  touch  at 
Portsmouth,  imd  B.  suld  the  oats  again  and 
delivered  the  hill  of  lading  to  O.  The  packet 
was  lost.  By  subsequent  indorsement  on  the 
policy,  A.  assigned  the  insurance  to  B.  neld, 
if  A.  had  an  insurable  interest  at  the  time  the 
policy  was  effected,  whatever  cliange  may 
have  taken  place  in  the  proport}',  in  the  oats 
since,  could  have  no  effect  upon  the  policy, 
for  the  insured  might  sue  for  the  benefit  of  the 
party  to  whom  such  property  had  passed. 
Sparkes  v.  Marshall,  3  Bing.  (N.  C),  761;  3 
Scott.,  173;  3  Hodges,  41. 

22.  The  owner  of  a  mill  entered  into  an 
agreement  with  another  person,  by  which  the 
expenses  and  jirofits  of  the  mill  were  to  be 
shared  equally  by  both;  and  the  mill  was  in- 
sured in  the  name  of  the  ower.  Held,  the 
agreement  did  not  affect  the  right  of  the  in- 
sured to  recover  upon  the  policy.  Hice  v. 
Provincial  Ins.  Co.,  7  U.  C.  C.  P.,  548. 

23.  On  vessel.  Mortgagee  procured  insur- 
ai>ce  to  protect  his  own  interest,  butshe  contin- 
ued in  the  possession  of  the  mortgagor.  Held, 
plaintiff  was  entitled  to  recover.  Crawford  v. 
£t.  Lawrence  County  Ins.  Co.,  8  U.  C.  Q.  B., 
135. 

24.  The  owner  of  a  vessel  mortgaged  her, 
and  she  was  subsequently  levied  on  by  the 
sheriff  by  virtue  of  a  writ  of  fi.  fa.,  issued 
against  the  mortgagor  and  sold.  Held,  noth- 
ing passed  by  the  sale  to  the  purchaser,  for  the 
mortgage  carried  all  the  mortgagor's  legal 
estate  i  n  her ;  th.at  the  statute  8  Vict.,  ch.  5,  sec. 
23,  which  declares  that  the  registered  owner 
shall  be  deemed  the  owner,  notwithstanding 
he  has  mortgaged  the  vessel,  did  not  apply,  for 
that  statute  was  to  be  limited  to  registered 
vessels,  and  this  was  not  registered.  Scat- 
elytrd  v.  Equitable  Fire  Ins.  Co.,  8  U.  C.  C.  P., 
415. 

25.  The  plaintiff  had  contracted  to  purchase 
the  property,  but  had  failed  to  make  his  pay- 
ments promptly.  He  was  proceeding  in 
equity  to  compel  the  vendor  to  perform  his 
part  of  the  contract.  Held,  plaintiff  had  an 
insurable  interest  in  the  property.  Milligan 
V.  Equitable  Ins.  Co.,  16  U.  C.  Q.  B.,  314. 

358 


26.  Plaintiff  effected  insurance  on  2,000 
bushels  of  wheat  in  a  certain  warehouse,  for 
which  he  held  the  warehouseman's  receipt. 
The  warehouseman  had  issued  fraudulent 
warehouse  receipts  for  wheat  he  did  not  have, 
but  tlie  jury  found  there  were  2,000  bushels  ot 
wheal  in  the  warehouse  at  the  time  the  loss 
happened.  Held,  the  plaintiff  was  entitled  to 
recover  if  there  was  wheat  enough  in  the 
warehouse  corresponding  with  the  description 
in  the  warehouse  receipt.  The  fraud  of  the 
warehouseman  could  not  be  set  up  in  answer 
to  the  plaintiffs  claim.  Clark  v.  Western  Asa. 
Co.,  25  U.  C.  Q.  B.,  200. 

V.  What  interest  must  be  disclosed. 

1.  M.  devised  certain  property  to  his  son  B., 
in  trust  for  the  use  of  O.  and  her  children,  and 
in  case  she  should  die  without  children,  then 
in  trust  for  his  other  children.  The  applica 
tion  represented  the  premises  as  the  property 
absolutely  of  insured.  Held,  it  was  not  the 
absolute  property  of  insured;  hence,  the  rep. 
resentation  was  untrue  and  vitiated  the  policy. 
U.  S.  Cir.  C,  East.  Dist.  N.'  C.  Murphey  v 
Old  Dominion  Ins.  Co.,  5  Ins.  L.  J.,  297. 

2.  The  holder  of  a  leasehold  interest  cannot 
insure  it  in  a  mutu.al  company  unless  the  in. 
terest  be  specially  disclosed.    Mutual  Ass.  Co. 

V.  Mahon.,  5  Call,  517. 

VI.  What  interest  need  not  be  dis- 

closed. 

1.  Stipulated:  "Any  interest  in  the  prop- 
erty not  absolute  or  that  is  less  than  a  perfect 
title  must  be  specifically  represented  and  e.x- 
pressed  in  the  policy;  otherwise  it  will  be 
void."  At  the  time  it  was  made,  insured  had 
the  right  to  redeem  the  premises  from  sale 
theretofore  made  by  the  sheriff,  and  at  the 
time  of  the  fire,  though  that  right  had 
been  lost,  still  tliere  was  the  right  to  redeem 
in  judgment  creditors,  and  there  were  judg- 
ment creditors ;  and  C,  the  payee  of  the  policy, 
had  agreed  w  ith  insured,  if  he  acquired  title, 
lie  would  discharge  insured  from  certain  per- 
sonal liabilities.  Held,  insured  was  entitled 
to  recover.  Cone  v.  Niagara  Fire  Ins.  Co.,  60 
N.  Y.,  019;  s.  c,  3  N.  Y.  S.  C,  33. 

2.  The  plaintiff  was  a  common  carrier,  and 
the  defendant  issued  its  policy,  "  Upon  caigo 
from   New   York   to  Buffalo  insuring  him." 


717 


INSURABLE  INTEREST. 


ris 


Who  cannot  insure  —  "Interest  or  no  interest "  —  What  proof  is  necessary  —  Evidence  of. 


His  siiecial  interest  was  not  disclosed.  Ileld, 
he  was  entitled  to  recover  upon  an  aver- 
ment that  he  was  interested  in  the  cargo  to 
the  whole  amouQt,  and  became  liable  for  the 
same  to  the  shippers  thereof ;  that  the  fact 
that  he  had  no  interest  to  abandon  was  in  favor 
of  the  insurer,  who  could  not  be  made  liable 
for  a  constructive  total  loss  without  abandon- 
ment. Van  Nittta  v.  Sua  Mut.  Ins.  Co.,  3 
Sandf.,  490. 

3.  Stipulated :  "  If  the  interest  or  property 
insured  be  leasehold,  or  that  of  mortgage  or 
any  other  interest,  not  in  fee  simple,  in  case  of 
real  estate  or  not  absolute  as  to  personal  prop. 
«rty,  such  must  be  made  known  and  expressed 
in  the  policy."  At  the  time  the  policy  was 
made,  the  property  was  owned  by  the  Essex 
Mills  Co.,  a  body  corporate,  and  was  being 
used  by  W.,  wlio  was  to  have  all  the  profits  of 
the  business  for  two  years.  The  policy  was 
made  in  the  name  of  the  Essex  Mills  Co.  and 
W.  Held,  the  condition  did  not  apply  to  a 
case  where  the  united  interests  of  the  insured 
were  not  less  than  absolute.  Eankin  v.  Andes 
Ins.  Co.,  47  Vt.,  144.  , 

4.  Policy  to  husband,  "  On  household  fur- 
niture,"  the  propertj'  of  the  wife.  Held,  ho 
could  insure  it  in  his  own  name  without  dis- 
closmg  his  interest.  CUivke  v.  Firenvxn's  Ins. 
■Co.,  18  La.  (O.  S.),  431 ;  Franklin  Marine  and 
Fire  Ins.  Co.  v.  Drake,  2  B.  Mon.,  47. 

5.  Policy  on  goods.  The  only  interest  that 
insured  had  was  that  of  an  original  insurer. 
This  policy  was  therefore  one  of  reinsurance, 
but  that  fact  was  not  expressed.  Held,  no  de- 
fense to  tlie  action.  Mackenzie  v.Whitworth,  10 
L.  R.  Ex.,  142;  afflrnud,  1  Ex.  D.,  3G. 

6.  The  premises  were  purchased  as  lot  "  A," 
and  the  buildings  were  insured  as  being  upon 
that  lot;  but  upon  examination,  it  was  ascer- 
tained they  were  upon  lot  B,  having  been  put 
1here  by  mistake.  Held,  insured  liad  an  in- 
surable interest  in  the  buildings,  for  he  was 
entitled  as  against  the  owner  of  the  land  to 
the  value  of  the  improvements,  or  a  title  to 
the  land  on  payment  or  tender  of  the  value  of 
it.  Stenenaon  v.  London  and  Lancashire  Fire 
Ins.  Co.,  26  U.  C.  Q.  B.,  648. 

VII.  Who  cannot  insure. 

1.  One  part  owner  of  a  vessel  has  no  au- 
thority as  such  to  procure  insurance  for  the 
-other  part  owners ;  and  if  he  does,  the  others 


must  show  that  they  authorized  it,  or  that 
they  subsequently,  and  within  proper  time, 
ratified  it  (citing  Fosters.  United  States  Ins. 
Co.,  11  Pick.,  85;  Finney  v.  Fairhaven  Ins. 
Co.,  5  Met.,  192).  But  signing  a  note  for  U»e 
premium  and  commencing  a  suit  to  recover 
for  the  loss  by  all  the  owners  ratified  the  act 
of  the  one.    lilanduird  v.  Waite,  28  Me.,  51. 

2.  The  charterer  of  a  vessel  is  not  authorized 
to  insui-e  her  for  the  owner,  nor  has  one  part 
owner  as  such,  a  right  to  insure  her  for  another 
part  owner.    Sawyer  v.  Freeman,  35  Me.,  542. 

3.  The  ship's  husband  has  no  authority  to 
insure  the  whole  or  any  part  of  the  vessel 
without  express  authority  of  the  owner.  Tur- 
ners v.  Burrooos,  8  Wend.,  144;  French  v.  BlaoJc- 
house,  5  Burrows,  2727 ;  Bell  v.  Humphries,  2 
Starkie,  345. 

VIII.  Interest  or  xo  interest. 

"  Interest  or  no  interest."  Held,  the  insure! 
need  not  prove  any  interest  under  such  a 
policy,  nor  could  the  insurer  controvert  that 
question.    Depaba  v.  Ludlow,  1  Com.,  360. 

IX.  "What  proof  is  necessary. 

1.  When  the  insurance  is  upon  the  life  of 
a  third  person  or  the  policy  is  held  by  a  per- 
son  .as  assignee,  it  is  necessary  to  prove  an 
insurable  interest  in  the  life.  St.  John  v. 
American  Mutual  Life  Ins.  Co.,  13  N.  Y.,  81 ; 
2  Duer,  419. 

2.  Proof  of  an  insurable  interest  must  bo 
given  at  the  trial,  and  if  possession  is  relici 
upon  for  that  purpose,  in  the  absence  of 
proper  title,  it  must  be  an  actual  occupancy. 
Illinois  Mutual  Fire  Ins.  Co.  ■o.  Marsc'" 
Manuf.  Co.,  6  111.,  236. 

X.  Evidence  of. 

1.  The  policy  was  upon  property  occupied 
bv  insured.  Held,  under  the  code,  the  policy 
itself  was  sufiicient  proof  of  the  insurable  in- 
terest.  People's  Fire  Ins.  Co.  v.  Heart,  24 
Ohio  St.,  331. 

2.  On  buildings.  Stipulated:  "The  interest 
of  the  insured  shall  be  truly  stated  in  the 
policy,  and  set  forth  in  tlie  proofs  of  loss." 
The  record  of  the  property  showed  that  it 
was  in  X>.,  and  not  in  the  phiintifT.  Heli, 
plaintitf  had  a  right  to  prove  that  he  bought 

350 


ri9 


INTEREST  MONET  AND  USURY  —  INTERNATIONAL  LAW. 


720 


Miscellaneous. 


the  property  witli  his  own  money;  that  the 
conveyance  was  made  to  D.  for  him  to  hold 
the  property  for  the  plaintiff;  that  D.  never 
paiil  anylliing  for  it.  Tuckerman,  v.  Home  Ins. 
Co.,  9  R.  I.,  414. 


INTEREST  MONEY  AND  USURY. 

1.  The  vessel  was  never  heard  of.  Ifeld, 
interest  commenced  to  run  after  one  year  and 
thirty  days  from  the  time  when  she  was  last 
heard  from.  Hallett  v.  Phmnix  Ins.  Co.,  2 
"Wash.  C.  C,  279. 

2.  Interest  may  be  allowed  upon  a  partial 
loss,  if,  under  all  the  circumstances,  the  jury 
consider  it  right.     Anon.,  1  Johns.,  315. 

3.  Interest  shall  be  recoverable  from  the 
time  the  loss  iS  payble  by  the  terms  of  the 
policy.  Ddonguemare  v.  Tradesman's  Ins.  Co., 
2  Hall,  589. 

4.  If  the  preliminary  proiifs  are  so  uncer- 
tain and  indefinite  that  insurers  cannot,  from 
them  ascertain  the  amount  of  the  loss,  interest 
ought  not  to  be  allowed.  McLaughlin  v.  Wash- 
ington Countt/  Mut.  Ins.  Co.,  23  Wend.,  525. 

6.  When  insurers  have  been  always  ready 
to  pay  the  claim,  but  have  been  prevented  by 
trustee  process,  interest  cannot  be  allowed. 
Oriental  Bank  v.  Tremont  Ins.  Co.,  4  Met.,  1. 

6.  Interest  is  to  be  allowed  from  the  time 
the  loss  was  due,  not  including  any  amount 
which  the  insurer  was  willing  to  pay,  but  re- 
strained by  trustee  process.  Nevins  v.  Rock- 
ingham Mutual  Fire  Ins.  Co.,  25  N.  H.,  23. 

7.  Interest  is  not  always  recoverable  as  a 
matter  of  right;  it  should  be  left  to  the  jury 
to  allow  it  or  not,  upon  the  question  of  dam 
ages.    Newson  v.  Douglass,  7  H.  &  J.,  417. 

8.  She  discharged  part  of  her  goods  into 
launches  and  was  then  compelled  by  a  tem- 
pest to  put  to  sea  with  the  balance  of  cargo, 
and  was  never  heard  of.  Held,  interest  did  not 
begin  to  run  till  a  year  after  she  was  last 
heard  of.  Osacar  v.  Louisiana  State  Ins.  Co., 
17  Martin  (La.),  386. 

9.  The  interest  insured  was  that  of  a  mort- 
gage, and  the  insurer  pleaded  that  as  to  $345, 
it  was  unlawful  interest,  because  it  was  usur- 
ous,  and  that  the  whole  of  the  interest  money 
became  forfeited.    Held,  the  demurrer  to  the 


plea  was  properly  sustained,  for  the  statute 
reads  "that  no  incorporation  shall  hereafter 
interpose  the  defense  of  usury  in  any  action." 
Hartford  Ins.  Co.  v.  Hadden.  28  111.,  2G0. 

10.  The  contract  provided  for  the  payment 
of  a  sum  certain  upon  the  happening  of  a 
certain  contingency.  Held,  when  the  contin- 
gency occurred  t!ie  obligation  became  abso- 
lute, and  the  sum  presently  due,  which  it  was 
the  duty  of  insurer  to  pay,  and  on  refusal  or 
neglect  to  pay,  interest  thenceforth  became 
payable.  Brown  v.  Railway  Passenger  Ass. 
Co.,  45  Mo.,  221. 

11.  The  statute  allows  interest  where  the 
delay  is  vexatious.  Held,  not  necessary  to  ex- 
plictly  prove  that  the  delay  was  vexatious; 
the  jury  may  infer  it  from  all  the  facts  in  the 
case.  Broion  v.  Railway  Passenger  Ass.  Co., 
45  Mo.,  2il ;  Lockwood  v.  Atlantic  Mut.  Ins. 
Co ,  47  Mo.,  50. 

12.  The  insurers  admitted  an  average  loss- 
Insured  refused  it,  claiming  the  right  to 
abandon  and  recover  for  atotal  loss.  Held, 
interest  could  not  be  allowed  upon  the  aver- 
age loss.  He  Peau  e.  Russell,  1  Brev.,  441 ; 
Btidd  V.  Union  Ins.  Co.,  4  McCord,  1. 

1.^.  Interest  is  allowed  bylaw  upon  mer- 
cantile securities  only,  or  where  there  has 
been  an  express  promise  to  pay  it;  and  so,  in 
covenant  loss  payable  six  months  after  proof 
of  death,  it  was  held,  interest  did  not  begin  to 
run  six  months  after  proof  of  death.  Higgins 
V.  Sargent,  2  B.  &  C.  348;  3  D.  &  R.,  613. 

14.  The  claimant  sought  to  recover  interest 
on  the  claim,  but  the  policy  was  lost,  which 
caused  the  delay  in  making  payment  under  it. 
Held,  interest  should  not  be  allowed.  Busft- 
nan  v.  Morgan,  5  Sim.,  635. 

15.  The  trustees  of  certain  policies  filed  a 
bill  to  ascertain  the  rights  of  the  ditierent 
claimants,  whose  conflicting  interests  pre- 
vented the  insurers  from  paying  the  claims. 
Held,  interest  money  could  not  be  charged 
against  the  insurers  (overruling  8.  C,  6  Irish 
Ch.,  523).  French  v.  Royal  Exchange  Ass.  Co.^ 
7  Irish  Ch.,  523. 


INTERNATIONAL  LAW. 

(See  Law  or  Nations.) 


360 


721 


INTERPLEADER,  BILL  OF. 


•)•> 


Miscellaneous. 


INTERPLEADER,  BILL  OF. 

1.  Parties  insured  the  property  .lacl  applied 
for  partition.  Sale  was  ordered  and  made,  but 
it  was  not  confirmed,  nor  were  the  couvej- 
anccs  made  at  tlie  time  tlie  fire  occurred.  One 
of  tlie  insured  was  the  purcliaser.  Held,  he 
was  entitled  to  the  insurance  money  so  soon 
as  the  conveyance  sliould  be  completed.  Oaten 
V.  Smith,  i  Edw.  Ch.,  703. 

2.  A  building  insured  sustained  damage  by 
fire.  One  person  was  entitled  to  a  life  estate 
in  it,  and  another  to  the  reversion.  Held,  the  ten- 
ant for  life,  having  repaired  tlie  damage  at  a 
cost  exceeding  the  fire  damage  due  by  the  in- 
surer, was  entitled  to  the  insurance  money. 
Brough  v.  Iliggins,  2  Grattan,  408. 

3.  August  31,  1841,  the  life  of  S.  was  in- 
sured, £3,999,  for  Margaret.  She  assigned  the 
policy  to  D.  by  way  of  security  for  a  debt.  Mar- 
garet became  bankrupt  November  28,  1842, 
and  S.  died  in  Julj',  1843.  D.  applied  for  the 
insurance  money  and  brought  an  action  on 
the  policy  in  the  name  of  Margaret,  against 
the  insurers.  The  bankrupt's  assignee  de- 
clined to  interfere  or  give  consent  to  the  pay- 
ment of  the  money.  Held,  a  proper  case  for 
a  bill  of  interpleader;  that  the  assignment  of 
the  policy  to  D.  was  by  way  of  security,  leav- 
ing a  possibility  of  an  interest  in  the  bank- 
rupt which  would  have  passed  to  her  assignee, 
and  the  case  was  therefore  a  proper  one  for 
interpleader.  Fenn  v.  Edmonds,  5  Hare,  314; 
overruled,  Desborough  v.  Harris,  5  De  G.  M.  & 
G.,  439. 

4.  An  action  was  commenced  at  law  to  re- 
cover upon  a  life  insurance  policy,  against  the 
surviving  director,  who  executed  it,  and  he 
died  pending  the  action.  The  insurance  com- 
pany filed  a  bill  against  the  plaintiff  and  other 
persons  who  claimed  under  the  policy,  pray- 
ing that  they  might  be  compelled  to  inter- 
plead. Held,  the  personal  representative  of 
the  deceased  defendant  was  a  necessary  party ; 
that  where  interest  might  be  recovered  at  law, 
the  party  seeking  the  interpleader  must  offer 
to  pay  it,  and  the  afl3davit  accompanying  the 
bill  must  state  not  only  that  the  nominal 
plaintiff  docs  not  collude,  but  that  he  believes 
the  company  which  he  represents  does  not 
collude  with  cither  of  the  defendants.  Big- 
nold  J).  Axulland,  9  L.  J.  (N.  S.)  Ch.,  2()G. 

5.  Policy  to  II.,  payable  three  months  after 


the  death  of  G.  April  17, 1839,  insurer  rcceive>l 
notice  of  an  assignment  of  the  policy  by  way 
of  mortgage,  the  assignee  being  appointed  the 
attorney  of  H.  to  demand  and  sue  for  tlie  mon- 
eys  that  might  become  due  under  the  policy, 
and  to  discharge  it.  In  1834,  II.  became  insol- 
vent,  and  all  his  property  was  assigned  to  S. 
G.  died  in  18o3,  when  the  policy  and  its  accu-> 
mulations  amounted  to  £4,C2o.  August  15, 
1853,  H.  gave  notice  to  the  company  not  to 
pay  any  of  the  money  to  any  person  not  au- 
thorized by  letter  from  him.  An  action  at  law 
was  conuuenctd  on  the  policy  by  the  assignee 
of  the  policy.  Tlie  bill  alleged  that  H.  and  S. 
threatened  to  commence  actions  to  recover 
the  money  due.  Held,  in  order  to  establish  a. 
case  for  an  interpleader,  it  must  appear  that 
there  were  conflicting  claims  when  the  bill 
was  filed,  not  occasioned  by  the  act  of  the 
party  seeking  interpleader.  •  Held,  also,  the 
claim  of  H.  to  the  policy  was  entirely  out 
of  the  case,  for  his  beneficial  interest  had 
passed  to  the  provisional  assignee,  whose 
claim  was  not  adverse  to  that  of  the  assignee 
of  the  poiicj',  for  it  was  notliing  but  a  claim 
to  take  whatever  should  be  left  after  the  .a.s- 
signee  of  the  policy  should  be  satisfied.  Held, 
also,  the  assignee  of  the  policy  being  only  a 
mortgagee,  the  company  had  no  right  to  call 
upon  him  and  the  provisional  assignee  to  in- 
terplead. Deshorough\.  Harris,  5  De  G.  il.  <fc 
G.,  439,  overruling  Fenn  v.  Edmonds,  5  Hare, 
314. 

6.  The  defendant  h.ad  a  branch  oflSce  in 
London,  but  it-i  principal  place  of  business 
was  in  Edinburg,  from  which  it  issued  a  pol- 
icy payable  to  the  executors,  administrators  or 
assigns  of  the  insured,  at  the  ofiice  of  the  com- 
pany, in  London.  The  executor  and  the  equi- 
table  mortgagees  presented  conflicting  claims 
to  tlie  insurance  money.  The  company  com- 
menced an  action  in  the  court  of  session,  in 
Scotland,  compelling  them  to  interplead,  and 
this  action  was  brought  in  England  to  compel 
the  company  to  pay  the  money  into  court. 
Held,  the  company,  having  admitted  that  they 
had  no  interest  in  the  money,  must  pay  it  into 
court  without  being  indemnified,  notwith- 
standing the  Scotch  court  might  require  it  to 
be  paid  therein.  Cook  v.  Scottish  Equitable 
Life  Ass.  Society,  26  L.  T.  (N.  S.),  571. 

7.  .1.  effected  an  insurance  on  life  of  A.  for 
.£1,700,  who  afterwards  effected  another  on  his 
own  life  for  £425,  in  the  same  company,  and 

361 


723       INTERPRETATION -INTOXICATING  DRINKS  AND  INTEMPERANCE.      724 


Miscellaneous. 


assigned  bntli  with  ccrla'm  other  properly  to  J. 
intrust.  J.  was  to  repay  to  liimself  certain  sums 
advanced  by  him  for  A.,  and  other  debts,  the 
surplus  to  be  used  as  a  provision  for  the 
daughters  of  A.  J.  appointed  C.  and  L.  his 
executors,  and  died  leaving  a  will  which  re- 
cited the  assignment,  bequeatlied  £1,200  to  his 
daughter,  and  made  his  widow  residuary  leg- 
atee. The  executors  of  J.  claimed  the  amount 
of  both  policies  from  the  company.  One 
daughter  and  two  sons  of  A.  claimed  part  of 
the  policies.  It  appeared  that  one  of  J.'s  ex- 
ecutors had  mortgaged  the  £1,700  policy  to  T., 
who  held  it.  The  administrator  of  A.  served 
notice  on  the  company,  with  a  copy  of  his 
grant  of  administration.  The  executor  of  J. 
commenced  an  action  on  the  policy  for  £1,700. 
The  company  filed  this  as  a  bill  of  inter- 
pleader, and  offered  to  pay,  if  a  release  from 
the  parties  named  should  be  delivered.  Held, 
as  to  the  policy  for  £1,700,  the  company  had 
no  right  to  look  after  the  ti-usts,  and  therefore 
the  bill  as  an  interpleader  was  improperly 
•filed  and  should  be  dismissed;  that  as  to  the 
£425  policy,  the  administrator  of  A.  claimed 
the  money  to  pay  the  testator's  debts,  and  the 
executor  of  J.  demanded  it,  therefore,  as  to  it, 
the  bill  was  good  as  an  interpleader.  Glynn 
V.Locke,  2Con.&  Law.,  21;  s.  c,  5  Irish  Eq. 
H.,  61. 


INTERPRETATION. 

(See  CoNSTBacTioN.) 


INTOXICATING  DRINKS  AND  INTEM- 
PERANCE. 

I.  The  policy  was  predicated  upon  ques- 
tions and  answers  in  the  application  stated, 
the  former  printed  and  the  latter  written,  all 
■of  which  were  warranted,  by  the  terms  of  the 
policy,  to  be  true.  These  questions  were 
asked:  "  Have  you  ever  been  addicted  to  the 
excessive  use  of  any  alcoholic  stimulants  or 
<ipium?  Do  you  use  habitually  intoxicating 
drinks  as  a  beverage?"  To  both  he  answered 
■"  no."  Held,  it  was  not  a  statement  that  he  had 
never  been  addicted  to  the  use  of  intoxicating 
liquors  at  all,  but  that  he  had  never  been  ad- 
363 


dieted  to  the  excessive  or  intemperate  use  of 
them ;  and  the  answers  were  not  untrue,  un- 
less he  had  been  addicted  to  an  excessivo  or 
intemperate  use  of  alcoholic  stimulants;  tlie 
occasional  use  of  intoxicating  liquors  did  not 
make  the  answers  untrue,  nor  would  they  \>n 
rendered  untrue  by  any  use  of  intoxicating 
drinks  which  did  not  make  his  habits  tho«e 
of  a  man  not  uniformly  strictly  sober  and  tem- 
perate. Sioieh  V.  Home  Ins.  Co.,  2  Dil.  Cir.  C, 
160. 

2.  Stipulated:  "If  the  person  insured  shaU 
become  so  far  intemperate  as  to  impair  his 
health,  the  policy  shall  be  void,"  Held,  the 
onus  was  upon  the  defendant  to  show  that  this 
condition  was  violated.  N.  D.  111.,  per  Hop- 
kins, J.  Jarvis  v.  Connecticut  Mutual  Life 
Ins.  Co.,  8  Chi.  Leg.  News,  227. 

3.  Policy  against  injury  by  accidents. 
Stipulated:  "No  claim  shall  be  made  when 
the  death  or  injury  shall  have  happened  while 
the  insured  was,  or  in  consequence  of  having 
been,  under  the  influence  of  intoxicating 
drinks."  He  drank  champagne  and  whisky 
with  one  of  his  associates,  but  it  did  not  ap- 
pear that  he  was  so  far  under  the  influence  of 
liquor  as  to  indicate  it  in  his  conduct  when  he 
sat  down  to  dinner  at  5  P.  M.  At  dinner, 
champagne  and  whisky  were  upon  tlie  table, 
and  he  drank  of  both.  "While  at  dinner  the 
parties  commenced  talking  about  shooting; 
the  deceased  said  to  one  of  his  associates  that 
he  might  shoot  at  his  ear  for  ten  cents,  aiud 
soon  after  a  shot  was  heard.  On  going  into 
the  dining  room  deceased  was  found  on  his 
knees  on  tlie  floor  in  great  pain.  The  ball  had 
struck  the  deceased  in  the  abdomen,  passed 
through  one  lobe  of  the  liver,  and  lodged 
in  the  muscles  of  the  spine.  Held,  the  in- 
tention of  the  stipulation  was  to  require 
insured  to  limit  the  use  of  intoxicating  liquors 
to  such  a  degree  that  he  would  retain  full  con- 
trol over  his  faculties ;  if  he  unnecessarily  ex- 
posed himself  to  danger,  either  by  his  own  act 
or  the  act  of  others,  while  under  the  influence 
of  intoxicating  liquors,  insurers  were  not  li;i- 
ble.  Shader  v.  Railucay  Passengers  Ass.  Co., 
3  Hun.  (N.  Y.),  424;  s.  c,  5  N.  Y.  S.  C,  643. 

4.  In  the  application,  these  questions  were 
asked:  "Is  the  party  sober  and  temperate?" 
Answer.  "Yes."  Question.  "What  is  the 
present  state  of  the  health  of  the  party?" 
Answer.  "Very  good."  Held,  if  at  the  time 
the  policy  was  issued  insured  was  temperate 


■r^o 


IN  TRUST,  ON  CONSIGNMENT,  OR  ON  COMMISSION. 


726 


Miscellaneous. 


and  in  good  health,  the  representation  was 
verified;  that  his  death  was  caused  by  intem- 
perance was  immaterial.  Reickard  v.  Manhat- 
tan Life  Ins.  Co.,  31  Mo.,  518. 

5.  Policy  I'oimded  upon  represeutatiiinsand 
declarations  made  in  a  written  application, 
stipulated:  "To  be  void  if  any  of  the  repre- 
sentations are  untrue."  In  the  application  it 
was  stated  that  he  was  sober  and  temperate, 
and  had  always  been  so.  The  preliminary 
proofs  stated  that  he  died  of  congestion  of  the 
brain,  caused  by  cold,  derangement  of  the 
excretory  organs  and  overstimulation  ;  that  he 
■was  in  the  habit  of  using  stimulants  periodi- 
cally; would  go  for  months  without  liquor, 
and  never  had  delirium.  The  evidence  estab- 
.lished  the  fact,  that  at  the  time  he  effected  the 
insurance  he  was  addicted  to  the  intemperate 
use  of  into.vicating  liquor.  Held,  a  verdict  in 
favor  of  the  insured  was  clearly  against  the 
"weight  of  evidence,  and  must  be  set  aside. 
Mutual  Benefit  Life  Ins.  Co.  v.  HoUerhoff,  3 
Gin.  Sup.  Ct.,  379. 

6.  Stipulated:  That  the  person  insured 
should  be  of  sober  and  temperate  habits,  and 
that  he  had  made  a  declaration  to  that  effect. 
Plea,  that  he  was  not  of  sober  and  temperate 
habits,  but  that  he  was  of  intemperate  and 
drunken  habits,  and  so  the  policy  was  void. 
Held,  to  enable  the  defendant  to  defeat  the 
action,  it  was  not  necessary  to  show  that  he 
■was  intemperate  to  such  a  degree  as  to  injure 
his  health.  Southcombe  v.  Merriman,  1  C.  & 
M.,  286. 

7.  The  party  effecting  an  insurance  must 
communicate  to  the  insurers  every  material 
fact  within  his  knowledge,  which  tends  to 
increase  the  hazard  or  to  affect  the  question, 
whether  the  life  is  a  proper  subject  of  insur- 
ance; if  the  person  proposed  is  inlemperate, 
the  person  for  whose  benefit  tlie  policy  is 
made  must  communicate  that  fact,  if  it  is 
within  liis  knowledge.  Rawlins  v.  Deshor- 
ough,  2  M.  &  Rob.,  338. 


IN  TRUST,  ON  CONSIGNMENT  OR  ON 
COJLMISSION. 

(See  IsauBAKLB  Interest;  Policy.) 

1.    Whore   a  policy    is    applied    for    and 
granted  on  a  general  stock  of  goods  held  on 


trust  or  on  consignment,  it  is  not  expected 
that  insurers  should  be  informed  as  to  the 
ownership;  and  an  omission  to  disclose  the 
ownership  in  such  cases  cannot  be  regarded 
as  an  improper  concealment.  Phamix  Ins. 
Co.  V.  Ilamilton,  14  Wall.,  .504. 

a.  Stipulated:  "Goods  held  in  trust  or  on 
commission  must  be  insured  as  such."  Held, 
goods  on  commission  upon  which  insured 
had  a  lieu  for  advances,  were  not  covered  by 
the  policy,  because  they  were  not  specifically 
insured  as  goods  in  trust.  Brichta  v.Jfew  York 
La  Fayette  Ins.  Co.,  3  Hall,  372. 

3.  "  On  goods,  the  property  of  the  insured, 
or  held  by  him  in  trust."  Held,  cloth,  intrust- 
ed to  the  insured  for  the  porpose  of  beiug 
manufactured  into  clothing,  was  within  the 
policy;  nor  was  the  amount  of  the  loss  to  bo 
limited  by  the  bailee's  interest  or  lien  for 
charges.  Stillwell  v.  Staples,  19  N.  Y.,  401 ; 
reversing  s.  c.,  6  Duer,  63. 

4.  On  goods,  "by  him  held  in  trusf,"  in- 
sured represented  that  he  was  receiving  good.'? 
for  sale  on  which  he  made  advances;  that  the 
consignors  might  not  be  able  to  repay  the 
advances,  and  that  he  wished  to  obtain  insur- 
ance to  secure  himself  against  loss  by  fire. 
Hdd,  the  policy  attached  to  goods  conaigned, 
but  that  it  covered  only  insured's  interest  in 
them,  and  not  the  interest  of  the  consignors. 
Parks  V.  General  Interest  Ass.  Co.,  5  Pick.,  34. 

5.  Property  held  by  the  tenant  is  "  in  ti-ust," 
and  must  be  insured  as  such.  Kceley  v.  In- 
surance Co.,  1  Phil.,  17.5. 

6.  On  hogs,  CiUtlc,  and  the  product  of  the 
same,  and  on  salt,  cooperage,  and  boxes,  and 
articles  used  in  packing  their  own,  or  held  by 
them  in  trust  or  on  commission,  or  sold  but 
not  delivered,  contained  in  their  stone  and 
frame  packing  establisliment,  sheds  and  yards 
adjoining.  The  insured  had  goods  on  storage ; 
they  were  not  held  for  sale  on  commission. 
Held,  the  words  "  in  trust  "  were  not  to  be  con- 
strued in  a  strict  or  technical  sense,  limiting 
their  operation  to  cases  where  the  title  to  the 
goods  had  been  vested  in  a  trustee ;  they  were 
to  be  regarded  as  covering  goods  not  the 
property  of  the  insured,  for  goods  held  iu 
trust  in  the  technical  sense  would  be  as  much 
the  legal  property  of  the  insured  as  others 
which  belonged  to  them  in  their  own  right. 
Home  Ins.  Co.  v.  Favorite.  46  111.,  263;  Ph(Bnix 
Ins.  Co.  V.  Favorite.  49  id.,  259. 

7.  Stipulated:   "Property  held  in  trust  or 

303 


727 


INVASION,  HIOT,  INSURRECTION,  Etc. 


728 


Miscellaneous. 


on  commission  must  be  insured  as  such,  oth- 
erwise it  will  not  cover  such  property.  By 
properly  held  in  trust,  is  intended  properly 
held  under  a  deed  of  trust,  or  under  the  ap- 
pointment of  a  court,  or  held  as  collateral 
security."  Held,  if  the  property  was  held 
as  security  for  debt,  it  would  be  protected, 
hut  if  held  in  trust  secretly  to  defraud  the 
creditors  of  the  real  owner,  it  would  not  be 
within  it.  Ayres  t.  Hartford  Fire  Ins.  Co.,  17 
Iowa,  176. 

8.  To  A.  &  B.  as  corn  and  flour  merchants. 
"  On  corn  and  flour,  the  property  of  the  insured, 
or  held  by  them  in  trust  or  on  commission." 
Seld,  it  covered  property  which  the  plaintififs 
held  as  warehousemen,  and  which  they  were 
not  bound  to  insure,  whether  insured  had  liens 
upon  it  for  storage  or  not,  for  the  goods  of 
customers  were  in  trust,  within  the  meaning 
of  the  policy.  Waters  v.  Monarch  Ins.  Co., 
5  El.  &  Bl.,  870;  s.  c,  2  Jur.  (N.  S.),  375;  25 
L.  J.  Q.  B.,  102. 

9.  "  On  wheat,  flour,  sacks,  etc.  Goods  held 
in  trust  or  on  commission  must  be  insured  as 
such,  otherwise  the  policy  will  not  extend  to 
cover  them."  A  part  of  the  property  destroj-ed 
included  wheat  received  by  insured  from  farm- 
ers, mixed  indiscriminately,  on  which  advances 
had  been  made  by  insured.  The  farmer  had  the 
right,  by  agreement  with  insured,  to  demand  an 
equal  quantity  of  wheat  of  like  quality,  or  mar- 
ket price,  on  day  of  demand,  and  the  insured 
had  the  right  to  deliver  wheat  of  like  quality 
and  quantity,  or  pay  the  market  price.  Held,  it 
was  not  property  held  in  trust,  for  an  indeli- 
ble incident  of  trust  property  is,  that  the 
trustee  can  never  make  use  of  it  for  his  own 
benefit.  Hence,  insurers  were  liable  for  the 
whole  loss.  South  Australian  Ins.  Co.  v.  Ban- 
dell,  3  L.  R.  P.  C,  101 ;  6  Moore  P.  C.  C.  (N.  S.), 
341 ;  22  L.  T.  (N.  S.),  843. 

10.  "  On  merchandise,  the  insured's  own,  in 
trust  or  on  commission,  for  which  they  are 
responsible  in  or  on  all  the  warehouses,  vaults, 
cellars,  sheds,  cranehouses,  wharves,  yards," 
etc.  Certain  chests  of  tea  were  deposited  in 
bond,  for  which  the  wareliousemen  gave 
wharfingers'  warrants,  deliverable  to  the  per- 
sons named  therein,  or  their  assigns,  by  in- 
dorsement, upon  payment  of  duty  and  ware- 
house charges.  The  insured  purchased  the 
teas  from  the  importers,  who  indorsed  the 
warrants  in  blank,  and  delivered  them  to  the 
insured,  who  sold  the  teas  to  difi'erent  persons 

3ti4 


by  sample,  open  credit  three  months,  or  cash 
subject  to  discount,  the  sellers  to  p.iy  all  ware- 
house charges  up  to  the  time  the  credit  should 
expire,  and  the  purchasers  to  be  liable  for  all 
custom  house  duties.  Each  purchaser  received 
an  invoice,  stating  the  weights,  marks,  and 
numbers  of  the  chest.s,  and  the  amount  paya 
ble.  The  sellers  retained  the  warrants,  and 
were  to  do  whatever  was  necessary  to  get  the 
teas  cleared  and  delivered.  The  wharfingers 
never  received  any  notice  of  the  sale,  the  in- 
sured was  not  bound  to  insure,  the  purchasers 
were  not  li.able  for  any  premiums  paid  for  in- 
surance, nor  had  the  sellers  charged  the  pur- 
chasers  with  any  such  premiums.  Insured 
voluntarily  paid  to  the  purchasers  the  value 
of  the  teas  after  they  were  consumed  by  fire. 
Held,  the  words,  "  ibi  which  they  are  responsi- 
ble," controlled  the  rights  of  the  parties;  and 
as  the  insured  were  not  responsible  to  the  pur- 
chasers  for  loss  by  fire,  it  was  not  a  loss  with- 
in the  meaning  of  the  policy.  2\''vrth  British 
and  Mercantile  Ins.  Co.  v.  Moffatt,  7  L.  R.  C.  P., 
25;  s.  c  ,  41  L.  J.  C.  P.,  1 ;  25  L.  T.  (N.  S.),  662; 
20  W.  R.,  114. 

11.  A  coach  builder  effected  insurance  "  On 
his  stock  in  trade,  including  goods  in  trust 
and  on  commission."  The  pursuer  sent  his 
carriage  to  the  defender's  premises  for  repairs, 
where  it  was  consumed  by  fire.  Held,  insured 
was  entitled  to  satisfiy  his  own  loss  first  from 
the  money  received  of  his  Insurers.  DnU 
gleish  v.  Buchanan,  16  C.  C.  S.,  332 ;  26  Scot. 
Jur.,  160. 


"INVASION,  RTQT,  INSURRECTION, 
CIVIL  COMMOTION.  MILITARY  OR 
USURPED  POWER. " 

(See  PoLicT. 

1.  Insurers  were  not  to  be  liable  for  loss 
caused  by  any  usurped  power.  The  authori- 
ties blew  up  a  building  with  gunpowder  for 
the  purpose  of  arresting  a  conflagration.  Held, 
the  loss  was  not  within  the  exception,  for  that 
applied  only  to  a  usurpation  of  the  power  of 
government.  City  Fire  Im.  Co.  t.  Corlies,  2! 
i\'end.,  307. 

2.  Stipulated:  "No  insurance  against  losa 
by  fire  occasioned  by  mobs  or  riot."  On  Sun- 
day, .June  28, 1863,  an  organized  military  forca 


729 


INVASION,  RIOT,  INSURRECTION,  Etc. 


730 


Miscellaneous. 


of  the  Southern  Confederacy  advanced  from 
the  borough  of  York  to  the  borough  of 
Writflitsville,  to  a  bridge  then  across  the  Sus- 
ouchauna.  The  Union  troops  were  on  the 
\vesl<;ru  side  of  the  river.  The  Confederates 
attempted  to  cut  off  the  retreat  of  the  Union 
troops  ;  and  lo  frustrate  that  attempt,  fire  was 
communicated  to  the  bridge  by  order  of  the 
ofiicer  in  command  of  tlie  Union  troops,  tlie 
fire  extending  (o  the  property  insured.  Held, 
the  Confederates  were  not  a  mob  or  rioters, 
but  a  regularly  organized  public  enemy;  that 
the  act  of  burning  the  bridge  was  an  act  of 
sovereignty  executed  bj'  the  regularly  consti- 
tuted autliorities,  and  therefore  not  within  the 
saving  clause  of  the  policy.  Harris  v.  York 
Mm.  Ins.  Co.,  .50  Penn.  St.,  341. 

3.  Stiptdated:  "  Insurer  shall  not  be  liable 
to  make  good  any  loss  or  damage  by  Are 
which  may  happen  or  take  place  by  means  of 
any  invasion  or  insurrection,  riot  or  civil 
commotion,  or  any  military  or  usurped  power." 
The  property  was  at  a  place  occupied  by  the 
forces  of  the  United  States.  There  was  a 
<lepot  for  military  stores  deposited  in  the  Citj' 
Hall.  Finding  that  the  city  could  not  be  suc- 
cessfully defended,  and  to  prevent  the  stores 
from  falling  into  the  hand  of  the  enemy,  the 
commander  ordered  their  destruction;  and  the 
City  Hall  was  set  on  fire  as  a  means  of  effect- 
ing the  purpose  ;  the  fire  communicated  with 
three  builHings  intermediate,  before  it  reached 
the  building  in  which  the  goods  insured  were 
stored.  It  was  conceded  that  the  setting  fire 
to  die  City  Hall  bj'  the  military  power  of  the 
United  Slates  was  the  pro.ximate  cause  of  the 
loss,  unless  the  attack  of  the  eijemy  was  to  be 
so  regarded ;  that  the  firing  of  the  City  Hall 
was  a  lawful  act,  justified  by  necessitj'  and 
the  motive  which  prompted  it.  Held,  the  fire 
did  not  hsyipen  by  means  of  the  unlawful 
attack  of  tlie  enemy,  nor  b^'  means  of  inva- 
sion, insurrection,  riot  or  civil  commotion,  for 
although  the  attack  of  the  enemy  furnished 
the  motive  for  setting  fire  to  the  City  Hall,  it 
was  not  the  proximate  cause  of  the  fire;  that 
the  act  of  the  commander  was  lawful ;  that 
the  policy  did  not  except  loss  caused  by  the 
lawful  acts  of  the  military  authorities  of  the 
government;  the  exception  was  confined  to 
unlawful  acts  by  persons  acting  in  hostility  to 
the  government  or  in  subversion  of  it  ;  hence 
a  fire  caused  by  the  lawful  orders  of  the  offi- 
cer in  command  was  not  within  the  exception, 


and  the  insurers  were  therefore  liable  for  the 
loss.  Boon  V.  uStna  JPire  Ins.  Co.,  40  Conn., 
575. 

4.  Policy  excepted  loss  of  the  life  insured 
"  by  means  of  invasion,  insurrection,  riot  or 
civil  commotion,  or  of  any  military  or  usurped 
authority,  or  by  the  hands  of  justice."  The 
life  insured  was  that  of  a  slave  who  ran  away, 
and  the  regular  patrol,  in  the  discharge  of 
their  proper  duty  in  the  district,  endeavored 
to  apprehend  him;  but  in  his  attempt  to 
escape,  he  was  killed.  Held,  the  loes  was  not 
within  any  of  the  exceptions  in  the  policy, 
and  the  insurers  were  liable.  Spruill  v.  North 
Carolina  Mutual  Life  Ins.  Co.,  1  Jones  Law 
(N.  C),  126.  • 

5.  Stipulated:  "Not  liable  for  any  loss  or 
damage  which  may  happen  by  means  of  any 
invasion,  insurrection,  riot  or  civil  commo- 
tion, or  of  any  military  or  usurped  power." 
The  national  soldiers  were  overpowered  and 
compelled  to  surrender  to  the  confederates, 
and  the  latter  held  absolufe  and  exclusive 
possession,  at  which  time  the  property  was 
consumed  by  fire ;  but  as  to  the  origin  of  the 
fire,  whether  it  occurred  by  the  act  of  the 
confederate  soldiers,  or  was  communicated 
from  their  camp  fires,  there  was  doubt.  There 
was  no  evidence  that  the  fire  was  authorized 
by  an  order  from  the  commander  of  the  forces. 
Held,  to  exonerate  insurer,  it  was  not  neces- 
sary to  ascertain  how  or  in  what  way  the  fire 
originated,  provided  it  was  within  the  range 
of  one  or  more  of  the  excepted  causes;  the 
real  question  was:  "Did  the  fire  happen  by 
reason  of  or  in  consequence  of  the  military 
and  usurped  power,  and  was  that  the  proxi- 
mate  cause  of  the  loss?  If  it  was,  the  de- 
fendant should  be  released;  if  it  was  not,  the 
judgment  should  bo  for  the  insured.  Barton 
V.  Home  Ins.  Co.,  42  Mo.,  156. 

6.  On  cargo  for  Havre,  to  return  ten  per- 
cent,  in  case  no  act  of  war  took  place  between 
Prance  and  Spain  during  the  voyage.  The 
The  French  armies  entered  Spain  April  8th  ; 
and  the  vessel  arrived  at  Havre  on  the  17th. 
Held,  invasicm  of  Spain  by  the  French  armies 
was  an  act  of  war.  Pouts  v.  Louisiana  State 
Ins.  Co.,  16  Martin  (La.),  80. 

7.  Policy  provided  that  the  insurer  should 
not  be  liable  to  make  good  any  loss  by  fire 
which  might  happen  by  means  of  invasion, 
insurrection  riot,  or  civil  commotion.  The 
evidence  showed  that  the  persons  who  set  flro 

365 


r3i 


INVOICES  —  JUDGMENT. 


732 


Miscellaneous. 


to  the  premises  were  more  than  three,  the  fact 
of  a  riot  was  established.  Ileld,  insurer  was 
discharged,  and  it  was  not  necessary  to  estab- 
lish the  fact  of  riot  by  the  judgment  of  a  com- 
petent court  in  a  criminal  proceeding.  Dupin 
i-.  Mut.  Ins.  Co.,  5  La.  An.,  483. 

8.  On  sliip  $7,000,  valued  at  $40,000,  "war- 
ranted free  from  all  claim  from  loss  or  dam- 
age arising  from  or  growing  out  of  the  col- 
lision of  foreign  powers  or  of  our  government 
with  others."  A  fleet  of  United  States  vessels 
of  war  had  passed  the  forts  below,  and  was 
advancing  up  the  river,  the  purpose  of  the 
Confederate  officers,  then  about  to  evacuate  the 
city,  was  to  destroy  all  the  cotton  in  New  Or- 
leans, whether  in  cotton  presses  or  on  sliip- 
board,  and  slie  was  burned  by  order  of  the 
confederate  authorities.  Held,  the  destruc- 
tion resulted  from  and  grew  out  of  the  col- 
lision between  the  United  States  and  the  Con- 
federate power  then  in  arms  against  the  au- 
thority of  the  United  States  and  was  a  loss  not 
insured  against.  Marcy  v.  Merchants  Mut.  Ins. 
Co.,  19  La.  An.,  388. 

9.  Stipulated:  "Not  to  be  liable  incase 
the  same  shall  be  burned  by  any,  invasion  of 
foreign  enemies,  or  any  military  or  usurped 
power  whatsoever.  A  mob  set  fire  to  the 
premises.  Held,  insurers  were  liable,  for  the 
cause  of  the  loss  was  not  within  the  exception. 
Drinkwater  v.  London  Ass.  Co.,  3  AVils.,  363. 

]  0.  Not  liable  for  loss  caused  by  civil  com- 
motion. A  mob  fired  the  premises.  Held,  a 
loss  by  civil  commotion.  Langdale  v.  Mason, 
Marsh.  Ins.,  688. 


INVOICES. 

(See  Evidence;  Pnoors  or  Loss.) 

1.  In  commercial  cases,  an  invoice  is  prima 
facie  evidence  of  prime  cost,  and  no  more,  if 
it  carries  proof  of  its  fairness,  and  is  admissi- 
ble as  evidence  in  the  cause.  0-rnJmm  u.  Penn- 
syhania  Ins.  Co.,  2  Wash.  C.  C,  113. 

2.  Stipulated :  "  Insured  shall,  if  required, 
produce  his  books  of  accounts  and  other 
vouchers,  and  certified  copies  of  all  bills  and 
invoices,  the  originals  of  which  have  been 
lost."  Held,  he  was  not  bound  to  ask  persons, 
of  whom  he  was  in  the  habit  of  purchasing, 

3GG 


for  new  invoices.    O'Brien  v.  Commercial  Fire 
Ins.  Co.,  6  J.  &  Sp.  (N.  Y.},  517. 

3.  The  policy  required  insured  to  produce 
books  of  accounts  and  vouchers  in  support  of 
the  claim.  The  books  and  papers  of  insured 
were  all  burned  in  the  fire,  and  insurer  then 
required  insured  to  sign  an  instrument  request- 
ing the  persons  from  whom  he  had  purchased 
goods  to  furnish  the  amounts  of  the  invoices. 
Held,  the  insured  was  not  bound  to  do  so. 
Franklin  Ins.  Co.  v.  Culver,  G  Ind.,  137. 


ISSUES. 

(See  Pleading.) 

1.  The  jury  must  pass  upon  the  issnos  that 
the  parties  have  seen  fit  to  make.  Harris  v. 
Protection  Ins.  Co.,  Wright,  548. 

2.  The  insurer  brought  this  action  to  re- 
duce the  policy,  alleging  concealments  of  ma- 
terial facts  and  false  representations.  Held, 
the  issue  must  be  whether,  by  misrepresen- 
tation, or  undue  concealment  or  nonstato- 
meut  of  material  facts  as  to  the  health  or 
habits  of  the  deceased,  the  insurers  were  in- 
duced  to  grant  the  policy.  Sprott  e.  Ross,  1(J 
S.  &  D.,  1145. 


JETTISON. 

(See  Genebai.  Avebaob.) 


JUDGMENT. 

(See  iNcuMBBANfES ;  Levy  or  ExBOunov.) 

I.  Arrest  op. 

II.   No  REMAND. 

III.  What  is  final. 

I.  Aerest  of. 

When  the  judgment  is  arrested,  no  judg 
ment  can  be  properly  entered  for  the  defend- 
ant; but  the  plaintiff  is  at  liberty  to  begin  d» 
now.    Raber  n.  Jones,  40  Ind.,  436. 


r33 


JURAT—  JURISDICTION. 


734 


Equity. 


II.    No  KEMAND. 

If  tlie  error  is  in  the  amount  of  the  ver- 
diet,  and  a  proper  sum  can  be  ascertained  by 
(alculalion,  tlie  court  will  not  remand  the 
case,  but  render  such  a  judgment  as  ought  to 
have  been  given,  llanse  v.  Neio  Oiica/is  Ma- 
rine and  Fire  Ins.  Go.,  10  La.  (O.  S.),  1. 

III.  AVlIAT  IS  FINAL. 

The  court  dismissed  the  action  for  mis- 
joinder, and  tlien  allowed  an  amendment  to 
he  made  by  the  plaintift'  dismissing  as  to  three 
persons  and  proceeding  to  the  other.  Held, 
upon  tipplicalion  to  dismiss  the  writ  of  error 
on  the  ground  that  there  was  no  final  judg- 
ment,  the  application  must  be  overruled.  The 
action  was  commenced  by  attachment.  The 
defendant  appeared  and  i>leaded.  The  court 
dismissed  the  attachment  for  a  defect  in  the 
bond.  Held,  this  was  such  a  final  judgment 
as  could  be  appealed  from.  SiitherUn  v.  Uii- 
clerwriter^s  Agency,  53  Ga.,  442. 


JURAT. 

The  defendant  filed  certain  pleas,  to  which 
•was  appended  the  following:  "  On  this  7th 
day  of  January,  1869,  before  me,  the  subscriber, 
R  justice  of  tlie  peace  of  the  state  of  IVIaryland, 
In  and  for  the  city  of  Baltimore,  personally 
appeared  the  above  named  defendant  and 
made  oath  in  due  form  of  law,  that  it  is  verily 
believed  that  sufficient  evidence  will  be  fur- 
nished  at  the  trial  of  said  cause  to  support  the 
same.  6.  F.Thompson,  J.  P."  Held,  the  plea 
must  be  stricken  out.  Knickerbocker  Life  Ins. 
Co.  V.  Hoeske,  32  Md.,  317. 


JURISDICTION. 

Eqtjitt. 

(a)  Wlien  the  court  will  entertain  on  be- 

Tmlf  of  insurers. 

(b)  on  behalf  of  insured. 

(c)  When  the  court  will  refuse  to  enter- 

tain. 


II.  At  law. 

(a)  WJiat  confers. 

(b)  When  the  court  toill  decltTte. 

(c)  there  is  none. 
III.  Admiralty. 


I.  Equitt. 

(a)    When  the  court  will  entertain  on 
heJialf  of  insurers. 

1.  Bill  to  Set  aside  a  judgment.  It  alleged 
that  the  complainants  were  ignorant,  at  the 
trial ,  of  the  defendant's  fraudulent  acts  and  in- 
tentions; that  since  the  trial,  facts  had  beoi» 
discovered  which  would  have  defeated  the 
claim  had  they  been  given  in  evidence  upon 
the  trial.  Held,  it  was  a  proper  case  for  the 
interference  of  a  court  of  equity.  Ocean  Ins. 
Co.  V.  Fields,  2  Story,  50. 

2.  The  insurers  paid  losses  on  several  sliip- 
mouts,  to  divers  persons,  and  brought  suit,  by 
bill  in  equity,  to  recover  from  the  carriers. 
Held,  insurers  had  a  right  to  resort  to  equity, 
for  the  bill  disclosed  fifteen  diflerent  contracts 
of  affreightment,  adjusted  by  complainants, 
and  by  joining  them  in  one  bill,  much  incon- 
venience and  vexation  were  prevented.  Garri- 
son V.  Memphis  Ins.  Co.,  W  How.,  312. 

3.  A  court  of  equity,  in  a  proper  case,  will 
order  a  policy  to  be  canceled.  McEvers  v. 
Lawrence,  Hoffm.  Ch.,  173. 

4.  The  bill  alleged  that  the  policy  was  ob- 
tained by  the  fraud  of  R,  upon  whose  life  it 
was  issued,  in  complicity  with  P.,  for  the  ben- 
efit  of  the  widow  and  children  of  R.  The  de- 
fendants demurred.  Held,  the  demurrer  must 
be  overruled.  Olobe  Mutual  Life  Ins.  Co.  v. 
Meals,  48  How.  Pr.,  502. 

5.  Several  insurers  may  join  in  equity  in  an 
action  for  relief  against  an  award.  Bulkley  v. 
Starr,  2  Day,  552. 

6.  On  representation  of  a  loss,  three  insur- 
ers  paid  their  subscriptions,  £600,  into  the 
hands  of  a  broker,  who  paid  over  £300  by  au- 
thority from  them ;  but  the  loss  turned  out  to 
be  fraudulent,  and  one  of  the  insurers  brought 
action  against  the  broker  to  recover  his  £200. 
Held,  a  court  of  law  would  not  look  into  aa 
account  to  ascertain  what  each  party  was  en- 
titled to,  hence  there  must  be  a  joint  action, 
or  the  parties  must  go  into  equity.  Silva  v. 
Under,  3  Marsh.,  487. 

367 


r.so 


JURISDICTION. 


736 


Equity. 


7.  Bill  in  equity  by  llie  underwriters  of  a 
policy  aguinst  whom  actions  at  law  had  been 
commenced.  The  bill  charged  fraud  in  value, 
and  a  fraudulent  loss;  prayed  a  discovery,  and 
that  the  policy  might  be  declared  void-,  that 
it  might  be  canceled  or  the  names  of  the  com- 
plainants stricken  ofl';  also  for  a  commission 
to  examine  witnesses  in  Ireland,  and  an  in- 
junction to  stay  proceedings  at  law.  To  this 
there  was  a  demurrer,  which  was  overruled. 
French  v.  Connolly,  2  Anst.,  454. 

8.  The  defendant  loaned  £300  on  a  bottomry 
bond,  but  had  no  interest  in  ship  or  cargo; 
he  insured  £450  on  the  ship.  She  survived 
the  time  limited  in  the  bond,  but  was  lost 
■within  the  time  limited  in  the  policy,  and  this 
bill  was  brought  to  have  the  policy  delivered 
up  and  canceled.  Held,  the  prayer  of  the  bill 
must  be  granted.  Goddart  v.  Oarrett,  3  Vern  , 
269. 

9.  The  king  granted  a  duly  upon  sea  coal, 
for  his  life,  to  Lord  Townsend,  who  farmed 
that  duty,  and  the  plaintiffs  insured  the  farm- 
ers of  it:  "  That  it  should  not  determine  before 
Michaelmas,  1685,  and  that  if  if  did,  they  would 
pay  defendants  the  several  sums  of  money  by 
them  subscribed,  without  abatement,  and 
without  questioning  what  the  defendants 
might  lose  thereby,  and  without  any  farther 
dispute,  plea  or  pretense  whatever."  The  king 
died  in  February,  1G84,  and  this  bill  suggested 
that  though  the  duty  had  expired  by  the  de. 
inise  of  the  king,  yet  the  payment  of  it  had 
not  ceased,  for  by  proclamation  of  the  then 
king,  the  duty  was  collected  as  in  his  brother's 
lifetime;  that  the  insured  were  not  damnified, 
and  therefore  the  insurers  prayed  to  be  relieved 
against  the  policy.  Held,  by  .Jefirics,  C.  .J.,  the 
defendants  must  answer  the  bill.  Knightly  i\ 
Surdet,2\Qrn.,  11. 

10.  Insurers  made  application  to  enjoin 
proceedings  on  the  ground  that  the  material 
facts  for  the  plaintifr  arose  in  the  West  Indies, 
and  for  an  application  to  examine  witnesses 
there.  Held,  it  should  be  allowed.  Chitly  v. 
Selwyn,  2  Atk.,  359. 

11.  Bill  brought  by  trustees  not  interested 
in  the  profits,  but  they  were  liable  to  suit  in 
an  action  on  the  policy.  The  bill  charged 
fraud  in  effecting  the  insurance,  and  prayed  to 
have  the  policies  delivered  up  to  be  canceled. 
The  shareholders  were  made  party  defendants 
so  far  as  they  were  known.  The  proceedings 
were  commenced  before  the  life  insured  had 

368 


terminated.  Held,  upon  demurrer  to  the  bill, 
the  contract  ought  to  be  rescinded;  that  the 
plaiutifls  occupied  a  better  position  than  they 
would  after  the  death  of  the  life  insured. 
Held,  also,  where  the  objection  does  not  appear 
upon  the  face  of  the  instrument,  it  cannot  be 
said  that  the  party  complaining  has  the  same 
means  of  relief  at  law  as  in  equity.  Penn  v. 
Craig,  3  You.  &  Coll.,  216. 

12.  Policy  on  the  life  of  Walter  Palmer, 
£13,000.  William  Palmer  claimed  the  money 
under  an  assignment  of  February  13,  1855, 
nominally  in  discharge  of  a  debt  of  £400.  The 
coroner'sjury  found  that  William  feloniously 
killed  and  murdered  Walter.  William  was 
convicted  of  the  murder  of  one  Cook,  and 
hanged.  He  was  never  tried  for  the  murder 
of  Walter.  Held,  upon  the  proof  given  in  the 
case,  Walter  never  had  any  interest  in  the 
policy;  that  William  had  deliberately  laid  a 
plan  to  defraud  several  insurance  ofBccs, 
among  them  the  plaintiffs,  by  procuring  poli- 
cies on  the  lives  of  persons,  and  then  by  his 
own  act  precipitating  the  period  at  which 
those  insurances  were  to  become  claims; 
hence  the  plaintiffs  were  entitled  to  have  the 
policy  delivered  to  be  canceled,  because  it  was 
obtained  by  fraudulent  means  for  fraudulent 
purposes.  Prince  of  Wales  Ass.  Co.  v.  Palmer, 
25  Beav.,  605. 

]  3.  A  plaiutiff  in  equity  filed  his  bill,  stat- 
ing that  a  policy  had  become  void  at  law,  and 
claimed  to  have  it  treated  valid  in  equity.  The 
bill  was  dismissed,  and  he  then  sued  at  law, 
and  this  bill  was  brought  to  restrain  U»e 
action.  Held,  an  injunction  must  be  gr-intcd 
to  restrain  the  action  at  law.  Tredegar  v. 
Wiiidus,  19  L.  R.  Eq.,  607. 

14.  A  proposal  was  made  to  insure  the  life 
of  M.  iu  the  name  of  C,  and  to  it  was  ■innexed 
a  declaration  signed  by  M.,  declaring  the  con- 
dition of  his  health.  A  receipt  was  given  for 
the  premium,  and  an  agreement  made  to  issue 
the  policy;  but  this  receipt  was  canceled  and 
a  new  one  issued  and  forwarded  to  M.  In- 
surers alleged  falsehood  iu  the  declaration  of 
M.,  and  gave  notice  to  both  parties  that  they 
would  not  issue  the  policy,  and  tendered  the 
premium  to  both,  which  was  refused.  Upon 
an  application  for  an  injunction  to  restrain  the 
suit  at  law,  the  defendants  contended  that  they 
were  not  fettered  by  the  terms  of  the  proposal. 
Held,  in  that  case,  an  injunction  must  be  grant- 
ed     Hancock  v.  Macnamara.  2  Irish  Eq.,  480. 


rsT 


JURISDICTIOX. 


Equity. 


15.  H.  effected  iiisuranrc  on  liis  life,  and 
assignrd  to  M.  iu  trust  for  J.,  a  minor.  The 
deed  contained  no  declaration  tliat  trustee's 
receipt  should  diseliargc  the  insurers,  who 
now  refused  to  pay  M.,  tlie  e.xecutor  of  H.  He 
threatened  to  proceed  at  law,  and  this  bill  was 
brought  to  restrain  him.  It  was  alleged  that 
he_  was  attempting  to  obtain  the  money  to 
apply  to  his  own  use,  in  violation  of  the  trust. 
Held,  the  court  would  let  the  case  stand,  upon 
condition  that  the  plaintills  bring  the  money 
into  court.    Fcrnie  v.  ilaguire,  0  Ir.  Eq.  K.,  137. 

(b)  When  the  court  will  entertain  on 
behalf  of  insured. 

16.  Admitting  that  the  complainant  had  an 
adequate  remedy  at  law,  and  was  not  under 
the  necessity  of  resorting  to  a  court  of  equity, 
it  does  not  follow  that  a  court  of  chancery  will 
not  entertain  jurisdiction.  Where  the  appro- 
priate, if  not  the  only  remedy  before  loss 
would  have  been  in  a  court  of  equity,  this 
remedy  is  as  appropriate  after  as  before  loss, 
notwithstanding  a  count  could  have  been 
framed  upon  the  agreement  to  insure,  and  an 
action  at  law  maintained  upon  it.  And  where 
Ji  court  of  equity  would  compel  the  delivery 
of  the  policy,  either  before  or  after  the  loss, 
the  parties  being  properly  in  tbat  court  after 
a  loss,  the  court,  in  order  to  avoid  delay  and 
expense,  will  give  such  final  relief  as  the  cir- 
cumstances of  the  case  demand.  Tuyloe  v. 
Merchants  Ins.  Co.,  9  How.,  390;  Oerrish  t>. 
Oennan  Ins.  Co.,  55  N.  H.,  353. 

17.  The  bill  prayed  the  court  to  compel  the 
defendant  to  malce  a  valid  policy  of  insurance, 
to  which  the  defendant  demurred.  Held,  the 
demurrer  must  be  overruled,  notwithstanding 
insured  had  a  complete  remedy  at  law,  for  it 
is  now  the  establislied  doctrine  that  the  in- 
sured may  resort  to  a  court  of  equity  to  com- 
pel the  execution  of  a  contract  of  insurance, 
and  being  there,  the  court  will  decree  com- 
plete relief  by  compelling  the  payment  of  the 
loss.  Oaroenter  v.  Mutual  Safety  In).  Co.,  4 
Sandf.  Ch.,  408. 

18.  On  dwelling  house,  store  and  goods 
therein,  to  A.  Subsequently  B.  purchased  a 
half  interest  in  the  goods  only,  to  which  in- 
surer  consented  by  indorsement.  Held,  an 
action  at  law  could  not  be  maintained  upon  it, 
for  there  was  no  assignment;  hence,  it  was 
rightfully  prosecuted  in  chancery.  BodU  v. 
Cfumango  Mat.  Int.  Co.,  3  N.  Y.,  53. 

24 


1 0.  B.  was  general  agent  of  insurer  for  New 
York  and  vicinity,  with  power  to  effect  in- 
surances and  deliver  policies.  He  employed 
Bently  at  Albany  to  act  as  agent  at  that  place  for 
the  insurer  under  written  instructions.  Bentley 
look  an  application  for  insurance  on  the  car- 
goes of  a  number  of  boats  —  Albany  to  Buff- 
alo. A  policy  was  made  upon  one  of  them, 
but  was  returned  to  B.  for  correction,  who  de. 
stroyed  it.  Held,  the  insured  must  procci.'d  in 
equity.  Chase  c.  Washington  Mut.  Ins.  Co.,  12 
Barb.,  .595. 

20.  Action  to  recover  for  loss  of  property, 
alleged  to  have  been  insured  under  a  parol 
agreement  made  by  defendant's  agent.  Held, 
where  the  action  is  for  a  specific  performance, 
the  court  will  consider  the  agreeement  which 
ought  to  have  been  made  as  made,  and  will 
decree  the  payment  of  the  money  which  would 
have  been  payable  under  it.  Post  v.  jEtna 
Ins.  Co.,  43  Barb.,  351. 

21.  The  policy  stipulated  that  the  company 
should  not  be  liable  for  the  loss  till  sixty  days 
after  proof  thereof  Before  the  sixty  day.s 
elapsed,  this  petition  was  filed  to  correct  a 
mistake  in  the  policy,  and  for  general  relief, 
to  which  there  was  a  demurrer,  and  then  there 
was  a  supplemental  bill  filed,  averring  that 
sixty  days  had  elapsed,  and  praying  complete 
relief,  to  whicli  there  was  a  demurrer.  Held, 
although  the  matter  presented  belonged  clear- 
ly to  a  court  of  law,  yet  the  court  having  taken 
jurisdiction  for  one  purpose,  will  retain  the 
case  for  all  purposes  (citing  1  Page  Ch., 
108;  Story's  Ev.,  sees.  330,  339,  aflirining 
the  judgment  of  the  court  below).  Franklin 
Ins.  Co.  v.  McCrea,  4  Greene,  229. 

22.  The  insured  applied  to  the  insurer's 
agent  for  insurance  on  his  mill,  and  told  him 
the  true  condition  of  his  title.  The  agent  in- 
formed him  that  he  considered  it  unincum- 
bered, his  principals  having  previously  in- 
structed him  to  that  affect.  He  wrote  it  in  the 
application  as  unincumbered,  the  insured 
signed  it,  and  afterwards  it  was  presented  to 
the  company,  who  were  informed  of  the  con- 
dition of  the  title,  and  they  afterwards  treated 
the  policy  as  valid,  by  making  and  collecting 
assessments  upon  it.  Held,  insurer  led  the  in- 
sured into  a  mistake;  that  being  deprived  of 
liis  remedy  at  law,  he  had  right  to  resort  to  a 
court  of  chancery  for  relief.  Harris  ».  Colum- 
biana County  Mut.  Ins.  Co.,  18  Ohio,  110. 

23.  Equity  will  decree  the  payment  of  a 

369 


739 


JURISDICTION. 


740 


Equity. 


claim,  where  the  insurer  refuses  to  issue  a 
policy  according  to  a  contract  made  with  Ihe 
insurer's  agent.  Palm  v.  Medina  County  Mut- 
ual Fire  Ins.  Co.,  20  Ohio,  529. 

24.  ?4,000  on  steamboat;  other  insurance 
beyond  $4,000,  prohibited.  Insured  alleged 
that  the  writing  was  not  made  according  to  the 
agreement  of  the  parties,  because  they  had 
agreed  that  she  should  be  insured  for  .$12,000, 
including  the  sum  insured  by  the  respondents. 
Held,  insured  had  the  right  to  resort  to  a  court 
of  chancery  to  correct  the  mistake;  it  was 
enough  to  allege  that  the  mistake  existed,  and 
then  appeal  to  the  conscience  of  the  respondent 
for  an  admission  of  the  fact;  and  the  fact  be- 
ing admitted,  the  court  had  jurisdiction  to  de- 
cree such  relief  as  the  complainant  was  entitled 
to;  and  the  case  being  properly  in  court  to 
correct  a  mistake,  the  court  would  retain  it  for 
all  purposes  and  render  complete  relief.  Fire- 
7nen's  Ins.  Go.  v.  Powell,  13  B.  Mon.,  311. 

25.  Where  the  parties  are  in  a  court  of 
equity  for  the  purpose  of  reforming  a  writing, 
the  court  will  not  only  decree  that  the  writing 
be  reformed,  but  will  treat  that  which  ought  to 
have  been  done,  as  done  and  will  decree  com- 
plete relief.  Phoenix  Ins.  Co.  v.  Ho^heimer,  43 
Miss.,  645. 

26.  Bill  against  the  members  of  a  mutual 
insurance  society,  praying  that  the  individual 
members  thereof  should  be  compelled  to  contri- 
bute to  the  payment  of  the  loss.  It  appeared 
that  the  persons  constituting  the  society  were 
exceedingly  numerous.  Held,  on  demurrer, 
that  one  member  was  entitled  as  against  the 
others,  to  have  an  account  of  what  was  due  to 
him,  and  to  enforce  contribution  against  the 
others  independently  of  any  remedy  by  action 
at  law.     Taylor  v.  Dean.  22  Beav.,  429. 

27.  The  complainant  effected  an  insur.mce 
with  the  .association  on  his  ship,  by  executing 
the  deed  of  settlement  in  conformity  with  the 
rules,  but  a  policy  was  not  made.  Held, 
the  complainant's  remedy  was  in  equity,  to  ob- 
tain a  declaration  of  his  right  to  a  specific 
performance  of  the  engagement  entered  into 
by  the  committee.  Ilarrey  v.  Beckictth,  12  W. 
R.,819;  affirmed,  id.,  896;  10  L.T.  (N.  S.),  632. 

(c)    When  the  coiurt  will  refuse  to  en- 
tertain. 

28.  Bill  in  equity  to  deliver  up  and  cancel 
a  policy.    There  was  no  allegation  that  in- 

370 


sured  intended  to  assign  it;  but  the  bill  did 
allege  that  it  was  obtained  by  fraudulent  rejx- 
resentations  and  fraudulent  concealment.  The 
person  whose  life  was  insured  h.id  been  dead 
for  some  time  and  a  suit  at  law  was  pending. 
Held,  it  was  proper  to  dismiss  the  bill  without 
prejudice,  because  the  obligation  to  pay  be. 
came  fixed,  and  the  sums  insured  were  a  purely 
legal  demand  ;  hence,  there  was  a  perfect  rem- 
edy at  law  (citing  Hipp  v.  Babin,  19  How., 
271;  Parker  i).  Lake  Company,  2  Black,  545; 
Boyce  «.  Grundy,  3  Pet.,  210;  Graves  t.  Insur- 
ance Co.,  3  Cranch,  215;  1  Stat,  at  Large,  83). 
Insuranci  Co.  v.  Bailey,  13  Wall.,  616. 

29.  Bill  in  equity  to  enjoin  a  judgment  at 
law  against  the  insurer.  It  alleged  that  she 
was  represented  to  be  about  250  tons  burthen, 
when  she  was  in  fact  only  161  tons;  and  that 
she  was  between  six  and  seven  years  old,  when 
she  was  in  fact  nine  and  ten  years  old.  It  wa» 
also  alleged,  that  these  false  representations- 
induced  the  complainants  to  agree  to  value 
her  in  the  policy  at  $10,000,  when  she  was  iu 
tiict  worth  only  3,300.  Held,  if  it  was  defense 
at  all  it  was  one  at  law,  not  in  equity.  Marine 
Ins.  Co.,  V.  Hodgson,  7  Cranch,  332. 

30.  The  policy  contained  a  clause  limiting 
the  time  to  one  j'car  in  which  suits  could  be 
brought  upon  it.  A  bill  was  filed  alleging 
fraud,  and  a  temporary  injunction  was  granted 
restraining  the  prosecution  of  the  suit.  Held, 
the  injunction  must  be  dissolved.  Home  Ins. 
Co.,  V.  Stimchfidd,  2  Abb.  Cir.  C,  1;  s.  c,  1 
Dil.  Cir.  C,  424. 

31.  The  bill  stated  no  other  ground  of 
equitable  relief  but  the  assignment  of  the  pnl- 
icy,  and  the  refusal  of  the  insurers  to  pay. 
Held,  The  demand  was  properly  cognizable  at 
law,  and  there  was  no  good  reason  fur  coming 
into  a  court  of  chancery.  Garter  v.  Hnitecl 
Ins.  Co.,  1  Johns.  Ch.,  463. 

32.  Stipulated:  "Insurers  shall,  if  they 
see  fit,  within  twenty  days  after  proofs  of  loss- 
are  received,  elect  to  replace  the  goods  de- 
stroyed or  damaged."  Insured  presented 
proofs  of  loss,  and  commenced  to  move  his- 
stock  before  the  twenty  days  expired,  and  in- 
surers  brought  this  bill  to  prevent  him  from 
doing  so,  and  that  they  might  take  an  inven- 
tory of  the  goods.  Held,  they  had  no  right  to 
an  injunction.  Neio  York  Fire  Ins.  Go.  c. 
Dclavan,  8  Paige  Ch.,  419. 

.83.  The  agent  of  insured  made  a  written  ap- 
plication, viz:    "$5,000  fire  insurance  wanteil' 


741 


JURISDICTION. 


743 


Kiiuity. 


for  six  months,  oa  a  three  or  four  stoi-y  brick 
ilistillery  and  machinery;  not  running;  no 
lire  about  it;  situated  entirely  detached,  near- 
est building  being  an  oflice,  one  hundred 
yards,  on  the  bank  of  Mackinaw  river,  in  the 
town  of  Forueyville,  Woodford  counly.  111, 
Property  valued  at  $32,000;  privilege  of 
1-5,000  other  insurance.  Gable  end  is  frame. 
December  IC,  ISSS."  The  policy  issued  de- 
scribed the  premises:  "His  three  or  four 
story  brick  building,  and  machinery  in  the 
same;  not  running;  no  fire  in  or  about  il;  sit- 
uated entirely  detached,  at,"  etc.,  etc.  Ueld, 
there  w.as  nothing  for  a  court  of  equity  to  re- 
form ;  that  the  plaintiff  could  have  leave  to 
proceed  at  law  upon  an  amended  petition. 
Teason  v.  Atlantic  Mut.  Ins.  Co.,  40  Mo.,  33. 

34.  The  complaint  charged  defendant  with 
gross  fraud,  misrepresentation  and  conceal- 
ment, alleging  that  the  pijlicy  was  void;  that 
they  had  been  fraudulently  induced  to  pay  the 
claim,  and  prayed  a  discovery  on  oath,  and  a 
restoration  of  the  money.  Held,  a  court  of 
law  was  the  only  proper  tribunal  for  the  de- 
termination of  questions  of  this  sort.  Charles- 
ton Ins.  Co.  J).  Potter,  3  Dessaus.  Eq.,  6. 

.55.  Foreigners,  copartners,  fitted  out  a  ship 
from  Ostend  to  China  and  return.  D'Goneigh, 
their  agent,  insured  her  and  her  cargo  in  Eng 
land,  and  tookthepolicj-inhis  own  name.  She 
called  at  Bencolen,  where  the  governor  seized 
her  as  an  interloper,  and  disposed  of  ship  and 
cargo.  The  bill  alleged  th.at  the  policy  was 
taken  in  the  name  of  D'Goireigh,  the  complain- 
ants' trustee,  who  refused  to  let  them  sue  in  his 
name;  the  facts  happened  abroad;  their  wit- 
nesses were  beyond  seas,  and  Ihey  prayed  dis- 
covery and  relief  Held,  the  demurrer  to  the 
bill  must  be  sustained.  Dhegetoft  v.  London 
Ass.  Co.,  Mos.,  83 ;  affirmed,  4  Bro.  P.  C,  436. 

36.  The  policy  was  in  the  name  of  a  trustee. 
Held,  unless  the  trustee  had  refused  to  allow 
his  name  to  be  used  in  an  action  at  law,  there 
would  be  no  ground  for  coming  into  etiuity. 
ilottcux  V.  London  Ass.  Co.,  1  Atk.,  545. 

37.  Insurer  of  ship  brought  a  bill,  suggest- 
ing that  the  loss  by  capture  was  fraudulent, 
and  moved  an  injunction  to  stay  proceedings 
at  law.  There  was  an  agreement  in  the  law 
court  to  go  to  trial  in  one  action  and  to  be 
bouud  by  the  event  of  that.  The  answer  de- 
nied all  fraud.  Held,  the  insured  should  as- 
sign all  his  right  in  the  ship  and  the  benefits 
of  the  decree  made  in  .idmiraltj',  and  upon  I 


such  assignment,  the  bill  should  be  dismissed. 
Pringle  v.  Uarttey,  3  Atk.,  195. 

38.  The  insurer  filed  this  bill  to  have  the 
policy  delivered  up,  on  the  ground  that  ship 
was  unseaworthy  and  had  deviated.  Held, 
equity  would  not  interfere  unless  a  case  of 
fraud  was  made  out;  and,  in  the  absence  of 
fraud,  tlie  bill  was  dismissed.  Tlwrnton  v. 
Kniglit,  16  Sim.,  509. 

39.  Profits  of  a  partnership  accruing  upoa 
illegal  insurances  are  not  the  subject  of  an  ac 
count  in  equity.  Knoioles  v.  Hauffhton,  11 
Yes.  Jr.,  168. 

40.  Bill  filed  for  an  injunction  to  stay  pro- 
ceedings  at  law  on  a  policy  of  insurance,  and 
for  a  commission  to  examine  witnesses  abroad, 
but  the  money  claimed  was  not  brought  into 
court.  Held,  the  proceedings  at  law  would 
not  be  stayed,  unless  the  amount  of  the  claim 
was  paid  into  court.  Irving  v.  Harrison,  3  L. 
J.  Ch.,  48. 

41.  Plaintiffs  proposed  for  insurance,  which 
was  accepted,  and  a  slip  or  application  ini- 
tialed  by  insurers.  The  plaintiffs'  broker 
knew  the  ship  would  be  commanded  by  the 
mate,  and  not  by  the  master,  but  he  did  not 
disclose  that  intention.  The  defendants  made 
no  policy,  and  this  was  a  bill  in  equity,  to 
have  the  slip  stamped  and  used  .as  the  con- 
tract. Held,  the  court  would  not  interfere. 
Morocco  Land  and  Trading  Company  v.  Fry, 
11  Jur.  (N.  .S.),  76;  13  W.  R,  310;  U  L.  T.,  618. 

42.  The  bill  alleged  that  the  policy  was  ef- 
fected at  an  e.xtra  premium,  and  that  by  the 
terms  of  the  company's  prospectus  on  ree.x. 
amination  from  time  to  time,  the  Society  be- 
ing satisfied  of  the  removal  of  the  cause  for 
charging  the  extra  premium,  would  reduce  it. 
Held,  it  was  a  matter  within  the  discretion  of 
the  directors,  whether  they  would  reduce  it  or 
not,  and  the  court  had  no  power  to  interfere, 
though  the  insured  had  become  thoroughly 
healthy  and  sound.  Manhy  v.  Oresham  Life 
A^s.  Co.,  29  Beav.,  439;  31  L.  J.  Ch.,  94;  7 
Jur.  (N.  S.),  383 ;  4  L.  T.  (N.  S.),  347 ;  9  W.  K., 
547. 

43.  Bill  filed  to  cancel  a  life  policy,  alleg- 
ing that  it  had  been  obtained  by  concealment 
and  misrepresentation.  Held,  although  the 
court  had  complete  jurisdiction  in  such  a 
case,  yet  it  would  not  interfere  to  withdraw 
the  case  from  jurisdiction  of  law  courts. 
Hoare  v.  Bremridge,  8  L.  R.  Ch.,  22;  s.  c,  42 
L.  J.  Chan.,  1 ;  27  L.  T.  (N.  S.),  593. 

371 


743 


JURISDICTION. 


744 


At  law. 


44.  The  assignee  brought  suit  upon  the 
policy  in  his  own  name,  under  30  and  31  Vict, 
ch.  144;  the  defendants  filed  this  bill  alleging 
fraud  in  the  assignor  in  effecting  the  policy', 
and  prayed  to  stay  the  action  at  law  and  can- 
eel  the  policy.  Held,  the  matter  set  up  in  the 
bill  was  a  good  defense  at  law,  hence  no  in- 
junction would  be  granted.  Scottish  Amicable 
Life  Ass.  Soc.  v.  Fuller,  2  Irish  Eq.,  58. 

45.  The  bill  stated  facts  amounting  to  a  de- 
fense at  law,  and  prayed  relief,  which  the 
plaintiff  was  not  at  liberty  to  waive.  Held, 
the  court  would  not  grant  an  injunction  to 
stay  proceedings  at  law.  Anderson  v.  Dowling, 
11  Irish  Eq.  R.,  590. 

II.  At  law. 

(a)    What  confers. 

1.  The  parties  were  described  in  the  decla- 
ration as  follows:  "William  Henderson  Board- 
man  and  Paschal  Paoli  Pope,  both  of  Boston, 
in  the  district  of  Mass.,  merchants  and  citi- 
zens of  the  state  of  Mass.,  complain  of  the 
Hope  Ins.  Co.,  of  Providence,  a  company 
legally  incorporated  by  the  legislature  of  the 
state  of  Rhode  Island  and  Providence  Planta- 
tions, established  in  Providence  in  said  dis- 
trict." Held,  the  right  of  a  corporation  to  liti- 
gate in  the  courts  of  the  17.  S.,  rested  upon  the 
citizenship  of  the  members  who  composed  the 
body  corporate ;  that  a  corporation,  as  such, 
was  not  a  citizen  within  the  meaning  of  the 
constitution.  Held,  also,  the  objection  was  not 
too  late,  though  it  was  not  raised  in  the  court 
below.  Hope  Ins.  Co.  v.  Boardman,  5  Cranch, 
57;  Bank  of  U.  S.  v.  Dcveaux,  id.,  61;  over- 
ruled,  Louisville  R.  R.  Co.  v.  Letson,  2  How.,  497. 

2.  The  cause,  bj'  agreement,  \vas  transferred 
to  the  circuit  court,  in  which  the  parties  ap- 
peared and  went  to  trial  without  objection. 
Held,  no  question  of  want  of  jurisdiction  in 
the  court  of  common  pleas  could  be  raised,  for 
it  is  well  .settled,  if  the  court  has  jurisdiction 
of  the  subject  matter,  an  appearance  to  the  ac- 
tion is  a  waiver  of  any  objection  to  jurisdic- 
tion (citing  Bosli-y  ti.  Farquar,  2  Black!'.,  61 ; 
Wilson  V.  Coles,  id.,  403;  Clark  v.  The  State,  4 
Ind.,  2C8;  Mahon  v.  Mahon's  Adm'r,  19  id., 
334;  McDougle  v.  Gates,  21  id.,  65;  Judah  «. 
Trustees  of  Vincennes  University,  23  id.,  272; 
Cox  V.  Pruitt,  25  id.,  90;  Smith  «.  Jeffries,  id., 
376;   Garner  e.  Board,  27  id..  323;  Street  v. 

372 


Chapman,  29  id.,  142;  Hamrick  v.  Danville, 
etc.,  G.  R.  Co.,  32  id.,  347).  Aurora  Fire  Ing. 
Co.  V.  Johnson,  46  Ind.,  315. 

3.  A  corporation  which  lias  its  office,  and 
does  business,  in  the  city  of  Charleston,  is  sub- 
ject to  the  jurisdiction  of  the  city  court. 
Cromwell  v.  Charleston  Insurance  and  Trust 
Co.,  2  Rich.,  512. 

(b)  When  the  court  will  decline. 

4.  A  citizen  of  Alabama  brought  an  actiou 
in  Massachusetts  against  the  Mutual  Life  Ins. 
Co.  of  New  York,  who  had  an  agent  in  Massa- 
chusetts ;  and  sought  a  restoration  of  his  rights 
in  a  policy  of  insurance  which  had  lapsed  for 
nonpayment  of  premium.  Held,  the  court 
would  decline  to  exercise  jurisdiction  in  the 
case,  and  would  refer  the  parties  to  the  tribu- 
nals of  the  state  upon  whose  laws  their  relations 
and  rights  peculiarly  depended,  where  alone 
they  can  be  effectually  and  properly  aJmiuie- 
tercd.  Smith  v.  Mutual  Life  Ins.  Co.,  14 
Allen,  336. 

(c)  When  there  is  none. 

5.  This  was  a  writ  of  eryor  fi:om  a  state 
court  to  the  supreme  court  of  the  United  States. 
Held,  in  order  to  bring  the  present  case  withia 
the  jurisdiction  of  this  court,  it  must  clearly 
appear  upon  the  face  of  the  record,  that  in 
respect  to  a  law  of  the  United  States,  a  con- 
struction was  demanded  in  the  state  court  and 
decided  contra  the  demand;  if  it  appeared 
that  the  construction  sought  was  upheld  by 
the  court,  but  that  the  case  was  decided  upon 
other  grounds,  adversely  to  the  plaintiff"  in 
error,  then  this  court  was  without  jurisdiction 
to  entertain  tlio  writ  of  error,  and  it  must  he 
dismissed.  Ocean  Ins.  Co.  v.  Polleys,  13  Pet., 
157. 

6.  If  one  removes  to  another  state  with  the 
avowed  object  of  acquiring  a  right  to  sue  in 
the  federal  courts,  it  is  not  a  fraud  upon  the 
law,  if  his  intention  is  to  acquire  a  permanent 
residence.  The  declaration  must  aver  that  he 
is  a  citizen;  an  averment  that  he  is  a  resident 
is  not  sufficient.  Catlett  v.  Pacific  Ins.  Co.,  I 
Paiae,  594. 

7.  Default  and  judgment  rendered  Kovcni- 
ber  19, 1872.  On  the  37th  of  same  month,  de- 
fendant filed  a  motion,  supported  by  aflldavits 
to  set  aside  the  judgment.  The  motion  Wai 
continued  to  the  next  term,  and  was  overrule  1 


r-ts 


JURORS  —  KEEPING  AND  STORING  rROHlBlTED  ARTICLES. 


746 


Miscellaneous. 


January  17,  1873.  Hdd,  the  court  had  no 
power  at  the  January  term  to  vacate  a- jmlg- 
nieiit  renilered  at  the  previous  November  term 
(Pub.  L.  1871,  vol.  2,  p.  844;  citing  Cook  i>. 
Wood,  24  111.,  295,  wherein  it  was  decided 
that  the  court  had  no  authority  in  a  subse- 
quent term  to  set  aside  a  judgment  rendered  at 
a  prior  term).  National  Ins.  Co.  v.  Chamber  of 
Commerce,  69  111.,  22. 

III.    Admiealty. 

1.  The  insured  commenced  his  action  in 
admiralty  in  personam.,  against  his  insurer, 
upon  a  policy  for  the  loss  of  a  vessel  called 
the  Albino.  Held,  the  case  was  one  within 
the  admir.<ilty  jurisdiction.  Insurance  Co.  v. 
Xyunham,  11  Wall.,  1. 

2.  Admiralty  has  jurisdiction  in  contracts 
for  marine  insurance.  Pede  v.  Merchants  Ins. 
Co.,  3  Mason,  27. 

3.  A  policy  of  insurance  is  within  the  ju- 
risdiction of  the  admiralty.  Oloueester  Ins. 
Co.  v.  Younger.  2  Curtis,  323. 

4.  This  was  an  action  at  law  to  recover  for 
goods  damaged  and  lost  while  they  were  in 
the  custody  of  the  carrier,  in  a  vessel  navi- 
gating the  Mississippi.  Held,  the  plaintiff 
had  his  option,  to  proceed  in  admiralty  or  at 
law ;  it  did  not  come  within  that  clause  of  the 
constitution  which  excludes  jurisdiction  at 
law  and  confines  it  to  the  admiralty  forum. 
Home  Ins.  Co,  v.  Northwestern  Packet  Co.,  32 
Iowa,  223. 


JURORS. 

(See  Court  and  Jury. 

1 .  The  defendant's  demurrer  to  the  declara- 
tion was  overruled  and  judgment  rendered. 
The  regular  jury  had  been  discharged,  but 
the  court  ordered  the  sheriff  to  summon  a 
jury,  who  assessed  the  damages.  Held,  upon 
default  a  writ  of  inquiry  may  issue  to  liave 
the  damages  assessed,  which  may  be  executed 
in  term,  or  be  directed  to  the  sherifl'  to  exe- 
cute in  vacation;  and  that  executing  it  in  tlie 
presence  of  tlie  court,  taking  a  portion  of  the 
regular  panel  or'  bystanders,  was  lawful. 
.^■Etna,  In.t.  Co.  v.  Phelps,  27  111.,  71. 

2.  A  juror  said  tliat  he  had  some  prejudice 


against  insurance  companies  generally ;  that  it 
was  founded  on  his  inability  to  comprehend 
their  proceedings;  but  that  his  prejudice 
would  not  affect  his  verdict.  Held,  he  was 
not  a  competent  juror,  but  the  court  would  not 
reverse  the  judgment,  because  satisfied  that  the 
merits  of  the  case  are  with  the  party  prevail, 
ing  (citing  Greenup  v.  Stoiier,  8  111.,  202). 
Winnesheik  Ins.  Co.  v.  Schueller.  GO  III.,  405. 

3.  The  court  refused  to  allow  defendant  to 
ask  a  juror  whether  he  had  any  opinion  oa 
thequcstiou,  whether  a  man  is  necessarily  in- 
sane  who  commits  suicide.  Held,  an  improper 
question,  because  the  opinion  of  a  juror  does 
not  in  itself  render  him  incompetent.  It  must 
be  such  an  opinion  as  might  influence  his 
judgment.  McComas  v.  Covenant  Mutual  Life 
Ins.  Co.,  56  Mo.,  573 


KEEPING  AND  STORING  PROHIBITED 
ARTICLES. 

(See  Eepuonant  Stipulations.) 

1.  What  is  within  thk  pnoniBixioN. 

II.  NOT  WITHIN  THE  PROmBITION. 

I.     "WlIjiT  IS  WITHIN  THE  PHOHIBITION. 

1.  Stipulated:  "To  be  void  in  case  the 
premises  containing  the  goods  shall  be  appro- 
priated, applied  or  used  for  the  purpose  of 
storing  or  keeping  any  of  the  articles  denom- 
inated hazardous,  or  extra  hazardous,  or  in- 
cluded in  the  memorandum  annexed,  unless 
permitted  in  writing,  indorsed."  The  memo- 
randum stated,  if  camphene  is  used  in  stores, 
the  risk  will  be  subjected  to  an  additional 
charge  of  ten  cents  on  each  one  hundred  dol- 
lars, and  the  premium  for  such  use  must  be  in- 
dorsed on  the  policy.  The  store  was  lighted 
with  camphene  until  the  fire  occurred.  Held, 
the  policy  was  void.  Westfallv.  Hildson  Rii>er 
Fire  Ins.  Co.,  12  N.  Y.,  289;  s.  c,  2  Duer,  490. 

2.  On  goods,  hazardous  and  not  hazardous. 
These  were  enumerated  in  the  printed  class!  fi- 
cation  annexed  to  the  policy.  Specially  haz- 
ardous  and  extra  liazai'dous  goods  were  also 
enumerated  in  the  same  classification.  Stipu- 
lated: ''To  be  void  if  any  articles,  goods  or  mer- 
chandise, denominated  extra  hazardous  or 
specially  hazardous,  shall  be  kei)t,  except  as 

373 


747 


KEEPING  AND  STORING  PROHIBITED  ARTICLES. 


r48 


What  is  within  the  prohibition. 


herein  specially  provided  for."  Turpenliue 
was  one  of  the  articles  denominated  extra 
hazardous.  Insured  kept  about  twenty  gal- 
lons of  turpentine  in  stock.  Ueld,  fatal  to  a 
recovery.  Pindar  v.  Continental  /««.  Co.,  38 
N.  Y.,  364. 

3.  "  On  stock  in  trade,  described  in  the  ap- 
plication as  dry  goods,  groceries,  hardware, 
crockery,  glass,  wooden  ware,  Britanuia  and 
tin  ware,  stoves  of  various  kinds,  and  various 
other  wares  and  merchandise."  Stipulated: 
"  A  use  of  the  premises  for  keeping  or  storing 
any  articles  denominated  hazardous  shall 
avoid  the  policy."  Rags  were  among  those 
denominated  hazardous,  and  it  was  admitted 
that  insured  had  rags  as  a  part  of  his  stock  in 
trade  in  the  premises  insured.  //cW,  insurers 
had  the  right  to  suppose  that  nothing  but  the 
articles  specially  named  in  the  application 
would  be  kept  or  stored  on  the  premises ;  the. 
policy  was  void,  notwithstanding  a  usage  to 
keep  rags  in  stores  of  the  same  kind.  Macom- 
ber  v.  Howard  Fire  Ins.  Co.,  7  Gi-ay,  257. 

4.  "  On  his  two  storj*  frame  building,  occu- 
pied by  insured  as  a  provision  and  grocery 
store.  Depositing,  keeping  or  storing  therein 
any  articles,  goods  or  merchandise  denomi- 
nated hazardous,  extra  hazardous,  or  included 
in  the  memorandum  of  special  hazards,  pro 
hibited,  except  as  herein  specially  provided 
for."  Permission  was  granted  to  keep  and 
sell  burning  fluid  and  gunpowder  according 
to  law.  Oil  and  sulphur,  denominated  haz- 
ardous, and  matches  extra  hazardous,  were  at 
the  time  of  the  fire  in  the  stock.  Held,  a  clear 
violation  of  the  contract.  Whiimarsh  v.  Char- 
ter Oak  Ins.  Co.,  2  Allen,  581. 

5.  The  memorandum  of  special  hazards  an- 
nexed to  the  policy,  prohibited  the  use  of 
burning  fluid  for  lighting.  The  preliminary 
proof  stated  that  it  was  lighted  with  burning 
fluid.  Ileld,  a  defense  to  the  action.  Camp- 
bell V.  Cliarter  Oak  Fire  and  Marine  Ins.  Co., 
10  Allen,  213. 

6.  On  building,  stipulated:  "If  it  sh'all  be 
unoccupied,  or  shall  be  used  for  the  manufac- 
ture of  wool,  cotton  *  *  *  or  if  occupied 
or  used  for  unlawful  purposes  *  *  *  this 
policy  shall  be  void."  It  was  occupied  in 
part  for  storing  whisky,  some  of  which  was 
sold  in  quantities  from  one  glass  to  two  gal- 
lons without  license.  ITdd,  insurers  were  dis- 
charged. Kelly  V.  Worcester  Mut.  Ins.  Co.,  97 
Mass.,  284. 

874 


7.  Stipulated:  "  Gunpowder, camphene, spir- 
it gas,  matches,  etc.,  are  not  to  be  deposited, 
used,  kept  or  sold  in  any  building  insured  or 
containing  any  goods  or  merchandise  insured.' 
Held,  a  use  of  matches  in  the  premises  con- 
taining the  goods  insured  would  not  avoid  the 
policy,  unless  the  use  was  by  authority  ex- 
pressed or  implied  of  the  insured.  Mere 
orders  not  to  use  them,  if  insured  knew  that 
they  were  used,  would  not  satisfy  the  warrant}-. 
The  prohibition  must  have  been  enforced; 
and  if  the  use  was  habitual,  the  law  imputed 
to  insured  knowledge  and  permission.  Farm- 
ers and  Mechanics  Ins.  Co.  v.  Simmons,  30  Penn. 
St.,  299. 

8.  On  their  stock  in  trade,  consisting  of 
nonhazardous  merchandise.  Four  classes  of 
risks  were  annexed  —  not  hazardous,  hazard, 
ous,  extra  hazardous  and  special  risks.  There 
were  in  the  store  three  cans  of  oil,  about  a 
barrel  each,  from  which  insured  drew  to  sell, 
also  a  bai-rel  of  oil  and  three  boxes  of  glass, 
all  of  which  were  in  the  class  denominated 
hazardous.  Held,  the  description  of  the  prop- 
erty warranted  it  all  of  the  class  and  character 
described,  which  was  in  the  nature  of  a  con- 
dition precedent,  of  which  performance  must 
be  shown  before  a  recovery  could  be  had. 
Held,  also,  keeping  for  sale  goods  denominated 
hazardous  avoided  the  policy.  RichMrds  v. 
Protection  Ins.  Co.,  30  Me.,  273. 

9.  Stipulated :  "  This  policy  shall  be  vitiated 
by  keeping  gunpower,  saltpetre,  fireworks, 
naptha,  benzine,  camphene,  or  refined  coal  or 
earth  oils,  or  kerosene  in  quantities  exceeding 
five  barrels."  It  was  proved  that  insured  kept 
saltpetre  in  a  keg  on  sale  as  merchandise. 
Held,  it  avoided  the  policj-,  notwithstanding 
insurers'  agent  knew  that  saltpetre  was  kept 
in  small  quantities  in  other  shops  similar  to 
that  insured.  Commercial  Ins.  Co.  v.  Mehlman, 
48  111.,  313. 

10.  Stipulated:  "Petroleum,  rock,  earth, 
coal,  kerosene,  or  carbon  oils  of  an}-  descrip- 
tion, whether  crude  or  refined,  benzine,  benzoic, 
naptha,  camphene,  spirit  gas,  burning  fluid,  tur 
pentine,  phosgene,  or  any  other  inflammable 
liquid  are  not  to  be  stored,  used,  kept,  or 
allowed  on  the  above  premises  temporarily  or 
permanently,  for  sale  or  otherwise."  Coal 
oil  was  kept,  stored,  used,  and  allowed  on  the 
premises  after  the  policy  was  made  and  be- 
fore the  fire  occurred.  Held,  insurers  were  re- 
leased. Reeve  v.  Phanix  Ins.  Co.,  33  La.  An.,  219. 


749 


KEEPING  AND  STORING  TROHIBITED  ARTICLES. 


750 


What  is  not  within  the  prohibition. 


11.  Stipulated:  "If  the  insurcj  shall  keep 
*  *  petroleum,  naptha,  gasoline,  benzine,  or 
benzine  varnish,  or  keep  or  use  camphene,  spir- 
it gas,  or  any  fluid  or  chemical  oils,  without 
written  permission  in  tlie  polic}',  then,  and  in 
■every  such  case,  it  sliall  be  void.  Kerosene 
oil  may  bo  used  for  lights  in  dwellings,  and 
kept  for  sale  in  stores  in  quantities  not  exceed- 
ing five  barrels,  to  be  drawn  in  daylight  only." 
Held,  the  use  of  kerosene  oil  was  prohibited 
unless  used  as  a  light  in  a  dwelling;  that  if 
the  premises  were  not  of  that  character,  but 
were  a  store,  the  keeping  <if  a  small  lamp  filled 
with  kerosene  oil,  left  burning  on  the  counter 
inthe  store  at  night,  after  the  gas  was  turned 
off,  as  a  protection  against  burglars,  was  a 
violation  of  the  terms  of  the  policy,  and  made 
St  void.    Cerf  11.  Home  Ins.  Co.,  44  Cal.,  330. 

1 2.  "  On  stock  iu  trade  of  general  merchan- 
dise, including  hazardous  contained."  etc. 
Conditioned:  "To  be  void  if  lliere  shall  be  at 
any  time  more  than  fifty-si.x  pounds  of  gun- 
powder  on  the  premises,  unless  specifically 
provided  for  in  the  policy."  The  fifteenth 
condition  specified  certain  goods  as  hazardous, 
among  which  were  turpentine,  vitriol,  gun- 
powder, and  lucifer  matches.  Plea,  a  quantity 
of  gunpowder  exceeding  fifly-six  pounds  was 
•on  the  premises  before  and  at  the  time  of  the 
Are.  Replication:  plaiutifi's  were  dealers  in 
gunpowder,  and  dealt  in  it  on  the  premises 
described  in  the  policj',  of  which  insurers  had 
notice.  Held,  the  replication  was  no  answer 
to  the  plea,  for  insurers,  by  the  condition,  re- 
served to  themselves  the  power  of  refusing  to 
allow  more  than  fifty-six  pounds  of  gunpow- 
der upon  the  insured  premises,  hence  the  i)ol- 
icy  was  void.  McEwanv.  Outhridge,  13  Moore 
P.  C.  C,  304;  8  W.  K.,  265. 

13.  On  steamboat,  against  loss  by  fire  only 
{an  ordinary  fire  insurance  policj-).  Stipulated : 
"  If  more  than  twenty  pounds  of  gunpowder 
shall  be  upon  the  premises  at  any  time  a  loss 
shall  happen,  such  loss  shall  not  be  made 
good."  One  package  of  gunpowder,  about  one 
hundred  pounds,  was  upon  her  at  the  time  she 
■was  destroyed.  Held,  the  word  "  premises  "  re- 
lated to  the  subject  insured,  and  insurers  were 
released.  Beacon  Life  and  Fire  Ins.  Co.  v. 
■Oibb,  1  Moore  P.  C.  C.  (N.  S.),  73 ;  9  Jur.  (N.  S.), 
185;  7  L.  T.  (N.  S.),  574;  11  W.  R.,  194. 

14.  Stipulated:  "If  there  shall  be  at  any 
lime  more  than  twentj'-tive  pounds  of  gun- 
powder upon  the  premises,  the  policy  shall  be 


void."  Defendant  pleaded  a  breach  of  the 
condition,  and  plaintiff  replied  that  the  gun- 
powder was  placed  upon  the  pi'emises  without 
plaintiff's  privily;  that  they  had  used  every 
exertion,  without  success,  to  procure  a  vessel 
to  lake  it  away,  and  that  long  before  the  fire 
reached  the  premises  it  was  thrown  into  Ihe 
harbor.  Held,  no  answer  to  Ihe  plea;  that  de- 
fendant was  discharged.  Faulkner  v.  Central 
Fire  Ins.  Co.  of  New  Brunswick,  1  Kerr,  279. 

II.     WuAT   IS   NOT   WITUIN   THE   PEOHI- 
BITION. 

1 .  Stipulated :  "  If  gunpowder,  phosphorus, 
saltpetre,  *  *  *  are  kept  for  sale,  stored 
or  used  on  the  premises  in  quantities  exceeding 
one  barrel,  without  written  permission  in  or  in- 
dorsed on  this  policy,  it  shall  be  void."  Held, 
the  words,  "In  quantities  exceeding  one  bar- 
rel at  any  one  time,"  related  to  all  of  the 
articles  specified,  and  a  plea  setting  up,  that 
the  insured  did  keep  gunpowder  on  the  prem- 
ises, without  written  permission  or  permission 
indorsed  on  the  polic}-,  was  not  sufficient  to 
show  a  violation  of  the  condition,  for  it  did 
not  appear  thiU  it  was  kept  in  quantities  ex- 
ceeding one  barrel.  Insurance  Co.  v.  Slaughter, 
12  Wall.,  404. 

2.  Stipulated:  "The  premises  shall  not  be 
used  for  storing  therein  any  articles  specified 
iu  the  memorandum  of  haz.ards,"  among 
which  were  oil  and  spirituous  liquors.  The 
building  was  used  as  a  retail  grocery  store, 
in  which  was  kept  for  sale  a  cask  of  oil,  a 
barrel  of  rum,  a  cask  of  Jamaica  spirits,  and 
a  pipe  of  gin.  Held,  not  a  storing  within  the 
meaning  of  the  policy.  Langdon  v.  Equitahle 
Ins.  Co.,  1  Hall  (N.  Y.),  225;  6  Wend.,  623. 

3.  Depositing  gunpowder  in  a  building  for 
the  purpose  of  blowing  it  up,  to  arrest  a  con- 
flagration, is  not  storing  it  within  the  mean- 
ing  of  the  policy.  City  Fire  Ins.  Co.  v.  Corlies, 
21  Wend.,  367. 

4.  Policy  prohibited  use  of  building  tor 
storing  or  keeping  therein  certain  articles 
denominated  hazardous.  Held,  a  mere  tem- 
porary or  casual  deposit  was  not  within  the 
prohibition.  Hynds  c.  Schenectady  County  Mut. 
Ins.  Co.,  11  N.  Y.,  554;  16  Barb.,  119. 

5.  Stipulated:  "  Camphene,  spirit  gas,  burn- 
ing  fluid,  or  anj-  other  inflammable  liquid, 
when  used  in  stores,  warehouses,  or  manu- 
factories 1.S  a  light,  subjects  the  goods  therein 

375 


7ol 


KEEPING  AND  STORING  PROHIBITED  ARTICLES  —  LACHES. 


752 


^^^lat  is  not  witliin  the  prohibition,  etc. 


to  an  additional  charge,  and  permission  for 
such  use  must  be  indorsed  on  the  policy." 
Held,  the  use  of  kerosene  was  not  witliin  the 
exception,  unless  it  was  accompanied  by  a 
finding,  that  it  was  inflammable,  but  as  there 
•was  no  proof  as  to  that  fact,  the  court  would 
refuse  to  take  judicial  notice  of  its  qualities. 
Wood  V.  Northwestern,  Inx.  Co.,  46  N.  Y.,  421. 

6.  Stipulated:  "To  be  void  if  the  prem- 
ises shall  be  used  for  the  storing  or  keeping 
therein "  certain  goods  designated,  among 
which  was  crude  petroleum.  The  plaintiff 
kept  upon  a  shelf  in  his  room,  a  jug  contain- 
ing two  or  three  quarts  of  crude  petroleum, 
for  the  purpose  of  applying  it  to  remove  a  cu- 
taneous disorder  from  his  body.  Held,  this 
was  not  storing  or  keeping,  within  the  mean- 
ing of  the  contract.  Williams  v.  Fireman's 
Fund  Ins.  Co.,  54  N.  Y.,  569. 

7.  On  merchandise.  Stipulated:  "If  the 
risk  shall  be  increased  bj'  any  means  what- 
ever, within  the  control  of  the  insured,  the 
policy  shall  be  void."  Also,  "  The  keeping  of 
petroleum  for  sale  or  storage,  or  its  use  for 
lighting,  prohibited."  Insured  kept  a  jug 
containing  crude  petroleum,  which  he  used 
for  the  purpose  of  anointing  his  person.  The 
court  refused  to  charge  that  if  the  keeping  of 
petroleum  increased  the  risk,  the  plaintiff 
could  not  recover.  Held,  error,  for  although 
the  plaintiff  had  the  right  to  keep  it  for  the  pur- 
pose named,  he  had  not  the  right  to  do  so  if  it 
increased  the  hazard.  Williams  v.  People's  Fire 
Ins.  Co.,  57  N.  Y.,  274. 

8.  Building  insured  "  As  a  dwelling  house," 
prohibited  from  being  used  for  purposes  de- 
nominated hazardous,  or  from  storing  in  it 
goods  denominated  hazardous.  Spirituous 
liquors  and  the  trade  of  a  tavern  keeper  were 
classed  in  the  proposals  as  hazardous.  Held, 
keeping  a  boarding  house  was  not  within  the 
prohibition.  Held,  also,  keeping  liquors  in 
the  house,  to  be  consumed  by  the  family,  or 
to  be  sold  to  the  boarders,  was  not  within  the 
prohibition,  for  that  was  not  storing  them. 
Rofferty  v.  New  Brunswick  Fire  Ins.  Co.,  18  N. 
J.,  480. 

9.  On  a  stock  in  trade.  The  insured  was 
prohibited  from  appropriating,  applying  or 
using  the  store  for  keeping  or  storing  therein 
hazardous  goods.  Cotton  in  bales  was  de- 
nominated hazardous,  and  the  defendant  re- 
quested the  court  to  iustruct  that  if  the  plaint. 
iffs  had  in  their  stock,  cotton  in  bales,  at  the 

376 


time  of  the-fire,  the  action  could  not  be  main- 
tained. Held,  keeping  in  their  stock  in  trade 
a  hazardous  article  was  not  appropriating, 
applying  or  using  the  store  for  the  keeping  or 
storing  therein  hazardous  goods  (citing  New 
York  Eqitable  Ins.  Co.  v.  Langdon,  C  Wend., 
28);  that  in  order  to  constitute  a  breach  of  the 
Qondition,  the  keeping  must  be  the  sole  or 
Ijrincipal  object  of  the  deposit,  or  it  must 
appear  that  it  increased  the  risk.  Afoorev,. 
Protection  Ins.  Co.,  29  Me.,  97. 

10.  Stipulated:  "  If  gunpowder,  camphene, 
spirit  gas,  naptha,  benzine  or  benzole,  chemi- 
cal, crude  or  refined  earth  oils  are  kept  or 
used  on  the  premises  without  consent,  the 
policy  shall  be  void."  Kerosene  oil  was  used 
to  light  the  cabin  and  saloon  of  the  boat.  She 
was  consumed  b}'  fire.  Held,  the  maxim  noa- 
eitur  a  sociis  applied;  hence  the  meaning  of 
the  general  words  shall  be  ascertained  by  re- 
ferring to  the  preceding  special  words;  that 
the  term  refined  coal  or  earth  oils,  as  used  ia 
this  policy,  must  be  construed  to  mean  only 
those  articles  or  substances  included  in  the 
general  description  ;  that  as  kerosene  was  not 
within  the  general  description,  the  use  of  it 
was  not  prohibited,  and  there  was  no  breach 
of  the  warranty  (citing  Clinton  v.  Hope  Ins. 
Co.,  45  N.  Y.,  454).  Morse  r.  Buffalo  Fire  awl 
Marine  Ins.  Co.,  30  Wis.,  534. 

11.  Stipulated:  "The  keeping  of  gunpow- 
der for  sale  or  on  storage  shall  render  the 
policy  void."  A  quautity  not  exceeding  two 
kegs  of  gunpowder,  was  kept  for  retail,  in 
accordance  with  a  custom  in  similar  stores. 
Held,  the  policy  was  valid.  The  storing  or 
vending  of  oil  was  prohibited,  and  then  fol- 
lowed these  words :  "  So  long  as  the  same 
shall  be  so  appropriated,  applied  or  used,, 
these  presents  shall  cease  and  be  of  no  force 
or  effect."  The  day  before  the  fire,  a  barrel  of 
oil  for  painting  was  placed  in  a  back  room,  ia 
which  were  some  buiiches  of  cotton  yarn. 
Held,  no  defense  to  the  action.  Leggett  v. 
^tiia  Ins.  Co.,  10  Rich.,  203. 


LACHES. 

Application  on  the  law  side  of  the  court  to- 
set  aside  an  agreement  was  refused  and  thia 
bill  was  filed  more  than  three  years  after  in- 
surers had  notice  of  plaintiff's  claim  and  more- 


753 


LAWFUL  CONTRACT -LEX  LOCI  CONTRACTUS. 


75* 


MiscellaneouB. 


than  two  years  after  tlic  respective  counsel  had 
agreed  upon  the  questions  in  issue  Held,  to 
grant  the  relief  asked  would  be  to  reward  in- 
attention and  laches  at  the  expense  of  the  par- 
ty who  had  been  vigilant  in  invoking  the  as- 
sistance of  the  court  to  secure  his  rights. 
Thwing  v.  Oreat  Wutern  Ins.  Co.,  Ill  Mass., 
93. 


LAA^TUL  CONTRACT. 

(See  CONTKACT.) 


LAW  OF  NATIONS. 

1.  The  right  of  a  nation  to  seize  vessels  at- 
tempting au  illicit  trade  is  not  confined  to  its 
liarbors  or  to  the  range  of  its  tiatteries.  Its 
power  to  secure  itself  from  injury  may  be  ex- 
ercised beyond  the  limits  of  its  territory,  nor 
is  the  right  limited  within  any  marked  bound- 
aries.    Church  V.  Ilvbbart,  3  Cranch,  165. 

2.  The  jurisdiction  of  the  French  courts  as 
to  seizures  is  not  limited  to  those  made  with- 
in two  leagues  of  the  coast;  a  seizure  made 
beyond  the  limits  of  the  territorial  jurisdic- 
tion for  a  breach  of  a  municipal  regulation  is 
authorized  by  the  law  of  nations.  Huchon 
t).  Chiesiier,  6  Cranch,  281. 

3.  The  sovereign  authority  of  any  country 
may  arrest  its  own  subjects  or  seize  their  prop. 
erty  upon  the  high  seas.  Francis  v.  Ocean 
Ins.  Co.,  6  Cow.,  404. 


LEVY  OF  EXECUTION. 

1.  Stipulated:  "The  policy  shall  cease  at 
and  from  the  time  the  property  shall  be  levied 
on,  or  taken  into  possession  or  custody,  under 
any  proceeding  in  law  or  equity."  An  execu- 
tion was  placed  in  the  hands  of  the  sheriff, 
■who  went  to  the  store  where  the  goods  were  in 
view,  and  made  a  memorandum  of  a  levy  and 
gave  notice  thereof  to  the  execution  debtors, 
but  he  did  not  take  the  goods  into  his  custody 
nor  leave  a  watchman  in  charge  of  them,  nor 
was  the  actual  possession  of  the  insured  dis- 
turbed. Held,  though  that  was  a  levy  upon 
Uie  property,  still  it  was  not  the  levy  contem- 


plated by  the  parties,  for  the  words,  "  takeu 
into  possession  or  custody,"  define  those 
which  precede,  namely,  "levied  on."  Com- 
momcedUh  Ins.  Co.  v.  Berger,  43  Penn.  St.,  285. 

2.  Stipulated:  "The  policy  shall  cease,  if 
the  property  shall  be  levied  on,  or  taken  into 
possession  or  custody,  under  an  execution  or 
other  proceeding  at  law  or  equity.  Held,  a 
wrongful  levy  could  not  affect  the  rights  of 
the  insured.  Philadelphia  Ins.  Co.  v.  Mills,  44 
Penn.  St.,  241. 

3.  Stipulated:  "To  be  void  if  the  prop- 
erty shall  be  levied  upon,  or  taken  into  custo- 
dy by  the  law.  Held,  a  wrongful  levy  was  not 
a  violation  of  the  condition.  Mills  v.  Insur- 
ance Co.,  5  Phi  la.,  28. 


LEX  FORL 

1.  If  the  contract  alleged  relates  to  general 
commercial  law,  the  federal  courts,  when  their 
power  is  judicially  invoked,  must  determine 
for  themselves  as  to  the  power  to  make  the 
contract  and  its  interpretation;  and,  a  decision 
of  the  supreme  court  of  the  state,  upon  any 
question  involved  in  it,  although  entitled  to 
great  respect  and  consideration,  is  not  conclu- 
sive upon  the  federal  court  (citing  Butts  v. 
Muscatine,  8  Wall.,  584;  Bank  v.  Kelly,  1 
Black,  436;  Gelpcke  v.  Dubuque,  1  Wall., 
175;  Lefengwell  v.  Warren,  3  Black,  599; 
King  V.  Wilson,  1  Di).  Cir.  C,  555).  Hening 
V.  United  States  Ins.  Co.,  3  Dil.  Cir.  C,  36. 

2.  The  corporation  was  created  by  the  law 
of  Canada.  Held,  if  the  contract  was  made  in 
the  state  of  New  York,  the  law  of  that  state 
must  govern  the  rights  of  the  parties.  But 
upon  demurrer  to  a  replication  filed  in  the 
cause,  the  court  held,  whether  a  certain  con- 
dition in  the  contract  contained  was  waived 
or  performed,  was  matter  of  proof  which  must 
be  controled  by  the  law  of  the  forum.  Wiig- 
dell  V.  Provincial  Ins.  Co.,  21  U.  C.  Q.  B.,  613. 


LEX  LOCI  CONTRACTUS. 

1.  Coffee  insured  at  13  cents  per  pound, 
from  Jeremie  to  Baltimore  or  New  York. 
Held,  the  American  and  not  the  French  stand- 
ard of  weight  sliall  apply.  Grade  v.  Boxone,  Z 
Caine  ,  30. 

377 


755 


LEX  LOCI  COXTRACTUS. 


756 


Miscellaneous. 


2.  The  agent  of  an  insurance  corapan}-  had 
cot  authority  to  make  contracts  to  insure,  but 
jvas  authorized  to  receive  applications  for 
insurance;  and  he  received  one  and  the  pre- 
mium note  of  the  applicant  from  a  person  in 
Ohio,  and  transmitted  them  to  his  principals 
iu  New  York,  where  they  were  received,  ap- 
proved and  policy  issued.  Held,  tlie  contract 
was  made  in  New  York,  and  not  in  Ohio; 
and  tliereforo  not  within  the  statute  of  Ohio 
prohibiting  such  contracts;  hence  the  pre- 
mium note  was  valid.  Hyde  v.  Goodnow,  3  N. 
Y.,  2G6. 

3.  An  application  was  made  by  residents  in 
Canada  for  insurance  upon  property  there, 
which  was  sent  to  the  insurer  in  New  York 
for  approval,  and  a  policy  issued  upon  it. 
Held,  it  was  a  contract  made  in  the  state  of 
J^ew  York,  to  be  performed  there  and  gov- 
<'rned  by  the  laws  of  the  state  of  New  York. 

Western  v.  Genesee  Mut.  Ins.  Co.,  12  N.  Y.,  258. 

4.  Policy  made  in  another  stale,  not  to  be 
valid  till  countersigned  bj'  an  agent  named,  iu 
the  state  of  Massachusetts.  Held,  a  contract 
made  in  Massachusetts,  and  is  governed  by 
the  law  of  that  state.  Heebner  «.  Eagle  Ins. 
-Co.,  10  Gray,  131. 

5.  Insurer's  agent  issued  and  sent  a  policy, 
dated  at  Portland,  to  insured  upon  property 
in  New  Hampshire.  Held,  it  was  a  contract 
made  in  the  stale  of  Maine,  and  the  law  of 
the  state  of  Maine  must  govern  the  rights  of 
the  parties.  Bailey  v.  Hope  Inn.  Co.,  56  Me.,  474. 

6.  Stipulated:  "This  policy  shall  not  be 
binding  till  countersigned  by  T.  L.  Miller,  at 
Chicago."  Miller  countersigned  it.  It  was 
made  iu  New  York.  Held,  the  contract  was 
executed  in  Illinois,  and  must  be  governed  by 
the  laws  of  Illinois,  and  not  by  the  laws  of 
New  York.  Pomeroy  v.  Manhattan  Life  Ins. 
Co.,  40  111.,  398. 

7.  The  defendant,  who  resided  in  Indiana, 
bad  made  application  there  to  H.,  a  resident 
agent  at  the  same  place,  for  insurance  on  hay 
from  Aurora  to  New  Orleans,  which  was  ac- 
cepted, and  policy  issued  from  the  office  of 
plaintiff,  in  Cincinnati.  The  law  of  Indiana 
provided  that  it  should  not  be  lawful  for  any 
agent  of  any  insurance  company  incorporated 
by  any  other  state,  directly  or  indirectly,  to 
take  risks  or  transact  any  business  of  insur- 
ance in  Indiana,  without  first  procuring  a  cer- 
titicate  of  autliority  from  tlie  auditor  of  the 
state;  also,  tliat  foreign   insurance  companies 

•378 


should  not  enforce  any  contract  made  by  an 
agent  iu  Indiana,  unless  the  agent  had  been 
qualitied  by  law  to  act  as  such  agent.  There 
had  been  no  compliance  with  the  statute  ia 
any  respect.  Held,  the  contract  was  made  in 
Ohio;  that  the  statute  of  Indiana  had  no  ap- 
plication to  the  case  (citing  Jlclntyre  v.  Parks, 
3  Met.,  207).  Eureka  Ins.  Co.  v.  Parks,  1  Cin. 
S.  C,  574. 

8.  Tlie  contract  was  made  between  the 
plaintiff  and  defendants  in  the  state  of  Geor- 
gia, but  tlie  policy,  upon  its  face,  appeared  to 
have  beeu  executed  in  the  state  of  New  Jersey. 
Held,  the  lex  fori  governs  as  to  the  remedy, 
but  not  as  to  its  construction  or  the  leyal 
rights  flowing  from  it.  These  depend  usually 
upon  the  law  of  the  place  where  the  contract 
is  to  be  performed,  although  where  there  is 
anything  in  the  circumstances  to  show  that 
the  parties  had  specially  in  view  the  law  of 
the  place  where  the  contract  was  made,  the 
latter  will  govern,  although  the  performance 
is  to  be  elsewhere.  Ruse  v.  Mutual  Benefit  Life 
Ins.  Co.,  23  N.  Y.,  516;  s.  c,  26  Barb.,  556;  24 
N.  Y.,  653;  see  s.  c,  8  Georgia,  534. 

9.  The  contract  was  to  be  performed  in  New 
Jersey,  where  the  statute  of  limitations  created 
a  bar  in  six  years  from  tlie  time  the  action  ac- 
crued. The  death  occurred  in  September, 
1863.  The  action  was  not  brought  until  Feb- 
ruaiy  17,  1873,  and  was  barred  by  lapse  of 
time,  b}'  the  statute  of  New  Jersey.  Held,  the 
bar  was  effectual  in  the  courts  of  Kentuckj-. 
Kentucky  Ct.  App.  Spratley  v.  Mutual  Benefit 
Life  Ins.  Co.,  7  Chi.  Leg.  News,  51. 

10.  Insurers,  an  English  corporation,  had 
their  principal  place  of  business  in  London, 
with  an  agent  at  Glasgow,  authorized  to  make 
insurance  contracts  for  them  and  to  receive 
the  consideration.  The  agent  accepted  a  risk 
in  general  terms,  on  a  ship,  and  delivered  to 
insured  a  memorandum,  which  stated  the  sum 
insured  and  the  property  insured,  and  prom- 
ised that  a  policy  would  be  forthwith  prepared 
at  the  office  inLondon,  and  would  be  delivered 
to  the  insured  or  his  order.  Held,  the  con- 
tract  was  made  in  Glasgow  and  not  in  London. 
Pattison  v.  Mills,  2  Bli.  (N.  S.),  519;  1  Dow  & 
C,  342. 

1  J.  An  Irish  company  established  agencies 
in  Scotland,  and  set  forth  in  their  prospectus 
that  the  contract  commenced  so  soon  as  an 
order  should  be  accepted  by  their  agents,  and 
that  losses  would  be  adjusted  and  promptly 


rsT 


LICENSE  —  LIEN. 


758 


What  diveats  —  When  there  is  none  —  When  it  exists. 


paid  by  the  agents  in  Scotland.  Held,  the 
law  of  Ireland  was  unl  to  govern  in  respect  to 
the  right  of  insured  to  interest  money.  St. 
Patrick  Ins.  Co.  v.  Brebener,  8  S.  &  D.,  5t. 

12.  The  proposal  was  made  in  Edinburg 
to  the  agents  of  an  English  company,  on  the 
life  of  a  Scotcliman  domiciled  in  Edinburg. 
The  policy  was  made  in  England  and  sent  to 
the  agent,  who  delivered  it  in  Edinburg. 
Held,  the  Scotch  court  was  the  appropriate 
forum  to  determine  the  rights  of  the  parties. 
Parkoi,  V.  Itoyal  Exchange  Ass.  Co.,  8  C.  C.  S., 
36.5;  18  Scot.  Jur.,  147. 

13.  The  policy  was  executed  in  the  United 
States,  and  transmitted  to  the  company's  agent 
at  Montreal  for  delivery.  Held,  the  contract 
was  made  in  Canada,  and  the  rights  of  the 
parties  must  be  governed  by  the  law  of  Can- 
ada.   Meagher  v.  uStna  Ins.  Co.,  20  U.  C.  Q.  B., 

-607. 


LICENSE. 

(See  Illicit  Tbase.) 


LIBERTY  TO  TOUCH  AND  STAY. 

(See  Illicit  Trade;  License;  Touch  and  Stat.) 


LIEN. 

(See  Bkoker.) 

I.  What  divests. 
II.  When  there  is  none. 

III.  IT  EXISTS. 

I.  What  divests. 

1.  The  charter  of  the  company  created  a 
lien  against  the  property  of  insured.  Held,  the 
lien  expired  with  the  death  of  insured,  aud 
could  not  be  enforced  against  his  heirs  unless 
they  ratified  or  confirmed  the  policy.  Indiana 
Mutual  Fire  Ins.  Co.  v.  Chamberlain,  8  Blackf., 
150. 

2.  The  policy  gave  a  lien  to  insurer  upon 
the  premises  insured,  during  the  continuance 


of  the  risk.  The  premises  were  sold  aud  con- 
veyed. Held,  the  sale  destroyed  the  lion,  if  the 
purchaser  had  no  notice  of  it.  Kentucky 
Farmers  Mut.  Ins.  Co.  v.  Mathers,  1  Bush,  23. 

II.    "WuEN  TUEKE  IS  NONE. 

1.  Where  the  expense  of  repairing  sea  dam- 
age was  defrayed  by  a  sale  of  part  of  the  cargo, 
and  the  residue  charged  upon  the  remainder 
of  the  cargo  by  a  rcupondcntia  bond,  it  was 
held,  that  no  lien  was  thereby  created  on  the 
ship,  and  that  it  could  not  be  considered  as 
ccjnferriug  any  right  upon  the  ship  owner  to 
abandon.  Dickey  v.  New  York  Ins.  Co.,  4  Cow., 
222. 

2.  The  first  insurer  procured  reinsurance. 
Held,  the  owner  of  the  property  insured  ac- 
quired no  lien  against  the  money  due  from  the 
reinsurers.  Hackenrath  v.  American  Mut.  Ins. 
Co.,  3  Barb.  Ch.,  63. 

3.  A.,  as  agent  of  the  owner,  effected  insur- 
ance "  for  account  of  whom  it  might  concern ; 
loss,  if  any,  payable  to  A."  Held,  A.  had  no 
lien  against  the  insurance  money  for  a  general 
balance  due  him  by  the  owner,  if  the  owner 
assigned  his  interest  in  the  property  to  a  bona. 

fide  purchaser  or  mortgagee  before  a  loss 
occurred.  Rogers  v.  Traders  Ins.  Co.,  6  Paige 
Ch.,  583. 

4.  B.  &  Co.,  were  debtors  to  A.  &  Co.,  for 
a  general  balance.  The  former  directed  the 
latter  to  procure  insurance  upon  a  certain 
ship  and  remitted  money  to  pay  the  premium. 
Held,  A.  &  C.  were  not  entitled  to  a  lien  upon 
the  policies  for  the  general  balance.  Dixon, 
V.  Stansfeld,  10  C.  B.,  398. 

5.  The  policy,  by  its  terms,  made  the  stock 
and  funds  of  the  company  liable  to  pay  the 
sum  insured;  and  stipulated,  that  "  the  stuck 
aud  funds  shall  be  alone  liable,  and  no  mem- 
ber shall  be  individually  liable  beyond  his 
share  in  the  capital  stock."  Held,  the  policies 
did  not  create  a  charge  on  the  funds  of  the 
company,  which  would  entitle  the  insured  to 
priority  over  general  creditors.  In  re  State 
Fire  Ins  Co.,  1  De  G.  J.  &  B  ,  634;  33  L.  J.  Ch., 
123;  In  re  International  Life  Ass.  Soc,  cic 
parte  Mclver,  5  L.  R.  Ch.,  424. 

III.  When  it  exists. 

1.  An  iusurance company,  having  paid  their 
quota  for  the    salvage  service   aud    h.-wing 

379 


LIGHTNING  — LIMITATION  OF  ACTIONS. 


760 


Failure  to  sue  must  be  pleaded  —  InsufiBcient  plea  of. 


made  advances  for  the  necessary  repairs  of  the 
boat  after  she  was  raised,  tlie  owners,  Iiaving 
no  means  or  credit,  liave  a  maritime  lien  to  the 
extent  of  the  repairs  at  least.  Collins  u.  Steam- 
boat Fort  Wayne,  1  Bond,  476. 

2.  B.  indorsed  a  note  and  took  a  mortgage 
1<)  secure  its  payment.  When  it  became  due, 
to  save  the  credit  of  the  makers,  he  gave  his 
check  for  the  money  instead  of  allowing  it  to 
be  protested.  Held,  the  debt  for  which  the 
mortgage  was  given  remained  a  valid  lien 
upon  the  property  mortgaged.  Rogers  v.  Tra- 
ders Ins.  Co.,  6  Paige  Ch.  583. 

3.  F.  was  indebted  to  A.  and  A.  became 
surety  for  F.  upon  a  respondentia  bond,  for 
$10,000.  F.  insured  his  commissions  on  the 
goods  and  deposited  the  policy  with  A.  as 
security  for  the  sum  due,  as  well  as  for  any 
loss  that  A.  might  sustain  upon  the  bond. 
Held,  A.  had  a  lien,  at  law,  upon  the  policy, 
and  that  he  had  the  right  to  retain  the  moneys 
received  upon  it  to  s.atisfy  his  lien.  Wells  v. 
ArcJier,  10  S.  &  R.,  412. 

4.  The  policy  prohibited  any  assignment 
of  it.  Insured  deposited  it  with  a  creditor  to 
secure  a  debt,  of  which  notice  was  given  to 
insurer.  Held,  the  creditor  had  a  lien  upon 
the  proceeds  of  the  policy,  binding  upon  in- 
surer and  insured.  Ullis  v.  Kreutzinger,  27 
Mo.,  311. 

5.  The  consignor  directed  his  correspond- 
ent to  insure,  and  the  bill  of  lading  was  as- 
signed to  a  third  party,  who  became  the 
assignee  of  the  policy.  Held,  the  assignee 
took  it  subject  to  the  lien  of  the  correspond- 
ent, for  his  general  balance.  Man  v.  Shiffner, 
2  East,  5i3. 

6.  The  assignees  of  the  bankrupt  brought 
trover  for  a  policy  of  insurance  made  upon 
the  life  of  the  bankrupt,  who,  before  his  bank- 
ruptcj',  deposited  it  with  the  defendants  for  a 
balance  due  and  money  lent.  Notice  of  tlie 
deposit  or  transfer  was  not  given  to  the  insu- 
rance company,  nor  was  any  assignment  of  it 
executed.  Held,  the  assignees  were  bound  to 
make  the  point  clear,  whether  the  deposit  was 
intended  as  a  lien  or  as  an  assignment  of  the 
claim  which  the  bankrupt  had  on  the  policy; 
not  having  done  so,  the  court  was  at  liberty 
to  conclude  the  parties  intended  by  the  de- 
posit to  give  notliing  more  than  a  mere  lien, 
not  an  equitable  right  to  the  holder  to  receive 
the  money ;  therefore  the  assignee  could  not 
maintain  trover  for  it.  and  the  lien  was  un- 

380 


affected  by  the  bankruptcy.    Gibson  v.  Ocer- 
bury,  10  L.  J.  Ex.,  219. 

7.  A  feme  covert  paid,  out  of  her  separate 
income,  premiums  on  certain  policies  of  in- 
surance which  were  assigned  as  collateral 
security  for  a  provision  settled  upon  her, 
under  an  instrument  made  by  her  husband. 
Held,  when  the  moneys  secured  by  the  policies 
became  payable,  she  was  entitled  to  a  lien  on 
tliem  for  the  amount  of  premiums  paid  out  of 
her  separate  estate,  Burridge  i.  Row,  1  You. 
&  Coll.  C.  C,  183;  11  L.  J.  Ch.,  309;  affirmed, 
13  L.  J.  Ch.,  173. 


LIGHTNING. 

(See  Accident;  Consibdciion.) 


LIMITATION  OF  ACTIONS. 

I.  The  failure  to  sue  must  be  pleased. 
II.  Insufficient  plea  of. 

III.  When  the  action  is  timely. 

IV.  limitation  is  inoperatite 

V  WAITED. 

VJ  VOID. 

VI L  FAILtJRE  TO  SUE  IS  A  BAR. 

VIII.  Of  statutory  provisions. 


I.  Failure  to  sue  must  be  pleaded. 

Action  upon  a  policy.  Conditioned:  "No 
suit  shall  be  maintained  unless  brought  with- 
in  twelve  mouths  after  the  action  accrued." 
Held,  a  condition  subsequent  the  subject  of 
a  plea.  Ketchum  v.  Protection  Ins.  Co.,  1  Allen, 
(N.  B.),  136. 

II.  Insufficient  plea  of. 

t.  Stipulated:  "No  suit  shall  be  maintained 
upon  this  policy,  unless  commenced  within 
twelve  months  ne.xt  after  the  cause  of  action 
shall  accrue."  Plea :  the  fire  which  caused  the 
loss  complained  of,  occurred  more  than  twelve 
months  before  this  suit  was  commenced.  Held, 
a  bad  plea.  Lampkin  v.  Western  Asa.  Co.,  13 
U.  C.  Q.  B.,  361. 

2.  Plea:  That  no  actu)n  should  be  sustained 


rci 


LIMITATION  OF  ACTIONS. 


762 


When  tbe  action  is  timelv . 


unless  brought  within  six  months  from  the 
<1.'ite  of  the  loss;  that  this  action  was  not 
brought  within  this  time.  Replication:  that 
when  the  loss  occurred,  defendants  had  not 
issued  the  policy;  tliat  they  refused  to  issue 
it,  aud  did  not  issue  it  uutil  after  six  niontlis 
had  elapsed  from  the  date  of  the  loss.  Udd. 
the  replication  was  bad  on  the  ground  of  de- 
parture from  the  cause  of  action  set  up  in  the 
declaration,  for  the  plaintiff  was  in  effect  at- 
tempting to  proceed  on  an  equitable  cause  of 
action.  HUkey  v.  Anchor  Ins.  Co.,  18  U  C.  Q. 
U.,  433. 

III.    WUEN  THE  ACTION  IS  IIMELY. 

1.  Stipulated:  "No  recovery  shall  be  had 
in  any  court  uuless  suit  shall  be  comtaenced 
within  twelve  mouths  next  after  the  loss  or 
damage,  aud  in  case  any  such  suit  shall  be 
commenced  after  that  time,  the  lapse  of  time 
shall   be  considered   conclusive  evidence  of 
theinvalidity  of  the  claim."  Insured  was  a  resi- 
dent of  state  of  Mississippi,  and  insurer  acitizen 
of  the  state  of  Connecticut,  during  the  twelve 
months  next  succeeding  the  loss,  and  all  that 
time    there   was    state   of   war   between    the 
northern  and  soutlieru  slates.     Held,  the  con- 
dition referred  to  the  twelve  months  next  suc- 
ceeding the  loss.     If  the  plaintiff  could  show 
any  reason  in  law  that  rebutted  the  presump- 
tion raised  by  the  failure  to  sue  in  that  time, 
the  condition  was  gone;  for  once  rebutted,  it 
could  not  be  again  revived.     The  state  of  war 
excused  the  failure  to  bring  suit  within  twelve 
months  after  the  loss  (reversing  s.  c,  36  Conn., 
5-13).     Sertimfs  v.  Insurance  Co.,  13  Wall.,  158. 
2.   Stipulated:    "The  action  shall  nut  be 
maintained,  unless  brought  within  sis  months 
next  after  tbe  loss  shall  occur.    Loss  payable 
in  ninety  days  after  due  proof"    The  fire  oc- 
curred July  .5th.    The  proofs  were  delivered 
the  14th.     About  eighty-five  days  thereafter, 
or  within  five  days  when  the  loss  would  be 
payable,  insurers   suggested,  that  the  proofs 
were  incomplete,  and  required  an  amendment 
which  was  transmitted   about  a  week  later, 
October  14th.   January  2d,  insurers  were  asked 
when  they  would  pay  the  claim.    To  which 
the  secretarj'  replied,  "When  it  is  due,  .Jan- 
uary 14th."    This  action  was  not  brought  until 
after  the  six  months  had  elapsed.    Held,  the 
condition   was   waived.     Ames   e.  A'eui  York 
Union  Ins.  Co.,  14  N.  Y.,  253. 


3.  Stipulated :  "  No  action  shall  be  sus- 
tained upon  this  policy  unless  commenced 
within  six  months  after  any  loss  or  damage 
shall  accrue.  Payment  of  losses  shall  be 
made  in  sixty  days  from  the  date  of  the  adjust- 
ment of  the  preliminary  proofs  of  loss."  Fire 
occurred  October  5, 18.58.  Action  commenced 
April  16,  1859.  Held,  in  time;  for  the  words 
"  loss  or  damage  shall  accrue,"  mean  action 
shall  accrue;  that  no  action  accrued  until 
sixty  days  after  the  parties  adjusted  the  claim; 
that  insurer's  demand  for  additional  proofs, 
made  February  13,  1859,  prevented  the  accru- 
ing of  an  action  till  April  12,  1859.  Jfai/or  of 
New  York  ii.  Hamilton  Ins  Co.,  39  N.  Y.,  45; 
s.  c,  10  Bos.,  537. 

4.  Stipulated:  "The  directors  shall  pro- 
ceed to  determine  whether  any  loss  has  oc- 
curred for  which  the  company  is  liable,  and 
ascertain  the  amount;  and  if  the  insured  do 
not  acouiesce,  aud  both  parties  do  not  agree  to 
refer  it,  the  insured  may,  within  four  months 
after  such  determination,  but  not  after,  bring 
an  action  at  law,  which  action  shall  be  brought 
at  a  proper  court,  in  the  county  of  Essex." 
Held,  the  failure  to  bring  the  action  in  the 
county  of  Essex  was  no  defense,  for  the  right 
to  bring  it  in  the  county  of  Suffolk  was  fixed 
by  general  law,  and  the  parties  would  not  be 
allowed  to  change  it  by  agreement.  Jfute  v. 
Hamilton  Mat.  Ins.  Co.,  6  Gray,  174. 

5.  Stipulated:  "No  suit  sh.all  be  main- 
tained upon  the  policy  unless  commenced 
within  six  months  after  loss."  An  action  at 
law  was  commenced  within  that  time,  but  no 
recovery  could  be  had  on  it  because  the  prop- 
erty was  misdescribed,  and  this  bill  WM 
brought  after  six  months  had  elapsed  to  re- 
form the  writing.  Held,  if  the  bill  were  for 
relief  only,  the  limitation  of  time  would  be  a 
bar;  but  it  was  a  proceeding  in  aid  of  tJie 
action  at  law  to  correct  a  mistake  in  the 
policy,  and,  therefore,  the  limitation  of  time 
was  not  applicable  to  it.  Woodbury  Savings 
Bank  v.  Charter  Oak  Ins.  Co.,  31  Conn.,  517. 

6.  The  claim  was  attached  by  a  creditor  of 
insured  within  twelve  months  after  the  loss, 
and  the  creditor  brought  scire  facias  against, 
the  company  after  the  expiration  of  twelve 
months.  Held,  the  limitation  named  in  the 
policy  was  satisfied  by  the  attachment,  and 
the  writ  of  scire  facias  could  be  maintained. 
Harris  v.  Phosnix  Ins.  Co.,  35  Conn.,  310. 

7.  Stipulated:    "All  claims  under  this  pci 

3KI 


res 


LIMITATION  OF  ACTIONS. 


764 


When  the  action  is  timely. 


icy  are  barred  unless  prosecuted  within  one 
year  from  the  date  of  tlie  loss."  Held,  the 
commencement  within  the  year  of  a  suit 
which  was  dismissed  and  not  carried  to  final 
judgment,  was  a  compliance  with  the  condi- 
tion. Madison,  J)is.  Go.  v.  Fdloues,  1  Dis.,  317 ; 
affirmed,  2  id.,  128. 

8.  Stipulated:  "No  suit  or  action  for  the 
recovery  of  any  claim  under  this  policy  shall 
be  maintained  unless  such  suit  or  action  shall 
be  commenced  within  the  term  of  twelve 
months  next  after  any  loss  or  damage  shall 
occur."  The  fire  occured  March  31,  18G0.  A 
summons  was  issued  March  18,  1861,  return- 
able April  2,  1801,  which  was  returned  "  Not 
found,"  April  3,  1861.  The  next  day  another 
summons  was  issued  which  was  served  upon 
defendant.  The  word  alias  was  written  by 
the  clerk  upon  the  face  of  the  seal,  but  be- 
yond this  there  was  nothing  to  indicate  that  it 
■was  a  continuation  of  the  first  process.  Held, 
insured  had  the  whole  of  the  twelve  months 
within  which  to  bring  the  suit;  that  commenc- 
ing the  action  within  twelve  months  was  suffi- 
cient to  defeat  the  limitation,  or  to  extend  it 
till  service  was  made  under  the  second  writ. 
Peoria  Fire  and  Marine  Ins.  Co.  v.  Hall,  13 
Mich.,  202. 

9.  The  action  was  not  brought  within  a 
year  after  the  loss  occurred;  but  before  the 
year  expired,  the  company  was  dissolved,  and 
its  assets  placed  in  the  hands  of  a  receiver. 
The  companj^'s  agents  had  led  insured  to  be- 
lieve that  it  was  wholly  bankrupt,  and  that  it 
would  be  useless  for  him  to  make  any  formal 
proof  of  loss.  Held,  the  fund  was  for  the  use 
of  all  the  creditors,  and  insured  was  practi- 
cally a  party  to  the  suit,  though  not  specifi- 
cally named;  therefore,  the  condition  in  this 
respect  had  no  application.  111.  S.  C. ;  Pennell 
V.  Chandler,  7  Chi.  Leg.  News,  337. 

10.  Stipulated:  "No  action  shall  be  main- 
tained unless  brought  within  one  year  after 
the  loss.  This  suit  was  commenced  September 
30,  1868.  The  loss  occurred  June  3,  1867. 
September  24,  1867,  insurer's  general  agent 
wrote  that  the  proofs  were  quite  defective,  but 
stated  no  particulars.  He  further  stated,  that 
he  would  call  upon  insured  in  the  October 
following.  Not  having  called,  insured  again 
wrote  to  him,  and  in  a  letter  dated  March  1, 
1868,  they  were  then  for  the  first  time  in- 
formed that  insurers  would  insist  upon  a  strict 
compliance  with  the  condition  requiring  pre- 

382 


liminary  proofs.  Thereupon,  insured  made 
and  delivered  new  proofs  of  loss,  July  13, 
1868.  Held,  the  evidence  was  suflScient  to 
warrant  the  jury  in  finding  that  the  acts  and 
omissions  of  the  defendant  delayed  the  plaint, 
ills  in  making  their  preliminary  proofs  for 
five  montlis,  which  time  must  be  excluded  ia 
computing  the  time  within  which  insured  was 
limited  to  bring  the  action.  Killips  v.  Putnam 
Fire  Ins.  Co.,  28  Wis.,  47. 

11.  Stipulated:  "  No  suit  shall  be  sustain- 
able upon  this  policy  unless  commenced  with- 
in twelve  months  of  the  loss"which  occurred 
October  17,  1869.  It  was  adjusted  November 
6,  1869,  at  .$450,  and  insurers  agreed  to  pay  it 
February  6,  1870,  unless  notice  should  be 
given  prior  to  that  time  of  an  intention  to 
contest" it.  The  action  was  commenced  No- 
vember 7,  1870.  Held,  the  time  between  No- 
vember 6,  1869,  and  February  6,  1870,  the  date 
comp.any  agreed  to  pay  the  claim,  must  be  ex- 
eluded  in  computing  the  year  (citing  Killips 
».  Putnam  Fire  lus.  Co.,  38  Wis.,  472;.  Blach 
V.  Winneshiek  Ins.  Co.,  31  Wis.,  473. 

12.  Stipulated:  " Xo  suit  or  action  shall 
be  sustained  unless  commenced  within  the 
term  of  twelve  months  after  the  happebing  of 
the  loss  or  damiige."  The  vessel  left  Quebec 
November  20.  1867.  She  passed  Les  Eboule- 
ments  two  daj's  after,  and  nothing  was  heard 
of  her  until  the  middle  of  May,  following, 
when  she  was  found  ashore  at  the  island  of 
Anticosti.  None  of  the  crew  were  ever  after- 
wards heard  of.  A  hole  had  been  cut  in  the 
vessel,  through  which  some  of  the  insured 
flour  had  been  fakeu ;  the  balance  was  found 
on  board,  and  insurer's  agent  sold  547  barrels 
at  Gaspe  for  $1,796.  After  p.aying  salvage, 
charges  and  other  expenses,  it  netted  |533. 
The  schooner  was  subsequently  repaired. 
This  action  was  commenced  March  3,  1869. 
Held,  insured  was  not  bound  to  treat  it  as  a 
loss  as  soon  as  the  damage  occurred ;  that  the 
property  saved  existed  in  specie  in  May,  1868, 
hence  the  loss  was  not,  in  its  inception,  total, 
and  only  became  so  when,  by  the  course  of 
events  consequent  upon  the  peril  encountered, 
it  was  found  impossible  to  carry  the  flour  to 
its> destination,  and  necessary  to  sell  it;  that 
the  right  of  the  insured  to  claim  for  indemni- 
ty did  not  mature  until  Mav,  1SC8;  hence  the 
action  wsis  within  the  time  limited  by  the  con- 
tract (citing  Roux  v.  Salvador,  3  Bing.,  (N.C.), 
306;  Farnesworth  v.  Hyde,  18  C.  B.  (N.  S.), 


r(!5 


LIMITATION  OF  ACTIONS. 


rc« 


When  the  limitation  is  inoperative. 


835;  2  L.  R.  C.  P.,  204;  Stringer  v.  English 
ami  Scottish  Marine  Ins.  Co.,  5  L.  R.  Q.  B., 
599).  Browning  v.  Provincial  Ins.  Co.  of  Can- 
ada, 5  L.  R.  P.  C,  2G3;  28  L.  T.  (N.  S.),  853; 
21  W.  R.,  587. 

IV.  When  the  limitation  is  inoper- 
ative. 

1.  Stipulated:  "In  case  of  a  disputed 
claim,  no  suit  or  action  shall  be  sustained,  un- 
less instituted  within  twelve  months  after  the 
alleged  cause  of  such  claim."  Proofs  of  loss 
were  made  and  forwarded  to  the  insurers,  who 
stated  several  formal  objections  to  their  sufB- 
ciency,  and  asked  for  further  proofs,  which 
were  made  and  sent,  but  no  objection  was  ever 
made  to  the  payment  of  the  loss.  This  action 
was  brought  more  than  twelve  months  after  it 
occurred.  Ucid,  in  the  absence  of  all  proof 
showing  that  the  insurers  intended  to  inter- 
pose anything  but  mere  formal  objections  to 
the  claim,  the  court  would  hold  that  it  was  not 
a  disputed  claim,  and  therefore  not  within  the 
provision.  People  v.  Liverpool,  London  and 
Globe  Ins.  Go.,  2  N.  Y.  S.  C.  368. 

2.  The  defendants  pleaded  in  abatement  to 
the  jurisdiction,  and  relied  mainly  upon  the 
act  of  incorporation,  which  provided  that  if  a 
loss  is  not  settled  by  the  directors  by  adjust- 
ment or  reference,  the  party  suffering  may 
bring  his  action  in  the  first  court  held  in  Mid- 
dlesex. Held,  bringing  the  action  in  Middle- 
sex was  limited  to  cases  where  an  adjustment 
■was  made,  and  the  party  was  not  satisfied ; 
that  it  did  not  apply  to  cases  where  the  direc- 
tors have  neglected  or  refused  to  adjust. 
Boynton  d.  Middlesex  Mutual  Fire  Ins.  Co.,  4 
Met.,  212. 

3.  The  policy  made  the  by-laws  part  of  the 
contract.  They  provided  that  upon  notice  of 
loss  the  directors  shall  proceed  to  determine 
and  pay  the  amount  thereof;  but  if  insured 
shall  not  acquiesce  in  their  determination  any 
action  for  the  loss  claimed  must  be  brought 
within  four  months  after  such  determination. 
The  directors  voted  to  pay  |1,607.42,  October 
6,  1851.  This  action  was  not  commenced  un- 
til after  four  months.  Held,  the  action  could 
not  be  maintained  for  the  amount  claimed,  but 
it  could  be  maintained  for  the  amount  admit- 
ted to  be  due.  Amesbvry  v.  Bowditch  Fire  Ins. 
Co.,  6  Gray,  596. 

4.  By  charter  granted  in  the  state  of  New 


Hampshire,  it  was  provided  that  the  directors, 
as  they  might  deem  proper,  should  ascertain 
and  determine  the  amount  of  an}'  loss  or  dam- 
age; and  if  the  insured  should  not  acquiesce, 
his  claim  might  be  .submitted  to  referees  mu- 
tually chosen,  or  he  might  within  ninety  day.* 
after  notice  of  said  determination,  and  not  af- 
terwards, bring  an  action  for  the  loss  before 
any  court  in  the  county  of  Merrimac  proper  to 
try  the  same.  I/cld,  if  insurers  neglected  to. 
ascertain  the  plaintiff's  loss  and  perform  the 
duties  enjoined  upon  them,  insured  was  not 
obliged  to  pursue  the  special  remedy.  Wil- 
liams V.  New  England  Fire  Ins.  Co.,  29  Me., 
405. 

5.  The  contract  provided :  "  Upon  notice  of 
the  loss  the  directors  shall  proceed  as  suou 
as  may  be  to  ascertain  and  determine  the 
amount  thereof,  and  shall  settle  and  pay  the 
same  within  three  months  after  such  notice ; 
but  if  the  insured  shall  not  acquiesce,  his 
claim  may  be  submitted  to  referees,  or  he  may, 
within  three  months  after  such  determination, 
but  not  after  that  time,  bring  an  action  at  law 
against  said  company  for  such  loss,  which 
action  shall  be  brought  at  a  proper  court  in 
the  county  of  Merrimack."  Held,  if  the  di- 
rectors neglected  or  refused  to  settle  and  fix 
the  amount  of  the  claim,  the  stipulation  was 
not  binding,  for  it  contemplated  a  case  where 
a  loss  is  admitted  and  the  amount  fixed  by 
the  directors;  and  therefore  the  insured  was 
not  bound  to  bring  his  suit  in  the  county  of 
Merrimack  (citing  Nute  v.  Hamilton  Mut. 
Ins.  Co.,  6  Gray,  174;  Hall  v.  Mechanics  Mu- 
tual Fire  Ins.  Co.,  id.,  169 ;  Amesbury  v.  Bow- 
ditch  Mut.  Ins.  Co.,  id.,  596;  Nevins  v.  Rock- 
ingham County  Mut.  Ins.  Co.,  25  N.  H.,  22). 
Bartlett  v.  Union  Mutual  Fire  Ins.  Co.,  4fl  Me., 
500. 

6.  The  act  of  incorporation  provided  that 
the  directors  are  to  ascertain  and  determine 
the  amount  of  loss,  and  settle  and  pay  it  with- 
in three  months  after  notice ;  and  if  the  part}- 
suffering  is  not  satisfied  with  their  determin- 
ation, the  question  may  be  submitted  to  ref- 
erees, or  the  assured  may  bring  his  action  at 
the  next  court  to  be  holden  in  and  for  the 
county  of  Rockingham,  and  not  afterwards. 
Held,  the  insurer  is  bound  to  decide  within 
three  months  after  notice:  and  that  those  pro- 
visions  contemplate  a  case  where  the  loss  ha.s 
been  admitted,  and  the  only  question  between' 
the  parties  was  whether  the  insured  was  euti 

38» 


767 


LIMITATION  OF  ACTIONS. 


768 


When  tlie  limitation  is  waived. 


tied  to  recover  more ;  tliat  the  special  remedy 
was  intended  only  for  a  special  case,  where 
there  had  been  a  reasonable  determination  on 
the  question  of  loss  and  the  insured  was  dis- 
satisfied with  that  determination.  Nenitis  ». 
Kockingham  Mutual  Fire  Ins.  Co.,  25  N.  H.,  22. 

7.  Act  of  iucorpoiation  provided  that  com- 
pany's directors,  "Upon  being  notified  of  the 
loss  shall,  on  view,  or  in  such  other  way  as 
they  may  deem  proper,  ascertain  and  deter- 
mine the  amount;  and  if  the  party  suffering 
is  not  satisfied  by  the  determination  of  tlie 
•directors,  the  questiou  may  be  submitted  to  a 
referee,  or  he  may  bring  an  action  for  the  loss 
at  the  next  court  to  be  holden  for  Marion 
county,  and  not  afterwards."  Held,  if  the  di- 
rectors failed  to  ascertain  and  determine  the 
loss,  the  remedy  of  the  insured  was  governed 
by  the  general  law,  and  the  stipulation  limit- 
ing the  action  was  of  no  effect.  Indiana  Mu- 
tual Fire  Ins.  Co.  v.  Routledge,  7  Ind.,  2.5. 

8.  Not  satisfied  with  adjustment,  insured 
must  bring  suit  within  a  certain  time  to  a 
certain  court.  Held,  not  binding  unless  in- 
surer adjusted  the  loss.  Landis  v.  Some  Mu- 
tual Fire  and  Marine  Ins.  Co.,  56  Mo.,  591. 

9.  Stipulated:  "No  action  shall  be  main- 
tained unless  commenced  within  one  year  after 
the  loss."  The  interest  insured  was  a  mechan- 
ic's lien.  Insured  commenced  proceedings  to 
establish  his  lien,  but  it  was  not  established 
until  after  the  expiration  of  the  year.  Held, 
the  insured  having  pursued  his  remedy  to 
-obtain  a  judgment  for  the  lien  with  diligence, 
the  condition  requiring  suit  to  be  brought 
within  one  year,  became  inoperative,  and  did 
not  bar  his  right  to  recover,  though  his  action 
was  commenced  after  the  year  had  elapsed. 
Stout  V.  City  Fire  Ins.  Co.,  12  Iowa,  371. 

10.  Stipulated:  "No  action  shall  be  main- 
tained if  not  brought  within  twelve  months 
after  the  loss."  The  subject  insured  was  a 
mechanic's  lien.  Held,  if  the  insured  pro- 
ceeded to  establish  his  interest  with  reasona- 
ble diligence,  and  it  could  not  be  legally  as- 
certained in  time  to  bring  an  action  on  the 
policy^  within  the  year,  then  it  follows  (unless 
a  dishonest  purpose  is  imputed  to  the  com- 
pany), that  in  granting  such  policy,  insurer 
intended  to  waive  the  condition  which  limits 
the  right  of  action  on  the  policy  to  twelve 
months.  LongUurst  v.  Star  Ins.  Co.,  19  Iowa, 
364. 

11.  Stipulated:  "The directors  may,  within 
381 


thirty  days  after  notice  of  a  loss,  allow  the 
whole  or  a  part,  or  reject  the  whole,  and  if  the 
insured  is  not  satisfied,  the  matter  may  be  re- 
ferred to  three  referees,  if  the  parties  agree, 
and  in  case  no  agreement  shall  be  made,  the 
insured  may  bring  an  action  in  the  circuit 
court  in  the  county  of  Milwaukee,"  etc.  Held, 
unless  the  directors  rejected  the  claim  within 
thirty  days  after  the  loss,  the  insured  was  not 
limited  to  the  circuit  court  of  Milwaukee. 
Arnet  v.  Mechanics  Mut.  Ins.  Co.,  22  Wis.,  510. 
12.  The  insurer's  agent  gave  a  receipt  for 
the  premium,  and  agreed  that  a  policy  should 
be  delivered  within  twenty-one  days,  or  the 
money  refunded.  Thirty-three  days  after  pay- 
ment of  the  premium,  the  premises  were 
burned,  but  no  policy  had  been  issued  at  that 
time,  and  the  company  refused  to  make  one, 
on  the  ground  that  the  application  had  been 
rejected.  All  policies  of  this  company  pro- 
vided that  no  action  should  be  maintained, 
unless  commenced  within  six  months  after 
loss  should  occur.  This  suit  was  not  brought 
until  after  that  time  had  passed.  Held,  tho 
condition  did  not  apply,  for  the  action  was 
not  founded  upon  a  policy.  Penly  v.  Beacon 
Ins.  Co.,  7  Grant's  Ch.,  130. 

V.  When  the  limitation  is  waived. 

1.  The  policy  provided  that  suit  shall  be 
brought  upon  it  within  one  year  after  the  loss, 
and  that  the  loss  shall  be  paid  within  sixty 
days  after  it  shall  have  been  ascertaiued  and 
proved.  Held,  if  a  claim  was  made  for  indem- 
nity within  a  reasonable  time,  and  negotiatiouu 
took  place  between  the  parties,  by  which  fur- 
ther proofs  were  required,  and  these  word 
given  within  a  reasonable  time,  and  promises 
or  intimations  were  held  out  that  the  loss 
would  be  paid,  and  in  consequence  of  these, 
insured  delayed  bringing  the  suit  within  the 
year,  then  the  company  could  not  be  permitted 
to  avail  itself  of  a  failure  to  bring  the  suit 
within  the  time  mentioned;  but  the  insured 
must  show  that  by  the  action  of  the  company, 
he  had  been  prevented  from  bringing  the  suit 
within  the  time  prescribed;  and  to  do  so,  it 
must  appear  the  insured  was  convinced  that 
the  company  oas  acting  as  if  it  would  pay  the 
loss,  and  from  tlie  acts  of  the  company  he  was 
convinced  that  it  was  unnecessary  to  bring 
the  suit;  if  the  conduct  of  the  company  and 
the  negotiations  between  the  parties  were  of 


769 


LIMITATION  OF  ACTIONS. 


770 


When  the  limitation  is  void  —  When  the  failure  to  sue  is  a  bar. 


such  a  charaeler  as  to  convince  a  reasonable 
person  that  the  company  would  not  pay  the 
loss,  then  it  was  the  duty  of  the  iusured  to 
bring  the  action  within  the  time  limited. 
Curtu  V.  Home  Ins.  Co..  1  Biss.,  485.  And  if 
llie  company  required  further  proofs  of  the 
loss,  and  those  were  being  furnished  with  due 
diligence,  that  was  evidence  from  which  the 
insured  would  have  the  right  to  believe  the 
loss  would  be  paid  without  litigation;  but 
whenever  the  insured  made  up  his  mind  that 
lie  would  not  furni.sh  any  more  proof,  there 
was  an  end  of  negotiation.    Hid. 

2.  Stipulated:  "No  action  shall  be  sus- 
tained unless  brought  within  twelve  months 
after  the  loss.  Held,  slight  evidence  of  waiver 
■would  be  sufHcieut  to  defeat  the  condition; 
that  silence  on  the  subject  in  the  midst  of  ne- 
gotiations  for  settlement  during  the  year 
would  be  sufficient  to  submit  the  question  of 
waiver  to  the  jury;  that  it  was  not  necessary 
to  prove  a  positive  act  of  the  defendants,  in- 
tended to  induce  postponement  of  the  action. 
Jiipley  V.  Astor  Ins.  Co.,  17  How.  Pr.,  444. 

3.  Stipulated:  "No  suit  or  action  of  any 
kind  against  this  company  for  the  recovery  of 
any  claim  under  this  policy  shall  be  sustain- 
able in  l;iw  or  equity,  uiilesiscommeuced  within 
gi.\  months  after  the  cause  of  action  shall  have 
accrued."  Held,  if  after  the  action  was  legally 
barred,  the  company  acted  and  promised  as  if 
it  did  not  intend  to  insist  upon  the  limitation, 
the  jury  could  infer  a  waiver  of  the  condition. 
Coursinv.  Pentisyhania  Ins.  Co.,  46  Penn.  St., 
323. 

4.  Stipulated:  "No  action  shall  be  sus- 
tained unless  brought  within  six  months  after 
the  loss."  Held,  representations  made  by  the 
company's  agents,  which  gave  insured  reason- 
able ground  to  believe,  and  from  which  he  did 
in  fact  believe,  that  his  claim  would  be  set- 
lied  without  suit,  would  relieve  insured  from 
the  condition  (citing  Grant  v.  Lexington  Fire 
and  Marine  Ins.  Co.,  5  Ind.,  22).  Mickey  v. 
Burlington  Ins.  Co.,  35  Iowa,  174. 

5.  Stipulated :  "  No  action  shall  be  main- 
tained upon  this  policy,  unless  commenced' 
within  six  months  after  the  loss  shall  occur." 
D.  was  insurer's  agent,  and  the  policy  was 
cllected  through  him.  He  and  S.  were  asso- 
ciated in  business  as  insurance  agents,  and 
when  the  claim  matured  S.  was  absent  from 
the  Province.  D.  agreed  with  insured,  that  if 
lie  would  defer  prosecuting  the  claim  until  the 

25 


return  of  S.,  it  should  be  paid.  After  the  re- 
turn of  S.  the  claim  was  not  paid.  This  suit 
was  commenced  more  than  six  months  after 
the  loss.  Held,  D.  had  authority  to  make  the 
agreement,  and  the  condition  to  prosecute 
within  six  mouths  was  therefore  waived. 
Brady  v.  Western  Ass.  Co.,  17  U.  C.  C.  P.,  597. 

YI.    When  the  limitation  is  void. 

1.  Stipulated:  "That  any  action  upon  the 
policy  should  be  brought  in  six  months  after 
the  loss."  Held,  the  stipulation  was  void  (ci. 
ting  Develin  o.  Wood,  3  Ind.,  102;  McLane  o. 
Elmer,  4  id.,  289;  Grant  v.  The  Lexington, 
etc.,  5  id.,  23).  Eagle  Ins.  Co.  v.  La  Fayetta 
Ins.  Co.,  9  Ind.,  443. 

2.  Stipulated:  "The  insured  waives  all 
right  to  bring  an  action  under  said  policy,  ex- 
cept in  the  courts  of  the  state  of  New  York." 
Held,  void  as  against  public  policy,  and  in  di- 
rect opposition  to  the  state  statute  governing 
the  regulationof  agencies  of  foreign  insurance 
companies.  Reicliard  v.  Manhattan  Life  Ins. 
Co.,  31  Mo.,  518. 

VII.  "When  the  failure  to  sue  is  a 

BAE. 

1.  Stipulated:  "No  .«;uit  or  action  of  any- 
kind  against  the  company  for  the  recovery  of 
any  claim  upon  this  policy  shall  be  sustaina- 
ble  in  any  court  of  law  or  chancery,  unless 
such  shall  be  commenced  within  twelvo 
months  after  such  loss  or  damage  shall  occur." 
An  action  commenced  within  the  year  was 
dismissed.  The  statute  of  limitations  in  Mis- 
souri, where  this  action  was  brought,  provided 
that  if  in  any  action  commenced  within  the 
the  period  mentioned,  the  plaintifl' shall  suffer 
a  nonsuit,  he  maj'  commence  a  new  action 
within  one  year  afterw.ards.  Held,  the  Mis- 
souri statute  did  not  affect  the  rights  of  the 
parties,  their  rights  flowed  from  the  contract, 
which  relieved  them  from  the  general  limita- 
tions of  the  statute,  and,  as  a  consequence,  from 
its  exceptions  also;  and  the  commencement 
of  this  action  W'ithin  a  year  after  the  loss  was 
a  condition  precedent  to  the  plaintitrs  right 
of  recovery.  Riddlesharger  v.  Hartford  Ins. 
Co.,  7  Wall.,  386. 

2.  Stipulated :  "  No  action  at  law  or  iu 
equity  shall  be  maintained,  unless  commenced 
within  one  year  from  the  happening  of  the 

385 


771 


LIMITATION  OF  ACTIONS. 


773 


When  the  failure  to  sue  is  a  bar. 


lo3s."  Held,  refusing  to  pay  the  claim  on  the 
ground  that  other  actions  had  been  com- 
menced in  the  same  policy  by  other  parties, 
and  that  defendant  would  not  do  anything  in 
respect  to  the  loss  while  they  were  defending, 
was  not  evidence  sufficient  to  estop  insurers 
from  insisting  upon  the  condition.  Ripley  v. 
^tJia  Ins.  Co.,  30  N.  T.,  136;  s.  c,  29  Barb., 
553;  Roach  v.  New  York  and  Erie  Ins.  Co.,  30 
N.  Y.,  5iG. 

3.  Stipulated:  '-No  action  shall  he  sus- 
tained against  this  company  unless  brought 
•within  twelve  months  after  the  cause  of  action 
shall  have  accrued."  JSeld,  a  plea  setting  up 
the  failure  to  bring  the  action  within  the  time 
named  was  a  bar.  Cray  v.  Hartford  Fire  Ins. 
Co.,  1  Blatch.,  280. 

4.  Stipulated:  "Insured  shall  forthwith 
give  notice  of  the  loss  to  the  company,  and 
within  thirty  days  thereafter  deliver  a  particu- 
hir  statement  thereof.  Losses  shall  be  paya- 
ble ninety  days  after  compliance  with  the  con. 
ditions.  No  suit  or  action  of  any  kind  against 
said  company  for  the  recovery  of  any  claim 
under  this  policy  shall  be  sustainable  in  any 
court  of  law  or  chancery,  unless  such  suit  or 
action  shall  be  commenced  within  the  term  of 
si-x  months  after  the  loss  or  damage  shall  have 
occurred."  Loss  July  31,  1853;  notice  and 
particular  account  August  17,  1853 ;  suit  Au- 
gust 10, 1854.  Held,  insurers  were' discharged. 
Fallam  v.  New  York  Union  Ins.  Co.,  7  Gray,  61. 

5.  Stipulated:  "The  directors  shall  ascer- 
tain and  determine  said  loss  or  damage,  and 
if  the  party  suffering  shall  not  be  satisfied  with 
their  determination,  the  amount  may  be  sub- 
mitted to  referees,  or  he  may  bring  an  action 
for  the  loss  or  damage  at  the  nest  court,  to  be 
holden  in  and  for  the  county  of  Portage,  un- 
less said  court  shall  be  holden  within  sixty 
days  after  said  determination,  and  if  holden 
within  that  time,  then  at  the  next  court  holden 
thereafter  in  said  county."  The  claim  was  re- 
jected October  5, 1852.  The  first  term  of  court 
was  held  October  13,  1853,  and  the  next  Feb- 
ruary 34, 1853.  This  suit  was  not  commenced 
until  August  13,  1853.  Held,  the  limitation 
•was  a  valid  bar  to  this  suit.  Portage  County 
Mut.  Ins.  Co.  V.  West,  6  Ohio  St.,  599. 

6.  A  statute  (the  act  of  iucorporation)  pro- 
vided that  the  action  upon  the  policy  should 
be  brought  within  a  time  limited.  Held,  ne- 
gotiations between  the  parties,  with  a  view  to 
referring  to  arbitrators  the  matters  in  dispute, 

386 


is  not  an  excuse  for  failing  to  bring  the  actioa 
within  the  time.  Oooden  v.  Amoskeag  Fire  In». 
Co.,  30  N.  H.,  73. 

7.  Stipulated:  "The  directors  sh.all  ascer- 
tain and  determine  the  amount  of  loss  or  dam- 
age, and  if  the  insured  shall  not  be  satisfied 
with  their  determination,  the  question  shall 
be  submitted  to  referees,  or  the  insured  may 
bring  an  action  at  the  next  court  to  be  held  in 
and  for  the  county  of  Stratford,"  etc.  The  los» 
occurred  December  19,  1855.  The  directors 
had  no  notice  of  it  until  August  31,  18.56,  and 
then  they  voted  to  postpone  the  subject.  This 
action  was  not  brpught  until  April  6,  1859. 
Held,  it  could  not  be  maintained.  Patrick  v. 
Farmers  Ins.  Co.,  43  N.  H.,  631. 

8.  The  seventh  section  of  the  act  incorpo- 
rating the  company,  limited  the  time  for  com- 
mencing actions  within  a  given  period  after 
the  directors  had  ascertained  and  determined 
the  amount  of  damage  and  made  their  deter- 
mination. Held,  insured  •must  bring  his  ac- 
tion within  the  time  limited,  although  the  di- 
rectors refused  and  neglected  to  ascertain  the 
amount  of  damage.  Button  v.  Vermont  Mut- 
ual Fire  Ins.  Co.,  17  Vt.,  369. 

9.  Conditioned:  "The  action  shall  be 
brought  in  the  county  of  Washington,  or  in 
that  in  which  insurers  reside,  or  in  that  in 
which  the  property  insured  is  situated,  at  the 
term  of  the  court  next  after  the  directors  shall 
have  disallowed  the  claim  in  whole  or  in  part. 
Held,  the  action  not  being  brought  ■n-ithin  the 
time  named,  it  was  barred,  and  the  fact  that 
the  directors  voted  to  pay  one  of  the  claim;\nt3 
half  of  the  claim  did  not  remove  the  b.ar, 
though  the  vote  was  given  afler  the  limitatioa 
had  expired.  If  the  prescribed  term  be  suf- 
fered to  elapse,  without  suit,  there  remains  no 
legal  liability  in  any  form,  and  there  is  noth- 
ing for  an  acknowledgment  or  new  promise 
to  rest  upon.  Willtaiiis  v.  Vermont  Mut.  Ins. 
Co.,  20  Vt.,  223. 

10.  Stipulated:  "No  suit  or  action  shall 
be  sustained  at  law  or  in  chancery,  for  any 
claim  under  this  policy,  unless  commenced 
within  twelve  months  next  after  any  loss  or 
damage  shall  occur."  PlaintitT  commenced 
an  action  within  the  year,  but  was  compelled 
to  take  a  nonsuit.  This  action  was  com- 
menced after  the  year.  Held,  the  lapse  of 
time  was,  by  agreement  of  the  parties,  a  bar  ta 
this  suit.     Wilson  j).  .^tna  Ins.  Co.,  27  Vt.,  99i 

11.  Stipulated:    "No  suit  shall  be  main- 


773 


LIMITATION  OF  ACTIONS. 


774 


When  the  failure  to  sue  is  a  bar. 


lained  unless  brought  within  six  months  after 
loss."  There  was  an  attachment  execution 
served  on  the  company  before  tlic  expiration 
of  the  six  months.  Held,  insurers  were  re- 
leased. ScJiroeihr  i:.Kei/stoneIris.Co.,2}'h\\:i., 
386. 

12.  The  record  averred:  "It  was  express- 
ly provided  that  no  suit  or  action  of  any  kind, 
against  the  defendants,  for  the  recovery  of  any 
claim  under  said  policy  sliall  be  sustainable 
unless  commeuced  within  twelve  months  af- 
ter the  cause  of  action  shall  accure;  that  the 
plaintiir  did  not  commence  his  aforesaid 
action  within  the  said  period  of  time."  Held,  a 
good  bar.  Brown  v.  Roger  Williams  Ins. 
Co.,  5  R.  I.,  394.  To  a  similar  plea  the  plaint- 
tiff  replied  that  within  twelve  months  after  tho 
cause  of  accrued,  a  salt  was  commeuced  which 
proceeded  to  verdict,  and  judgment  was  ar- 
rested upon  insurer's  motion,  and  thereupon 
this  action  was  commenced,  to  which  insurer 
demurred.  Held,  the  replication  was  not  an 
answer  to  the  plea.    s.  c,  7  K.  I.,  301. 

13.  It  was  provided  in  the  insurer's  char- 
ter: "If  the  party  sustaining  loss  is  not  sat- 
isfied with  the  determination  of  the  directors, 
he  may  bring  an  action  for  the  loss  or  dam- 
age, at  the  next  court  to  be  held  in  the  county 
of  Portage."  This  action  was  brought  in  the 
county  of  Hocking,  the  place  where  the  prop- 
erty was  situated.  Held,  the  suit  ought  to 
have  been  brought  in  Portage  county.  Port- 
age County  Mut.  Ins.  Co.  v.  Siukey,  18  Ohio, 
455. 

14.  Stipulated:  " No  suit  or  action  against 
the  company  to  recover  any  claim  under  this 
policy  shall  be  sustained  in  any  court  of  law 
or  chancery,  unless  such  suit  shall  be  com- 
meuced within  the  term  of  six  mcmths  next 
after  the  loss.'  Held,  a  valid  condition  and  a 
bar  to  the  action,  if  the  suit  was  not  com- 
menced within  the  time  named;  that  a  prom- 
ise by  insurer  to  insured,  made  soon  after  the 
loss,  occured,  to  write  and  inform  them  what 
the  company  intended  to  do,  and  failing  to  ful- 
fill that  promise,  was  not  sufllcient  to  estop 
the  company  from  invoking  the  aid  of  the 
condition.  McFarlaiul  v.  Peabody  Ins.  Co.,  C 
W.  Va.,  435 ;  Same  v.  ^mna  Ins.  Co.,  id.,  437. 

15.  Stipulated:  "No  suit  or  action  shall 
be  sustained,  unless  commenced  within  six 
months  after  the  loss."  An  action  was  com- 
menced within  that  time,  but  it  was  a))ated 
lifter  the  six  mouths  had  expired,  and  this  suit 


was  brought  within  one  year  after  the  abate, 
ment.  The  statute  provided:  "Where  an  ac- 
tion  has  been  brought  in  due  time,  but  has 
been  abated,  arrested  or  reversed,  the  plaintiff 
may  bring  another  within  one  year  after  the 
abatement,  arrest  or  reversal,  the  statute  of 
limitations  to  the  contrary  notwithstanding." 
Held,  the  statute  did  not  help  the  plaintiff, 
for  the  agreement  of  the  parties  must  govern 
their  rights ;  hence,  the  insurers  were  released. 
McFarland  v.  JEtna  Ins.  Co.,  0  W.  Va.,  437. 

IG.  Stipulated:  "All  claims  shall  be  for- 
feited if  suit  be  not  brought  in  the  next  term 
of  the  court  in  St.  Louis  county,  unless  such 
shall  be  held  within  sixty  days  after  the  refusal 
to  pay,  and  then  to  the  next  court  thereafter." 
Held,  the  stipulation  operated  as  a  limitation 
upon  the  rights  of  insured,  and  as  the  action 
was  brought  after  the  time  limited,  it  coukl 
not  be  maintained.  Keim  v.  Home  Mut.  Ins. 
Co.,  43  Mo.,  38. 

17.  Stipulated:  "All  claims  under  this  pel- 
icy  are  barred  unless  prosecuted  (that  is,  sued 
on)  within  one  year  from  the  date  of  the  loss." 
The  action  was  not  brought  within  one  j'ear 
from  the  date  of  the  loss,  but  it  was  brought 
within  one  j'ear  from  the  time  the  right  of  ac- 
tion accrued. .  Held,  the  stipulation  was  valid ; 
thai  a  failure  to  bring  the  suit  within  a  year 
from  the  date  of  the  loss,  released  the  insurer. 
Carraway  v.  MercJiants  Mut.  Ins.  Co.,  30  La. 
An.,  298.  ■ 

18.  The  loss  occured  April  3,  1859.  This 
suit  was  commenced  July  27,  18C0.  The  pol- 
icy  stipulated  that  no  action  could  be  main- 
tained upon  it,  unless  commenced  within 
twelve  months  after  the  loss.  The  secretary 
told  insured  that  the  company  would  not  pay 
the  claim.  October  7,  1859,  he  wrote:  "Our 
board  did  not  take  action  on  your  case  at 
their  last  meeting.  They  had  a  prolonged  ses- 
sion till  after  10  o'clock  at  night,  and 
much  business  was  left  over."  November  10th, 
the  company's  book-keeper  wrote:  "Yours  of 
17tli  at  hand ;  secretary  is  absent,  will  hand 
him  j-our  letter  on  his  return."  November  15th, 
secretary  wrote ;  "  I  have  be'eu  absent  for  more 
than  a  month  past;  returned  yesterday;  can- 
not say  what  has  been  done  by  the  board  du- 
ring my  absence.  My  clerks  say  we  are  gar- 
nishied  by  St.  Louis  parties  for  your  claim  and 
will  have  to  answer  that  garnishee."  Held, 
not  evidence  of  negotiations  for  settlement, 
and  not  sufficient  to  justily  the  delay  in  bring. 

387 


775 


LIVE  STOCK  —  LOST  OR  NOT  LOST. 


776 


Miscellaneous. 


ing  the  suit  within  the  year.    Peoria  Marine 
and  Fire  Ins.  Co.  v.  Whitehill,  25  III.,  466. 

19.  The  premises  insured  were  described  in 
the  policy  :is  "  Lot  No.  14  Walton  Ward  (Rob- 
ertsville)  fronting  on  Slewiirt  St."  There  was 
no  store  or  house  of  anj'  kind  on  the  lot  des- 
ignated, but  the  premises  were  "  Lot  No.  14, 
part  of  Garden  lot  No.  11  west,  Walton  Ward, 
in  the  city  of  Savannah."  The  policy  stipu- 
lated that  no  action  should  be  maintained  up- 
on it  unless  commenced  within  six  months 
after  the  right  of  action  accrued.  This  bill 
was  filed  after  si.^  months  had  elapsed ;  but  it 
was  not  in  aid  of  a  suit  at  law.  Held,  the 
stipulation  violated  no  principle  of  public 
policy ;  the  parties  had  the  right  to  contract 
that  the  action  should  be  barred  by  lapse 
of  time  less  than  that  fixed  b)^  the  statute  of 
limitations.  Brownv.  Sacnnnah  Mut.  Ins.  Co., 
24  Ga.,  97. 

20.  Stipulated:  "All  claims  under  this 
policy  are  barred,  unless  prosecuted  within 
one  j'ear  from  the  date  of  the  loss."  The  pe- 
tition w.as  filed  November  3,  1868,  and  averred 
a  loss  August  11,  1867.  Meld,  prosecution  de- 
notes the  means  adopted  to  bring  oflenders  to 
legal  punishment,  and  in  this  contract  it 
means  suit  or  action,  hence  the  failure  to 
bring  the  action  within  a  year  from  the  date 
of  the  loss  was  an  effectual  bar.  Merchants 
Mut.  Ins.  Co.  V.  La  Croix,  35  Tex.,  249. 

21.  The  policy  provided  tliiit  the  trustees  of 
the  compan}'  should  only  be  answerable  in  the 
English  courts  for  the  sum  insured.  Hdd,  the 
restriction  was  part  of  the  contract  to  which 
the  plaintiff  became  a  party,  hence  the  court 
could  not  substitute  service  of  process  upon 
the  resident  agent  in  Ireland.  Lyonskey  v. 
Asylum  Life  Asa.  Co.,  9  Ir.  L.  R,  299. 

22.  Contract  to  reinsure;  stipulated:  "No 
suit  sh.all  be  maintained  unless  commenced 
within  twelve  months  after  the  loss  shall 
occur."  The  loss  occurred  in  November, 
1854,  and  the  plaintiffs  paid  the  owner  of  the 
property  his  claim  in  Auu'ust,  1856;  but  did 
not  bring  their  suit  until  August  9,  1856. 
Held,  it  was  brought  too  late,  for  the  loss  or 
damage  mentioned  in  tlie  policy,  referred  to 
the  injury  to  the  subject  insured.  Provincial 
Ins.  Co.  V.  ^tna  Ins.  Co.,  16  TJ.  C.  Q.  B.,  135. 

23.  T)ie  declaration  contained  an  averment 
that  there  was  no  person  on  whom  service  of 
process  could  have  been  made  within  twelve 
monllis  after  tlie  action  accrued.    Held,  the  I 

388 


condition  to  sue  within  twelve  months  being 
the  subject  of  a  plea,  the  averment  in  the 
declaration,  accounting  for  the  failure  Xrt 
bring  the  action,  was  mere  surplusage,  and  not 
traversable.  Kdchum  v.  Protection  Ins.  Co., 
1  Allen,  N.  B.,  136.  And  a  replication  to  a 
plea  which  set  up  the  failure  to  bring  the  suit, 
averring  that  the  corporation  was  a  uouresi- 
dent,  and  no  appearance  could  have  been  pro- 
cured  within  the  time,  was  bad,  because  the 
matter  replied  was  wholly  immaterial,  for  the 
defendant  might  have  been  sued  at  its  domi- 
cile, or  process  might  have  been  sued  out  in 
this  state  within  the  time  limited.    Ibid. 

VIII.  Of  stathtokt  peotisions. 

The  sixth  section  of  the  act  of  December 
21,  1805,  regulating  foreign  insurance  com- 
panies, provides  that  "  No  such  insurance  com- 
pan3'  shall  insert  any  condition,  in  any  policy 
hereafter  issued,  requiring  the  insured  to  give 
notice  forthwith,  or  within  the  period  of  time 
less  than  five  days,  of  the  loss  of  the  insured 
property;  nor  shall  any  condition  be  inserted 
in  such  policy,  requiring  the  insured  to  pro- 
cure the  certificate  of  the  nearest  justice  of 
tlie  peace,  maj'or,  judge,  clergyman,  or  other 
official,  or  person,  of  such  loss,  or  the  amount 
of  such  loss ;  and  any  provision  or  condition, 
contrary  to  the  provisions  of  this  section,  or 
any  condition  in  said  policy  inserted  to  avoid 
the  provisions  of  this  section  shall  be  void  and 
no  condition  or  agreement  not  to  sue  for  a 
period  less  than  three  years  shall  be  valid." 
(3  Ind.  Stat,  315.)  Held,  this  provision  of  the 
statute  was  valid  as  to  all  policies  made  after 
the  act  became  a  law.  Aurora  Fire  Ins.  Co.  v. 
Johnson,  46  Ind.,  315. 


LIVE  STOCK. 

(See  PoLiCT.) 


LOST  OR  NOT  LOST. 

1.  Tlie  polic)',  by  its  terms,  was  to  commence 
.laiiuaiy  1,  1869,  and  to  continue  till  January 
1,  18T0.  It  did  not  contain  the  words  "lost 
or  not  lost."     She  was  lost  Jauuary  6,  1869. 


777 


LOST  POLICY. 


778 


Miscellaneous. 


The  insurance  was  effected  JIarch  1,  18G9. 
JleUl,  the  contract  was  iuleudeii  to  cover  a 
previous  loss  (affirming  s.  c,  8  Blatch.,  100;  9 
id.,  201).  Insurance  Co.  v.  Fohom,  18  Wall., 
237. 

2.  Insured  resided  in  the  city  of  New  Torlc, 
and  effected  insurance  August  8th,  $15,000  on 
tobacco  lost,  or  not  lost,  from  Dycusburg, 
Kentucky,  to  New  York,  for  account  of  whom 
it  might  concern.  It  was  carried  from  Dy- 
cushurg,  by  steamboat,  to  Paducah,  where  it 
was  transhippea  to  the  "Mary  Irwin,"  for  her 
to  carry  it  to  Cincinnati.  Insured  received 
the  bill  of  lading  August  2d,  and  caused  in- 
surance to  be  made  on  the  8th.  The  "  Mary 
Irwin  "  struck  a  snag  August  1st,  about  forty 
miles  west  of  Cincinnati,  and  sank.  It  was 
rescued  and  sold  at  Cincinnati,  where  it  netted 
the  sum  of  $813.11.  Hdd,  prima  facie,  the 
contract  was  valid,  and  the  burden  was  upon 
the  defendant  to  show  that  insured  had  notice 
of  the  loss  before  the  insurance  was  effected; 
that  a  letter,  containing  a  notice  of  the  loss, 
written  at  Cincinnati,  dated  August  5th,  ad- 
dressed to  the  insured  at  New  York  and 
mailed  at  Cincinnati,  did  not  establish  that 
insured  had  notice  of  the  loss  before  the  policy 
was  made,  for  the  insured  denied  that  the  let- 
ter was  ever  received  ;  and  another  letter,  writ- 
ten at  Cincinnati  at  the  same  time,  by  the 
same  person,  addressed  to  other  persons  in  the 
city  of  New  York,  and  received  there  August 
8th,  was  not  evideuce  that  insured  received 
the  letter  addressed  to  them,  but  tended  to 
show  that,  had  the  letter  been  put  in  the  mails, 
it  would  have  been  received.  Clement  v. 
Phcenix  Ins.  Co.,  6  Blatch.,  481. 

S.  On  cargo  "  lost  or  not  lost,"  on  board  of 
ship  now  on  whaling  voyage,  beginning  the 
adventure  upon  the  said  cargo  as  aforesaid, 
relates  back  to  the  commencement  of  the  voy- 
age, and  covers  a  loss  which  happened  ante- 
rior to  the  date  of  the  policy.  Paddock  v. 
Franklin  Ins.  Co.,  11  Pick.,  237. 

4.  Policy  on  cargo"  lost  or  not  lost."  They 
were  lost  two  days  prior  to  the  date  of  the 
policy.  Held,  daily  papers  of  the  city,  con- 
taining information  of  the  loss,  received  at  the 
insurer's  office  on  the  same  day,  and  before  the 
:  jntract  was  made,  were  not  presumptive  evi- 
dence that  insurer  had  received  information 
of  the  loss  before  the  policy  was  made,  for 
notice  to  one  agent  of  a  body  corporate  is  not 
necessarily  notice  to  another  agent;  hence,  it 


did  not  tend  to  prj3ve  that  the  person  who 
made  the  policy  had  information  that  the  loss 
had  occurred  at  the  time  he  made  it.  Mer- 
chants  Ins.  Co.  v.  Paige,  CO  111.,  448. 

5.  On  cargo  "  lost  or  not  lost,  to  be  towed 
by  steamboat  from  St.  Louis  to  Helena,  begin- 
ning  the  atlventure  upon  said  properly  from 
and  immediately  following  the  loading  thereof 
(m  board  of  said  boat."  It  was  burned  before 
the  trip  commenced.  Held,  the  cargo  was  pro- 
tected by  the  policy  when  the  loss  cccurred. 
Schroeder  v.  Stock  and  Mat.  Ins.  Co.,  40  Mo., 
174. 

C.  "Lost  or  not  lost,  warranted  well  Decem- 
ber 9th."  They  were  lost  at  8  o'clock  of  that 
day,  about  eight  hours  before  the  policy  was 
made.  Held,  if  the  ship  was  well  at  any  time 
on  that  day  the  insurers  were  liable.  Black- 
hurst  V.  Cockell,  3  Term,  360. 

7.  Risk  on  ship  was  offered  and  accepted, 
lost  or  not  lost,  February  loth,  for  one  year; 
but  the  policy  was  not  formally  executed  till 
October  21st,  before  which  a  loss,  known  to 
both  parties  had  occurred.  Held,  the  policy 
was  valid.  Mead  v.  Davidson,  3  A.  &  E.,  303 ; 
4  L.  J.  (N.  S.y,  K.  B.,  193;  4  N.  &  M.,  701. 

8.  On  goods  lost  or  not  lost.  Insured  ac- 
quired his  interest  after  a  partial  loss  occurred 
on  them.  Held,  the  policy  was  valid,  unless 
he  had  knowledge  of  the  loss  when  he  pro- 
cured it.  Sutherland  v.  Pratt,  U  Mee.  &  W., 
296;  12L.  J.  Ex,,235;  13  id.,  246;  7  Jur.,261. 

9.  "  On  ship  lost  or  not  lost,  from  Cardiff  to 
Ballyshannou ;"  but  in  a  subsequent  part  of 
the  policy  it  was  stated:  "  Warranted  safe  in 
port  November  27th."  She  was  safe  in  port 
at  Sligo  on  that  day.  Held,  safe  in  port  meant 
the  port  of  departure;  that  as  she  was  at  Sligo 
on  that  day,  the  warranty  was  not  satisfied. 
Kernahan  ti.  National  Ass.  Co.,  10  Ir.  L.  R., 
319. 

10.  Lost  or  not  lost.  Held,  insurers  were 
bound  for  the  loss,  though  it  occurred  before 
the  policy  was  made,  provided  there  was  no 
undue  concealment.  Stone  v.  Aberdeen  Mat. 
Ins.  Co.,  11  C.  C.  S.,  1041. 


LOST  POLICY 

1.  The  policy  was  lost  or  destroyed  in  the 
life  time  of  insured.  Held,  an  order  of  court 
to  pay  the  money  to  the  administratri.v  waa 

389 


779 


MASTER  OF  SHIP. 


780 


When  his  sale  is  justifiable  —  When  his  sale  is  not  justifiable. 


Crokatt 


snfBcient  indemnitj-to  the  company. 
V.  Ford,  2.5  L.  J.  Ch.,  553. 

2.  The  policy  had  bc-en  lost  many  years 
prior  to  the  death  of  the  person  insured. 
Held,  payment  of  the  money  into  court  would 
be  a  sufficient  indemnity  against  all  future 
claims.    England  v.  Tredegar,  35  Bear.,  356. 


MASTER  OF  SfflP. 

I.  When  his  sale  is  jcstipiable. 

II.  NOT  JUSTIFIABLE. 

III.  HE   BECOMES  INSUREETS  AGENT. 

IV.  Op  his  dcties  and  negligence. 
V.  Questions  for  the  juky. 

I.  "When  his  sale  is  justifiable. 

1.  On  cargo.  It  was  sold  at  a  point  of  dis- 
tress. Held,  what  may  be  done,  ought  to  be 
done,  but  that  this  general  rule  is  restricted 
within  reasonable  limits  which  are  to  be 
determined  by  the  circumstances  of  the  case ; 
that  where  resort  must  be  had  to  distant  places, 
and,  independently  of  procuring  another  ves- 
sel, there  are  other  serious  impediments  in 
the  way  of  putting  the  cargo  aboard,  the  mas- 
ter is  not  bound  to  procure  another  vessel  to 
carry  the  cargo.  Treadwell  v.  Union  Ins.  Co., 
6  Cow.,  270. 

2.  She  was  sold  under  a  decree  of  con- 
demnation at  Porto  Rico.  Was  purchased  by 
the  master.  Held,  where  the  vessel  is  pur- 
chased after  condemnation  for  account  of  the 
insured,  the  insurers  have  the  right,  if  tliey 
see  fit,  to  exercise  it  within  a  reasonable  time, 
to  take  the  purchase  for  themselves,  and  if  the 
insured  refuses  to  surrender  the  bargain,  the 
loss  ceases  to  be  total.  An  abandonment 
relates  baclc  to  the  time  of  the  disaster,  and  all 
intermediate  acts  of  master  and  agents  of  in- 
sured enure  to  the  benefit  of  the  insurer.  Any 
purchase  made  by  the  master  or  agents  of  in- 
sured, no  matter  for  whose  account,  becomes 
the  purchase  of  the  insurers  if  they  adopt  it 
in  due  season.  But  if  insurers  do  not  claim 
the  purchase,  and  contest  their  liability  on 
other  grounds,  they  waive  their  right  to  con- 
sider  the  purchase  as  made  for  their  account 
and  are  liable  for  a  total  loss.  Maryland  Ins. 
Co.  V.  Bothurat.  5  G  &  J.,  159. 

390 


3.  Ship  was  badly  shattered  in  a  storm, 
and  survej-ors  were  of  opinion  tliat  expense 
of  repairs  would  exceed  her  original  value. 
The  master  sold  her  bona  jxde  for  the  benetit 
of   all  concerned.     Held,   he  was   justified. 


Robertson  v.  Clarke, 
622. 


1  Bing.,  445;   8   Moore, 


II.  When  his  sale  is  not  justifiable. 

1.  The  master  is  the  agent  of  aU  concerned 
in  the  voyage,  and  whenever  an  abandonment 
has  been  accepted  he  becomes,  by  relaticm, 
the  agent  of  insurers  from  the  time  of  the  loss ; 
and  a  sale  ma'de  by  him  is  made  fur  account 
of  insurers;  but  it  is  not  sufficient  to  justify 
the  master's  sale,  that  he  acted  in  good  faith 
and  in  the  exercise  of  his  best  discretion; 
there  must  have  been  an  urgent  necessity  to 
sell  in  order  to  preserve  the  interests  of  all 
concerned.  If  the  vessel  could  not  have  been 
delivered  from  the  peril  without  the  hazard 
of  an  expense  disproportionate  to  her  real 
value,  the  master  is  justified  in  selling,  and 
he  could  sell  as  well  in  a  home  shore  as  on  a 
foreign  strand.    Brig  SaraJi  Ann,  2  Sumn.,  206. 

2.  While  it  is  true,  that  the  master  may  sell 
the  ship  in  a  proper  case,  yet,  if  he  sell  with- 
out authority,  his  sale  does  not  take  away 
from  the  insured  .the  right  to  abandon.  Center 
V.  American  Ins.  Co.,  7  Cow.,  564;  affirmed,  4 
Wend.,  46. 

3.  She  was  driven  into  Yalpiiraiso  iu  dis- 
tress. The  master  might  have  communicated 
with  his  owner  iu  New  York,  and  have  re- 
ceived an  answer  within  eightj'  or  ninety 
days.  It  would  liave  taken  two  months  more  to 
make  the  repairs ;  but  he  did  not  communicate 
with  his  owner.  The  damaged  condition  of 
the  cargo  was  such  as  to  make  the  voyage  not 
worth  prosecuting,  and  being  unable  to  pro- 
cure funds  to  make  the  necessary  repairs,  he 
broke  up  the  voyage  and  sold  her.  Held,  he 
was  not  justified  in  so  doing.  Ruekman  v. 
Mercliants  Louistille  Ins.  Co.,  5  Duer.  342. 

4.  The  expense  of  repairing  a  ship  in  her 
port  of  distress,  is  not  the  criterion  for  deter- 
mining whether  the  loss  is  constructively 
total.  If  she  can  be  navigated  to  a  port  where 
she  can  be  repaired  at  less  than  fifty  per  cent. 
of  her  value,  it  is  the  duty  of  the  master  to 
proceed ;  and  if  he  fails  to  do  so,  and  sells  at 
the  port  of  distress,  the  loss  is  not  construct- 
ively total.  Hall  V.  Franklin  Ins.  Co.,  9  Pick., 
466. 


781 


MASTER  OF  SHIP. 


732 


When  he  becomes  insurer's  agent 


5.  If  the  injury  sustained  by  a  vessel  docs 
not  warrant  an  abandonment,  it  is  not  such  a 
case  of  necessity  as  will  justify  the  sale  of  her 
by  the  master.  Orrok  v.  CommonweaUh  Ins. 
Co.,  21  Pick.,  45G. 

0.  The  master's  sale  is  not  justified  l\v  show- 
ing that  funds  could  not  have  been  obtained 
at  the  port  of  distress,  to  make  repairs,  nor 
■will  his  good  faith  alone  justify  the  sale.  He 
must  act  with  good  judgment  and  discretion, 
as  a  prudent  owner,  under  like  circumstances, 
would  have  acted.  If  by  reasonable  means, 
and  without  extraordinary  and  unreasonable 
delay,  he  could  have  communicated  with  in- 
surers, and  atibrded  them  an  opportunity  to 
raise  the  money,  he  was  bound  to  do  so.  Ste- 
p?ienson  v.  Pacific  Mut.  Ins.  Co.,  7  Allen,  233. 

7.  She  was  cast  upon  the  rocks  at  Hellgate, 
abandoned  to  insurers,  got  oft',  carried  to  New 
York,  and  there  sold  at  auction  by  the  master.  It 
was  contended  that  the  sale  was  a  mere  sham, 
without  authority,  and  void.  She  was  subse- 
<iuently  delivered  by  the  purchaser  to  the 
plaintiff,  who  gave  credit  to  the  insurers  for 
the  purchase  money.  Held,  the  court  ought  to 
have  instructed  the  jury  that  if  the  sale  was 
pretended,  merely  with  a  view  to  subject  the 
defendants  to  a  total  loss,  and  there  was  no 
payment  of  purchase  money,  the  jury  would 
"be  warranted  in  finding  that  the  insured  had 
■waived  the  abandonment.  Kiiir/  v.  Hartford 
Jns.  Co.,  1  Conn.,  333. 

8.  In  order  to  justify  a  sale  by  the  master, 
necessity  and  good  faith  must  concur,  but  the 
necesshy  cannot  be  inferred  from  the  master's 
good  faith,  for  he  may  err  in  judgment;  nor 
can  the  master's  good  faith  be  inferred  from 
the  necessity  that  exists,  for  he  may  collude 
with  the  purchaser.  If  the  damage  sustained 
was  trivial,  and  could  have  been  repaired 
at  the  place  where  the  ship  was,  or  at  a 
place  to  which  she  might  have  been  readily 
taken,  there  was  no  necessity  for  the  sale, 
■whatever  maj'  have  been  the  judgment  and 
good  faith  of  the  master.  Stephenson  v.  Piseat- 
aqtia  Fire  and  Marine  Ins.  Co.,  54  Me.,  55. 

9.  On  ship  from  Liverpool  to  Narva.  She 
•truck  on  a  rock  near  Gottenburg.  The  crew 
abandoned  her.  The  master  was  advised  to 
sell  her  as  she  lay,  and  she  was  sold  there  for 
about  £18.  Shortly  after,  she  floated  two  or 
three  miles,  fetched  up  on  the  island  of  Forno. 
She  was  afterwards  got  ott'  and  repaired,  at  an 
«xpense  of  £375.     Held,  if  the    master,  by 


means  within  his  reach,  could  have  made  an 
experiment,  with  a  fair  hope  of  restoring  lier 
to  the  character  of  a  ship,  he  could  not,  bj' 
selling  her,  make  the  loss  total.  Gardner  v. 
Sahfidor,  1  M.  &  Rob.,  IIC. 

10.  Oncargo,  from  London  to  Deniarara.  She 
was  captured  and  plundered  of  her  stores,  and 
her  crew,  except  the  master  and  a  boy,  taken 
away;  afterwards  recaptured  and  carried  into 
St.  Thomas.  Upon  tlie  master's  petition,  a 
court  of  admiralty  ordered  the  ship  and  cargo 
sold.  No  crew  could  be  obtained,  nor  could 
the  salvage  be  paid,  except  by  .selling  the 
cargo,  ■which  was  sold  at  a  loss  exceeding 
sixty  per  cent.  Held,  the  master  ought  to  have 
waited  a  reasonable  time  to  have  procured  a 
crew;  he  waited  but  three  days  before procur 
ing  the  order  of  sale,  which  -n'as  not  justifi.able. 
Underwood  v.  Rohertson,  4  Camp.,  138. 

III.  When  he  becomes  insueeb's 

AGENT. 

1.  The  master  is  the  agent  of  the  insurer 
after  a  valid  abandonment  is  made.  Gardere 
V.  Columbian  Ins.  Co.,  7  Johns.,  514. 

2.  Where  the  bill  of  lading  directs  the  mas- 
ter to  deliver  the  cargo  to  a  person  named  ag 
supercargo,  the  supercargo  has  no  control  of 
the  cargo  until  it  arrives  at  the  port  of  destina- 
tion,  and  if  a  disaster  has  happened,  the  mas- 
ter becomes  the  agent  of  whomsoever  it  might 
concern;  and,  by  a  valid  abandonment,  then 
becomes  the  agent  of  the  insurers;  and,  a  de- 
livery of  the  cargo,  after  abandonment,  to  the 
supercargo,  is  a  delivery  to  him  as  the  agent 
of  the  master;  and  his  acts  are  thenceforth  the 
acts  of  the  master,  not  of  the  cargo  owner. 
Catlett  V.  Pacific  Ins.  Co.,  1  Wend.,  561; 
affirmed,  4  Wend.,  75. 

3.  Vessel  and  cargo  were  seized  and  carried 
into  Naples.  The  captors  instituted  process 
in  the  imperial  council  of  prizes  in  Paris. 
The  supercargo  made  a  compromise  with  the 
captors.  Held,  the  supercargo  had  authority 
to  make  the  compromise,  and  a  reasonable 
compromise  so  made  was  binding  upon  in- 
surers.    Welles  V.  Gniy,  10  Mass.,  43. 

4.  The  master,  in  cases  of  necessity,  be- 
comes,  by  law,  an  agent  of  the  insurers  as  well 
as  of  the  insured.  Gordon  v.  Mass.  Fire  and 
Marine  Ins.  Co.,  2  Pick.,  249. 

5.  Some  time  after  an  abandonment  was 
I  oll'ered,  the  vessel  and  cargo  were  sold  by  the 

391 


TS3 


MASTER  OF  SHIP. 


784 


Of  bis  duties  and  negligence. 


master.  IleM,  if  the  abandonment  was  valid, 
insured  could  not  be  deprived  of  the  benefits 
of  it  by  any  subsequent  act  of  the  master,  or 
by  his  want  of  diligence,  skill  or  care,  for  he 
then  became  the  agent  of  the  insurers.  Dela- 
ware Ins.  Co.  V.  Winter,  38  Penn.  St.,  176. 

6.  Tlie  master  contracted  with  the  owner  of 
a  bell  boat  to  save  what  he  could  from  the 
wreck,  agreeing  that  the  salvor  should  have  a 
certain  per  centage  of  whatever  he  miglit  save. 
Held,  the  master  became  the  agent  of  the  un- 
derwriters after  the  disaster  occurred,  and  that 
his  agreement  was  valid  and  binding  upon 
tbem  if  they  were  liable  at  all.  Gould  v.  Citi- 
zens Ins.  Co.,  13  Mo.,  524. 

7.  She  was  damaged  over  fifty  per  cent,  of 
her  value.  Insured  offered  to  abandon,  but 
insurers  refused  to  accept,  and  the  master  sold 
her  for  the  benefit  of  all  concerned.  Held,  the 
abandonment  passed  the  properly  to  insurers, 
and  thereafter  the  master  became  their  agent, 
and  the  sale  was  the  sale  of  the  insurers.  Phil- 
lips V.  St.  Louis  Perpetual  Ins.  Co.,  11  La.  An., 
459. 

8.  If  an  abandonment  was  made  under  such 
circumstances  as  legally  authorized  such  a 
step  on  the  part  of  insured,  insurers,  being 
bound  to  indemnify  insured  as  for  a  total  loss, 
must  be  considered  as  owners  of  the  property 
abandoned,  ipso  facto,  without  any  formal  ac- 
ceptance, and  the  original  owners  of  the  prop- 
erty abandoned,  become  the  negotiorum  gestores 
of  the  underwriters  for  all  purposes  relative  to 
the  interests  of  the  latter.  Mdlo7i  v.  Sucks,  17 
Martin  (La.),  371. 

9.  She  was  captured,  and  insured  aban- 
doned. Held,  the  acts  of  the  master,  after  the 
abandonment,  must  be  considered  the  acts  of 
the  insurers,  for  he  was  their  agent,  and  his 
misconduct  while  acting  as  their  agent,  though 
it  amounted  to  barratry,  was  chargeable  to 
them.     Campbell  v.  Williamson,  2  Bay,  237. 

10.  On  cargo.  She  was  wrecked  on  one  of 
the  Bahama  hanks.  An  abandonment  was 
made.  Wreckers  took  possession  and  carried 
some  of  the  cargo,  at  the  instance  of  the  mas- 
ter, to  Nassau ;  the  balance  not  being  worth 
attention.  The  wreckers  and  master  agreed  to 
refer  tlie  quantum  of  salvage  to  arbitrators, 
who  fixed  it  at  forty  per  cent.  The  cargo  was 
sold,  and  the  balance  of  the  proceeds,  between 
three  and  four  thousand  dollars,  paid  to  the 
master,  who  absconded  and  never  paid  it  over. 
Meld,  after  the  abandonment  he  was  t'le  agent 

392 


of  the  insurers,  and  they  must  suffer  for  his 
fraud,  ilordecai  v.  Fireman's  Ins.  Co.,  12 
Rich.,  512. 

IV.  Of  his  duties  and  negligence. 

1.  Tlie  master  cannot  mortgage  the  ship  for 
the  benefit  of  the  cargo,  but  he  may  sell  or 
hypothecate  the  cargo  to  enable  the  ship  to 
proceed,  in  cases  of  extreme  necessity.  Foru- 
taine  V.  Columbian  Ins.  Co.,  9  Johns.,  30. 

2.  She  was  driven  into  a  port  of  distress, 
where  she  was  sold  because  the  master  could 
not  procure  the  necessary  funds  to  make  re- 
pairs. Held,  the  true  inquiry  must  be:  "  What 
diligence  did  the  master  exercise  for  the  pur- 
pose of  making  repairs?"  If  he  could  not 
procure  the  money  upon  his  own  or  his  own- 
er's credit,  the  law  not  only  gives  him  the 
right,  but  makes  it  his  duty  to  secure  the 
money  in  whole  or  in  part  upon  the  property 
and  interest  under  his  control,  which  he 
might  pledge  by  bottomrj',  respondentia  or 
mortgage ;  and  wlien  these  have  proved  inef- 
fectual, then  he  is  justified  in  breaking  up  the 
vo3-age,  and  his  owner,  if  insured,  has  the 
right  to  abandon ;  but  tlie  master's  efforts 
must  not  be  limited  to  the  port  in  which  the 
vessel  has  found  refuge.  Muckman  v.  Mer- 
chants Louisville  Inn.  Co.,  5  Duer,  342. 

3.  If  the  master  can  consult  with  the  own- 
ers  of  cargo,  he  must  keep  it,  if  it  can  be 
kept,  until  the  owners  are  consulted.    Bryant 

V.  Commonwealth  Ins.  Co.,  13  Pick,,  543. 

4.  She  was  stranded  on  a  sand  bar  in  the 
mouth  of  the  St.  John's  river,  Florida,  and 
abandoned  by  the  master  and  crew.  The 
master  and  crew  of  a  steamboat  subsequently 
found  and  got  her  afloat.  There  was  no  judicial 
court  nearer  than  St.  Augustine,  and  the  mas- 
ter and  salvors  referred  the  question  of  salvage 
to  arbitrators,  who  awarded  ninety  per  cent, 
to  salvors.  She  was  sold,  and  after  paying 
the  salvage  but  $95  remained  for  the  owners. 
Held,  the  master  had  not  the  right  to  refer  the 
question  of  salvage  to  arbitrators.  Hobinson 
Oeorges  Ins.  Co.,  17  Me.,  131. 

5.  The  defendant  pleaded  that  the  cargo- 
consisted  of  timber  and  wood  goods;  that  she 
cleared  and  sailed  from  a  British  port  of 
North  America,  between  September  1,  1861, 
and  May  1,  1862;  that  at  the  time  of  the  sail- 
ing a  part  of  the  cargo  was  not  below  deck, 
and  that  the  master  had   not  procured  a  certi- 


785 


MASTER'S  PROTEST. 


786 


When  it  is  admissible  as  evidence. 


ficiite  from  tlie  clearing  officer  that  the  cargo 
was  below  deck,  contrary  to  the  statute,"  etc. 
Held,  bad  because  it  did  not  aver  tliat  the  in- 
sured had  knowledge  of  the  fact;  that  if  the 
unlawful  act  is  without  the  knowledge  of  the 
insured,  he  is  entitled  to  recover  (citing  Earle 
D.  Rowcroft,  8  East,  126;  Cunard  v.  Hyde,  El., 
Bl.  &  El..  G70).  Wilson  v.  Rankin,  G  B.  &  S., 
208;  8.  c,  11  Jur.  (N.  S.),  17.3;  3-1  L.  J.  Q.  B., 
63;  13  W.  R.,  404;  13  L.  T.  (K  S.),  20;  af- 
firmed, 6  B.  &  S.,  221 ;  a.  c,  3.5  L.  J.  Q.  B.,  203 ; 
14  W.  R.,.198;  13  L.  T.  (N.  S.),  564;  1  L.  R.  Q. 
B.,  162. 

6.  If  the  master  takes  passengers  on  board 
witliout  the  knowledge  of  the  ship  owner, 
and  fails  to  comply  with  sec.  318  of  the  Mer- 
chants Shipping  Act  of  18.54,  wliich  requires  a 
certificate  that  "  She  is  fit  to  carry  passen- 
gers," that  does  not  vitiate  the  contract  of  in- 
surance (citing  Wilson  v.  Rankin,  1  L.  R.  Q. 
B.,  162;  Cunard  «.  Hyde,  El.,  Bl.  &  El.,  670; 
27  L.  J.  Q.  B.,  408).  Dudgeon  v.  Pembroke,  9 
L.  R.  Q.  B.,  581 ;  43  L.  J.  Q.  B.,  220;  32  W.  R., 
914;  31  L.  T.  (N.  S.),  31. 

V.  Questions  fok  the  juet. 

1.  The  master  directed  the  vessel  to  be 
broken  up  and  sold.  Held,  if  this  was  jus- 
tifiable, and  the  purchaser  acquired  a  good 
title,  an  offer  to  abandon  would  not  be 
required;  but  this  result  depended  entirely 
upon  the  causes  which  led  to  the  sale.  The 
master  cannot  sell  unless  in  a  case  of  ex- 
treme necessity,  and  then  he  must  act  with 
perfect  good  faith,  and  the  jury  are  to  judge 
of  the  conduct  of  the  master  from  the  state 
of  things  at  the  time  and  place  where  the 
sale  took  place.  Gordon  v.  Maisnchusetta  Fire 
and  Marine  Ins.  Co.,  2  Pick.,  249. 

2.  Whether  the  sale  of  a  ship  at  the  place 
of  distress  is  authorized  by  necessity,  is  a 
question  for  the  jury,  who  are  to  consider 
how  a  discreet  and  prudent  owner  would  have 
acted  under  the  same  or  similar  circum- 
stances. Winn  V.  Columbian  Ins.  Co.,  12 
Pick.,  279. 

3.  To  constitute  a  constructive  total  loss  (in 
the  absence  of  proof  of  damage  to  the  extent 
of  half  the  value  of  the  vessel,  after  deducting 
one-third  new  for  old),  insured  is  bound  to 
show  that  the  sale  was  made  by  the  master, 
acting  in  good  faith,  for  the  benefit  of  all  par- 


ties interested,  and  under  the  pressure  of  a 
necessity  produced  by  the  perils  assumed  by 
insurers.  Paddock  v.  Commercial  Ins.  Co.,  3 
Allen,  93. 

4.  Tlie  court  instructed  the  jury:  "Tbe 
plaintiff  is  entitled  to  recover  as  for  a  total 
loss  if  the  jury  are  satisfied  that  the  sale  by 
the  master  was  justifiable  under  the  circum- 
stances of  tlie  case  as  proved.  Held,  it  was 
equivalent  to  s.aying  there  was  sufficient  evi- 
dence to  justify  tlie  sale,  but  the  jury  sliould 
be  satisfied  of  its  truth,  and  this  was  clearly 
right;  for  whether  the  sale  was  justifiable  was 
a  mixed  question  of  law  and  fact.  If  the  facta 
had  been  admitted,  then  it  would  have  been  a 
question  of  law;  but  as  they  were  controverted, 
it  became  a  questicm  of  fact,  subject  to  certain 
rules  of  law  (citing  Stephenson  v.  Piscataqua 
Ins.  Co.,  54  Me.,  55;  Prince  v.  Ocean  Ins.  Co., 
40  id.,  481).  Dunning  v.  Merchants  Mutual 
Marine  Ins.  Co.,  57  Me.,  108. 

5.  The  master  sold  her  because,  as  he  al- 
leged, it  was  impossible  to  make  the  repairs. 
Held,  it  was  for  the  jury  to  determine  whether 
the  sale  was  justifiable  and  under  the  pressure 
of  urgent  necessity.  Lindsay  v.  Leathley,  3  F. 
&  F.,  903. 


MASTER'S  PROTEST. 

I.  When  it  is  admissible  as  evidence 

II.  HOT  ADMISSIBLE  AS  EVIDENCB. 

I.  When  it  is  admissible  as  evidence. 

1.  The  master's  protest  is  evidence  in  a  case 
upon  a  policy  of  insurance.  Crousillat  v. 
Ball,  3  Yeates,  375 ;  4  Dall.,  394. 

2.  The  protest  of  the  master  is  evidence  in 
an  action  upon  the  policy.  Brown  v.  Oirard, 
4  Yeates,  115. 

3.  The  master's  protest  is  admissible  for  in- 
sured in  an  action  on  the  policy.  Miller  v. 
South  Carolina  Ins.  Co.,  2  McCord,  336. 

4.  The  master's  protest  stated  the  cause  of 
the  loss,  viz :  "  She  was  driven  in  a  tempest 
away  from  the  convoy  and  captured."  Held, 
competent  and  sufficient  evidence  to  show  a. 
loss  by  capture.  Campbell  v.  Williamson,  2: 
Bay,  237. 

393 


rs7 


MECHANICS'  LIEN  — MERGER. 


rss 


Miscellaneous. 


IT.  "When  it  is  not  admissible  as  evi- 
dence. 

J.  The  plaintiff  offered  in  evidence  the 
roaster's  protest  made  at  Ale-^candria,  Septem- 
■ber  23,  1786.  He  was  picked  up  at  sea,  and 
arrived  at  Newburyport  August  12th  preced- 
ing. He  passed  through  Philadelphia  to 
Alexandria  before  he  made  the  protest.  Held, 
it  ought  to  have  been  made  at  the  first  port; 
aud  because  it  was  not,  it  was  rejected  as  evi- 
<lenoe  in  the  case.    Boyee  v.  Moore,  2  Dall.,  196. 

2.  ITie  master's  protest  is  not  evidence  un- 
less made  within  tvrenty-four  hours  after  the 
vessel  is  moored  at  her  port  of  destination. 
Fleming  v.  Marine  Ins.  Co.,  3  W.  &  S.,  144. 

3.  If  the  master's  protest  is  not  made  with- 
in twenty-four  hours  after  slie  reaches  her 
port  of  destination,  it  is  not  independent  evi- 
tlence,  but  it  is  part  of  the  preliminary  proof; 
and,  as  such,  is  admissible  for  that  purpose 
only.  American  Ins.  Co.  v.  Francia,  9  Peun. 
St..  390. 

4.  The  master's  protest  was  not  allowed  as 
evidence  in  the  cause.  Marine  Ins.  Co.  n. 
Stras,  1  Munf ,  408. 

5.  The  master  was  owner.  Held,  his  pro- 
test w.HS  not  admissible  as  evidence  in  the 
case;  nor  could  he,  by  erasing  his  name  from 
it,  make  it  evidence.  Cudworth  ii.  South  Car- 
olina Ins.  Co.,  4  Rich..  416. 

6.  The  agent  of  the  insured  presented  to 
the  insurer  the  master's  protest  with  other 
papers  showing  the  loss.  Held,  this  did  not 
make  (he  protest  evidence  for  insured.  Senat 
11.  Porter,  1  Term,  158. 


MECHANICS'  LIEN. 

(See  Insubable  Intebsst;  Lien.) 


MEDICAL  ATTENDANT. 

1.  The  application  propounded  tliese  ques- 
tions: "How  long  since  you  were  attended 
by  a  physicau?  For  what  diseases?  Give 
name  and  residence  of  such  physician.  Name 
and  residence  of  j'our  usual  medical  attend- 
ant?" Answer:  "Dr.  Carpenter  has  known 
me>  two  years.  Have  none;  only  consulted 
394 


Dr.  Carpenter  now  and  then  for  slight  ail- 
ments, and  taken  his  prescriptions."  It  ap- 
peared  that  he  had  consulted  Dr.  Eastman 
professionally,  who  made  prescriptions  for 
him  in  1863.  It  also  appeared  that  Dr.  Picot 
had  attended  him  professionally,  but  both  of 
these  were  mere  casual  prescriptions.  Held, 
a  physician  who  makes  a  mere  casual  pre- 
scrijition  for  a  friend  is  not  his  usual  medical 
attendant.  A  medical  attendant  is  one  to 
whom  the  case  of  a  sick  person  has  been  in- 
trusted. Edington  ts.  Mutual  Life  Ins.  Co.,  5 
Hun.   (N.  T.),  1. 

2.  The  applicant  was  asked  to  state  the 
name  and  residence  of  his  family  phj'sician. 
He  answered:  "Have  none."  Held,  Ihe  term 
signifies  the  physician  who  usuallj'  attends 
and  is- consulted  by  the  members  of  the  family 
in  the  capacity  of  a  physician;  a  person  who 
usually  attended  the  wife  and  children  of  ap- 
plicant, was  the  family  ph}-sician  of  applicant, 
although  he  was  not  usually  consulted,  and 
if  the  answer  was  untrue,  it  would  bar  recov. 
ery.  Price  v.  Phmnix  Mutual  Life  Ins.  Co.,  17 
Minn.,  497. 

3.  The  policy  required  a  reference  to  the 
usual  medical  attendant  of  the  life  proposed, 
who  gave  a  false  reference,  that  is,  to  a  person 
who  had  never  attended  him  professionally. 
Held,  the  insured  could  not  recover  upon  the 
policy.  Eeerett  v.  Desboroiigh,  5  Bing.,  503; 
L.  J.  C.  P.,  223;  3  M.  &  P.,  190. 


MEMORANDUM   ARTICLES. 

(See  Wasbamted  Fbee  fkosi  Average.) 


MERCHANDISE. 

(See  CONSTEUCTION.) 


MERGER. 

1.  It  is  not  true  as  a  general  proposition, 
that  because  the  act  charged  is  a  public  crime, 
the  civil  rights  of  parties  affected  by  it  are 
merged  or  suspended  in  the  right  of  the  gov. 
erument  to  punish  the  criminal,  even  thougU 


7S9 


MISDESCRIPTION  —  MISREPRESENTATIONS. 


790 


What  are  material. 


tlie  crime  is  a  felonj'.    Ocean  Ins.  Co. ».  Fields, 
2  Story,  59. 

2.  The  owner  of  mortgaged  real  estate  ob- 
tained insurance  on  if,  payable  to  t!ie  mortga- 
gee in  case  of  loss.  The  insurers'  by-laws  pro- 
vided that  no  mortgaged  estate  should  he 
deemed  alienated  until  foreclosure,  and  tliatany 
policy  made  payable  to  a  mortgagee,  should 
continue  so  payable  notwithstanding  a  subse- 
quent alienation  of  the  estate.  A  third  person 
afterwards  purchased  the  equity  of  redemp- 
tion,  and  obtained  an  assignmeut  of  tlie  uiort- 
-gage  and  of  the  policy.  Held,  the  mortgage 
merged  in  the  fee,  and  an  action  on  the  policy 
for  a  loss  that  occurred  subsequently  could 
not  be  maintained.  Macomber  v.  Cambridge 
Mutual  Fire  Ins.  Co.,  8  Cush.,  133. 

3.  If  a  debtor  gives  his  promissory  note  on 
account  of  a  pree.xisting  simple  contract  debt, 
the  note  does  not  merge  or  extinguish  the 
debt,  but  the  creditor  may  resort  to  the  original 
debt.   Patapsco  Ins.  Co.  v.  Smith,  C  H.  &  J.,  1G6. 


MISDESCRIPTION 

(See  Debckiption.) 


JULITARY  OR  NAVAL  SERVICE. 

Stipulated:  "Insured  shall  not  enter  into 
any  military  or  naval  service  whatsoever, 
without  the  consent  of  this  company."  He 
was  engaged  as  a  superintendent,  constructing 
bridges  on  a  railroad  in  the  employment  of 
the  government  of  tlie  United  States,  having 
about  fifteen  laborers  and  meclianics  under  his 
direction.  The  road  was  under  the  direction 
of,  and  used,  or  to  be  used,  by  the  military  au- 
thorities of  thi!  United  States.  Tlie  Union 
army  was  about  thirty  miles  south,  and  the 
Confederate  forces  were  still  further  from  the 
laborers.  There  were  no  soldiers  anywhere 
nearer  than  the  Union  lines.  Four  men  came 
up  and  enquired  for  the  foreman.  The  de- 
ceased replied  tliat  he  was  the  man.  They 
ordered  him  to  come  to  them,  but  he  did  not 
obey,  and  two  oftliem  fired  upon  him,  wound- 
ing him  so  that  he  died  the  folhiwing  day. 
Meld,  his  employment  was  not  within  the  pro- 
hibition. Welts  V.  Connecticut  Mutual  Life 
In*.  Co.,  48  N.  Y.,  34. 


MOBS. 

(See  Invasion,  Riot,  IssDHBEonoif,  Etc.) 


MISTAKE. 

(See  Reformation  of  Writing.) 


raSSING  SHIP. 

(See  Total  Loss.) 


MISREPRESENTATIONS, 

(See  Representations;  Sickness   and  Disease.) 

I.  What  are  material. 
II.  Not  material. 

III.  Onus  pkobandi. 

IV.  Construction. 

V.  Question  for  the  jury. 
VI.  Generally. 


I.  What  aee  material. 

1.  Tlie  applicant  represented  that  there  was 
$15,000  other  insurance  on  property  valued  at 
$19,000.  The  risk  was  refused,  and  he  then 
stated  that  additions  had  been  made  to  the 
buildings  amounting  to  $10,000.  About  $700 
only  had  been  expended  in  additions.  Held, 
the  policy  was  void,  and  it  was  immaterial 
that  the  person  who  made  the  representation 
was  mistaken.  Carpenter  v.  American  Ins. 
Co.,  1  Story,  57. 

2.  The  person  insured  was  asked  whether 
he  was  married  or  single.  To  which  he  re- 
sponded, "  Single."  He  was  also  asked, 
"  Has  any  application  been  made  to  any 
other  company?"  To  which  he  answered, 
"  No."  The  defendant  pleaded  that  both  these 
answers  were  false,  to  which  there  was  a  de- 
murrer. Held,  it  was  not  necessary  for  the 
plea  to  aver  that  the  false  statements  were  ma- 
terial to  the  risk.  U.  S.  S.  C.  Jeffries  v. 
Economical  Mutual  Life  Ins.  Co.,  22  Wall.,  47 ; 
uStna  Life  Ins.  Co.  v.  France,  8  Chi.  Leg. 
News,  203. 

295 


T'Jl 


MISREPRESENTATIONS, 


792 


What  axe  material. 


3.  If  Ibe  insured  receive  information  of  a 
violent  storm  the  day  after  ship  sailed,  and  he 
states  that  there  has  been  blowing  weather  on 
the  coast,  it  is  a  misrepresentation,  and  the 
jury  having  found  specially  that  the  storm  did 
increase  the  risk,  the  policy  is  void.  Ely  v. 
Ualtett,  2  Caine,  57. 

4.  The  defendant  requested  the  court  to 
charge  if  the  jury  should  find  that  the  insured 
himself,  or  by  Martin  in  bis  behalf,  repre- 
resented  to  the  agents  of  the  defendants  that 
the  insured  was  the  money  man  of  the  con- 
cern, and  that  he  was  not  such  in  fact,  and 
that  the  defendants  would  not  have  issued  the 
policy  if  such  representation  had  not  been 
made,  then  the  plaintifl' could  not  recover;  but 
the  court  refused.  Held,  error,  for  fraudulent 
representations  made  by  the  insured  to  insurer 
in  connection  with  his  application  for  the 
policy,  though  not  material  to  the  risk,  yet 
material  in  the  judgment  of  the  insurer  and 
which  induced  him  to  take  the  risk,  will  avoid 
the  policy.  Valtoii  v.  National  Loan  Fund 
Ass.,  20  N.  Y.,  32;  s.  c,  22  Barb.,  9;  40*  N. 
Y.  (1  Keyes),  21;  4  Abb.  Dec,  437;  17  Abb. 
Pr.,  268. 

5.  Application  stated  that  he  never  had  dis- 
ease of  the  kidneys  or  bladder,  or  any  other 
sickness  witiiin  the  last  ten  years.  The  family 
physician  stated  that  lie  had  attended  him  for 
bilious  fever  two  years  prior,  that  he  had  no 
symptoms  of  disease  of  the  kidneys  or  liver, 
or  any  organic  disease,  and  the  policy  stipu- 
lated  that  all  the  answers  stated  in  the  applica- 
tion were  true.  For  some  years  prior  to  the 
application  he  had  some  disease  of  the  kid- 
neys, but  the  phj'sicians  testified  that  it  was 
not  organic.  Held,  the  statements  were  not 
true,  hence  the  policy  was  void.  Briiton  v. 
Mutual  Benefit  Life  Ins.  Co.,  3  N.  Y.  S.  C,  220; 
s.  c,  id.,  442. 

6.  In  the  application  the  property  was  rep- 
resented free  from  all  incumbrances.  The 
real  estate  and  personal  property  were  subject 
to  mortgages.  Held,  the  policy  was  void. 
Fricsmuth  v.  Agawain  Mut.  Fire  Ins.  Co.,  10 
Cush.,  .587. 

7.  Insured  was  asked,  to  state  in  the  appli- 
cation what  amounts  are  now  insured  on  the 
life  of  the  party,  and  in  what  compan}-. 
Answer.  "Ji^tna,  $10,000;  Knickerbocker, 
$15,000;  $10,000  additional  applied  for  in 
..Etna."  iThere  were  two  other  policies,  one  in 
the  Guardian,  and  one  in  the  Equitable,  for 


$15,000  each,  not  disclosed.  The  policy  stip- 
ulated: "If  the  declaration  made  by  the  in" 
sured  shall  be  found  in  any  respect  untrue, 
then  and  in  every  such  case  the  policy  shall 
be  null  and  void."  Held,  the  entire  truthful- 
ness of  the  declaration  was  by  the  terms  of 
the  contract  a  matter  of  warranty  or  condi- 
tion,  precedent  to  any  right  of  recovery. 
Brennan  v.  Security  Life  Ins.  Co.,  4  Daly,  290. 

8.  On  brig,  one  year, .  September  24,  1847 
(noon),  stipulated :  "  Said  vessel  not  allowed 
to  carry  grain  in  bulk  across  the  Atlantic." 
She  was  represented  as  having  arrived  safely 
at  Ballisdore  and  clean  of  her  cargo.  While 
passing  the  bar,  entering  the  harbor,  she 
grounded  and  sustained  injuries.  Held,  a  pos- 
itive representation  as  to  a  material  fact  is  as 
essentially  a  part  of  the  contract  as  a  warran- 
ty, and  must  be  literally  true,  wherefore  the 
insurers  were  released.  Sawyer  v.  Coasters 
Mut.  Ira.  Co.,  6  Gray,  2:^1. 

9.  Insured  was  asked:  "Who  owns  the 
buildings?"  He  answered:  "  The  insured." 
He  was  asked  whether  they  were  incumbered, 
by  what,  and  to  what  amount?  He  answered : 
"No."  The  only  title  he  had  was  that  of 
mortgagee,  to  secure  the  payment  of  a  debt. 
Held,  the  answers,  taken  together,  clearly  in- 
dicated that  insured  had  the  title  in  himself, 
and  that  no  other  pcr.son  was  owner,  either  as 
mortgagor  or  mortgagee,  the  policy  was  there- 
fore void.  Jenkins  v.  Quincy  Mut.  Fire  Ins- 
Co.,  7  Gray,  870. 

10.  The  defendant  alleged  a  misrepresenta- 
tion, and  that  it  was  falsely  and  fraudulently- 
made.  Held,  it  was  sufficient  to  prove  it  false. 
Lewis  V.  Eagle  Ins.  Co.,  10  Gra}',  508. 

11.  The  court  instructed  that  "an  untrue 
statement,  innocently  made,  in  regard  to  a  la- 
tent-disease, of  which  the  applicant  was  uncon- 
scions,  would  not  avoid  the  policy;"  but  the 
answers  were  the  basis  of  the  contract.  Held, 
error,  for  an  untrue  statement  or  denial  of  a 
material  fact,  preceding  or  contemporaneous 
with  the  contract,  prevented  the  policy  from 
taking  effect,  whether  the  statement  was  mo.i^ 
in  ignorance,  good  faith,  or  otherwise  (ci...  r 
Curry  v.  Commonwealth  Ins.  Co.,  10  Picu 
535;  Wilber  v.  Bowditch  Ins.  Co.,  10  Cush., 
446:  Kimball  v.  ^tna  Ins.  Co.,  9  Allen,  540). 
Campbell  v.  New  England  Life  Ins.  Co.,  9S 
Mass.,  381. 

12.  The  plaintiffs  applied  to  the  defend- 
ants for  reinsurance,  |10,000,  against  loss  by 


793 


MISREPRESENTATIONS. 


791 


What  are  material. 


tire  on  sugar  and  molasses,  on  the  plantation 
of  K.  B.  The  following  words  were  inserted 
by  the  plaintiflFs  in  the  application:  "We 
have  buildings."  This  was  not  true,  in  fact. 
Held,  a  material  misrepresentation,  which 
avoided  the  policy.  Louisiana  Mut.  Ins.  Co. 
V.  New  Orleans  Ins.  Co.,  13  La.  An.,  34G. 

13.  On  ship,  insured  in  the  name  of  a  citi- 
zen of  the  United  Slates,  represented  to  be 
owner.  She  was  furnished  with  .Vmcrican  pa- 
pers, but  was  in  fact  the  property  of  subjects 
of  Spain,  and  was  lost  by  a  peril  of  the  sea. 
Held,  concealing  the  fact  of  her  real  owner- 
ship, and  representing  her  as  American,  re- 
leased the  insurers.  Price  v.  Dupeau,  1  Brev., 
452. 

14.  A  false  representation  as  to  the  value  of 
stock  on  hand  at  the  time  the  policy  issues  re- 
leases the  insurer.  111.  S.  C.  Lycoming  Ins. 
Co.  V.  Mubin,  8  Chi.  Leg.  News,  150. 

15.  The  jury  found  that  the  time  of  sailing 
from  Baltimore  was  not  correctly  represented, 
that  she  in  fact  sailed  some  days  before  the 
time  mentioned  in  the  representation,  but  that 
there  was  no  fraud  in  concealing  the  time  of 
sailing.  Held,  a  false  representation  of  a  ma- 
terial fact  avoids  the  policy;  that  except  for 
the  purpose  of  determining  whether  the  pre- 
mium should  be  returned  or  not,  it  was  imma- 
terial whether  tlie  representation  was  fraudu- 
lently made.  Anderson  v.  Thornton,  8  Exchr., 
425. 

16.  The  ])crson  proposed  for  insurance  was 
asked  by  the  insurer,  "  Who  is  your  usual 
medical  attendant?"  She  replied,  "CD."  She 
had  been  attended  by  A.  B.  up  to  a  time 
shortly  prior  to  the  making  of  the  policy;  but 
C.  D.  had  attended  her  and  prescribed  for  a 
cold,  or  some  other  trifling  matter.  Held,  the 
answer  was  intended  to  deceive.  Huckrnan  v. 
Fernie,  3  Mce.  &  W.,  505 ;  7  L.  .1.  (N.  S.;  Ex., 
103;2  Jur.,  444. 

17.  D.  applied  for  insurance  on  the  life 
of  an  invalid,  informing  insurers  as  to  the 
l)articular  defect  in  health.  Insurers  inquired 
by  letter  whether  any  company  had  refused  to 
accept ;  if  so,  to  name  it.  Keply  was  made  that 
applicant  had  been  and  still  was  correspond- 
ing with  other  companies;  whereupon  this 
policy  was  granted.  It  appeared  that  eight 
companies  had  previously  refused  the  risk, 
and  at  the  time  insured  wrote  in  response  to 
this  company's  inquiry,  several  proposals  for 
insurance  on  the  lite  were   pending,  some  of 


which  were  afterwards  accepted.  Held,  tho 
jiolicywas  void,  notwithstanding  it  admitted 
on  its  face  the  truth  of  the  statements  con- 
taincd  in  the  proposal,  and  was  known  as  an 
indisputable  policy.  In  re  General  Provincial 
Life  Ass.  Co.,  Ex  parte  Dainlree,  18  W.  R.,39C. 

18.  A  misrepresentation  by  one  party  as  to 
a  fact  specifically  inquired  of  by  the  other, 
though  not  material,  avoids  the  policy,  for. 
by  making  the  inquiry,  the  matter  is  made 
material  (citing  Campbell  v.  New  England 
Mut.  Ins.  Co.,  98  Mass.,  381).  ifiller  v.  Mutual 
Benefit  LifeIns.Co.,3llov,'a,2].(y;  Day  V.  Mutual 
Benefit  Life  Ins.  Co.,  1  MacArthur,  41 ;  Fitch 
i>.  American  Popular  Life  Ins.  Co.,  59  N.  T., 
557. 

19.  It  was  stated  in  the  proposal  for  a 
policy  to  guaranty  the  fidelity  of  A.,  that  his 
duties  were  to  collect  and  account  for  tax 
moneys  collected,  that  the  largest  sum  to  be 
held  by  him  was  £200,  to  be  kept  not  longer 
than  a  week;  that  his  accounts  were  to  be 
checked  weekly  by  the  surveyor  of  taxes, 
and  the  balance,  ascertained  at  every  such 
period,  would  be  paid  over.  It  appeared  that 
the  payments  made  were  from  £300  to  £400, 
and  the  moneys  were  retained  by  him  from 
ten  days  to  two  weeks.  The  person  guarantied 
defaulted  with  £600  or  £700  in  hand.  Held,  the 
represetations  were  false,  and  the  policy  void. 
Towle  V.  Nationl  Guardian  Ass.  Soc,  30  L.  J. 
Ch.,  900;  7  Jur.  (N.  S.),  618;  10  W.  R,  49;  5 
L.  T.  (N.  S.),  193. 

20.  The  ship  was  represented  as  sailing 
with  license  and  without  convoy  for  Gibraltar, 
Cagliari  and  Majorca.  She  had  a  license  to 
sail  without  convoy  to  Gibraltar,  and  sailed 
thence  without  convoy  or  license.  Held,  the 
policy  was  void.  Darby  v.  Newton,  6  Taunt., 
544;  s.  c,  3  Marsh.,  253. 

21.  It  was  stated  in  the  proposal  that  no 
other  ofBce  or  offices  had  declined  to  insure 
the  life  proposed.  The  contract  stipulated: 
"  If  the  declaration  made  by  the  plaintiff  is 
not  in  every  respect  true,  then  the  insurance 
shall  be  void."  It  appeared  that  two  other 
offices  had  declined  to  issue  a  policy  on  tiia 
life  proposed,  but  the  plaintiff  did  not  know 
that  fact.  Held,  no  recovery  could  be  had. 
Macdonald  v.  Law  Union  Fire  and  Life  Ins. 
Co.,  9  L.  R.  Q.  B.,  328;  43  L.  J.  Q.  B.,  131 ;  23 
W.  R.,  530;  30  L.  T.  (N.  S.),  545. 

22.  The  jury  found  that  at  the  time  proposal 
was  made,  he  was  not  a  person  of  temperate 

397 


r9o 


MISREPRESENTATIONS. 


79(J. 


What  are  not  material. 


habits;  that  he  had  been  afflicted  with  delir- 
ium tremens;  that  his  representations  to  in- 
surer's medical  attendant  was  not  true  as  to 
the  state  of  his  health,  but  that  he  made  these 
.statements,  hona  fide.  Held,  defend.ints  were 
entitled  to  judgment.  Button  v.  Waterloo  Life 
I  as.  Co.,  1  F.  &  F.,  735. 

23.  The  defendant  company  procured  rein- 
■  surance,  representing  th.at  it  was  their  intention 

to  retain  part  of  the  risk.  The  offer  and  ac- 
ceptance took  place  May  10th.  The  premium 
was  not  paid  until  eight  days  thereafter.  In 
the  meantime  the  directors  of  the  defendant 
determined  not  to  retain  any  portion  of  the 
risk,  and  reinsured  the  whole  of  :t  in  another 
company.  Held,  the  representation  was  a  ma- 
terial inducement  for  the  plaintiff  to  enter  into 
the  contract,  and  whether  it  ceased  to  be  true 
from  accident  or  design,  was  Immaterial;  that 
the  plaintiffs  were  entitled  to  have  the  policy 
policy  delivered  and  canceled.  TrniU  v.  Bar- 
ing, 4  De  G.,  J.  &  S.,  318;  10  .Jur.  (N.  S.),  377; 
13W.R.,678;  10L.T.(N.S.),21.5.  AlHrming, 
4  Giff.,  485;  10  Jur.  (N.  S.),  87;  33  L.  J.  Ch., 
521 ;  12  W.  R.,  834;  9  L.  T.  (N.  S),  708. 

24.  The  jury  were  desired  to  inform  the 
court  whether  the  verdict  was  founded  on  the 
fact  that  the  age  was  corrcctlj'  answered. 
They  answered  that  the  age  had  been  misrep- 
resented, but  that  the  misrepresentation  was 
not  intentional.  Held,  the  verdict  must  be  set 
aside.    Murphy  v.  Harris,  Batty,  206. 

2.5.  Insured  represented  that  ship  was  re- 
ported to  have  sailed,  but  he  knew  that  she 
had  sailed.  Held,  a  material  misrepresenta- 
tion wliich  vitiated  the  policy.  Kiiiloch  v. 
Duguid,  Faculty  Dec,  1812  to  1814,  p.  108. 

26.  Insured  was  asked  to  state  the  cash  val- 
ue of  the  property  to  be  insured.  He  an- 
swered, "  $30,000,"  that  it  would  be  increased 
to  $50,000;  the  average  value  was  $30,000. 
Held,  it  was  the  representation  of  a  fact;  if  it 
was  ialse  though  not  fraudulent,  plaintiff 
could  not  recover,  because  it  was  the  repre- 
sentation of  a  fact  calculiited  to  mislead.  Sob- 
bitt  V.  Liverpool,  London  and  Globe  Ins.  Co.,  66 
N.  C,  70. 

27.  A  London  merchant  in  procuring  in- 
surance at  Leith,  represented  that  he  had 
made  insurance  on  the  same  voyage  at  Lloyds, 
for  the  same  rate  of  premium  which  he  offered 
to  the  underwriters  at  Leith,  eight  guineas  per 
cent.;  but  the  Leith  underwriters  discovered 
that  the  premiums  paid   at   Lloyds  on  this 

398 


ship  were  fifteen,  eighteen  and  tweuty-five 
guineas.  Held,  the  representation  was  fraud- 
ulent; that  it  induced  a  confidence,  without 
wliich  the  insurer  would  not  have  acted,  and 
that,  therefore,  the  policy  was  void  (reversing 
S.  c.  Faculty  Dec,  1808  to  1810,  p.  303).  Sib- 
bald  V.  Hill,  2  Dow,  263. 

II.    WUAT  AEE  NOT  SIATEEIAX. 

1.  Every  alleged  misrepresentation  must  be 
material  to  the  risk ;  and  an  allegation  that 
she  was  worth  only  $3,000  when  insured,  and 
that  she  was  valued  in  the  policy  at  $10,000,  is 
unimportant,  unless  it  appeared  that  insured 
represented  her  to  be  worth  more  than  $3,000 ; 
the  parties  may,  if  they  choose,  agree  to  an 
excessive  valuation.  Hodgson  v.  Marine  Inn. 
Co.,  5  Cranch,  100. 

2.  January  3,  1802,  insured  wrote:  "I 
have  information  of  her  sailing,  and  she  is 
out  this  day  twenty-six  days."  The  certifi- 
cate of  her  sailing  showed  that  she  was  then 
out  twenty-seven  days,  having  sailed  a  day  be- 
fore that  represented.  The  court  left  it  to  the 
jury  for  them  to  say  whether  sailing  Decem- 
ber 7th  instead  of  the  Sth  was  material.  Held, 
the  plaintiff  was  entitled  to  recover.  Williams 
■0.  DeLifield,  2  Cainc,  329,. 

3.  If  a  vessel  be  represented  as  out  about 
nine  weeks,  and  she  is  in  fact  out  about  ten 
weejis,  and  four  days,  the  misrepresentation 
is  not  material,  provided,  the  latter  period  be 
within  the  usual  time  of  the  voyage.  Mackay 
V.  Rhinelander,  1  Johns.  Ca.,  4i)8. 

4.  Stipulated:  "  If  representations  made  in 
the  applicaiion  are  in  any  respect  untrue,  the 
policy  shall  be  void."  Held,  a  request  to 
charge  that  if  the  statements,  made  to  the 
medical  examiner  were  untrue,  whether  inten- 
tionally or  not,  the  policy  was  void,  was  right- 
fully refused,  for  although  a  misstatement  in 
the  application  would  avoid  the  policy, 
whether  it  was  or  was  not  material,  yet  as  to 
mere  verbal  representations,  their  materiality, 
in  the  absence  of  fraud,  was  the  controlling 
element  in  determining  their  effect,  and  if  they 
were  immaterial  they  could  not  affect  the 
rights  of  the  parties.  Higbie  v.  Guardian  Mut- 
ual Life  Tns.  Co.,  53  X.  Y.,  603. 

5.  The  application  represented  the  building 
as  connected  on  one  side  with  another  build- 
ing, but  it  was  connected  on  both  sides.  Held, 
no  defense  to  the  action,  unless  the  risk  was 


797 


MISREPRESENTATIONS. 


roty 


Onus  probiindi  —  Constmction. 


thereby  iucroased.     Stetson  v.  Massachusetts 
Mutual  Fire  Ins.  Co.,  4  Mass.,  330. 

6.  The  agent  who  procured  the  insurance, 
rcpres;ntcd  that  the  ship  was  expected  to  sail 
about  the  12th.  Held,  no  misrepresentation; 
that  it  was  an  expression  denoting  only  an  ex- 
pectation, nice  V.  NewEiigland  Marine  Ins. 
Co.,  4  Pick.,  439.  The  insurers  were  informed 
that  the  master  of  a  vessel  stated  that  the  vessel 
insured  was  to  sail  in  four  days  after  he  left, 
but  it  appeared  that  she  did  not  sail  within 
that  time.    Held,  no  misrepresentation.     Ibid. 

7.  Stipulated:  "  Uelerence  being  had  to 
the  application  of  insured  for  a  particular  de- 
scription which  shall  form  a  part  of  this  pol- 
icy." Held,  erroneous  statements  contained 
in  the  application  could  not  defeat  the  right  of 
insured  to  recover,  if  he  made  a  fair  and 
honest  statement  to  the  agent  of  insurer  of  all 
that  was  required,  lor  the  statements  in  the  ap- 
l)lication  were  not  warranties,  but  representa- 
tions merely.  Columbia  Ins.  Co.  v.  Cooper,  50 
Penn.  St..  331. 

8.  Insured  represented  in  their  application, 
dated  September  18,  1869,  that  their  lease  had 
one  year  to  run  from  March  1,  IS'iO.  Held,  if 
insured  believed  and  fairly  represented,  but 
were  mistaken  as  to  the  time  the  lease  had  to 
run,  it  would  not  defeat  the  action,  for  it  was 
a  representation  merely,  and  not  a  warranty ; 
but  if  the  representation  were  fraudulent,  that 
would  defeat  recovery.  Imperial  Fire  Ins. 
Co.  V.  Murray,  73  Penn.  St.,  13. 

9.  On  ship,  for  one  year  from  March  14, 
1860,  at  noon,  lost  or  not  lost.  In  the  letter 
■which  inclosed  this  application  the  insurer's 
agent,  a  part  owner  of  the  ship,  wrote :  "  She 
was  at  Gibraltar  on  that  date,"  meaning  at  the 
commencement  of  the  policy.  Held,  it  was 
an  immaterial  representation,  because  the  ter- 
mini of  the  risk  are  the  day  and  hour  when 
the  insurance  commences  and  when  it  termi- 
nates (citing  Manly  v.  United  Marine  and  Fire 
Ins.  Co.,  9  Mass.,  85;  Martin  v.  Fisliing  Ins. 
Co.,  20  Pick.,  389).  Vigoreaux  v.  Lime  Rock 
Ins.  Co.,  59  Me.,  457. 

10.  If  the  facts  disclosed  in  the  evidence 
show  that  untrue  statements  made  by  insured 
did  not  induce  insurer  to  take  the  risk,  and 
that  insurer  was  not  deceived  by  the  state- 
ments, then  they  were  not  material.  Common- 
irealth  Ins.  Co.  v.  Monninger,  18  Ind„  352. 

11.  The  answer  averred  that  the  plaintiff 
falsely  and  fraudulently  represented  that  the 


value  of  the  property  insured  was  $2,500, 
while  it  was  only  of  the  value  of  .t;900.  Tlie 
policy  expressly  provided  that  insurer  should 
be  liable  only  for  the  cash  value  at  the  time 
of  the  loss.  Held,  a  demurrer  to  the  answer 
was  properly  sustained,  because  a  representa- 
tion as  to  value  is  immaterial  if  the  policy  is 
not  a  valued  policy  (citing  Harris  v.  Eagle 
Fire  Ins.  Co.,  5  Johns.,  368 ;  Cox  v.  ^tna  Ins. 
Co.,  29  Ind.,  580).  Aurora  Fire  Ins.  Co.  v. 
Johnson,  46  Ind.,  315. 

12.  The  broker  stated  to  the  underwriter 
that  she  was  either  near  or  at  Messina,  on  her 
homeward  voyage.  Held,  the  statement  of  a 
conclusion,  and  could  not  affect  the  rights  of 
insured.    Brine  v.  Featherstune,  4  Taunt.,  869. 

1 3.  The  owner's  agent  represented  that  she 
would  carry  as  much  rock  salt  as  would  put 
her  in  ballast  trim.  She  sailed  deeply  laden 
with  it.  Held,  it  was  a  question  for  the  jury 
whetlier  the  misrepresentat'.on  was  or  not  ma- 
terial. Fiinn  v.  Headlam,  9  B.  &  C,  693 ;  7  L. 
J.  K.  B.,  307. 

14.  The  first  underwriter  refused  to  insure, 
because  he  was  told  she  would  take  a  cargo 
of  rock  salt.  The  broker  made  further  inqui- 
ries, and  stated  she  would  take  only  fifty  or 
sixty  tons  of  it,  to  put  her  in  light  ballast 
trim.  She  sailed  the  day  after  the  policy  was 
made  with  160  tons  of  rock  salt,  a  full  and 
very  heavy  cargo,  and  was  lost.  Held,  the  in- 
surer was  liable  unless  there  was  a  fraudulent 
misrepresentation  as  to  the  cargo  she  was  to 
carry;  that  misrepresentation,  without  fraud, 
woukl  not  be  encjugh  to  prevent  recovery,  be- 
cause the  contract  was  in  writing,  and  could 
not  be  varied  by  parol ;  that  any  defense  turn- 
ing upon  the  mere  fact  of  misrepresentation, 
without  fraud,  practiced  to  induce  the  defend- 
ant to  make  tlie  policy,  could  not  avail.  Flinn 
■».  Tobin,  Moo.  &  M.,  367. 

III.  Onus  pkobaitoi. 

If  the  insurer  defends  upon  the  ground  that 
certain  representations  were  untrue,  he  must 
show  that  they  were  untrue  in  a  material  mat- 
ter,  or  that  they  were  fraudulent.  Cushman  v. 
United  States  Life  Ins.  Co.,  4  Hun.  (N.  T.),  783. 

IV.  Construction. 

1.  Stipulated;  "If  any  person  shall  cause 
the  same  to  be  described  otherwise  than  as 

399 


79!) 


MISREPRESENTATIONS. 


800 


Questions  for  the  jury. 


they  really  are,  so  that  the  same  shall  be 
charged  at  a  lower  premium  than  would  other- 
-wise  he  demanded,  such  insurauce  shall  be  of 
no  force  or  effect."  Ildd,  an  untrue  descrip- 
tion did  not  avoid  the  policy,  unless  it  had 
the  effect  to  reduce  the  premium,  which  was  a 
questiou  of  fact  for  the  jury.  Columbian  Ins. 
Co.  V.  Lawrence,  3  Pet.,  25. 

2.  In  the  application,  these  questions  were 
asked :  Is  your  health  good,  and  as  far  as  you 
tnow,  free  from  any  symptoms  of  disease? 
Are  your  habits  uniformly  strictly  sober  and 
temperate?  To  these  he  answered  "yes."  All 
the  statements  in  the  application  were  war- 
ranted to  be  true.  Held,  the  questions  were  to 
be  taken  to  mean  what  the  same  words  usu- 
ally and  commonly  mean;  that  if  his  health 
was  not  good,  or  if  he  knew  of  any  symptom 
of  disease  which  he  did  not  disclose,  no  recov- 
ery could  be  had  on  the  policy;  but  if  the 
company,  or  its  agent  who  took  the  risk,  knew 
that  a  few  days  before  it  was  taken  he  had  a 
temporary  illness,  which  was  over  at  the  time, 
and  was  disregarded  by  the  agent  as  not  with- 
in the  purview  of  the  question,  that  would  not 
affect  the  right  to  recover.  Smck  v.  Home  Life 
Ins.  Co.,  2  Dil.  Cir.  C,  160. 

3.  On  goods  in  store,  more  particularly  de- 
described  in  application  and  survey  furnished 
by  himself,  in  which  was  stated:  "Thick 
stone  partitions  running  lengthwise  through 
the  building  to  the  roof."  Held,  although  the 
stone  partition  was  not  built  higher  than  the 
garret  floor,  the  policy  was  valid  unless  the 
failure  to  continue  it  to  the  roof  increased 
the  risk,  and  of  that  the  jury  were  judges, 
for  the  matter  stated  in  the  application  was 
not  warranted.  Farmers  Insurance  and  Loan 
Co.  1>.  Snyder,  10  Wend.,  481 ;  affirming  s.  C, 
13  id.,  92. 

4.  Insured  stipulated  that  the  answers  to 
tlie  questions  propounded  in  the  application, 
should  be  the  basis  of  the  contract;  that  any 
willfully  untrue  or  fraudulent  answers,  or  any 
suppression  of  facts  in  regard  to  the  party's 
health,  should  render  the  policy  void  ;  and  the 
policy  recited,  that  it  was  made  in  considera- 
tion of  the  representations  made  in  the  appli- 
cation, and  of  the  premium  paid.  Held,  the 
liability  of  the  defendant  depended  entirely  on 
the  good  faith  of  the  insured  in  respect  to  the 
representations.  If  the  answers  were  honestly 
made,  and  there  was  no  willful  and  fraudu- 
lent suppression  of  facts  in  regard  to  the'par- 

400 


ty's  health,  the  company  was  liable,  although 
at  the  time  of  making  the  insurance,  the  party 
had  an  organic  disease  which  was  made  man- 
ifest by  a  post  mortem  examination.  SchaibU 
V.  Washington  Life  Ins.  Co.,  9  Phil.,  136. 

V.    QOESTIOXS   FOK   THE   JUET. 

1.  K.  mortgaged  certain  premises,  and  there 
was  a  decree  of  foreclosure ;  but  it  was  possi- 
ble that  K.  had  the  right  to  come  in  and  have 
the  decree  opened.  C.  had  judgment  against 
K.,  and  execution  was  issued  and  levied  upon 
the  property,  under  which  it  was  sold  and 
bought  in  by  C,  who  insured  it  and  stated  to 
insurers'  agent  that  he  acquired  his  interest  in 
it  under  a  judgment  and  execution.  He  was 
not  asked  aboiit  anj'  prior  mortgage  upon  the 
property.  Held,  it  was  proper  to  leave  the 
question  to  the  jury,  for  them  to  find  whether 
there  was  any  intentional  misrepresentation 
as  to  the  interest  of  the  insured  at  the  time  of 
the  insurance  was  effected.  Curtis  v.  Home 
Ins-  Co.,  \  Biss.,  485. 

2.  The  plaintiff,  in  her  application,  stated 
that  neither  his  parents,  brothers  nor  sisters 
had  been  afllicted  with  scrofulous  disease;  but 
to  another  question  propounded  as  to  what 
disease  his  mother,  brothers  and  sisters  died 
of,  she  answered :  mother  died  of  scrofula, 
one  of  his  brothers  died  of  an  unknown  dis" 
e.'ise,  and  one  of  his  sisters  died  of  disease  of 
the  blood.  She  was  not  asked  if  her  husband 
ever  had  scrofula.  He  stated  to  the  compa" 
uy's  physician  in  response  to  certain  printed 
inquiries  which  were  part  of  the  application, 
that  his  mother  died  of  scrofula;  and  in  re- 
sponse to  another  inquiry,  he  said  that  he 
never  had  any  of  that  disease  that  he  was  aware 
of  Stipulated:  "The  answers  to  the  inter- 
rogatories  were  true;  that  he  was  in  good 
health  and  usually  enjoyed  good  health,  and 
that  no  fact  material  to  his  health  had  been 
concealed."  He  died  nine  months  after  the 
date  of  the  policy,  from  an  abscess  caused  by 
scrofula.  Prior  to  making  the  policy,  he 
was  lame  from  a  sore  in  the  groin,  for  several 
weeks.  It  healed,  but  frequently  recurred. 
Held,  that  taking  all  the  statements  togell»cr, 
they  were  not  untrue,  in  such  a  sense  as  would 
avoid  the  policy;  that  it  was  a  question  for 
the  jury  to  determine,  whether  the  true  condi- 
tion or  health  of  the  insured  had  been  mis. 
represented   by  himself  and   wife.     Swift   v. 


801  MONEY  HAD  AND  RECEIVED— MORTGAGOR  AND  MORTGAGEE.  SOS 

■ ^ 

Miscellaneous. 


MasaadiUUlls  Mutual  Life  Ins.  Co.,  2  N.  Y.  S. 
C,  303. 

3.  A  misrepresentation  as  to  the  title  of  the 
property  insured  does  not  necessarily  avoid 
the  policy,  for  every  misrepresentation  is  to 
be  tested  by  its  materiality,  and  lliat  is  a  ques- 
tion for  the  jury.  Bellatty  v.  Thomnston,  Ins. 
Co.,  Gl  Me.,  414. 

4.  Whether  a  given  statement,  admitted  to 
be  false,  is  material  or  not,  is  in  general  a 
question  of  fact,  and  should  be  left  to  the  jury. 
Schroeder  V.  Stock  and  Hut.  Ins.  Co.,  46  Mo., 
174. 

VI.  Generally. 

1.  The  false  statement  or  suppression  of 

facts  which  will  release  the  insurer  must  be 
of  so  material  a  character  that  if  not  made  on 
the  one  hand,  or  if  made  on  the  other,  would 
probably  have  induced  the  insurer  to  reject 
the  risk  or  to  material)}'  modify  his  contract. 
JJollowman  v.  Life  Ins.  Co.,  i  Woods,  674. 

2.  Fraud  not  presumed.  Upon  the  ques- 
tion whether  there  has  been  a  frudulent  mis- 
representation: Held,lhe  law  will  not  pre- 
sume fraud,  nor  will  a  contract  be  set  aside  on 
that  ground,  unless  the  fraud  be  full}-  and  satis- 
factorily proved  ;  and  the  burden  of  proof  lies 
on  tlie  person  who  holds  tlie  affirmative.  Pine 
«.  Vanuxcm,  3  Yeates,  30. 

3.  Untru^  statements.  The  policy  re- 
ferred to  the  application,  and  stipulated  that 
it  should  be  part  of  the  contract.  Held,  it 
must  be  treated  as  though  it  were  incorpo- 
rated into  the  policy  itself,  and  whether  an 
untruthful  statement  in  the  application  was 
fatal  or  not,  must  depend  on  whether  the  un- 
true matter  was  material  to  the  risk.  Battles 
■B.  York  County  Mutual  Fire  Ins.  Co.,  41  Me., 
208. 

4.  FriUidulent  intent.  The  court  instructed 
the  jury  that  a  misrepresentation,  however 
material,  could  not  allect  the  policy  unless 
made  with  a  fraudulent  intent.  Held,  error. 
Continental  Ins.  Co.  v.  Kasey,  25  Grattan, 
268. 

5.  Test  of  materiality.  Whether  the  mat- 
ter not  disclosed  was  material,  depends  upon 
whether  the  insurer  would  have  charged  a 
higlier  prendum  had  he  been  informed  as  to 
that  matter.  Quin  v.  National  Ass.  Co.,  1 
Junes  &  Carey,  316. 

26 


MONEY  HAD  AND  RECEIVED, 

1.  Plaintiffs  custom  was  to  allow  the 
broker  to  deliver  the  policies  and  collect  tho 
premiums.  Held,  he  was  not  liable  for  pre- 
miums he  had  failed  to  collect.  Monitor  Mu- 
tual Fire  Ins.  Co.  v.  Young,  111  Mass.,  537. 

2.  A.,  being  interested  in  certain  property, 
insured  it  in  the  owner's  name.  Loss  having 
occurred,  insurers  paid  the  claim  to  A.  Held, 
he  must  pay  it  over  to  the  owner,  nor  could  A. 
be  allowed  to  prove  that  he  intended  the  pol- 
icy to  protect  his  own  interest  only.  Looney 
V.  Looney,  116  Mass.,  283. 

3.  The  broker,  having  received  the  premium, 
refused  to  pay  it  over  to  insurer  because  the 
contract  to  insure  was  illegal  — the  prerequi- 
sites of  the  statute  h.ad  not  been  complied  with. 
Held,  he  must  pay  it  over.  Tenant  v.  Elliott, 
1  B.  &  P.,  3. 


MOORED  IN  GOOD  SAFETY. 

(See  Until  Moored  vs  Good  Safett.) 


MORTGAGOR  AND  MORTGAGEE. 

1.  The  mortgagor  covenanted  to  keep  the 
premises  insured  for  the  benefit  of  the  mort- 
gagee. Held,  the  mortgage  being  recorded, 
the  covenant  drew  to  it  the  contract  of  insur- 
ance as  soon  as  affected,  it  ran  with  the  land, 
was  a  notice  to  creditors,  and  no  subsequent 
assignment  could  aflect  the  rights  of  the  mort- 
gagee, and  an  assignment  of  the  policy  of  in- 
surance was  therefore  unnecessary.  In  re 
Sands  Ale  Brewing  Co.,  3  Biss.,  175. 

2.  R.  was  personally  liable  for  the  payment 
of  the  mortgage,  amounting  to  $5,000;  but 
there  was  no  agreement,  expressed  or  implied, 
that  he  would  cause  the  premises  to  be  in. 
sured  for  the  protection  of  the  debt.  Held,  the 
mortgagee  had  no  better  claim  to  the  money 
due  by  the  insurance  company  than  any  other 
creditors  of  R.  Carter  v.  Bockett,  8  Paige  Ch., 
437. 

3.  A  mortgagee  who  effects  insurance  upon 
the  mortgaged  premises  cannot  charge  the 
cost  of  it  against  the  mortgagor.  Saunders  v. 
Frost,  5  Pick.,  259. 

4.  The  mortgage  required  the  mortgagor  to 
keep  the  buildings  insured  against  fire  for  » 

401 


803 


MUTUAL  INSURERS. 


80i 


Miscellaneous. 


8um  not  less  than  $2,500,  for  the  benefit  of  the 
mortgagee.  The  mortgagor  failed  to  insure, 
and  the  mortgagee  paid  the  premiums  and 
charged  tliem  against  the  mortgagor.  Held, 
a  lawful  agreement,  and  tliat  the  mortgagee 
•was  entitled  to  credit  for  the  premiums  paid. 
Fowley  v.  Palmer,  5  Gray,  549. 

5.  Tiie  mortgagee,  at  the  request  of  the  mort- 
gagor,  effected  insurance  upon  the  premises 
and  paid  the  premium.  Held,  an  additional 
charge  upon  the  premises  and  similar  to 
the  original  debt.  Mix  v.  Hotchkiss,  14  Conn., 
31. 

6.  In  an  action  for  possession  against  a 
mortgagor,  he  is  estopped  to  deny  his  title  to 
the  mortgaged  premises.  Concord  Union  Mu- 
tual  Fire  Ins.  Co.  v.  Woodbury,  45  Me.,  447. 

7.  Policy  insuriug  a  mortgagee.  Held,  he 
could  not  recover  beyond  the  extent  of  his  in- 
terest. Smith  V.  Columbia  Ins.  Co.,  17  Penn. 
St.,  253. 

8.  The  charter  made  the  members  liable  to 
provide  a  fund  to  meet  losses.  After  the  bus- 
iness had  been  conducted  for  some  time,  the 
directors  resolved  to  raise  a  guaranty  capi- 
tal of  $150,000,  to  be  put  up  in  money  or 
bonds,  secured  by  mortgage,  liable  to  assess- 
ment pro  rata,  after  all  other  available  means 
should  be  exhausted,  to  make  good  losses. 
Each  contributor  was  to  receive,  from  the 
earnings  of  the  company,  six  per  cent,  on  the 
amount  of  his  bond.  The  defendant  gave  a 
mortg.age  as  collateral  to  his  bond,  and  the 
corporation  became  insolvent.  Held,  the 
mortgage  was  illegal  and  void,  because  the 
company  had  no  power  to  enter  into  the  con- 
tract. Trenton  Mutual  Life  and  Fire  Ins  Co. 
V.  McEehony,  12  N.  J.  Eq.,  133. 

9.  A.  became  surety  for  B.,  who  executed  a 
mortgage  and  procured  insurance  upon  cer- 
tain property  to  protect  A.  B.  sold  the  prop- 
ertj'  subject  to  the  mortgage.  The  purchaser 
surrendered  the  policy  to  insurer  and  pro- 
cured another  in  his  own  name.  Held,  the  in- 
surance money  must  be  applied  to  satisfy  the 
demands  of  the  mortgagee.  Miller  v.  Aldrich, 
31  Mich.,  408. 

10.  If  the  mortgagee  insures  the  propert)* 
mortgaged  and  the  premium  was  paid  by  the 
mortgagor,  then  tlie  policy  and  its  benefits  are 
in  equity  the  property  of  the  mortgagor.  Nor- 
wich Fire  Ins.  Co.  v.  Boomer,  52  III.,  442. 

11.  A  mortgagee,  who  is  not  by  express  con- 
it  wit 

402 


against  fire  at  the  mortgagor's  expense,  nor  to 
require  the  mortgagor  to  insure,  cannot  add  to 
the  mortgage  debt  as  a  charge  upon  the  prop- 
erty, the  premiums  by  him  paid  for  insurance- 
ui)on  the  property.  Dobson  v.  Land,  8  Hare, 
216;  4  De  G.  &  S.,  575. 

12.  Ship  owner  employed  a  broker  to  pro- 
cure insurance  upon  the  ship.  Subsequently 
the  mortgagees  of  the  ship  were  inserted  in 
the  policy.  Held,  the  mortgagees  were  not 
liable  for  the  premium.  Roxburgh  u.  Thom- 
son, 23  C.  C.  S.,  1187. 


MUTUAL  INSURERS. 

1.  Increase  of  premium.  The  court  below 
adjudged  that  the  contract  of  insurance  being 
complete  between  the  parties,  insurers  had  not 
the  right  to  increase  the  premium.  Held,  iu 
general,  the  position  would  be  correct;  but 
the  defendants  were  bound  by  the  bj^-laws  of 
the  society,' which  conferred  that  right,  aaJ 
therefore  the  judgment  was  reversed.  Mutual 
Ass.  Soc.  V.  Eorn,  1  Cranch,  396. 

2.  Contract  with  member  of  coi-poration. 
A  contract  made  by  a  mutual  company  witlj 
one  of  its  members  is  binding  upon  both  par- 
ties.  New  England  Mutual  Fire  Ins.  Co.  v. 
Butler,  34  Me.,  451. 

3.  Assessments.  Slembers  of  a  mutual  in- 
surance company  must  pay  all  hiwful  assess- 
ments made  during  the  term  for  which  they 
are  insured,  unless  there  be  something  in  tJie 
policy,  charter,  by-laws  or  premium  note, 
which  relieves  them.  Netc  Hampshire  Mu- 
tual Fire  Ins.  Co.  v.  Ra7id,  24  N.  H.,  428. 

4.  By-law  not  binding.  A.  became  a  mem. 
ber  of  a  mutual  fire  insurance  company,  and 
subsequently  a  by-law  was  created  in  conflict 
with  the  charter.  Held,  not  binding  upon  A., 
unless  he  assented  to  it.  Great  Fulls  Mutual 
Fire  Ins.  Co.  v.  Harvey,  45  N.  H..  292. 

5.  Deposit  notes.  Before  resorting  to  the 
further  liability  imposed  bylaw  upon  the  pol- 
icy holders,  the  deposit  notes  must  be  ex- 
hausted. Commo7iweaUh  v.  Monitor  Mutual  Fire 
Ins.  Co.,  112  Mass.,  150. 

6.  Liability  of  members.  Though  the  cor- 
poration may  defend  against  claims  for  losses, 
it  does  not  follow  that  the  holders  of  the  poli- 
cies are  released  from  tlieir  liability  as  mem- 
bers.   So  long  as  the  policy  remains  uncaa- 


805 


NEGLIGENCE -NEUTRAL  PROPERTY. 


806 


What  satisfies  the  warranty. 


celed,  the  holder  cannot  fake  advantage  of  a 
■want  of  insurahlt  interest,  nor  of  a  misde- 
scription, nor  of  the  mode  of  occupation,  nor 
of  other  insurance,  for  tlie  purpose  of  show- 
ing that  the  policy  was  void  and  that  there  is 
no  liability  for  assessments.  Coinmonwealth  v. 
Massachusetts  Mat.  Ins.  Co.,  113  Mass.,  116; 
Owning s  v.  Sawyer,  117  id.,  30. 

7.  What  creates  raenibersliip.  Policy  to 
a  guardian.  Ileld,  it  was  a  personal  contract 
■which  he  could  transfer.  Tliis  authority  to 
another  to  transfer  it  need  not  be  in  writing, 
and  beiug  transferred  with  the  assent  of  the 
company,  the  transfcj'ee  became  a  member  of 
the  corporation  and  liable  to  assessments  from 
that  date  until  he  should  cease  to  be  a  mem- 
ber.   Gumings  v.  EUdreth,  117,  Mass.,  309. 

8.  —  When  a  policy  is  eftected  in  a  mutual 
insurance  company,  the  insured  are  ipM  facto 
members  of  the  corporation,  and  bound  by 
its  constitution  and  by-laws.  Satterthwaite  v. 
Mutual  Beneficial  Ins.  Ass.,  l-l  Penu.  St.,  393. 

9.  Who  is  not  a  member.  The  insurer,  a 
mutual  company,  accepted  cash  for  the  pre- 
mium. Held,  insured  did  not  become  a  mem- 
ber of  the  company;  his  duties  to  it  wore 
not. other  than  those  required  of  him  by  a 
stock  compauy.  Illinois  Fire  Ins.  Co.  v.  Stan- 
tan,  57  111.,  354. 

10.  Pi-emium  notes.  It  is  competent  for 
a  mutual  fire  insurance  company,  organized 
under  the  laws  of  this  state,  to  provide  in  its 
articles  of  association  or  by  its  by-laws,  that 
all  premium  notes  shall  be  paid  in  such  in- 
stalments as  shall  be  ordered  by  the  directors 
after  notice,  and  if  not  so  paid,  llie  eutire  note 
shall  become  due  and  payable.  Oerman  Mutual 
Fire  Ins.  Co.  v.  Franck,  32  Ind.,  364. 


NEGLIGENCE. 

(See  Peoximate  Cause  or  Loss.) 


NEUTRAL  PROPERTY. 

I.  What  satisfies  the  warranty. 

II.  DOES  NOT  satisfy  THE  WARRANTY. 

III.  Genkraixy. 


I.  "What  satisfies  tue  warkantv. 

1.  B.,  a  Spanish  subject,  was  interested  in 
the  cargo.  It  was  insured  for  L.  and  G. 
"  Warranted  American  property."  L.  and  G. 
were  Americans.  Held,  insured  warranted 
only;  that  the  interest  insured  was  neutral. 
Livingston  v.  Maryland  Ins.  Co.,  6  Cranch,  274. 

2.  A  passport,  from  one  government  to  a 
sbip  of  another,  to  protect  it  from  the  cruisers 
of  the  former,  does  not  stamp  the  ship  with 
the  national  character  of  the  government  who 
grants  the  protection,  and  is  no  violation  of 
the  laws  regulating  neutrals.  And  if  in- 
evitable necessity  compels  her  to  touch  at  an 
inhibited  port,  and  unloading  her  cargo,  and 
a  disposal  of  it  there,  is  the  effect  of  the  same 
necessity,  it  is  no  violation  of  the  law  re- 
straining citizens  from  aiding  the  French 
carrying  trade.  And,  under  the  same  neces- 
sity,  she  ma}'  purchase  and  load  with  the  pro- 
duce of  that  port.  Eallet  v.  Jcnks,  1  Caine'a 
Cas.,  43. 

3.  Where  a  subject  of  a  belligerent  state 
emigrates, ^^jrraraie  bello,  and  becomes  natural- 
ized, the  naturalization  will  support  a  war- 
ranty of  neutral  property.  Duguct  v.  Rhine- 
lander,  3  Johns.  C,  470;  1  Caine's  Cas.,  36; 
reversing  s.  C,  1  Johns.  C,  360. 

4.  Where  the  domicile  of  the  insured  is  es- 
tablished in  the  United  States,  without  any 
fraudulent  motive,  but  for  fair  purposes  of 
commerce,  the  insured  is  to  be  considered  an 
Amerfcan  citizen  in  respect  to  that  trade;  and 
property  by  him  owned  is  American,  notwith- 
standing he  is  a  foreigner  not  naturalized. 
Johnston  v.  Ludlow,  3  Johns.  C,  481. 

5.  Sailing  for  a  port  understood  to  be  block, 
aded  is  not  a  breach  of  neutrality,  and  does 
not  affect  the  warranty.  Vos  v.  United  Ins. 
Co.,  3  Johns.  Ch.,  469. 

6.  On  cargo,  warranted  American  property. 
The  consignees,  residents  in  France,  were  to 
pay  for  the  goods  and  eight  per  cent,  on  the 
amount  of  the  invoice,  to  cover  commissions, 
war  risk  and  usual  sea  risk..  The  goods  were 
charged  to  consignees  in  the  books  of  the  in- 
sured. The  consignees  were  to  accept  bills  at 
sixty  days,  after  the  vessel's  arrival  at  the  port 
of  destination.  Held,  the  consignees  were  not 
entitled  to  the  goods  until  they  had  performed 
the  precedent  conditions  as  to  the  payment 
stipulated ;  that  if  the  goods  never  arrived  at 
the  point  of  destin.ation,  the  property  would 

4(« 


S07 


NEUTRAL  riiOl'KRTY. 


S08 


What  satisfies  the  warranty. 


have  continued  in  the  insured ;  that  the  goods 
■were  in  law  the  property  of  the  consignors,  and 
therefore  American  property.  Held,  also,  the 
agrtemeut  under  wliich  the  goods  were  shipped 
did  not  raise  a  presumption  that  the  agreement 
was  fraudulent  and  collusive,  and  made  for 
the  purpose  of  covering  the  property  of  an 
enemy.    Ludlow  •».  Bowne,  1  Johns.,  2. 

7.  Open  policy  on  goods  on  American  brig 
from  New  York  to  Amsterdam.  "Warranted 
American  property,  not  to  abandon  in  case  of 
capture  or  detention  in  less  than  four  mouths 
after  advice,  or  till  after  condemnation,  and  the 
property  is  not  imported  by  the  exporters."  A 
certificate  of  origin,  accompanying  the  goods, 
stated  that  Ihey  were  purchased  and  exported 
from  Montevideo,  prior  to  its  capture  b^'  the 
English;  the  certiticate  of  importation  stated 
the  goods  were  imported  June  8, 1807 ;  it  read, 
"  and  for  which  the  duties  have  been  landed  ac- 
cording to  law."  The  clerk  who  made  it  omit- 
ted to  strike  out  the  printed  word  "  for  "  and  the 
words  "  the  duties."  If  those  had  been  erased, 
the  remainder  would  have  shown  that  the 
cargo  had  been  landed  according  to  law.  She 
was  captured  and  condemned  as  the  properly 
of  the  enemies  of  Great  Britain.  Held,  the 
certificate,  though  not  strictly  true,  did  not 
create  a  breach  of  the  warranty,  there  being 
no  evidence  mala  fide  against  insured.  Le  Boy 
V.  United  Tm.  Co.,  7  Johns.,  344. 

8.  "  On  the  good  American  ship  called  The 
Kodman."  Held,  she  was  warranted  Ameri- 
can, and  proof  that  she  was  owned  by  an 
American  citizen,  and  had  all  the  papers  re- 
quired by  an  American  vessel  except  her  reg- 
ister, but  that  siie  sailed  with  a  sea  letter, 
satisfied  the  warranty.  Barken'  v.  Phcenix Ins. 
Co.,  8  Johns.,  307. 

9.  On  cargo  froni  New  York  to  Havana, 
thence  to  Laguira,  or  Port(>  Cabello:  "War- 
ranted American."  Insured,  a  native  Ameri- 
can, a  merchant  of  New  York,  agreed  to  sell 
and  deliver  the  property  to  one  Levi,  at  either 
of  the  places  mentioned,  to  be  paid  for  on  de- 
livery; the  pri(^  of  the  goods  to  be  costs  and 
charges,  including  the  insurance,  and  five  per 
cent.,  together  with  a  dollar  per  barrel  freight 
if  delivered  at  Havana,  or  two  dollars  and  a 
half  if  delivered  at  Laguira  or  Porto  Cabello. 
Levi  intended  the  property  to  supply  the  gov- 
ernment at  either  of  the  places  named,  but 
that  fact  was  not  communicated  to  insured. 
Held,  the  risk  of  delivery  rested  on  tlie  ven- 

404 


dor  —  the  insured;  that  tbe  purchase  was  in- 
complete until  delivery  at  one  of  the  places 
appointed;  tliat  the  vendor  had  the  riglit  to 
insure,  and  this  right  did  not  cease  wlien  she 
reported  at  Havana  and  received  orders  to  pro- 
ceed to  Laguira;  that  the  consignees  at  Ha- 
vana, by  altering  the  bill  of  lading  for  Laguir.% 
did  not  thereby  accept  tlie  goods;  and  that 
the  warranty  meant  that  it  was  American 
property, by  the  law  of  nations;  and  it  was  so. 
Be  Wolf  V.  NeuD  York  Firemene'  Ins.  Co.,  20 
Johns.,  214;  affirmed,  3  Cow.,  56. 

10.  "Warranted American  "  Itwasproved 
that  she  was  owned  by  citizens  of  the  United 
States;  that  she  cleared  from  an  American 
port;  a  copy  of  her  register  produced  (the 
original  being  filed  in  the  tre.isury  depart- 
meut),  with  a  certificate  by  the  registrar  of  the 
department,  under  the  seal  of  the  department, 
that  he  is  registrar.  Held,  sufficient.  Catlett 
V.  Pacific  Ins.  Co.,  1  Wend.,  561 ;  affirmed,  4 
id.,  75. 

1 1.  A  British  license,  on  board  a  ship  bound 
to  a  neutral  port,  does  not  invalidate  a  policy 
on  her  cargo.   Hnyward  v.  Blake,  12  Mass.,  177. 

1 2.  Rescue  of  a  neutral  ship  from  a  bellig- 
erent is  a  breacli  of  neutrality,  and  will  exon- 
erate  the  insurer  in  case  of  loss;  but  it  is  the 
duty  of  belligerents  to  make  known  their 
character  as  such,  and  the  cause  for  which 
they  detain  neutrals;  and  when  they  omit  to 
do  so,  neutrals  are  not  bound  to  know  t.hem  as 
lawful  belligerents;  and  if  the  belligerent  dis- 
regards tlie  duty  imposed  by  the  law  of  na- 
tions, resistance  on  the  part  of  neutrals  is  not 
only  right,  but  a  duty.  M'Lellan  v.  MaiM 
Fire  and  Marine  Ins.  Co.,  12  3Iass.,  246. 

1 3.  "  On  the  good  British  brig."  Held,  not 
a  warranty  that  she  was  a  British  registered 
vessel,  but,  that  she  was  owned  by  a  BritisU 
subject.  And,  proof  that  she  was  owned  by  a 
Scotchman  by  birth,  and  that  he  navigated  her 
under  a  clearance  and  license  from  the  cu.stom 
house  at  New  Providence,  satisfied  the  war- 
ranty, pr«mrt /ac»«,  and  it  was  not  necessarj'  to 
prove  his  domicile.  Mackie  v.  Pleasants,  3 
Binn.,  363. 

1 4.  "  Warranted  American  bottom."  Held, 
it  was  satisfied  if  she  was  owned  by  a  citizen 
of  the  United  Slates;  not  necessary  to  prove 
she  was  American  built,  or  registered  Ameri- 
can.  Orifith  v.  Ins.  Co.  of  North  America,  5 
Binn.,  464. 

15.  "  Warranted  an  American  bottom;  tliat 


809 


NEUTRAL  PROPERTY. 


810 


Wliat  does  not  satisfy  the  warranty. 


I 


f>he  carries  with  her  tlie  documents  necessary 
to  prove  her  such."  She  was  sokl  by  the  in- 
sured, to  be  delivered  on  her  arrival  in  Lon- 
don, part  of  the  purchase  money  paid,  and 
for  the  balance,  promissorj'  notes  were  deliv- 
ered, payable  in  nine,  twelve  and  fifteen 
mouths,  which  were  duly  paid  subsequently 
to  the  loss.  Insured  fitted  the  vessel  for  sea, 
cleared  her  at  the  custom  house,  and  gave  the 
master  sailing  orders.  She  was  captured  and 
condemned.  Held,  the  purchase  and  sale  were 
not  incoinp.atible  with  law,  unless  it  was  en 
tered  into  to  lend  undue  aid  to  the  subject  of  a 
belligerent  power.  Murgutroyd  t.  Crawford, 
2TcatC9,  420;3Dall.,  491. 

16.  The  ship  was  not  stated  to  be  of  any 
particular  countrj',  but  in  the  letter  directing 
insurance,  she  was  described  as  carrying  the 
"  Kniphausen  flag,"  and  in  the  broker's  in- 
structions, shown  to  the  insurers,  she  was 
called  a  Kniphausen  vessel.  Held,  it  was  a 
representation  that  she  was  a  Kniphausen  ves- 
sel, and  consequently  neutral  property,  which 
was  satisfied  if  she  was  documented  and  navi- 
gated  according  to  the  laws  of  that  state.  Von 
Tunglen  v.  Du  Bois,  3  Camp.,  151. 

17.  "Warranted  a  neutral  ship  and  neutral 
property."  Both  ship  and  cargo  were  Dutch 
and  neutral  when  she  sailed,  but  hostilities 
were  declared  between  England  and  Holland 
Dine  days  after,  and  she  was  captured.  3eld, 
the  warranty  was  satisfied.  £!de/i  v.  Parki- 
son,  2  Doug.,  733. 

18.  A  policy  on  oil,  the  property  of  an 
American,  shipped  on  board  an  American 
ship,  from  New  York  to  Havre  de  Grace.  She 
was  captured,  taken  into  Bristol,  where  the 
property  insured,  with  the  rest  of  the  cargo 
and  the  ship,  were  restored  after  an  expensive 
litigation,  but  the  masterrefused  to  reload  the 
oil,  and  it  was  left  at  Bristol.  After  she  sailed 
from  New  York,  the  British  government  de- 
clared the  port  of  Havre  in  a  state  of  blockade. 
Held,  the  American  was  at  liberty  to  pursue 
his  commerce  with  France,  and  to  be  the  car- 
rier  of  goods  for  French  subjects,  at  the  risk 
of  having  his  voyage  interrupted  by  seizure, 
or  carrying  the  ship  into  British  ports,  for  the 
purposes  of  search  ;  that  the  mere  act  of  carry- 
ing such  goods  on  his  vessel  constituted  no 
violation  of  neutrality.  Barker  v.  Blakes,  0 
East,  283. 

19.  She  was  Portuguese,  and  warranted  neu- 
tral.   She  carried  an  English  supercargo,  con- 


trary to  a  French  ordinance,  but  neither  party 
knew  of  the  ordinance.  Held,  the  ordinance 
was  arbitrary,  and  contrary  to  the  law  of  n;i. 
tious,  and  therefore  the  insurer  was  liable  for 
her  capture.    Maym  v.  Walter,  3  Doug.,  79. 

20.  "  On  goods  from  London  to  Amsterdam, 
thence  to  St.  Eustatia,  in  any  neutral  ship." 
At  the  time  the  ship  sa,led  she  was  neutral 
property,  but  during  her  voyage,  hostilities 
commenced  between  Great  Britain  an:l  Hoi- 
land.  She  was  captured.  Insured  were  Amer- 
icans, one  of  them  resident  at  Philadelphia. 
Held,  it  was  not  afTected  by  the  statute,  16  Geo. 
Ill,  ch.  5,  and  insurer  was  liable.  Tyson  r>. 
Qurney.  ?,  Term,  477. 

21.  "  Warranted  American."  She  was  cap), 
tured  and  condemned,  on  the  ground  that  she 
belonged  to  the  enemies  of  the  French  Repub- 
lic. Held,  not  evidence  that  she  was  not 
American.     Christie  v.  Secretan,  8  Term,  192. 

II.  "What  does  not  satisfy  the  war- 

RANTT. 

1.  She  sailed  in  April,  taking  Spanish  as 
well  as  American  papers.  She  was  captured 
by  a  French  privateer,  retaken  by  a  British 
and  carried  into  Nassau,  libeled  and  con- 
demned as  the  property  of  French  citizens. 
She  was  warranted  American  propeity.  Held, 
evidence  that  the  warranty  was  broken.  Cal- 
breath  v.  Gracy,  1  Wash.  C.  C,  219. 

2.  Warranted  American  property.  In  con- 
sequence  of  large  repairs  needed,  she  was  hy- 
pothecated to  a  Dutch  merchatit,  who  took 
passage  in  her.  He  died  on  the  voyage.  She 
was  captured.  Held,  the  hypothecation  falsi- 
fied the  warranty,  and  the  insured  could  not 
recover.  Schwartz  v.  Insurance  Company  of 
North  America,  3  Wash.  C.  C,  117. 

iS.  On  cargo,  $2,326;  on  freight,  .f  1,860;  on 
profits,  $5,814;  freight  valued  at  $30,000;  prof- 
its at  $25,000;  warranted  American  property, 
from  port  or  ports  of  lading  in  Europe,  to,  at 
and  from  any  port  or  ports,  place  or  placi  s, 
for  a  term  of  eighteen  monilis.  Part  of  the 
goods  belonged  to  Spanish  passengers.  Ileld, 
the  warranty  extended  to  all  the  cargo,  and 
therefore,  the  insurers  were  discharged.  Bay. 
iird  V.  Massachusetts  Fire  and  Marine  Ins.  Co., 
4  Mason,  25fi. 

4.  A  warranty  that  property  is  neutral  im- 
ports  not  merely  that  the  property  is  neutral, 
but  that  on  the  voj-age  it  shall  be  accompanied 

405 


811 


NEUTRAL  PROPERTY. 


812 


What  does  not  satisfy  the  warranty. 


by  all  the  accustomed  documents  necessary 
to  insure  it  respect  as  such  within  the  law 
of  nations.  Blagge  v.  New  Turk  Ins.  Co.,  1 
Caines,  549.  And  when  the  insured,  by  means 
of  false  papers  or  by  any  improper  conduct,  in- 
vests the  property  with  a  double  character, 
neutral  and  belUgerent,  it  is  thereby  subjected 
to  a  risk  the  insured  did  not  lake,  and  releases 
Uim.    Ibid. 

5.  If  the  property  is  warranted  ueutral,  an 
assignment  of  part  of  it  after  capture  to  a 
belligerent  is  a  breach  ol  the  warranty.  Goold 
V.  United  Ins.  Co.,  3  Caines,  73. 

ti.  On  goods  from  New  York  to  Ports  in 
Cuba,  "  Warranted  American  property."  They 
belonged  to  two  native  merchants  in  New 
York,  and  a  native  American,  resident  of 
Havana,  the  American  consul.  They  were 
joint  owners  in  the  ship  and  partners  in  ihe 
cargo.  Held,  the  American  residing  at  Hav- 
ana, carrying  on  trade  as  a  merchant  there, 
must  be  considered  as  domiciled  in  that  coun- 
try;  that  his  property  was  subject  to  capture 
and  condemnation  by  a  belligerent,  and  there- 
fore the  warranty  was  not  verified,  and  that 
the  insurers  were  not  liable.  Arnold  v.  United 
Ins.  Co.,  1  Johns.  C,  363. 

7.  Where  the  property  is  warranted  Ameri- 
can, and  a  vice  court  of  admiralty  condemns 
it  as  belonging  to  subjects  of  the  king  of 
Spain,  the  warranty  is  broken.  Vandenlieuvel 
».  United  Ins.  Cc,  2  Johns.  C,  127. 

8.  On  ship  "warranted  American  proper- 
ty," dated  November  1,  1796,  at  which  time 
she  was  owned  by  a  native  American  citizen ; 
April  29,  1797,  he  sold  her  to  a  British  sub- 
ject, who  was  naturalized  April  6,  1797.  She 
sailed  May  3d,  and  was  captured  on  the  25th. 
Held,  the  purchaser  was  to  be  considered  as 
changing  his  domicile  and  emigrating, 
flagrante  bello,  hence  the  warranty  was  broken. 
Jackson  v.  New  York  Ins.  Co.,  2  Johns.  C, 
192 ;  overruled,  id.,  476. 

9.  "  Warranted  American  property."  Held, 
the  necessary  documents  evincing  that  char- 
acter and  insuring  respect  to  it  as  such,  within 
the  law  of  nations,  must  accompany  her,  or 
the  warranty  is  not  satisfied.  Coolidge  v.  New 
York  Firemen's  Ins.  Co.,  14  Johns.,  308. 

10.  "  On  cargo  warnmted  Swedish  proper- 
ty, from  New  Haven  to  St.  Bartholomew." 
She  was  never  heard  of,  and  a  year  and  day 
having  elapsed,  suit  was  brought  for  a  total 
loss.     One  of  the  insured  resided  in  America 

406 


from  1811.  Held,  his  residence  for  such  a 
length  of  time  raised  the  presumption  thai  he 
intended  to  reside  tliere  permanently,  and  thai 
the  warranty  was  therefore  not  verified ;  that 
the  property  would  have  been  liable  to  bellig- 
erent capture  and  condemnation,  hence  in- 
surer was  released,  hlbers  v.  United  Ins.  Co.,  10 
Johns.,  129. 

11.  "On  cargo.  Charleston  to  Cadiz,  war- 
ranted American  property,  to  be  proved  if  re- 
quired in  the  city  of  Philadelphia  and  not 
elsewhere."  She  sailed  June  8th,  at  which 
time  the  blockade  of  Cadiz  was  not  known. 
While  steering  for,  and  no  great  distance  from 
Cadiz,  she  was  brought  to,  the  master  taken 
on  board  the  Hector,  thence  to  the  admiral's 
ship.  A  part  of  the  crew  were  taken  out  and 
an  officer  and  eight  men  put  on  board,  with 
orders  to  stay  by  the  fleet.  Ten  days  after- 
wards, by  indorsement  on  her  papers,  she  was 
warned  not  to  enter  Cadiz  or  St.  Lucas,  but 
permitted  to  go  to  any  other  port.  On  the 
day  after,  the  captain  was  again  taken  before 
the  admiral,  who  said  to  him,  "  We  have 
thoughts  of  setting  you  at  liberty;  if  we  do, 
what  course  will  you  steer;  or  what  port  will 
you  proceed  for?"  The  master  replied,  "In 
case  I  receive  no  new  orders  or  new  instruc- 
tions, I  shall  follow  my  old  ones."  The  ad- 
miral replied,  "  I  suppose  that  will  be  for 
Cadiz?"  to  which  the  master  rejoined,  "Cer- 
tainly, unless  I  have  new  orders."  She  was 
carried  into  port  and  condemned.  Held,  Uiat 
the  sentence  of  condemnation  was  not  con- 
clusive; that  the  insured  was  entitled  to  satis- 
fy the  warranty  by  proof  satisfactory  to  a 
court  and  jury  in  the  city  of  Philadelphia, 
and  not  elsewhere;  that  the  property  was 
American,  and  that  the  conduct  of  the  master 
in  the  bay  of  Cadiz  was  not  such  as  to  throw 
off  that  character  and  forfeit  the  protection 
due  American  property.  Calhoun  v.  Insur- 
ance Co.  of  Pennsi/hania,  1  Biun.,  293 ;  Wil- 
cocks  V.  Union  Ins.  Co.,  2  id.,  574. 

12.  Vessel  and  goods  were  warranted 
American  property-  Loss  by  capture.  Held, 
the  whole  property  on  board  the  ship  was 
liable  to  condemnation  by  the  law  of  nations, 
if  the  general  agents  of  the  ship  and  cargo  at- 
tempted to  deceive  one  of  the  belligerent 
powers,  by  covering  the  property  of  an  enemy. 
Phosnix  Ins.  Co.  i>.  Pratt,  2  Binn.,  308. 

13.  H.  and  C,  owners  of  ship,  were  in- 
formed  by  the  master  that  he  would  load  with 


S13 


NEUTRAL  PROPERTY. 


814 


Generally. 


«aU  for  their  account.  They  insured  it,  and 
•B-arranted  it  American  property.  The  agents 
•of  the  ship  (British  subjects)  purchased  the 
•cargo,  but  finding  that  funds  in  hand  were 
not  sufficient  to  pay  tlierefor,  took  for  it  a  bill 
•of  lading  in  the  names  of  C.  and  R.,  directing 
them  to  deliver  the  cargo  to  II.  and  C.  upon 
payment  of  a  balance  named;  and  if  tluit 
should  not  be  paid,  to  sell  the  cargo  for  ship- 
pers' account,  iiaying  to  H.  and  C.  a  balance 
named.  The  shippers  also  insured  the  cargo. 
Meld,  the  property  was  not  in  H.  and  C,  and 
that  it  was  not  '"American."  Wardei'  v.  Hor- 
ion,  4  Binn.,  529. 

14.  "On  ship  with  lib'rly  to  touch  and 
trade,  etc.,  warranted  American  propertj." 
In  the  order  for  insurance  it  was  slated,  she 
sailed  under  a  sea  letter  or  certificate,  and  that 
her  out  cargo  was  wholly  or  partly  contraband 
of  war.  Held,  the  warranty  was  not  satisfied 
if  the  propertj'  was  not  neutral  for  all  pur- 
poses; that  she  must  be  navigated  according 
to  the  law  of  nations,  and  must  be  furnished 
with  every  document  proper  to  evince  her 
neutral  character;  that  papers  anti-neutral 
must  not  be  on  board  to  compromit  her  neu- 
trality; that  the  insured  and  their  agents  must 
<3o  nothing  in  violation  of  the  rules  laid  down 
by  nations  for  the  conduct  of  neutrals. 
JSchwartz  v.  Insurance  Co.  of  North  America,  6 
Binn.,  378;  Ludlow  v.  Union  Ins.  Co.,  3  S.  & 
R,  119. 

15.  The  insured  warranted  the  property 
American.  She  was  captured.  Held,  the  war- 
ranty was  falsified  if  papers  were  concealed 
by  insured  on  board  of  the  vessel  which 
caused  the  capture.  Carrere  v.  Union  Ins. 
Co.,  3  H.  &  J.,  324. 

16.  Warranted  neutral.  She  foundered  at 
«ea,  but  the  evidence  showed  that  she  was  not 
the  property  of  neutrals.  Held,  insurers 
were  discharged.  Woolmer  v.  Midlinan,  1  W. 
Bl.,  427. 

17.  "  Warranted  American  property."  The 
treaty  between  France  and  America  required 
American  vessels  to  have  sea  letters  or  pass- 
ports expressing  name,  property,  tonnage,  etc., 
of  ship.  She  had  not  any  such  document  on 
board,  but  was  bound  from  London  to  Gueru- 
■sey,  thence  to  the  coast  of  Africa.  There  was 
M.  that  time  war  between  France  and  England. 
fihe  was  captured.  Ileld,  the  warranty  was 
not  preserved.  Rich  v.  Parker,  7  Term,  705; 
•9.  c,  2  Esp.-,  615. 


18.  "Warranted  Danish  property."  Slie 
was  seized  and  carried  into  port  by  a  belliger- 
ent  for  the  purposes  of  search,  but  the  master 
and  crew  rescued  her,  and  she  was  condemned 
on  the  ground  that  tlie  master  and  crew,  in 
direct  violation  and  breach  of  their  neutrality 
as  Danish  subjects,  and  contrary  to  the  law 
of  nations  and  the  faith  of  treaties,  violently 
seized  and  took  possession,  etc.  Ileld,  it  was 
a  forfeiture  of  her  neutrality,  and  a  breach  of 
of  the  warranty.  Oarrels  v.  Kensington,  8 
Term,  230. 

19.  The  sentence  of  condemnation  stated 
that  she  was  not  documented,  as  required  by 
treaty  between  captors  and  captured.  Held, 
the  condemnation  negatives  the  warranty  of 
neutrality.  Baring  v.  Boyal  Exchange  Ass 
Co.,  5  East,  99;  Bolton  v.  Gladstone,  5  id.,  15^5, 

III.  Genekallt. 

1.  When  a  vessel  is  described  in  the  policy 
as  an  "American  ship,"  she  is  warranted 
American.    Ooix.  v.  Law,  1  Johns.  C,  341. 

2.  A  copy  of  the  ship's  register,  certified 
by  the  collector,  with  proof  of  his  hand  writ- 
ing, is  not  evidence  that  the  ship  is  Amer- 
ican, nor  that  she  is  the  property  of  the  per- 
son named  in  it,  unless  it  is  authenticated  by 
the  oath  of  a  witness  who  has  seen  the  orig- 
inal. Coolidge  v.  New  York  Firemen's  Ins.  Co., 
14  Johns.,  308. 

3.  Umler  a  warranty  of  neutrality,  the 
wan'antor  must  see  that  she  is  completely 
documented,  and  that  she  complies  in  every 
respect  with  the  marine  regulations  of  the 
enemies'  countries.  Barzillai  v.  Lewis,  3  Doug., 
126. 

4.  A  neutral  American  ship,  insured  in 
England,  was  captured  and  condemned  in  a 
French  port  as  prize,  on  the  ground  that  she 
was  not  documented  according  to  treaty.  Held, 
insured  could  not  recover,  although  there  was 
no  warranty  that  the  ship  was  American,  for 
ship  owners  are  bound  to  provide  proper  na- 
tional documents  for  their  ships.  Bell  v.  Car- 
stairs,  14  East,  374 ;  2  Camp.,  543. 

5.  A  British  subject,  domiciled  in  America, 
effected  a  policy  on  ship,  freight  and  goods, 
at  and  from  Virginia  to  any  ports  in  tlie  Bal- 
tic. Denmark  was  at  peace  with  America, 
but  at  enmity  with  England.  She  was  cap- 
tured  on  a  voyage  to  Elsineur,  in  Denmark 
Held,  the  insured  was  entitled  to  recover. 
Bell  V.  Reid,  1  Mau.  &  Sel.,  726. 

407 


815 


NEW  TRIALS. 


816 


What  is  cause  for. 


NEW  TRIALS. 

L  What  is  cause  fok. 

II.  NOT  CAUSE  FOR. 

III.  When  the  new  triaIj  must  be  con- 
fined TO  one  pakticular  question. 

I.  What  is  cause  for. 

1.  "On  profits,  from  Callao  to  Baltimore, 
free  of  average  and  salvage,  policy  to  be  only 
proof  of  interest  required."  She  sailed  on 
the  voyage,  and  was  never  heard  of.  Held,  if 
there  was  a  material  mistake  in  point  of  law, 
prejudicial  to  the  defendants,  they  were  en- 
titled to  a  new  trial;  or  if  there  was  a  failure 
to  try  the  cause  upon  its  fair  merits  in  point 
of  fact,  the  same  result  must  follow.  Alsop  v. 
Commercial  las.  Co.,  1  Suma.,  4.51. 

2.  Weight  of  evidence.  Where  the  ver- 
dict is  contrary  to  the  conclusions  legally  to 
be  drawn  from  the  facts,  there  must  be  a  new 
trial  ordered.    Patrick  v.  Hallet,  3  Johns.  C,  76. 

3.  —  The  court  holds  in  this  case  that  the 
verdict  is  manifestly  against  the  weight  of 
evidence,  and  that  a  new  trial  is  necessary  to 
a  proper  determination  of  the  rights  of  the 
parties.  Kinsman  v.  New  York  Mut.  Ins.  Co., 
5  Bos.,  460. 

4.  —  The  jury  found  specially  that  the  agent 
had  authority,  but  the  evidence  in  the  opinion 
of  the  supreme  court  was  not  sufficient  to 
maintain  the  finding.  Held,  the  judgment 
must  be  set  aside.  Ilyan  v.  World  Mutual  Life 
Ins.  Co.,  41  Conn.,  168. 

5.  Instructions.  The  court  instructed  the 
jury  that  there  was  no  evidence  upon  a  partic- 
ular point ;  but  there  was  some  evidence  upon 
it.  Held,  the  case  must  be  submitted  to  an- 
other jur}-,  notwithstanding  the  jury  found 
against  the  court's  instructions.  Flemming  v. 
Marine  Ins.  Co.,  4  Whart.,  .59. 

6.  Weight  of  evidence.  The  court  will 
not  confirm  a  verdict  where  it  is  not  warranted 
by  the  law  and  the  evidence,  notwithstanding 
it  is  the  third  verdict  the  same  way.  Bryant 
V.  Commonwealth  Ins.  Co.,  13  Pick.,  548. 

7.  Excessive  damages.  Upon  an  applica- 
tion for  a  new  trial,  it  appeared  that  the  prop- 
erty was  insured  in  another  company,  which 
was  liable  for  its  portion  of  the  loss.  Held,  a 
new  trial  must  be  granted,  unless  the  plaintifi' 

will  remit  the  excess.    Mec/ianics  Fire  Ins. 
Co.  V.  Js'iclwls,  16  X.  J.,  410. 

408 


8.  Absence  of  witne.ss.  The  plaintiff's 
brother,  a  material  witness  for  the  plaintiff, 
hired  a  material  witness  for  the  defendant  to 
absent  himself  from  the  reach  of  proce.ss,  sa 
that  he  could  not  be  summoned  as  a  witness. 
The  defendants  instituted  inquiries  for  him, 
but  issued  no  summons.  Held,\\ie  verdict  and 
judgment  must  be  set  aside.  Atlantic  Muttial 
Fire  Ins.  Co.  v.  Sanders,  36  N.  H.,  252. 

9.  Weight  of  evidence.  Stipulated:  "If 
the  person  whose  life  is  insured  shall  die  by 
reason  of  intemperance,  from  the  use  of  intox. 
icating  liquors,  it  shall  be  void."  The  ev.. 
deuce  was  conclusive  that  the  cause  of  hi» 
death  was  an  excessive  use  of  intoxicating 
liquor;  but  the  jury  found  for  the  insured. 
Held,  the  verdict  and  judgment  must  be  set 
aside.  Miller  v.  Mutual  Benefit  Life  Ins.  Co., 
34  Iowa,  222. 

10.  — Two  juries  found  the  same  way  for 
the  plaintiff  for  the  whole  amount  of  his  claim. 
The  supreme  court  was  of  opinion  that  the  evi- 
dence  did  not  sustain  the  finding,  hence  the 
judgment  was  reversed.  111.  S.  C.  Lycoming 
Ins.  Co.  v.  Ruhin,  8  Chi.  Leg.  News,  150. 

11.  — Stipulated;  "If  the  interest  insured 
be  any  other  than  the  entire,  unconditional 
and  sole  ownership  of  the  property  for  the  use 
and  benefit  of  t!ie  insured,  it  must  be  so  repre- 
sented to  the  company,  and  so  expressed  in  the 
written  portion  of  this  policy,  otherwise  this 
company  shall  not  be  liable.  The  person  in- 
sured bid  in  the  property  at  a  decretal  sale, 
but  had  not  paid  any  of  the  purchase  money 
at  the  time  it  was  consumed.  His  wife  had  a 
dower  estate  in  it  as  the  widow  of  her  former 
husband.  In  his  preliminary  proofs  of  loss, 
he  made  oath  that  his  title  was  exclusive  and 
unincumbered,  and  that  no  other  person  had 
any  interest  in  it.  The  jury  found  a  verdict 
for  the  insured.  Held,  it  was  not  authorized 
by  the  law  and  the  facts;  that  it  was  contrary 
to  both,  and  must  be  set  aside.  Security  Ins. 
Co.  V.  Bronger,  6  Bush,  146. 

12.  Imperfect  findings.  Stipulated:  "That 
the  insurer  shall  not  be  liable  if  the  person 
insured  shall  die  in  the  known  violation  of  li 
law  of  this  state."  The  finding  of  the  court 
below  was  imperfect.  Held,  the  cause  must 
be  remanded  for  further  proceedings.  Harper 
V.  Phceniz  Life  Ins.  Co.,  18  3Io.,  109. 

13.  Weight  of  ertdence.  On  tobacco. 
"Warranted  not  liable  for  injury  to  goods  by 
dampness,    change    of  flavor,    or-   by    being 


817 


NEW  TRIALS. 


SIS 


What  is  not  cause  for. 


spotted,  discolored  or  mouldy,  unless  the  same 
1)0  actually  caused  by  contact  with  sea  water." 
She  commenced  leaking  soon  after  she  put  to 
sea,  and  before  there  had  been  any  stress  of 
■weather;  subsequently,  tempestuous  weather 
was  encountered,  which  caused  further  e.xpo- 
sure  of  the  cargo  to  sea  water.  The  sea  water 
came  in  actual  contact  with  someof  the  pack- 
ages of  tobacco;  but  evidence  was  given  to 
show  that  the  tobacco  had  been  injured  by 
age  and  frequent  transportation;  it  was 
moulded  and  dry,  and  the  boxes  decayed. 
Held,  the  evidence  did  not  authorize  a  judg- 
ment for  the  insured.  Lefticitch  v.  St.  -Louis 
Perpetual  Ins.  Co.,  5  La.  An.,  706. 

14.  —  Two  verdicts  for  the  plaintiff  had  been 
set  aside,  and  this,  the  third,  was  again  given 
for  him.  The  court  set  this  aside  also,  be- 
cause, upon  the  plaintifl''s  own  statements,  he 
was  not  entitled  to  judgment.  HaicortU  v. 
British  American  Ass.  Co.,  6  U.  C.  C.  P.,  60. 

15.  Mistake  of  witness.  The  court  will 
grant  a  new  trial  in  order  to  let  the  defendant 
produce  a  necessary  document  where  the  non- 
production  on  the  trial  was  caused  by  the  mis- 
lake  of  his  witness.  D'Aguilnr  v.  Tobin,  3 
Marsh.,  2Go. 

11).  Wcig;Iit  of  evidence.  On  ship,  tackle 
apparel  and  furniture.  There  was  contradic- 
tory evidence  as  to  the  usage  of  insuring  the 
fishing  tackle  in  express  terms,  and  the  court 
gave  a  new  trial  to  the  defendant.  Iloskins  v. 
Pickersgill,  3  Doug.,  233. 

,  17.  Difl'erence  between  claim  cand  verdict. 
When  the  claim  of  the  insured  is  largely  in 
excess  of  the  damages  found  by  the  jury,  the 
court  will  grant  a  new  trial.  Levy  v.  Bailie, 
5  M.  &  P.,  308;  7  Bing.,  349. 

18.  Imperfect  trial.  To  a  port  of  dis- 
charge in  the  British  West  India  Islands,  with 
or  without  letter  of  marque.  Held,  the  case 
must  be  sent  back  for  another  trial,  that  it  may 
1)6  ascertained  in  what  manner  parties  to  con- 
tracts containing  these  words,  have  acted  upon 
them  in  former  instances  by  paying  losses 
upon  them,  and  whether  the  words  have  as 
yet  obtained  any  and  what  definite  im  ort. 
Parr  v.  Anderson,  6  East,  202. 

II.  What  is  not  cause  for. 

1.  Several  verdicts  the  same  way.    The 

fact  alleged  to  have  been  concealed  had  been 
twice  submitted  to  a  jury,  who  have  found  that 


it  was  not  material.    The  court  now  refused 
to  grant  another  trial.    Livingston  v.  Belafield, 

I  Johns.,  523. 

2.  —  FourdiPTorent  juries  found  verdicts  the 
same  way.  Held,  on  a  motion  for  a  new  trial 
on  the  last  finding,  that  the  court  would  not 
iuterfere.  Talcot  v.  Commercial  Ins.  Co.,  2 
Johns.,  467. 

3.  Conflicting  evidence.  Where  the  evi- 
dence  is  conflicting  upon  a  given  point,  the 
court  will  not  interfere  with  the  verdict,  al- 
though  not  perfectly  satisfied  that  the  weight 
of  evidence  warranted  the  conclusion  reached 
by  the  jury.    Patrick  v.  Commercial  Ins.  Co., 

II  Johns.,  9. 

4.  —  A  verdict  was  taken  subject  to  the 
opinion  of  the  court.  Held,  the  court  will 
draw  in  support  of  it  every  inference  which  a 
jury  would  be  justified  in  drawing  from  the 
evidence.  Williams  v.  Insurance  Co.  of  North 
America,  1  Hilt.,  345. 

5.  Weight  of  evidence.  Where  a  question, 
entirely  for  the  jury,  is  submitted  and  passed 
upon  by  them,  the  verdict  will  not  be  set  aside 
as  against  evidence,  unless  it  be  clearly  so, 
even  though  the  finding  be  directly  contrary 
to  the  charge  of  the  court.  Astor  v.  Union  Ins. 
Co.,  7  Cow.,  202. 

6.  Incompetent  evidence  was  admitted. 
Held,  the  court  will  not  reverse  the  judgment 
if,  after  rejecting  the  incompetent  evidence, 
there  is  sufl3cient  evidence  to  sustain  thejudg. 
nient.  St.  John  v.  American  Mutual  Life  Ins. 
Co.,  13  N.  Y.,  31 ;  3  Duer,  419. 

7.  Several  findings  the  same  way.  Al- 
though the  court  is  not  satisfied  with  a  verdict, 
yet  after  two  findings  the  same  way,  a  new 
trial  will  not  be  granted.  Fowler  ».  JEtna  Ins. 
Co.,!  Wend., 370. 

8.  Seaworthiness.  The  question  of  sea- 
worthiness was  submitted  to  the  jury,  who 
found  against  the  defendant.  Held,  the  court 
would  not  interfere  with  the  finding.  Brioso 
V.  Pacific  Mat.  Ins.  Co.,  4  Daly,  246. 

9.  Evidence  conflicting.  In  the  applica- 
tion for  insurance,  the  applicant  was  asked; 
"Have  you  ever  had  any  serious  illness,  or 
personal  injury?"  Ans.  "No;  fever  seven 
years  ago."  The  examining  physician  asked 
certain  other  questions,  and  from  the  answer* 
given,  made  his  report;  but  it  appeared  that 
prior,  in  the  same  year,  insured  had  an  attack 
(f  sickness,  after  which  he  presented  himsclr 
to  a  physician  of  the  Equitable  Ins.  Co.,  and 

409 


S19 


NEW  TRIALS. 


820 


What  is  not  cause  for. 


•was  by  him  accepted  for  $10,000  for  the  bene- 
fit of  his  wife;  that  subsequently  he  was  ex- 
amined by  F.,  one  of  defendant's  examining 
physicians,  who  refused  his  application,  but 
afterwards  one  of  insurers'  agents  procured 
another  of  defendant's  examining  physicians 
to  examine  him  for  this  risk,  who  certified 
that  he  was  a  good  risk.  The  referee  found  in 
favor  of  insured.  Held,  the  finding  of  the  ref- 
eree as  to  the  character  of  his  illness  would 
not  be  disturbed,  inasmuch  as  there  was  abund- 
ant medical  testimony  to  sustain  it.  llogle  v. 
■Guardian  Life  Lis.  Co.,  4  Abb.  Pr.  (N.  S.),  346 ; 
S.  C,  6  Rob.,  567. 

1 0.  Error  in  law.  If  the  court  upon  the 
evidence  given  would  have  been  bound  to  set 
aside  a  verdict  for  the  plaintiff,  a  new  trial 
•will  not  be  granted  upon  plaintiff's  motion, 
though  there  .was  error  in  the  court  below. 
Hoyt  V.  Oilman,  8  Mass.,  335. 

11.  Newly  discovered  evidence,  merely 
corrobative  or  cumalative,  is  no  ground  for  a 
new  trial.  Mechanics  Fire  Ins.  Co.  v.  Nichoh, 
16  N.  J.,  410. 

12.  Newly  discovered  evidence  does  not 
in  all  cases  give  the  right  to  a  new  trial.  It 
must  appear  probable  that  injustice  has  been 
done;  that  it  is  so  controlling  in  its  character 
as  to  raise  a  presumption  that  it  will  affect  the 
finding  upon  a  new  trial.  If  it  merely  con- 
tradicts or  impeaches  a  witness,  and  does  not 
go  directly  to  the  merits  of  the  controversy,  it 
affords  no  ground  for  a  new  trial.  Crafts  v. 
Union  Mutual  Fire  Ins.  Co.,  36  N.  H.,  44. 

13.  Weight  of  evidence.  No  direct  evi- 
dence was  offered  by  either  party  as  to  the 
cash  value  of  the  building,  but  the  plaintiff 
proved  its  cost  when  erected,  forty  years  be- 
fore, and  the  amount  required  to  erect  such  a 
building  at  the  present  time.  Held,  the  court 
was  not  able  to  say  wh.at  the  true  value  was 
between  these  two  extremes;  that  the  jurj' 
■were  better  judges  of  that  than  the  court,  and 
therefore  the  judgment  would  not  be  set  aside. 
Tuckerman  v.  Home  Int.  Co.,  9  R.  I.,  414. 

14.  lastrnctions.  Refusing  to  give  a  proper 
instruction  is  not  cause  for  reversal,  if  the 
proposition  contained  in  it  was  substantially 
stated  in  another.  New  York  Life  Ins.  Co.,  v. 
Flack,  3  Md.,  341. 

15.  —  A  court  in  banc  will  not  consider 
questions  not  raised  in  the  court  below.  Gaz- 
sam  v.  Cincinnati  Ins.  Co.,  6  Ohio,  71. 

16.  Conflict  of  evidence.     If  the  jury  upon 
410 


a  given  state  of  facts  might  have,  but  did  not 
find,  for  the  insurer,  the  appellate  court  can- 
not  set  aside  the  verdict  without  being  guilty 
of  an  unauthorized  encroachment  on  the 
right  of  trial  by  jury.  New  York  Life  Ins. 
Co.  V.  Ovaham,  2  Duvall,  500. 

17.  Motion  for.  It  is  presumed  that  if  the 
verdict  of  a  jury  is  unsustained  by  the  facts, 
the  presiding  judge  who  has  given  no  opinion 
on  them  will,  on  motion,  grant  a  new  .trial, 
and  if  no  motion  has  been  made  for  a  new 
trial,  the  party  who  failed  to  seek  it  in  the 
proper  form  cannot  obtain  it  in  the  court 
above.     Union  Ins.  Co.  v.  Croom,  4  Bush,  289. 

18.  Error  in  law.  The  court  will  not  re- 
verse, when,  looking  at  the  whole  case,  justice 
seems  to  have  been  administered,  notwith- 
standing the  court  below  erred  in  some  of  the 
charges  given  to  the  jury.  Southern  Insurance 
and  Trust  Co.  v.  Lewis,  42  Ga.,  587. 

1 9.  Seaworthiness.  A  question  of  sea- 
worthiness is  peculiarly  within  the  province 
of  a  jury,  and  though  the  witnesses  be  equal 
in  number  and  respectability,  on  opposite 
sides  of  the  question ;  though  the  opinion  of 
the  court  be  against  the  finding  of  the  jur}-, 
still  the  court  will  not  set  aside  the  verdict. 
Fuller  V.  Alejtander,  1  Brev.,  149. 

20.  Power  of  the  supreme  court  of  Mis- 
souri. The  supreme  court  has  no  power  to 
review  question's  of  fact  found  by  a  jury  on 
proper  instructions  given.  That  is  the  prov- 
ince  of  the  judge  who  tried  the  case;  and 
when  the  verdict  is  approved  by  the  judge 
before  whom  the  case  was  tried,  this  court 
must  assume  tliat  the  finding  was  correct. 
Schultz  V.  Merchants  Ins.  Co.,  57  Mo.,  331; 
Beid  i\  Piedmont  and  Arlington  Life  Ins.  Co., 
58  Mo.,  421. 

21.  Evidence  conflicting.  The  court  will 
not  interfere  with  the  finding  of  a  jur}-,  if  the 
evidence  is  conflicting.  SchuHs  v.  Merchants 
Ins.  Co.,  57  Mo.,  381. 

22. —Though  the  court  is  obliged  to  con 
fess  that  there  is  serious  conflict  in  the  evi- 
deuce,  the  case  will  not  be  reversed  if  the  ver- 
dict is  not  so  groundless  as  to  startle  the  sense 
of  justice  Mutual  Benefit  Life  Ins.  Co.  v.  Can- 
non,  48  lud.,  264. 

23.  Justice  having  been  done,  error  will 
not  reverse.  The  petition  alleged  enough  to 
show  that  the  defendants  were  legally  in  de- 
fault. It  did  not  express,  in  detail,  a  compli- 
ance with  the  conditions  of  the  policy ;  but  the 


S21 


NEW  TRIALS. 


822 


What  is  not  cause  for. 


record  showed  proof  of  compliance  with  all 
the  conditions.  Held,  tlie  ends  of  justice  hav- 
ing been  ullaincd,  the  court  would  not  grant 
a  new  trial.  Mamn  v.  Louisiana  State  Ins.  Co., 
1  Rob.  (La.),  193. 

24.  The  evidence  was  very  contradict- 
ory. Held,  The  court  would  not  disturb  tlie 
verdict,  because  not  convinced  that  truth  had 
been  violated  by  the  jury's  verdict.  Cole  v. 
Louisiana  Ins.  Co.,  14  Martin  (La.),  165. 

2.5.  Seaworthiness.  The  jury  found  the 
issue  of  seaworthiness  against  the  insurer. 
The  evidence  was  very  contradictory.  Held, 
though  the  court  did  not  think  the  weight  of 
the  evidence  was  with  the  insured,  yet  they 
would  not  set  the  verdict  aside.  Hyde  v.  Lou- 
isiana State  Ins.  Co.,  14  Martin  (La.),  410. 

26.  Evidence  conflicting.  Insurers  de- 
fended on  the  ground  that  insured,  at  the  time 
of  the  fire,  did  not  have  the  amount  of  goods 
declared  bv  them  in  the  statement  of  loss  de- 
livered to  insurers;  that  insured  were  fraudu- 
lently seeking  to  recover  for  a  loss  they  had 
■Iiad  not  incurred.  Held,  the  burden  was  upon 
insurer,  to  show  that  the  loss  was  exaggerated ; 
that  the  question  was  one  of  fact,  purely,  for 
the  jury,  with  which  the  court  would  not  in- 
terfere.  Ouma  V.  Hope  Ins.  Co.,  16  La.  An.,  415. 

27.  Error  in  law.  If  the  court  is  satisfied 
that  the  judgment  is  right,  it  will  not  reverse, 
though  erroneous  instructions  were  given  to 
the  jury.  Peoria  Marine  and  Fire  Ins.  Co.  v. 
Frost,  37  111.,  333. 

28.  Weislit  of  evidence.  Where  the  ques- 
tion is  one  of  fact,  this  court  will  not  reverse, 
unless  the  finding  in  the  court  below  was 
plainly  against  the  evidence.  Hope  Ins.  Co. 
e.  Lonergan,  48  111.,  49. 

29.  Diligence.  A  party  cannot  willfully 
absent  himself  from  the  court,  aud  then  claim 
a  new  trial,  on  the  ground  that  he  could  have 
introduced  evidence  to  reduce  the  verdict, 
had  he  been  present.  To  entitle  one  to  a  new 
trial,  he  must  show  that  he  used  reasonable 
diligence.  Hartford  Fire  Ins.  Co.  v.  Vandu- 
sor,  49  111,489. 

30.  The  evidence  was  conflicting.  Hdd, 
before  the  court  could  interfere  with  the  find- 
ing of  llie  jury,  it  must  appear  clearly  that  the 
jury  have  either  mistaken  the  evidence,  or 
their  conclusions  were  opposed  to  the  whole 
tenor  of  it.  Commercial  Ins.  Co.  v.  Huchber- 
ger,  52  111.,  464. 

31.  — In  all  cases  where  llie  evidence  is 


conflicting  on  questions  of  mere  value,  about 
which  men  dift'er  so  widely  in  their  judg- 
ments, the  court  must  rely  upon  the  verdict 
of  the  jury.  Insurance  Co.  of  North  America 
V.  Hope,  58  111.,  75. 

32.  — In  answer  to  certain  questions  pro- 
pounded in  the  application,  he  stated  that  his 
health  had  always  been  good,  that  he  had 
never  had  any  serious  sickness.  Defense: 
That  he  had  delirium  tremens,  upon  which 
the  evidence  was  conflicting.  Held,  the  court 
would  not  interfere  with  the  finding.  111.  S.  C. 
Teutonia  Life  Ins.  Co.  v.  Seek,  7  Chi.  Leg. 
News,  190. 

33. — On  sixty-four  casks  soda  ash,  Burling- 
ton warehouse  B ;  one  hundred  and  fiftj-.seven 
casks  bleacliing  powder,  ditto.  The  ware- 
house contained  two  apartments  designated  A 
aud  B  respectively.  The  goods  were  cou- 
sumed  in  apartment  A.  The  insured  offered 
evidence  to  show  that  at  the  time  the  contract 
was  made  the  letter  B  indicated  that  the  goods 
were  in  bond.  The  insurer  offered  proof  to 
show  that  the  letter  B  referred  to  the  partic- 
ular department  in  which  the  goods  were 
stored.  The  jury  found  in  favor  of  the  in- 
sured. Held,  the  court  would  not  disturb  the 
finding.  111.  S.  C.  Hartford  Ins.  Co.  v.  Far- 
rish,  5  Ins.  L.  J.,  46. 

34. — The  verdict  of  the  jury  will  not  be 
disturbed  by  the  supreme  court  when  consist- 
ent with  the  instructions  and  not  clearly 
against  the  weight  of  evidence.  Ayers  v. 
Hartford  Fire  Ins.  Co.,  21  Iowa,  193. 

35. — The  court  will  not  disturb  a  verdict 
because  of  mere  preponderance  of  evidence; 
the  court  will  look  to  see  if  there  is  evidence 
to  sustain  it,  but  will  not  weigh  it.  Kansas 
Ins.  Co.  V.  Berry,  8  Kan.,  159. 

36.— Insured  stated  in  his  application  that 
a  certain  brick  wall  was  thirteen  inches  thick. 
The  jury  found  that  it  was  a  thirteen  inch 
wall.  But  the  court  is  of  opinion  that  it  was 
only  about  eight  and  a  half  inches  thick. 
Held,  the  court  could  not  interfere  with  the 
finding  of  the  jury.  But  it  also  appeared 
that  the  defendant's  agent  was  present  when 
the  plaintift"  estimated  the  tliickness  of  the 
wall  and  had  opportunity  to  correct  the  esti- 
mate if  it  was  erroneous.  Held,  the  court 
would  hesitate  to  reverse  the  judgment,  even 
though  it  was  conclusive!}-  proved  that  llie 
wall  was  less  than  thirteen  incln:s  thick. 
Wright  v.  Hartford  Fire  Ins  Co.,  36  Wis.,  524 

411 


823 


NON-OCCUrANCT. 


824 


When  it  is  a  defense. 


37. — The  court  will  not  grant  a  new  trial 
on  the  ground  that  the  verdict  was  not  war- 
ranted hy  the  evidence,  if  there  was  a  sub- 
stantial conflict  in  tlie  evidence.  Scales  v. 
Universal  Life  Ins.  Co.,  42  Cal.,  533. 

38. — An  appeal  lies  from  an  order  of  the 
circuit  court  overruling  a  motion  for  a  new 
trial.  Schultz  v.  Pacific  Ins.  Co.,  14  Fla.,  73. 
And  if  the  verdict  is  not  sulastautially  a  just 
conclusion  and  the  appellate  court  has  just 
grounds  of  belief  that  the  jury  was  influenced 
by  passion,  prejudice,  mistake,  or  any  other 
cause  which  should  not  properly  control,  the 
verdict  will  be  set  aside;  but  it  should  be  a 
very  plain  case  to  justify  an  appellate  court  in 
interfering  with  the  finding  of  a  jury.    IMd. 

39. — Although  the  court  would  not  have 
decided  a  question  of  fact  upon  the  proof 
given  as  the  jury  decided  it,  that  is  no  ground 
for  setting  the  verdict  aside.  Moore  i\  Taylor, 
1  A.  &  E.,  25;  3  L.  J.  (N.  S.)  K.  B.,  132;  3  N. 
&  M.,  406. 

40.  Diligence.  If  the  defendant  com- 
plains that  he  was  surprised  by  the  testimony 
of  a  witness,  given  several  d.iys  before  the 
close  of  the  trial,  and  he  knew  of  a  witness 
by  whom  he  could  have  contr.idicted  the  sur- 
prising testimony,  it  was  his  duty  to  apply 
for  a  continuance  to  produce  the  witness  or  to 
take  his  deposition ;  he  cannot  await  the  result 
of  the  trial  and  then  urge  the  surprise  as  a 
ground  for  a  new  trial.  Ferrer  v.  Home  Mut. 
Ins.  Co.,  47  Cal.,  416. 

41. — If  the  defendant  had  an  opportunity 
before  trial  of  asking  the  witness  what  he 
knew  about  the  matter  and  did  not  do  so,  the 
evidence  is  new ;  but  it  is  so  because  of  the 
defendant's  negligence;  and  is  in  efi"ect  keep- 
ing back  evidence  to  present  upon  a  new  trial 
if  the  verdict  should  be  unfavorable.  Barber 
V.  Fletcher,  1  Doug.,  305. 

42. — Upon  the  face  of  the  policj',  no  illegal- 
ity was  apparent.  Held,  the  court  would  not 
grant  a  new  trial  for  the  purpose  of  allowing 
the  defendant  to  show  that  the  plaintiff  knew 
of  its  illegality.     Gist  v.  Jlnson,  1  Term,  8S. 

43.  Several  verdicts  the  same  wa  J'.  What- 
ever the  private  sentiments  of  the  judge  may 
be,  the  court  will  not  interpose  to  grant  a  new 
trial,  after  there  have  been  two  concurrent  ver- 
dicts.   Lavabre  v.  Fletcher,  1  Doug.,  284. 

44.  —  Upon  the  first  verdict  the  court 
granted  a  new  trial  on  the  ground  that  the 
verdict  was  against  the  weight  of  evidence; 

413 


but  upon  the  second  trial  upon  the  same  evi- 
dence, there  was  the  same  verdict.  Held,  the 
granting  of  another  trial  would  be  the  super- 
seding  of  the  functions  of  the  jury  and  leading 
to  endless  litigation.  Foster  v.  Steele,  3  Bing. 
(N.  C),  892;  6  L.J.  (N.  S),  C.  P.,  265;  Foster 
V.  Alves,  3  Bing.  (N.  C),  896. 

III.  When  xew  trial  must  be  con- 
fixed TO  one  paeticclae  question. 

1.  The  court  erred  in  excluding  certain  tes- 
timony bearing  upon  the  amount  of  damages 
for  which  the  case  was  reversed ;  but  it  was 
Iield,  the  new  trial  must  be  confined  to  that 
question  only.  Haskins  v.  Hamilton  Hut.  Ins. 
Co.,  5  Gray,  433. 

2.  When  a  new  trial  is  granted  on  the 
measure  of  damages  only,  the  new  trial  must 
be  limited  to  that  question.  Blake  v.  Exchange 
ilut.  Ins.  Co.,  12  Gray,  265;  Haley  v.  Dorches- 
ter Mutual  Fire  Ins.  Co.,  id..  545. 

3.  This  cause  was  remanded  for  a  new  trial 
upon  a  question  of  damages  only.  Held,  in- 
sured could  show  that  the  other  insurance  did 
not  cover  all  of  the  goods  insured  by  the  pol- 
icy.  Haley  x.  Borchester Mutual  Fire  Ins.  Co.y 
1  Allen,  536. 


NON-OCCUPANCY. 

I.  When  it  is  a  defense. 

II.  NOT  A  DEFENSE. 

I.  "When  it  is  a  defense. 

1.  Stipulated:  "If  the  dwelling  house  or 
houses  hereby  insured  become  vacant  by  the 
removal  of  the  owner  or  occupant,  or  be  un- 
occupied at  the  time  of  effecting  the  insurance, 
and  not  so  stated  in  the  application,  this  pol- 
icy shall  be  void  until  the  wriiten  consent  of 
the  company  at  the  home  office  be  obtained." 
The  family  left  the  house  about  May  1st, 
taking  a  bed  and  some  other  furniture,  intend- 
ing to  return.  House  and  furniture  were  de- 
stroyed by  fire,  August  10th,  while  it  was  un- 
occupied by  any  person.  Held,  a  removal 
within  the  meaning  of  the  policy,  hence  no 
recovery  could  be  had.  Cummins  v.  Agricul- 
tural I?is.  Co.,  5  Hun.  (N.  T.),  554;  Thayer  tK 
Sarne,  id.,  566. 


825 


NON-OCCUPANCY. 


826 


What  is  a  defense. 


2.  Stipulated:  "The  policy  becomes  void, 
when  tlie  occuimnt  personally  vacates  the 
premises,  unless  immediate  notice  be  given  to 
this  company  and  an  additional  premium 
paid."  IlfAd,  the  policy  became  void  when  the 
premises  were  vacated,  tliough  notice  was  giv- 
en tc  an  agent  whose  autliority  was  limited. 
Harnso/i  v.  City  Fire  Ins.  Co.,  9  Allen,  231. 

3.  Stipulated:  "If  the  building  remains 
unoccupied  thirty  days,  without  notice,  tliis 
policy  shall  be  void.  Ueld,  to  constitute  oc- 
cupancy, there  must  be  practical  use,  and  if  it 
remained  without  any  practical  use  for  the 
space  of  thirty  days  it  was  an  unoccupied 
building,  and  the  policy  became  void,  not- 
withstanding the  son  of  insured  went  through 
the  sliop  alraoit  every  day  to  examine  the 
premises.  Keith  v.  Quincy  Mutual  Fire  Ins. 
Co.,  10  Allen,  328. 

4.  The  defendant  asked  the  court  to  instruct 
that  if,  under  this  policy,  the  plaintifl"  might 
liave  recovered  even  for  the  consequences  of 
the  acts  of  vicious  or  bad  tenants,  yet  he  can- 
not  recover  if  the  building  was  wholly  unoc- 
cupied for  so  long  a  time  as  to  render  the  risk 
greater  than  it  would  have  been  with  tenants 
of  ordinary  care  and  habits.  Held,  refusing 
to  give  the  instruction  was  error.  Luce  v.  Dor- 
chester Mutual  Fire  Ins.  Co.,  110  Mass.,  361. 

5.  Stipulated:  "If  the  buildings  insured 
shall  be  vacated,  and  remain  so  more  than 
thirty  days,  witliout  consent  of  this  company, 
the  policy  shall  be  void.  Buildings  unoccu- 
pied are  not  covered  by  this  policj',  unless  in- 
sured as  such."  The  buildings  were  occupied 
while  the  plaintiff  was  engaged  in  carrying  on 
a  farm  contiguous  to  them,  by  insured  and  his 
servants  taking  their  meals  in  the  house.  Tbe 
barn  was  used  for  storing  hay  and  farming 
tools.  Held,  occupancy  implies  an  actual  use 
of  the  house  as  a  dwelling  place,  and  such  use 
of  the  barn  ordinarily  incident  to  a  barn  be- 
longing to  an  occupied  house.  A  mere  use  of 
the  barn  for  storage  was  not  occupancy. 
Hence  the  policy  was  void.  Ashworth  v. 
Builders  Mutual  Fire  Ins.  Co.,  112  Mass.,  422. 

6.  Stipulated  :  "  If  the  premises  shall  be  va- 
cated bj'  removal  of  the  occupant,  for  a  period 
of  more  than  thirty  days,  without  notice  to 
and  consent  indorsed  upon  tlie  policy,  it  shall 
be  void."  While  it  was  in  force,  consent  was 
obtained  to  let  them  remain  vacant;  but  the 
person  to  whom  the  notice  was  given  ceased 
to  be  agent  fur  the  insurer.    The  policy  was  ' 


renewed  by  another,  and  afterwards  one  of  tho 
houses  became  vacant  for  more  tlian  thirty 
days.  Held,  notice  to  the  former  agent  as  to 
the  nonoccupancy  before  the  policy  was  re- 
newed, could  not  have  any  effect  upon  the 
nonoccupancy  which  occurred  after  tlie  re- 
newal was  made,  for  tlie  latter  was  a  new  con- 
tract. Hartford  Fire  Ins.  Go.  v.  Walsh,  54  III., 
164. 

7.  Stipulated:  "If  the  premises  insured 
shall  be  occupied  or  used  so  as  to  increase  tho 
risk,  or  if  they  shall  become  vacant  or  unoccu- 
pied, the  policy  shall  cease  and  determine, 
unless  the  company's  consent  is  obtained." 
Insured  made  preliminary  proofs  of  loss,  and 
offered  them  at  the  trial,  and  tliey  were  read 
in  evidence.  They  contained  this  statement: 
"  There  was  no  one  living  in  the  house  at  the 
time,  the  tenant  having  left  some  three  weeks 
before  the  fire."  Held,  the  preliminary  proofs 
of  loss  were  evidence  against  the  insured,  and 
lie  was  bound  to  show  tliat  the  nonoccupancy 
was  beyond  his  control.  North  American  Fire 
Ins.  Co.  V.  Zaenger,  63  111.,  464. 

S.  The  policy  provided  that  if  the  premises 
should  liecome  vacant  or  unoccupied,  it  should 
be  void.  There  was  nothing  but  a  table,  a 
crib,  and  a  straw  mattress  in  the  house  when 
the  tire  occurred,  nor  had  there  been  anything 
else  within  two  mouths.  Ueld,  the  premises 
were  vacant  and  unoccupied,  and  the  policy 
therefore  void.  III.  S.  C.  American  Ins.  Co. 
B.  Padfield,  8  Chi.  Leg.  News,  138. 

9.  Stipulated:  "Unoccupied  premises  must 
be  insured  as  such.  Houses,  barns,  or  other 
buildings  insured  as  occupied  premises,  the 
policy  becomes  void  when  the  occupant  per- 
sonally vacates  the  premises,  unless  immedi- 
ate notice  be  given  this  companj',  and  addi- 
tional premium  paid."  The  premises  were 
occupied  at  the  time  the  policy  was  made,  and 
so  continued  till  April,  1800,  when  the  tenant 
moved  out  and  they  were  locked  and  fastened, 
and  so  continued  till  the  December  following, 
when  they  were  consumed.  Insurers  never 
knew  of  the  unoccupancy.  Held,  insurers 
were  released.  Wustum  v.  City  Fire  Ins.  Co., 
15  Wis.,  138. 

10.  Stipulated  to  be  void:  "If  the  building 
insured  shall  become  unoccupied,  the  policy 
shall  be  of  no  force  so  long  as  the  property 
shall  so  continue."  It  liad  been  unoccupied 
for  several  weeks  immediately  preceding  the 
fire.    Held,  wlieu  insured  abandoned  the  home, 

413 


827 


NON-OCCDPANCY. 


S23 


What  is  not  a  defense. 


the  policy  ceased  to  have  any  effect.    uStna 
Ins.  Co.  V.  Burns,  5  Ins.  L.  J.,  69. 

II.  "What  is  not  a  defense. 

1.  Stipulated:  "If  the  premises  are,  at  the 
time  of  insuring,  or  during  the  life  of  this 
policy,  become  vacant,  unoccupied  or  not  in 
use,  and  remain  thus  for  over  ten  days,  whether 
by  removal  of  the  owner  or  occupant,  or  for 
any  cause,  without  this  company's  consent  in- 
dorsed hereon,  this  insurance  shall  be  void." 
Held,  insured  had  the  right  to  prove  that  at 
the  time,  and  before  the  premium  was  paid, 
the  house  was  vacant,  and  was  to  remain  un- 
occupied for  some  time;  that  such  evidence 
would  estop  the  insurer  to  set  up  the  nonoccu- 
pancy  as  a  defense  to  the  action.  Cone  v.  Ni- 
agara Fire  Ins.  Co.,  3  N.  T.  S.  C,  33 ;  affirmed, 
60  N.  T.,  619. 

2.  Stipulated:  " In  case  the  premises  shall 
be  left  unoccupied  without  giving  immediate 
notice  to  the  company,  the  policy  shall  cease, 
and  be  of  no  force  or  effect."  From  January 
15,  1871,  until  the  tire  occurred,  March  30th, 
following,  the  house  was  not  inhabited  by  any 
person,  but  allot  the  household  goods  of  the  in- 
sured remained  in  it  in  the  same  condition  they 
■were  in  when  he  left  it.  A  person  residing 
near  b}'  visited  the  house  on  different  occa- 
sions, and  maintained  a  general  oversight  and 
care  of  the  property  therein  contained.  No- 
tice of  these  facts  was  not  given  to  insurers. 
Held,  occupation  of  a  dwelling  house  means 
living  in  it,  not  mere  supervision  over  it; 
that  what  will  make  occupancy  must  depend 
on  the  circumstances  of  each  case,  and  is  a 
fact  for  the  jury  or  the  referee  to  determine; 
that  where  the  policy  requires  immediate  no- 
tice of  unoccupancy,  the  nonoccupancy  that 
will  not  work  a  forfeiture  of  the  policy  must 
be  very  short  indeed.  Paine  v.  Agricultural 
Ins  Co.,  5  N.  Y.  S.  C,  619. 

3.  Stipulated:  "To  be  void  if  the  prem- 
ises  shall  become  vacant  or  unoccupied. 
Held,  a  temporary  absence  did  not  make  the 
premises  vacant  and  unoccupied,  though  that 
absence  was  from  ten  days  to  two  weeks. 
O'Brien  v.  Commercial  Firt  Ins.  Co.,  6  J.  & 
Sp.  (N.  Y.),  517. 

4.  Propertj'  insured  as  a  dwelling  house 
remained  vacant  for  (it'ty-three  days  before  tlie 
loss.  Held,  although  the  risk  might  have  been 
increased  thereby,  the  insured  was  entitled  to 

4U 


recover,  if  he  made  reasonable  eflTorts  to  ob- 
tain a  tenant,  and  expected  to  obtain  one. 
Gamwell  v.  Merchants  and  Farmers  Mut.  Int. 
Co.,  13  Cush.,  167. 

5.  Insurer's  agent  refused  to  make  insur- 
ance upon  the  house,  because  it  was  not  oc- 
cupied; insured  said:  "The  house  will  be 
occupied  I  have  a  man  in  view  who  is  going 
tc  occupy  it."  It  remained  unoccupied  near- 
ly  six  months,  when  it  was  burned  b}"  an  in- 
cendiary. Held,  a  representation  as  to  the 
future  condition  of  the  subject  insured,  which 
could  not  affect  the  rights  of  insured  unless  it 
were  fraudulently  made.  Kimball  v.  .^tna 
Ins.  Co.,  9  Allen.,  540. 

6.  In  the  application  for  insurance,  insured 
was  asked:  "Who  occupies  the  building?" 
To  which  he  replied :  "  Will  be  occupied  by 
a  tenant."  It  was  unoccupied  at  the  time  of 
the  fire.  Held,  no  defense  to  the  action  unless 
it  appeared  that  the  nonoccupancy  increased 
the  risk.  Herrick  u.  Union  ilutual  Fire  Ins. 
Co.,  48  Me.,  558. 

7.  "  Occupied  by  the  insured."  He  moved 
out  of  it,  and  at  the  time  of  the  fire  it  was  un- 
occupied. Held,  not  an  agreement  that  in- 
sured should  continue  to  occupy,  but  a  mere 
description  of  the  premises.  Joyce  v.  Maine 
Ins.  Co.,  45  Me.,  168. 

8.  Stipulated:  "  If  the  premises  become 
vacant  and  unoccupied  for  a  period  of  more  • 
than  thirty  days,  the  policy  shall  be  void." 
The  statute  provided  that,  "  No  breach  of  any 
of  the  conditions  of  the  policy  shall  affect  the 
contract  unless  the  risk  be  thereby  materially 
increased."  Held,  the  stipulation  did  not  re- 
duce the  time  insured ;  it  was  a  condition  with- 
in the  scope  of  the  statute,  and  did  not  affect  the 
contract,  unless  the  risk  was  therebj'  material 
ly  increased.  Cannell  v.  Phcenix  Ins.  Co.,  59 
Me.,  582. 

9.  Applicant  stated  in  the  written  applica- 
tion that  the  building  was  unoccupied,  but 
that  it  was  to  be  occupied  by  a  tenant.  Held, 
not  a  warranty  that  it  should  be  occupied  by 
a  tenant ;  it  was  tlie  reservation  of  a  right  to 
have  it  occupied,  and  to  avoid  the  inference 
that  it  was  to  remain  unoccupied ;  if  tl  , 
answer  could  be  construed  to  mean  that  t  e 
house  should  be  occupied  by  a  tenant,  it 
would  be  satisfied  if  one  was  procured  within 
a  reasonable  time,  of  which  the  jury  were  the 
judges.  Hough  v.  City  Fire  Ins.  Co.,  29> 
Conn.,  10. 


829 


NONSUIT. 


830 


Miscellaneous. 


10.  Stipulated:  "If  the  premises  become 
■vacated  by  the  removal  of  the  owner  or  occu- 
pant, without  immediate  notice  to  the  com- 
pany, and  consent  indorsed,  the  policy  shall 
be  void."  At  the  time  of  the  Are,  they  liad 
been  unoccupied  for  nine  months,  of  whicli 
no  notice  was  given.  Insured  was  mortgagee, 
the  policy  being  made  in  the  name  of  the  gen- 
eral owner;  loss,  if  any,  payable  to  the  mort- 
gagee. He  had  not  any  knowledge  that  the 
general  owner  had  vacated  the  premises. 
Held,  the  failure  to  give  notice  was  a  mistalie 
■within  the  intendment  of  the  statute,  which 
provides  that  no  policy  shall  be  avoided  by 
reason  of  any  mistake,  etc.,  but  the  damages 
must  be  reduced  in  proportion  as  the  premium 
ought  to  liave  been  increased,  had  insurers  re- 
ceived notice  of  the  fact.  Chamberlain  o.  New 
Hampshire  Fire  Ins.  Go.,  55  N.  H.,  249. 

11.  "  On  dwelling  house."  For  more  than 
a  year  prior  to  its  destruction,  it  was  not  occu- 
pied. Held,  no  defense  to  the  action.  Oilliat 
V.  Pawiucket  Mutual  Fire  Ins.  Co,  8  R.  I.,  382. 

12.  "On  dwelling  house.  All  increase  of 
risk  jn-oliibited."  The  defendant  offered  to 
prove  tliat  the  premises  were  vacant,  and  that 
the  plaintiffs  had  notice  cf  it;  that  the  plaint- 
iffs emptied  the  contents  of  their  straw  beds 
in  two  of  the  rooms  of  the  building;  that  it 
■was  fired  by  an  incendiary.  Held,  no  defense 
to  the  action,  for  insuring  as  a  dwelling  -svas 
matter  of  description,  rather, than  of  stipula- 
tion respecting  its  use.  Cumberland  Valley 
Mutual  Protection  Co.  ■».  Douglas,  58  Penn. 
St.,  419. 

13.  Policy  upon  slaughtering  and  packing 
house  stipulated:  "  If  the  premises  shall  be- 
come vacant  for  more  than  twenty  days,  tlie 
contract  shall  be  void."  Tlie  occupants  had 
ceased  to  slaugliter  and  pack,  but  there  were 
some  meats  and  tallow  in  tlie  premises.  Held, 
not  a  violation  of  the  condition,  for  they  were 
not  unoccupied.  Norwich  Fire  Ins.  Co.  v. 
Boomer,  53  111.,  443. 

14.  The  policy  stipulated  that  the  company 
should  not  be  liable  if  the  premises  became 
vacant  or  unoccupied.  Held,  if  insurer's  agent 
knew  of  their  condition  at  the  time  the  policy 
■was  made,  and  they  remained  in  the  same  con- 
dition to  the  time  of  the  fire,  insurer  could  not 
defend  on  the  ground  that  they  were  unoccu- 
pied. Commercial  Ins.  Co.  v.  Spankneble,  53 
III.,  53. 

15.  There  was  no  stipulation  in  thecontr.ict 


as  to  nonoccupancy.  Held,  nonoccupancy  was 
no  defense  to  the  action,  notwithstanding  it 
increased  the  risk.  Hawks  v.  Dodge  Countif 
Mut.  Ins.  Co.,  11  Wis.,  188. 

1 6.  Insurer's  agent  accepted  a  risk  upon  an 
unoccupied  building,  with  notice  that  it  -was 
unoccupied.  He  made  a  policy  which,  by  its 
printed  terms,  stipulated:  "In  case  the 
premises  shall  become  vacant,  and  remain  so 
for  thirty  days  without  notice  to  the  company, 
and  its  consent  given  in  writing,  this  policj' 
shall  be  void."  Held,  the  stipulation  could 
not  be  invoked  against  the  right  of  the  insured 
to  recover.  Devine  v.  Home  Ins.  Co.,  33  Wis., 
471. 

17.  If  a  house  is  vacant  at  the  time  of  the 
fire,  the  policy  is  still  valid  unless  it  otherwise- 
declare.  Soye  V.  Merchants  Ins.  Co.,  6  La. 
An.,  761. 

18.  Policy  prohibited  any  increase  of  risk 
by  anj'  means  within  the  control  of  insured. 
Held,  insured  could  recover,  notwithstanding 
the  house  became  vacant,  unless  its  destruc- 
tion by  fire  was  more  probable  when  unoccu- 
pied then  when  insured  resided  in  it.  Foy  «. 
^tna  Ins.  Co.,  3  Allen  (N.  B.,)  29. 


NONSUIT. 

1.  A  motion  for  a  nonsuit  concedes  there  is 
no  dispute  as  to  the  facts,  and  nothing  to  be 
submitted  to  the  jury  (citing  Winchell  ». 
Hicks,  18  N.  Y.,  558).  Excelsior  Fire  Ins.  Co. 
V.  Royal  Ins.  Co.,  55  N.  Y.,  343 ;  s.  c,  7  Lans., 
138. 

2.  The  plaintiff  rested,  and  the  defendant 
moved  to  dismiss  the  cause;  the  grounds  (;f 
the  motion  were  not  stated,  and  when  the  case 
was  closed,  the  defendant  asked  the  court  to 
direct  a  verdict  for  the  defendant,  but  the 
grounds  or  reasons  therefor  were  not  stated. 
Held,  both  motions  were  properly  refused. 
Cushman  v.  United  States  Life  Ins.  Co.,  4  Hun. 
(N.  Y.),  783. 

3.  If  a  demurrer  to  the  plaintilTs  evidence 
would  have  been  fatal  to  his  recoTery,  it  was 
tlve  duty  of  the  court  to"  order  a  nonsuit. 
Myers  v.  Girard  Ins.  Co.,  36  Penn.  St.,  192. 

4.  After  the  evidence  on  both  sides  had 
been  given  in  the  case,  the  court  granted  a. 
a  nonsuit.    Held,  error;  for  while  the  court 

415 


831 


NOTICE  OF  LOSS. 


832 


To  whom  it  may  be  given  —  What  is  sufficient. 


has  the  right  to  order  nonsuit  upon  the  plaint- 
iff's evidence,  no  such  right  exists  after  the 
defendant  has  put  in  proof  for  himself.  Brag- 
don  V.  Applctoii  ilutual  Fire  Ins.  Co.,  42  Me., 
259. 

5.  Stipulated:  "The  insured  shall  deliver 
a  particular  account  of  the  loss  within  four- 
teen days  after  the  fire  shall  happen."  Upon 
the  trial  of  the  cause,  insured  failed  to  show 
compliance  with  that  stipulation,  and  the  court 
granted  a  uew  trial  rather  than  compel  the  in- 
sured to  take  a  nonsuit,  because  there  was  a 
clause  in  the  policy  requiring  suit  to  be 
brought  within  six  months  after  loss,  and  that 
time  had  long  since  elapsed.  Cameron  s.  Mnn- 
arch  Ass.  Co.,  7  U.  C.  C.  P.,  213. 


NOTICE  OF  LOSS. 

I.   To  WHOM  IT  MAT  BE  GIVEK. 

II.  What  is  sufficient. 

III.  IN  TIME. 

IV.  NOT  IN  TIME. 
V.  WAIVER  OF. 

VI.  NOT  WAIVER  OF. 

VII.  Questions  for  the  jury. 
VIII.  Generally. 

I.     To  WHOil  IT  MAY  BE  GIVEN. 

1.  Stipulated:  "  persons  sustaining  loss  or 
damage  by  fire  shall  forthwith  give  notice 
thereof  to  the  company,  stating  the  number 
of  their  policy,  etc."  Defendant  had  an  agent 
residing  at  Otto,  the  place  where  the  buildings 
insured  were  situated,  who  delivered  the  poli- 
cies to  insured.  Forthwith  after  the  loss,  in. 
sured  gave  notice  of  it  to  him,  and  he  exam- 
ined the  matter.  Subsequently  preliminary 
proofs  were  made  and  served  upon  the  defend- 
ant. Held,  a  notice  to  the  agent  was  notice  to 
the  defendant.  Kendall  v.  Holland  Purchase 
Ins.  Co.,  2  N.  T.  S.  C,  375. 

2.  P.,  the  authorized  agent  of  insurer  coun- 
tersigned the  policy,  but  S.  was  in  copartner- 
ship with  P.,  and  they  were  doing  business  as 
insurance  agents.  The  complaint  alleged  that 
notice  of  the  loss  was  given  through  its  au- 
tliorized  agents,  P.  &  S. ;  that  proofs  of  loss 
were  made  iu  accordance  with  defendant's 
directions,  given  through  its  said  authorized 

416 


agents;  that  they  were  delivered  to  defendant 
through  its  said  authorized  agents.  Held,  S. 
was,  under  the  provisions  of  sec.  7,  ch.  23, 
laws  of  1868,  an  agent  of  defendant ;  lliat  be- 
yond this,  S.  could  be  treated  as  defendant's 
agent  by  showing  the  course  of  dealing  be- 
tween the  parties.  Newman  v.  Springfield  Fire 
and  Marine  Ins.  Co.,  17  Minn.,  123. 

3.  Stipulated:  Immediate  notice  of  loss 
must  be  given  to  the  manager  or  some  known 
agent  of  the  company.  L.  had  been  the  local 
agent,  and  was  the  person  who  issued  this 
policy.  Insured  gave  notice  to  him,  but  the 
defendants  had  transferred  this  branch  of  tlieir 
business  to  another  company,  of  which  in- 
sured had  notice.  L.  made  his  report  of  the 
loss  to  the  latter  company.  Held,  notice  to  the 
defendants.  Marsden  v.  City  and  County  Ass. 
Co.,  1  L.  R.  C.  P.,  233;  13  Jur.  (N.  S.),  76;  35 
L.  J.  C.  P.,  60;  1  H.  &  R.,  53;  14  W.  R.,  106; 
13  L.  T.  (N.  S.),  465. 

II.  "What  is  sufficient. 

1.  Tlie  policy  was  assigned  with  insurer's 
consent.  Held,  notice  of  the  loss  bj'  assignee 
was  sufficient.    Cornell  «.  Le  Itoy,  9  Wend.,  163. 

2.  The  insured  was  required  to  give  a  writ- 
ten notice  of  the  loss.  Held,  sufficient  if  it 
described  the  loss,  and  invited  the  company 
to  assist  in  measures  instituted  to  ascertain  its 
cause.    Rix  v.  Mut.  Jns.  Co.,  20  N.  H.,  198. 

3.  The  assignee  of  the  policy  gave  notice  of 
the  loss.  Held,  sufficient.  Barnes  v.  Union 
Mutual  Fire  In*.  Co.,  45  N.  H.,  21. 

4.  Stipulated:  Notice  of  the  loss  shall  be 
given  within  sixty  days  after  it  shall  occur. 
Insurer's  agent  notified  the  company  by  letter, 
that  the  loss  had  occurred,  but  it  did  not  ap- 
pear, upon  the  face  of  the  letter,  that  the  agent 
had  written  it  at  the  request  of  insured.  Held, 
a  sufficient  compliance  with  the  condition. 
Stimpson  ■».  Monmouth  Mutual  Fire  Ins.  Co., 
47  Me.,  379. 

5.  Tlie  policy  required  insurer  to  give  writ- 
ten  notice  of  the  loss.  He  gavfe  notice  to  tho 
cimipany's  agent,  and  the  day  after  the  fire 
occurred,  the  agent  informed  the  company  by 
letter  of  the  loss.  Held,  a  sufficient  compliance 
with  the  terms  of  the  policy  and  the  provisions 
of  the  statute.  Caston  v.  Monmouth  Mutual  Fire 
Ins.  Co.,  54  Me.,  170. 

6.  Stipulated  that  "  The  insured  shall  give 
notice  of  the  loss  iu  writing  to  the  secretary, 


833 


NOTICE  OF  LOSS 


834 


What  is  in  time. 


within  thirt}-  days  from  tlie  time  such  may 
happen."  Within  a  wceli  after  the  loss,  in- 
surer's local  agent  wrote  to  insurer's  secretary : 
**  Works  requests  me  to  notify  you,  tliat  his 
hrtusc.  insured  in  policy  No.  272,  was  totally 
<3eslroyed  on  the  2'Jlh  ult."  No  ohjection  w^as 
made  to  it.  Held,  sufflcicnt.  Works  v.  Furmers 
Ins.  Co.,  57  Mc.,  281. 

7.  If  the  plaintill"  proves  that  he  has  season- 
ably given  the  notice  cartled  for  by  the  con- 
tract, he  is  under  no  obligation  to  show  that 
lie  has  given  the  statutory  notice:  "  I  hereby 
notify  you,  that  my  house  in  Bath  was  con- 
sumed by  lire  March  3d  at  nine  o'clock,  P.M." 
Held,  sufficient,  iu  the  absence  of  evidence 
tending  to  sliow  that  he  had  any  other  house 
in  Bath.  Campbell  v.  Monmouth  Mutual  Fire 
Ins.  Co.,  59  Me.,  430. 

8.  Stipulated:  "Persons  sustaining  loss 
must  give  notice  thereof  iu  writing,  forthwith, 
to  the  secretarj-.  Fire  occurred  October  4th. 
Insured  went  the  same  day  to  see  the  local 
agent,  and  through  him  to  give  notice  of  the 
loss.  The  agent  was  not  at  home,  and  insured 
requested  D.  to  give  the  notice  as  soon  as  he 
returned.  D.  gave  it  on  the  8th,  and  he  wrote 
immcdiiitely  to  the  secretary.  Held,  the  letter 
of  the  agent  was  a  sufficient  writiug;lhat 
forthwith  meant  within  a  reasonable  time,  of 
which  the  jury  were  judges.  West  Branch 
Ins.  Co.  «.  Helfenstein,  40  Penn.  St.,  389. 

9.  Stipulated:  "Notice  of  a  loss  must  be 
given  forthwith  to  tlie  secretary."  The  agent 
informed  the  company  of  the  fact  by  letter.  R. 
soon  after  arrived  at  the  place  of  disaster,  and 
examined  into  the  loss.  Held,  it  was  for  the 
jury  to  say,  whether  R.,  in  his  examinations, 
acted  as  the  agent  for  insurer.  If  he  did,  the 
<jbligation  to  give  notice  was  satisfied.  Frank- 
lin Fire  Ins.  Co.  v.  TTpdegraff,  4.3  Penn.  St.,  350. 

1(1.  The  policj'  stipulated  that  notice  of  the 
loss  sliould  be  given  to  the  company.  Held, 
sufficient,  if  it  was  received  at  the  office  of  the 
company.  Herron  v.  Peoria  Marine  and  Fire 
Ins.  Co.,  28  111.,  235. 


III.  What  is  in  time. 

1.  Reinsurance.  The  company  reiusured 
sent  copies  of  the  original  proofs  to  the  rein- 
surer, December  8th,  the  loss  having  occurred 
October  9lh,  preceding.  Held,  the  proofs  were 
in  lime  to  satisfy  the  condition  which  required 
27 


immediate  notice.      Cashau  v.  Northwestern 
National  Ins.  Co.,  5  Biss.,  476. 

2.  A  notice  to  be  given  forthwith  after  the 
loss  is  satisfied  if  given  the  d:iy  after.  Honey 
■0.  American  Mut.  Ins.  Co.,  2  Duer,  554. 

3.  The  act  of  incorporation  required  notice 
of  the  loss  to  be  given  within  thirty  days,  and 
the  by-laws  annexed  to  the  policy,  required 
the  insured  to  give  the  notice  forthwith,  as  re- 
quired by  the  act  of  incorporation.  Held,  a 
reasonable  notice  was  sufficient.  Kingsley  v. 
New  England  Mutual  Fire  Ins.  Co.,  8  Cush., 
393. 

4.  Stipulated:  "Notice  of  tlie  tire  shall  bo 
given  to  the  secretary  forthwith."  Insured, 
the  company's  local  agent  and  his  counsel, 
visited  and  examined  the  premises  the  morn- 
ing after  the  fire,  and  the  insured  was  exam- 
ined upou  oath,  his  statement  signed  by  him, 
and  sent  by  the  agent  to  the  company's  sec- 
retary the  following  day.  Held,  notice  forth- 
with. Beatty  v.  Lycoming  County  Mut.  Ins. 
Co.,  66  Penn.  St.,  9. 

5.  Stipulated :  "  His  legal  representatives 
shall,  as  soon  thereafter  as  possible,  give  no- 
tice in  writing  thereof  (meaning  the  injury) 
to  the  company,  at  their  office  in  Chicago,  or 
to  the  agent  writing  this  policy."  The  acci- 
dent occurred  July  21,  1866.  The  agent  who 
countersigned  the  policy  resided  in  the  vicin- 
ity of  Mount  Savage,  but  at  that  time  he  was 
absent  at  Berkley  Springs,  where  he  heard  of 
the  occurrence.  Within  a  week  the  widow  re- 
ported the  death  to  him,  and  proceeded  to 
make  the  necessary  proof.  Held,  a  sufficient 
compliance  with  the  stipulation.  Providence 
Life  Ins.  Co.  v.  Martin,  33  Md.,  310. 

6.  The  policy  required  notice  of  the  loss  to 
be  given  forthwith  to  the  insurers.  Held,  it 
meant  with  due  diligence,  under  all  the  cir- 
cumstances  of  the  case.  Ht.  Louis  Ins.  Co.  v. 
Kyle,  11  Mo.,  278. 

7.  "Forthwith,"  means  with  due  diligence 
under  the  circumstances  of  the  case;  and 
where  the  proof  shows  that  a  day  or  two  after 
the  fire,  insured  called  at  the  defendant's  office 
and  told  them  that  he  was  burned  out;  that 
an  agent  of  the  company  was  seen  examining 
the  ruins  before  the  fire  was  completely  ex- 
tinguished; that  a  written  notice  was  given 
twenty  days  after  the  fire  occurred ;  that  the 
insurer  then  informed  insured  that  the  pres- 
sure of  business  was  such  that  the  case  could 
not  have   immediate  attention,  but  would  be 

417 


S35 


NOTICE  OF  LOSS. 


835 


What  is  not  in  time. 


atlended  to  in  its  turn.  Eeld,  the  notice  was 
given  with  due  diligence.  Phillips  v.  Protec- 
tion Ins.  Co.,  14  Mo.,  230. 

8.  Stipulated:  "Notice  of  the  loss  shall  he 
given  forthwith."  Held,  it  means  within  a 
reasonable  time  under  the  circumstances  — 
the  use  of  due  diligence.  Peoria  Marine  and 
Fire  Ins.  Co.  v.  Lewis,  18  111.,  553. 

9.  Stipulated:  "Insured  shall  forthwith 
give  notice  of  the  loss  to  the  companies, 
through  their  general  agent  in  the  city  of  New 
Yorli."  Held,  a  notice  given  to  the  local  agent, 
at  Leavenworth,  and  by  him  forwarded  to  New 
York  within  forty-eight  hours,  was  sufficient. 
Oermania  Ins.  Co.  v.  Ciirran,  8  Kan.,  9. 

10.  Stipulated:  "  Insured  shall  give  notice 
within  six  days  of  any  liability  accruing  under 
the  policy,  and  furnish  a  written  statement  of 
all  the  particulars  thereof."  Insured  received 
a  letter  confessing  the  default,  May  17th,  and 
placed  the  matter  in  the  hands  of  his  solicitor. 
May  30th.  Notice  of  the  defendant's  liability 
was  given  June  6th,  and  particulars  sent  the 
12th.  Held,  the  plaintiff  was  not  bound  to 
give  notice  to  the  company  until  he  had  proof 
nf  the  default.  The  plaintiff  swore  that  he 
could  not  and  did  not  ascertain  that  any  lia- 
bility had  been  incurred  by  the  defendant, 
until  June  6th.  Ward  v.  Law  Property  Ass. 
and  Trust  Soc.,  4  W.  R.,  605. 

TV.    What  is  not  in  time. 

1.  Stipulated:  "Notice  of  the  loss  shall  be 
given  forthwith."  Held,  a  notice  given  thir- 
ty-eight days  after  the  fire  occurred  .  was  a  bar 
to  the  action.  Inman  v.  Western  Fire  Ins.  Co., 
12  Wend.,  453. 

2.  Stipulated:  "Notice  of  the  loss  shall  be 
given  forthwith."  Held,  a  notice  given  more 
than  four  months  after  it  occurred  was  not  in 
time.    McEvers  ».  Lawrence,  Hoff.  Ch.,  172. 

3.  A  by-law  annexed  to  the  policy  required 
the  insured  to  forthwith  give  notice  of  any  loss 
to  the  secretary.  Notice  of  it  was  given  eleven 
days  after  it  occurred.  The  secretary  received 
it  and  gave  instructions  as  to  the  statement 
necessary  to  be  made,  and  an  agent  of  the  in- 
surer subsequently  made  examination  respect- 
ing it.  Held,  the  notice  was  too  late,  and  in- 
sured could  not  recover.  (But  see  Inland  Ins. 
Co.  V.  Stauffer,  33  Penn.  St.,  397 .)  Trask  v- 
State  Fire  and  Marine  Ins.  Co.,  29  Penn.  St., 
198. 

118 


4.  "Stipulated:  "Insured  shall  forthwith, 
give  notice  to  the  secretary,  ami  within  thirty 
days  deliver  to  him  a  particular  account  of 
such  loss  or  damage,  etc.  H.  was  the  local 
agent  of  the  company,  and  the  policy  had 
been  renewed  through  him.  lie  heard  of  the 
loss,  and  saw  the  reflection  of  the  fire,  but  he 
gave  no  notice  of  it  to  the  company.  It  oc- 
curred September  30th,  and  the  notice  was- 
dated  October  18th.  Held,  insurers  were  re- 
leased. Edwards  v.  Lycoming  County  Mut. 
Ins.  Co.,  75  Penn.  St.  378. 

5.  The  by  laws  of  this  mutual  company  te- 
quired  notice  forthwith  to  be  given  to  the  sec- 
retary of  any  loss  that  should  occur  by  death, 
or  fire,  and  proof  thereof  upon  oath  or  affirm- 
ation. Insured  gave  informal  notice  of  the 
loss,  without  statement  on  oath.  Held,  a 
strict  performance  w'as  necessary  and  without 
it,  insured  was  not  entitled  to  recover.  Wood- 
fin  1).  Ashenlle  Mut.  Ins.  Co.,  6  Jones  Law 
558 ;  Boyle  v.  Worth  Carolina  Ins.  Co.,  7  id.  ii73. 

6.  Stipulated :  "All  persons  sustaining  less- 
or damage  by  fire  shall  forthwith  give  notice 
to  the  secretary,  and  within  thirty  days  after 
the  loss  make  aud  deliver  a  particular  account 
thereof  to  the  company."  Insured  gave  notice 
of  the  loss  twenty  days  after  it  occurred. 
Held;  forthwith  means  immediately  or  with- 
in a  reasonable  time ;  the  rule  adopted  with 
regard  to  bills  of  exchange  should  be  applied 
to  this  stipulation ;  but  the  notice  was  not 
timely.  Whitehurst  v.  Worth  Carolina  Mut. 
Ins.  Co.,  7  Jones  Law,  433. 

7.  The  policy  required  immediate  notice  of 
any  injury,  to  be  given  to  insurer.  The  notice 
was  not  given  till  six  days  after  the  accident, 
and  no  excuse  for  the  delay  was  proven,  nor 
were  there  any  averments  in  the  complaint 
excusing  the  failure  to  give  the  notice  earlier. 
Held,  the  words  were  not  to  be  construed  lit- 
erally ;  but  in  the  absence  of  any  excuse  for 
the  delay  the  condition  was  not  satisfied. 
Railway  Passenger  Ass.  Co.  v.  liurwell,  44 
Ind.,  4G0. 

8.  Stipulated:  "Insured  shall  give  written 
notice  of  the  loss  to  the  secretary',  within 
twenty  days  after  it  occurs."  Verbal  notice 
was  given  to  the  local  agent  two  days  after  it 
occurred,  and  a  written  notice  to  the  secretary 
more  tlian  a  month  after,  at  which  time  in- 
sured stated  in  his  letter  that  he  liad  given 
verbal  notice  within  the  twenty  days  to  the 
local  agent.    The  company^s  secretary  wrote 


837 


NOTICE  OF  LOSS. 


838 


What  is  waiver  of. 


to  the  attorneys  of  insured,  that  the  president 
would  be  at  their  place  on  a  day  named,  to  ar- 
range the  matter,  and  afterwards  wrote  them 
the  matter  was  in  the  hands  of  the  company's 
attorney,  and  that  when  he  returned,  tlie  com- 
pany would  inform  them  what  would  be  done. 
Held,  there  was  no  substantial  compliance 
with  the  condition,  nor  was  there  any  evidence 
that  it  had  been  waived.  Cornell  v.  Milwaukee 
Mutual  Fire  Ins.  Co.,  18  Wis.,  387. 

9.  Stipulated:  "All  persons  sustaining  loss 
or  damage  shall  forthwith  give  notice  thereof 
to  the  directors  or  secretary  of  this  company 
at  their  oflice,  and  within  fifteen  days  there- 
after, and  deliver  in  as  particular  an  account  of 
their  loss  or  damage  as  the  nature  of  the  case 
will  admit."  Plea,  the  defendant  did  not  forth, 
with  give  notice  of,  nor  within  fifteen  days 
after  the  fire,  deliver  in  an  account  of  his  sup- 
posed loss  or  damage  by  fire.  Held,  good. 
Roper  V.  Lcndon,  1  El.  &  El.,  825;  s.  c,  5  Jur. 
(N.  S.),  491 ;  28  L.  J.  Q.  B.,  2G0;  7  W.  K.,  441. 

V.  What  is  waiter  of. 

1.  "In  case  of  loss,  insured  shall  give  no- 
tice of  it  in  writing,"  at  insurers'  office,  in  a 
certain  manner,  and  with  certain  particulars 
specified,  within  a  certain  time  after  the  loss. 
Notice  was  given  to  insurers  by  tlieir  agent 
within  the  time  limited,  but  not  in  the  man- 
ner aud  with  the  particulars  required,  upon 
which  insurers'  president  made  an  examina- 
tion of  the  premises,  and  declined  to  pay  the 
loss,  but  did  not  object  to  the  manner  of  the 
notice.  Held,  a  waiver  of  any  further  or  dif- 
ferent notice.  Clark  v.  New  England  Mutual 
Fire  Inf.  Co.,  6  Cush.,  342. 

2.  Stipulated:  "All  persons  sustaining  loss 
shall  forthwith  give  notice  to  the  secretary  or 
other  authorized  officer,  and  as  soon  as  possi- 
ble thereafter,  deliver  as  particular  an  account 
of  their  h)ss  as  the  nature  of  the  case  will  ad- 
mit,  and  produce  to  the  company  satisfactory 
proof  thereof.  The  fire  occurred  April  9th, 
and  the  following  morning  the  insured  sent 
notice  of  it  to  a  director  of  the  company,  and 
to  an  ageut  who  represented  other  insurers 
upon  the  same  property.  The  director  and 
ageut  inspected  the  ruins,  and  the  director 
promised  to  give  notice  of  the  loss  to  the  com- 
pany. The  president  of  the  company  and  an- 
other director  visited  the  ruins  five  or  six  days 
al'K'r,  and  April  20th  msurcd  delivered  to  the 


secretary  of  the  company  a  formal  written 
notice  of  the  fire,  and  of  liis  loss.  Held,  the 
facts,  coupled  with  the  conduct  of  the  com- 
pany when  a  formal  notice  was  served,  were 
evidence  from  which  the  jury  had  the  right  to 
infer  a  waiver  of  the  notice;  th;it  a  waiver 
once  established  strikes  the  condition  out  of 
the  contract.  The  case  of  Trask  v.  State  Fire 
Ins.  Co.,  29  Penn.  St.,  198,  is  not  to  be  under, 
stood  as  unsettling  this  doctrine,  that  case 
being  imperfectly  reported.  Inland  Ins.  Co.  v. 
Stavffer,  33  Penu.  St.,  397;  Commonwealth  Ins. 
Co.  V.  Scnnett,  41  id.,  161. 

3.  Stipulated:  "Notice  of  the  loss  shall  be 
given  forthwith,"  but  none  was  given  till  six 
days  after  the  fire.  The  company  sent  an 
agent  to  investigate  the  loss,  and  offer  a  com- 
promise,  which  he  did,  and  another  agent 
made  an  offer  of  settlement.  Held,  the  com- 
pany could  not  say  upon  the  trial  that  notice 
of  the  loss  was  not  timely,  for  they  had  waived 
their  right  to  it.  Lycoming  County  Ins.  Co.  v. 
Schreffler,  42  Penn.  St.,  188. 
•  4.  The  policy  required  insured  to  forthwith 
give  written  notice  of  the  loss.  The  agent  of 
the  companj' resided  near  the  premises  insured, 
and  had  immediate  notice  of  the  fire.  The 
president  and  a  director  of  the  company  re- 
paired to  the  place  a  few  days  after  the  tire, 
settled  other  losses,  and  made  an  examination 
of  this.  Afterwards  the  claim  was  rejected 
for  want  of  a  written  notice.  The  court  non- 
suited  the  plaiutifl".  Held,  error;  there  was 
evidence  of  waiver  to  carry  the  case  to  the 
jury.  Drake  v.  Fartnei-s  Union  Ins.  Co.,  3 
Grant's  Cas.,  325. 

5.  Policy  required  immediate  notice  of  loss 
to  be  given.  A  fire  occurred  the  10th,  notice 
mailed  the  11th,  and  received  by  the  insured 
the  loth.  Held,  sufficient.  Held,  also,  exam- 
ining  the  claim  and  refusing  to  pay  it  for 
reasons  other  than  a  failure  to  give  notice, 
waived  objection  to  the  notice.  Schenck  v. 
Mercer  County  Mutual  Fire  Ins.  Co.,  24  N.  J., 
447. 

6.  The  insurers  sent  agents  to  the  place 
where  the  loss  occurred  to  investigate  it.  Held, 
they  could  not  defend  on  the  ground  that  they 
had  not  notice  of  the  loss,  for  any  notice  which 
induced  them  to  do  so  was  sufficient.  Insur- 
ance Co.  of  North  America  v.  McDowell,  50  111., 
120. 

7.  Stipulated:  "  Notice  of  the  loss  shall  be 
given  forthwith,  and  a  particular  account  of  i» 

419 


839 


NOTICE  OF  LOSS -NOVATION. 


840 


What  is  not  waiver  of —  Questions  for  the  jury  —  Generally,  etc. 


as  soon  after  as  possible."  There  were  two 
policies  by  the  same  company;  one  on  shop, 
and  the  other  on  goods.  Fire  occurred  June 
13th.  Notice  of  the  loss  was  not  given  till 
July  13lh.  Defendants  then  corresponded 
with  plaiuliffs  and  required  a  more  particular 
statement,  which  was  furnished.  They  now 
refused  to  pay,  on  the  ground  of  suspicious 
circumstances  attending  the  lire.  Held,  insur- 
ers were  precluded  from  raising  any  objection 
as  to  the  time  the  notices  were  given,  or  as  to 
their  sufficienc}-.  Lamphin  v.  Ontario  Marine 
and  Fire  Im.  Co.,  13  U.  C.  Q.  B.,  578. 

VI.    TTUAT  IS  XOT  WAIYEE  OF. 

1.  Stipulated:  "  Notice  of  the  loss  shall  be 
tnade  in  writing  to  the  secretary  or  one  of  the 
directors,  within  thirty  days  from  the  occur- 
rence." The  fire  occurred  December  19,  1855. 
Notice  was  given  August  21, 1856.  The  secre- 
tary wrote, "  the  notice  has  been  laid  before  the 
directors,  who  voted  to  postpone  the  subject 
indefinitely."  Held,  no  waiver  of  the  condi- 
tion.  Patrick  v.  Farmers  Ins.  Co.,  43  X.  H.,  621. 

2.  Insurer  stated  to  insured  that  the  prelim- 
inary proofs  were  unsatisfactory,  and  refused 
to  paj'  claim  on  the  ground  of  a  material  con- 
cealment, and  further  stated  to  insured  all  ob- 
jections to  a  recovery  in  any  form  are  reserved. 
Held,  the  riglit  to  the  notice,  required  to  be 
given  forthwith  after  the  loss,  was  not  waived; 
nor  to  an  account  of  the  loss  required  to  be 
delivered  as  soon  as  possible.  Held,  also, 
"  forthwith  "  and  "  as  soon  as  possible,"  mean 
with  due  diligence  under  all  the  circum- 
stances of  the  case,  of  which  the  juiy  were  the 
judges.  Edwards  v.  Baltimore  Fire  Im.  Co., 
3  Gill,  176. 

YII.  Questions  foe  the  juet. 

1.  Stipulated:  "In  the  event  of  injury  with- 
in the  meaning  cf  this  policj-,  he,  or  in  case 
of  his  death,  his  legal  representatives,  shall  as 
soon  thereafter  as  possible  give  notice  thereof 
to  the  company  at  their  office  in  C,  or  to  the 
agent  writing  the  policy."  The  person  in- 
sured  was  killed  near  C,  and  notice  of  the 
death  might  have  been  given  in  one  day. 
But  none  was  given  till  eight  daj's  tliereafter. 
Held,  the  condition  must  receive  a  reasonable 
construction  :  that  notice  was  to  be  given  witli 
due  diligence,  and  that  was  to  be  determined 

•420  ' 


by  all  the  circumstances  in  the  case,  and  il 
was  a  question  of  fact  for  the  jury.  Provident 
Life  Ins.  Co.  v.  Baum,  29  Ind  ,  236. 

2.  Stipulated:  "Notice  of  tlie  loss  sliall  be 
given  forthwith,  and  as  soon  after  as  possible 
a  particular  account  of  it  signed  by  the  claim- 
ant under  oath,  and  proof  thereof  by  o.ith  or 
affirmation.  The  fire  occurred  November  18, 
1839;  notice  of  it  was  given  on  the  26th.  The 
mails  were  carried  from  the  place  where  the 
loss  occurred  tri-weekly.  Held,  it  was  error 
for  the  court  to  take  from  the  jury  the  question 
whether  due  diligence  had  been  exercised  in 
giving  notice  of  the  loss.  Edwards  v.  Balti- 
more Fire  Ins.  Co.,  3  Gill,  176. 

3.  The  policy  required  notice  of  the  loss  to 
be  given  forthwith  to  insurer.  The  premises 
were  consumed  April  1st,  and  notice  of  the 
loss  was  given  on  the  oth.  Held,  it  was  the 
duty  of  the  court  to  direct  the  jury  to  consider 
whether  that  notice  was,  under  all  the  circum- 
stances of  the  case,  given  with  reasonable  dil- 
igence.   St.  Louis  Ins.  Co.  v.  Kyle,  11  Mo.,  278. 

Till.  Geneeallt. 

1.  Stipulated:  "Loss  payable  within  sixty 
days  after  due  notice  and  proof  thereof." 
Held,  the  plaintiffs  case  is  not  made,  unless 
such  proof  was  given  at  the  trial.  Mitchell  v. 
Home  Ins.  Co.,  32  Iowa,  421. 

2.  StipuLatcd:  "  Notice  of  the  los>!  shall  be 
given  in  writing,  and  proof  of  it  by  protest 
and  affidavit,  delivered  to  insurers  within 
sixty  days  after  it  shall  have  happened.  Held, 
action  could  not  be  maintained  if  the  con- 
dition had  not  been  observed.  McFaul  «. 
Montreal  Inland  Ins.  Co.,  2U.  C.  Q.  B.,  69. 


NOVATION. 

1.  The  society  was  originally  a  mutual  so- 
ciet}-,  but  in  1855  it  ceased  to  have  a  guaranty 
fund.  By  a  transaction  to  which  the  petitioner 
was  partj-,  an  arrangement  was  made  by  which 
the  mutual  society  was  effectually  determined, 
and  the  fund  handed  over  to  another  society, 
who  agreed  to  assume  all  the  liabilities  of  ihu 
mutual  society,  including  all  claims  arising 
upon  jiolicies  issued  by  the  mutual  society. 
Held,  a  complete  novation.  In  re  Merchants 
and  Tradesmen's  Ass.  Soc,  9  L.   R.  Eq.,  694 ; 


841 


OCCUPATION  OF  PREMISES  — ONE-THIRD  NEW  FOR  OLD. 


842 


When  it  shall  be  deducted. 


18  W.  R.,  725;  33  L.  T.  (N.  S.),  364;  In  re 
United  Ports  and  General  Ins.  Co.,  Evens' 
Clnim,  16  L.K.  Eq.,  354;  29    L.  T.  (N.  S.),23. 

2.  Dcfciuhiut  issued  a  policy  on  llie  life  of 
A.  and  afterwards  transferred  its  business  to 
the  11.  Co.  Insured  procured  that  company 
to  inalve  an  indorsement  guarantying  tlie  due 
fulfillment  of  the  contract,  and  paid  one  prem- 
ium to  the  II.  Co.  Tlie  claim  for  death  was 
preferred  against  the  latter  company.  Held, 
a  complete  novation,  and  nrvt  a  mere  guaran- 
ty. In  re  International  Life  Association  So- 
ciety and  Hercules  Ins.  Co.,  ex  parte  Blood,  9  L. 
R.  Eq.,  316;  39  L.  J.  Cli.,  395;  18  W.  R., 
870;  23  L.  T.  (N.  S.),  467;  In  re  Times  Life 
Association  and  Ouaranty  Co.,  5  L.  R.  Cli., 
381;  In  re  Anchor  Ass.  Co.,  id.,  633;  In  re 
Medical,  Invalid  and  Life  Ins.  Co.,  6  L.  R. 
Ch.,  362;  In  re  National  Prorincial  Life 
Ass.  Soc,  Fleming's  Case,  id.,  393. 

3.  The  business  and  assets  of  the  M.  Ass'n 
were  transferred  to  the  W.  Soc,  which  was 
afterwards  incorporated  with  the  Albert  Co.  A 
policy  holder  in  the  M.  Ass'n  paid  his  prem- 
iums at  the  several  offices  as  the  successive 
changes  took  place,  the  last  being  receipted 
for  in  the  name  of  the  Albert  Co.  Held,  not 
enough  to  establish  novation,  and  tliat  the  ex- 
ecutors of  the  insured  were  entitled  to  an  or- 
der  winding  up  the  M.  Ass'n.  In  re  Man- 
chester and  London  Life  Ass.,  5  L.  R.  Ch.,  640; 
23  L.  T.  (N.  S.),  332;  18  \V.  R.,  1185;  affirming 
s.  c,  9  L.  R.  Eq.,  643;  39  L.  J.  Ch.,  595;  In  re 
Family  Endowment  Soc.,  5  L.  R.  Ch.,  118;  31 
L.  T.  (N.  S.),  775 ;  In  re  Medical  Invalid  Life 
Ins.  Co.,  6  L.  R.  Ch.,  374. 


OCCUPATION  OF  PREMISES. 

(See  UsB  AND  OcCTTPATioN  Prohibited.) 


OCCUPATION  OR  VOCATION. 

(See  Wabranttes,  II  (g) 


ONE  HALF  HER  VALUE. 

(See  One  Third  New  for  Old;  Total  Loss.) 


ONE  THIRD  NEW  FOR  OLD. 

I.  When  it  sn.-vLL  be  deddcted. 

II.  KOT   BE   DEDUCTED. 

I.  "When  it  shall  be  deducted. 

1.  She  was  repaired  at  an  expense  exceed- 
ing half  her  value,  and  proceeded  on  her  voy- 
age. Held,  one-third  new  for  old  must  be  de- 
ducted in  determining  the  partial  h)ss,  not- 
withstanding  that  she  was  repaired  with 
money  obtained  by  bottomry  and  sold  to  sat- 
isfy the  bottomry  bond.  HampUreyv.  Union 
Ins.  Co.,  3  Mason,  429. 

2.  Whether  the  vessel  was  on  her  first  voy- 
age or  not,  or  whether  she  was  old  or  new,  is 
of  no  consequence  iu  estimating  a  particular 
average;  in  either  case,  one-third  new  for  old 
must  be  deducted.  Dunham  v.  Commercial 
Ins.  Co.  11  Johns.,  315. 

3.  In  the  English  courts,  if  injury  is  sus- 
tained  and  repairs  are  made  upon  a  vessel  on 
her  first  voyage,  no  deduction  "  new  for  old," 
is  allowed  to  the  insurer;  but  this  court  (Sup. 
Ct.  of  N.  Y.)  has  not  adopted  the  English  rule, 
and  the  deduction  is  therefore  made  whether 
the  vessel  is  new  or  old.  Byrnes  v.  National 
Ins.  Co.,  1  Cow.,  265. 

4.  The  money  chargeable  in  general  average 
against  freight  and  cargo,  must  be  deducted, 
from  the  amount  necessary  to  repair  ship 
when  ascertaining  whether  the  damage  to  the 
ship  exceeded  half  her  value.  Pemant  v. 
National  Ins.  Co.,  15  \\  end.,  453. 

5.  Upon  three-fourths  of  ship,  valued  at 
$1,800.  The  highest  estimate  of  repairs  at  the 
port  of  destination  \vas  $1,700.  After  deduct- 
ing one-third  new  for  old,  there  would  remaiu 
$1,133.33.  Her  whole  value  in  the  policy 
stated  was  $3,400.  Held,  the  valuation  in  the 
policy  was  binding  on  both  parties;  and  the 
deduction  of  one-third  new  for  old  must  be 
made  from  the  gross  estimate  of  repairs  in 
order  to  ascertain  whether  she  was  damaged 
more  than  one-half  her  value.  Held,  also, 
that  if  tlie  master's  fault  or  the  owner's  im- 
providence prevented  the  procuring  of  funds 
to  repair  her,  the  insured  could  not  abandon. 
American  Ins.  Co.  v.  Ogden,  30  Wend.,  387. 

6.  The  rule  by  which  one-third  of  the  cost 
of  new  materials  is  deducted  is  gener.al,  and  ■ 
applies  to  the  case  of   a  ship  entirely  new. 

431 


843 


ONE-THIRD  NEW  FOB  OLD  — ONUS  PKOUANDI. 


Sii 


When  it  shall  not  be  deducted  —  When  upon  insurer. 


NickeUs  V.  Maine  Fire  and  Marine  Ins.  Co.,  11 
Mass.,  253. 

7.  In  adjusting  a  partial  loss  on  ship  before 
deducting  one-third  new  for  old,  the  value 
of  the  old  materials  must  be  first  deducted 
from  the  gross  repairs,  and  one-third  from 
that  balance.  Brookes  d.  Oriental  Ins.  Co.,  7 
Pick.,  259. 

8.  If  it  is  necessary  to  raise  money  at  ma- 
rine interest  to  repair  sea  damages,  the  rule 
of  deducting  one-third  new  for  old  applies  to 
the  interest.  Orivk  v.  Commomoealth  Ins.  Co., 
21  Pick.,  456. 

9.  In  ascertaining  whether  the  loss  is  con- 
structively total,  one-third  new  for  old  must 
be  deducted  from  the  estimate  for  repairs,  and 
unless  the  net  sum  exceeds  fifty  per  cent,  of 
the  valuation  in  the  policy,  there  is  not  a 
total  loss.  Heebner  v.  Eagle  Ins.  Co.,  10  Gray, 
131. 

10.  She  could  not  have  been  repaired  at  the 
port  of  distress;  but  slie  was  made  seaworthy, 
and  afterwards  at  another  port,  was  com- 
pletely repaired.  E-^penses  were  also  incurred 
at  the  port  of  distress  to  obtain  money  to 
make  her  seaworthy.  Held,  one-third  new  for 
old  must  be  deducted  from  all  repairs  as  well 
as  the  expense  of  raising  money  to  paj'  for 
them  (citing  Brooks  v.  Oriental  Ins.  Co.,  7 
Pick.,  259;  Orrok  v.  Commonwealth  Ins.  Co., 
21  id.,  456).  Paddock  V.  Commercial  Ins.  Co., 
104  Mass.,  521. 

1 1.  "  On  boat,  machinery  and  furniture,  no 
partial  loss  or  particular  average,  unless  it 
amounts  to  five  per  cent."  Held,  one-third 
new  for  old  must  be  deducted  from  all  repairs, 
including  repairs  to  the  shaft;  and  to  the  net 
sum  should  be  added,  without  any  deduction, 
the  charge  for  towage  from  the  place  of  dis- 
aster to  the  port  of  repairs.  These  exceeded 
five  per  cent. ;  hence  insurers  were  held  liable. 
Perry  v.  Ohio  Ins.  Co.,  5  Ohio,  305. 

12.  Ship  w.as  damaged  by  perils  of  the  sea. 
Held,  insurers  were  liable  only  to  the  amount 
of  two-thirds  the  cost  of  repair,  unless  cir- 
cumstances were  shown  to  take  the  case  out 
of  the  general  rule.  Poingdestre  v.  Boyal  Ex- 
change Ass.  Co.,  R.  &  M.,  378. 

II.  When  it  shall  not  be  deducted. 

1.  She  was  damaged  by  perils  of  the  sea; 
repairs  were  made,  and  an  expense  for  towing 
and  boat  hire  was  incurred,  from  which  the 
422 


adjuster  deducted  one-third  new  for  old.  Held 
the  deductions  could  not  be  allowed;  and  the 
adjuster's  statement  must  be  reformed.  The 
rule  which  allows  one-third  new  for  old  to  be 
deducted  from  repairs  does  not  apply  to  inci- 
dental expenses,  nor  to  new  articles  which 
have  no  connection  with  the  repairs,  and  from 
which,  insured  cannot  possibly  derive  en- 
hanced value  or  benefit.  Potter  v.  Ocean  Ins. 
Co.,  3  Sumn.,  27. 

2.  One  third  new  for  old  is  predicated  upon 
the  fact  that  the  owner  gets  the  ship  and  she 
is  better  because  of  the  repairs ;  but  the  rule 
does  not  applj'  if  the  owner  never  gets  posses- 
sion of  her,  though  she  be  fully  repaired. 
Da  Costa  v.  NewnJiam,  2  Term,  407. 

3.  On  ship  from  Bristol  to  New  York,  dur- 
ing her  stay  there,  and  back  to  her  port  of 
discharge.  Heldj  the  defendant  was  not  enti- 
tled to  a  deduction  of  one  third  new  for  old, 
because  she  was  a  new  ship,  and  the  passage 
from  England  to  America,  and  from  America 
to  England,  constituted  only  one  voyage. 
Fenwick  v.  Robinson,  3  C.  &  P.,  323. 

4.  One  third  new  for  old  shall  not  be  de- 
ducted from  repairs  to  ship  if  she  was  on  her 
first  voyage ;  and  it  was  held,  whether  she  was 
on  her  first  voyage  was  to  be  ascertained  by 
the  general  opinion  of  merchants  and  not  by 
the  opinion  of  insurers  only.  Pirie  v.  Steele,  2 
M.  &  Rob.,  49;  8  C.  &  P.,  200. 

5.  In  estimating  the  cost  of  repairs  for  the 
purpose  of  determining  whether  the  damage 
exceeds  fifty  per  cent,  of  the  ship's  value,  one- 
third  new  for  old  is  not  to  be  deducted.  Phil- 
lips V.  St.  Louis  Perpetual  Ins.  Co.,  U  La.  An., 
459. 


ONUS  PROBANDI. 

(See  MisBEPREsENTATioNs ;    Seaworthixbss  ;    Sui- 
cide;    VOTAGB     INSUBED.) 

I.  When  dpon  insuker. 

II.  IKSUEED. 

III.  Generailt. 
I.  Whex  upox  insurer 

1 .  The  burden  of  proof  is  upou  the  insurer 
to  show  that  all  material  facts  and  circum- 
stances within  the  knowledge  of  the  insured 


845 


ONUS  PROBANDI. 


846 


When  ujion  insurer. 


T\cre  not  revealed,  or  tliat  lie  did  not  truly  an- 
swer questions  propounded  respecting  such 
i'acts  and  circumstances.  Insurance  Co.  v. 
Fohom,  18  Wall.,  237;  s.  c,  8  Blalch.,  170;  9 
id.,  201. 

2.  Fraud  is  not  to  be  presumed,  but  must 
lie  proved  by  those  wlio  allege  it.  Oliver  •». 
Mutual  Commercial  Marine  Ins.  Co.,  3  Curtis, 
277. 

3.  Insurers  defended  on  the  ground  of  mis- 
representation, negligent  uavigatiou,  deviation 
and  unseaworthiness.  Held,  the  onns  probandi, 
as  to  the  three  former,  was  upon  insurers;  as 
to  the  last,  the  insured  was  bound  to  show 
that  the  vessel  was  seaworthy,  for  (hat  is  a 
■condition  precedent;  aud  to  establish  this  he 
must  show  she  was  equipped  for  the  voyage 
in  such  a  manner  as  vessels  of  lier  class  were 
usually  equipped,  according  to  tiie  standard  of 
the  p;>rt  to  which  she  belonged.  Tidmarsh  v. 
Washington  Fire  and  Marine  Ins.  Co.,  i 
Mason,  439. 

4.  The  onus  probandi  is  upon  the  insurer  to 
establish  tiie  breach  of  any  warranty  stated  in 
the  policy.  The  insured  is  not  bound  to  show 
that  there  was  no  breach.  Sicick  v.  Home  Life 
Ins.  Co.,  2  Dil.  Cir.  C,  IGO;  Holahird  v.  Insur- 
ance Co.,  3  id.,  16G,  note. 

5.  The  pleas  stated  affirmative  matter  as  a 
<lefen»e  to  the  action.  The  replications  tra- 
versed the  pleas.  Held,  the  onus  probandi^' as 
upon  the  defendant.  Holloman  ■v.  Life  Ins. 
Co.,  1  Woods,  674. 

6.  Stipulated:  "If  upon  a  regular  survey, 
the  vessel  shall  be  thereby  declared  unsea- 
■worthy  by  reason  of  her  being  unsound, 
rotten,  or  incapable  of  prosecuting  her  voyage 
on  account  of  her  being  unsound  or  rotten, 
then  the  insurers  shall  not  be  bound  to  pay 
their  subscription  on  this  policy.  Held,  the 
plaiutirt's  were  entitled  to  recover,  unless  it 
appeared  that  the  unseaworthiness  was  caused 
solely  by  rottenness  or  unsoundness.  Innes  v. 
V.  Alliance  Mutual  Ins.  Co.,  1  Sandf ,  310. 

7.  Where  the  insurer  defends  on  the  ground 
that  a  representation  was  not  complied  with, 
the  onus  of  proof  is  upon  him.  Jonei  Manu- 
facturing Co.  V.  Mannfiicturers  Mutual  Fire 
Ins.  Co.,  8  Cush.,  82. 

8.  Policy  on  a  paper  mill,  etc.  Between  the 
sum  insured  and  the  description  was  written, 
■"On  condition  that  applicants  take  all  risk  from 
<;otttou  waste."  Held,  they  do  not  constitute 
A  condition,  but  express  insurer's  intention  not 


to  insure  against  fire  originating  in  cotton 
waste;  they  were  not  an  e.xcept ion  ;  the  party 
for  whom  matter  of  excuse  is  furnished,  cither 
by  statute  or  agreement,  must  bring  it  forward 
and  support  it  by  evidence.  Kingsley  v.  New 
England  Mutual  Fire  Ins.  Co.,  8  Cush.,  393. 

9.  Other  insurance  prohibited.  Held,  the 
onus  of  proof  was  upon  insurers  when  they 
asserted  that  any  other  was  made.  Clark  ». 
Hamilton  Mut.  Ins.  Co.,  9  Gray,  148. 

10.  The  defendant,  sued  upon  an  assess- 
ment, denied  that  the  plaintiff's  agent  Iiad 
complied  with  the  statute  before  executing  the 
policy.  Held,  the  burden  was  upon  the  plaint- 
iff  to  make  out  the  compliance,  and  a  certifi- 
cate from  the  treasurer,  which  failed  to  show 
that  the  compliance  was  made  before  the  date 
of  the  jiremium  note,  was  not  sufficient.  Wash- 
ington County  Mut.  Ins.  Co.  ».  Chamberlain,  16 
Gray,  165. 

11.  Warranted  neutral.  ffeZfi,  sufficient  for 
the  insured  to  give  general  evidence  in  sup. 
port  of  the  warranty,  leaving  it  upon  the 
insurer  to  falsify  it  or  prove  a  breach  of  the 
warranty.  Ludlow  v.  Union  Ins.  Co.,  3  S.  & 
R.,119. 

12.  Plaintiff  averred  that  the  statements 
made  in  respect  to  the  health  of  the  insured 
were  true.  Defendant  pleaded  specially  that 
the  statements  were  untrue,  for  insured  had 
been  afflicted  with  certain  diseases  not  dis- 
closed  in  the  application.  Plaintiff  gave  evi- 
dence  tending  to  show  that  the  statements 
made  in  the  application  were  true.  Held,  not 
error  for  the  court  to  instruct  the  jury  that  the 
burdenof  proof  was  on  defendants  to  establish 
the  defense  stated  in  their  plea.  Trenton  Mu- 
tual Life  Ins.  Co.  v.  Johnson,  34  N.  J.,  576. 

13.  Insurer  was  not  to  be  liable  in  case  in- 
sured failed  to  answer  truly  all  questions  pro. 
pounded  iu  the  application.  On  being  asked 
if  he  had  ever  been,  or  was  then,  employed  in 
any  military  or  naval  service,  he  answered, 
"  No."  Held,  the  onus  was  upon  insurer  to 
show  that  he  had  been,  in  fact,  employed  in 
military  or  naval  service.  Holding  a  position 
as  chaplain  did  not  sustain  the  issue.  Mutual 
Benefit  Life  Ins.  Co.  v.  Wise,  34  Md..  582. 

14.  The  court  instructed  the  jury  that  upon 
an  issue  of  a  false  representation,  made  in  re- 
spect of  the  habits  of  the  insured,  or  of  his 
death  being  caused  by  intemperance,  the 
affirmative  was  upon  the  insurer.  Neu)  York 
Life  Ins.  Co.  v.  Graham,  2  Duvall,  500. 

423 


S4T 


ONUS  proband: 


8-iS 


When  upon  insured. 


15.  To  avoid  the  policy,  the  act  of  self 
destruction  must  be  voluntary.  An  insane 
act  is  not  voluntary.  St.  Louis  Mutual  Life 
Ins.  Co.  V.  Graves,  6  Bush,  2G8. 

16.  It  is  not  necessary  for  the  plaintiff  to 
aver  and  prove  the  truth  of  his  representations, 
nor  is  he  bound  to  set  out  in  the  declaration 
liis  application  for  the  insurance,  nor  is  he 
bound  to  aver  that  the  notary  or  magistrate 
•who  granted  the  certificate  of  loss  was  the 
nearest  notary  or  magistrate  to  the  place 
where  it  occurred.  Herr.vi  v.  Peoria  Marine 
and  Fire  Lns.  Co.,  28  111.,  335. 

17.  All  increase  of  risk  was  prohibited  by 
the  charter,  printed  on  the  baclc  of  the  policy. 
Held,  burden  was  upon  the  defendant  to  show 
that  this  condition  was  violated,  and  this  was 
exclusively  for  the  jury.  Sitter  v.  Sun  Mutual 
Ins.  Co.,  40  Mo.,  40. 

18.  Insurers  sought  to  defend,  on  the  ground 
that  answers  to  certain  questions  propounded 
in  the  application  were  untrue.  Held,  the 
burden  of  proof  was  upon  insurers  in  respect 
to  all  the  affirmative  matter  set  up  in  the  an- 
swer. Price  V.  Phmni.-c  Mutual  Life  Ins.  Co., 
17  Minn.,  497. 

19.  It  appeared  that  the  ship  sailed  on  the 
voyage  insured.  Held,  the  onus  of  proving 
deviations  was  cast  upon  the  insurer.  Franco 
«.  Natusch,  6  Tyrw.,  401. 

20.  Where  it  is  shown  that  a  person  acting 
as  master  has  committed  barratry,  if  the  in- 
surer would  avoid  its  efl'ect,  he  must  affirm 
and  prove  that  the  person  so  acting  was 
owner.    Boss  ».  Hunter,  4  Term,  33. 

21.  From  Norfolk  to  Tobago,  with  the  lib- 
erty to  call  at  two  or  more  islands  while  there, 
and  from  thence  back  to  Norfolk.  She  was 
captured,  but  whether  she  h.ad  kept  always  in 
the  course  of  the  voyage,  did  not  ajjpcar. 
Held,  the  onus  was  upon  insurers  to  show  that 
when  she  was  lost  she  was  upon  a  voyage  not 
insured.  Sliedden  v.  Logan,  Faculty  Dec, 
1781  to  1787,  p.  520. 

II.    WlIEX    UPON   INSURED, 

1.  On  freight,  "Warranted  against  seizure 
in  port."  She  was  stranded,  and  found  not 
worth  repairing;  but  thec.argo  was  discharged 
on  board  lighters,  seized,  detained,  carried  to 
Amsterdam,  and  put  into  the  king's  stores. 
Held,  insured  on  freight  must  show  tliat  the 
master  was  prevented  fi'om  forwarding  the 
cargo  for  some  cause  other  than  seizure,  oth- 
424 


erwise  the  failure  to  carry  was  imputable  to 
the  seizure.  Bradhurst  v.  Columbian  Ins.  Co., 
9  Johns.,  18. 

2.  On  cargo  of  brig  Aberna,  at  and  from 
New  York  to  Newfoundland.  It  appeared 
she  was  not  a  brig  proper;  that  slie  was 
rigged  square  on  the  mainmast  and  schooner 
on  the  mizzen,  and  commonly  called  a  herma- 
phrodite brig.  There  were  two  vessels  of  the 
same  name,  the  other  a  brig  proper.  Held, 
insured  must  show,  that  although  "brig"  was 
mentioned  in  the  policv,  the  scliooner  or  half 
brig  was  the  one  intended  in  the  contract. 
Sea  Ins.  Co.  v.  Fowler,  21  Wend.,  600. 

.S.  Action  to  recover  as  for  a  total  loss  on  70 
casks  of  ale.  "  Warranted  free  from  partial 
loss."  She  was  stranded  while  entering  the 
harbor  of  Galveston,  about  twenty-three  of  the 
casks  were  taken  out,  ten  were  tendered  to  the 
consignees,  but  rejected  on  the  ground  that 
their  contents  were  worthless.  Held,  the  bur- 
den was  upon  the  plaintiff  to  establish  a  total 
loss,  or  that  by  reason  of  damage  by  perils  of 
the  sea,  the  property  was  of  no  mercantile 
value.  Young  v.  Pacific  Mut.  Ins.  Co.,  2  J.  & 
Sp.  (N.  Y.),  321. 

4.  "On  freight,  to  be  confined  to  the  trad* 
between  Atlantic  ports  of  the  United  States^ 
or  the  ports  of  London,  Liverpool  and  Havre, 
and  the  Pacific  Ocean,  China  Seas,  including 
Australia,  Van  Dicman's  Land  and  ports  in  the 
Indian  Ocean."  At  the  date  of  the  policy 
she  was  on  a  voyage  from  Singapore  to  Bom- 
bay, at  which  place  she  arrived,  and  sailed 
thence  with  a  cargo  for  Liverpool,  at  which 
place  she  took  another  cargo,  sailed  for  New 
York  and  was  lost.  Held,  defendants  might 
safely  rest  on  the  language  of  the  policy,  and 
leave  the  plaintiffs  to  prove  that  a  tr.ade  snch 
as  the  i^olicy  described,  included,  as  inci- 
dental to  it,  or  as  forming  a  part  of  it,  a  direct 
voyage  from  London,  Liverpool  or  Havre  to 
New  York  or  other  ports  of  the  United  States 
on  the  Atlantic.  Mallory  v.  Commercial  Ins. 
Co.,  1)  Bos.,  101 ;  s.  C,  18  How  Pr.,  395. 

5.  "Not  liable  for  any  derangement  or 
bre.iking  of  the  machinery,  or  bursting  of 
boilers,  unless  occasioned  by  stranding.  Held, 
if  two  perils  oper.ated  to  cause  the  injury,  for 
one  of  which  insurer  was  liable  and  the  other 
exempt,  the  burden  was  upon  the  insured  to 
prove  definitely  the  amount  of  the  loss  .sus- 
tained by  the  peril  insured  against.  Heebner 
V.  Eagle  Ins.  Co.,  10  Gray,  131. 


849 


ONUS  PROBANDI. 


850 


Generally. 


6.  Slie  bail  encouiitered  heavy  weather,  and 
liad  shipped  some  water;  some  of  the  goods 
were  damaged  by  sea  water,  others  were 
damaged  by  dampness.  Held,  the  fact  of  dam- 
age, even  by  contact  with  sea  water,  was  not 
enough  to  fix  the  liability  of  the  insurers.  The 
burden  was  upon  insured,  not  only  to  prove 
damage,  but  that  it  arose  from  a  peril  insured 
against.  Baker  v.  Manufacturers  Ins.  Co.,  13 
Gray,  603. 

7.  "This  policy  not  to  cover  any  lo.ss  or 
damage  by  fire  which  may  originate  in  the 
theatre  proper."  Held,  an  exception ;  and  the 
promise  is  to  perform  only  what  remains  after 
the  part  excepted  is  taken  away ;  therefore  to 
establish  a  cause  of  action,  insured  must  nega- 
tive the  exception,  hence  the  burden  was  upon 
him  to  show  that  the  fire  did  not  originate  in 
the  theatre.  Sohier  v.  Norwich  City  Ins.  Co., 
11  Allen,  336. 

8.  Verdict  for  the  full  amount  of  the  entire 
damage,  including  breaking  of  bottles,  empti- 
ness, or  pillage,  or  deterioration  in  quality 
and  merchantable  value;  but  the  evidence  did 
not  show'  how  much  was  caused  by  actual 
contact  with  sea  water,  and  how  much  by 
steam  or  dampness.  The  policy  excepted 
damages  occasioned  by  dampness.  Held,  the 
burden  was  upon  insured  to  bring  the  damages 
within  the  terms  of  the  contract,  thei-efore  the 
finding  must  be  set  aside.  Cory  v.  Boyhton 
Ins.  Co.,  107  Mass.,  140. 

9.  "Prohibited  from  all  guano  islands  ex- 
cept the  Chinchas."  She  loaded  at  Navassa 
in  the  Carribbean  Sea,  with  a  cargo  of  mate- 
rial, a  product  of  that  island,  claimed  by  the 
defendants  to  be  guano,  but  by  the  plaintiffs 
claimed  to  be  a  mineral  phosphate.  Held,  the 
burden  was  upon  the  insured  to  show  that 
there  had  been  no  breach  of  the  warrantj'; 
that  the  act  of  congress,  18136,  ch.  164.  and  the 
public  document;!  of  the  United  States,  recog- 
nizing that  island  as  one  of  the  guano  islands, 
ought  to  have  been  admitted  as  evidence  upon 
the  issue  whether  the  island  was  a  guano 
island.    Whiion  v.  Albany  City  Ins.  Co.,  109 

•Mass.,  34. 

10.  Whoever  claims  the  benefit  of  insur- 
ance that  has  been  made  by  another  "  for  ac- 
count of  whom  it  may  concern,"  must  show 
that  the  person  who  effected  it  intended  to  In- 
-iure  the  claimant's  interest.  Be  Bolle  v.  Penn- 
aylvanm  Ins.  Co..  4  Whart.,  68.  And  evidence 
that  thn  person  named  in  the  policy  purchased 


and  shipped  a  box  of  jewelry  was  not  snf& 
cient.     Tbid. 

11.  Those  who  assert  that  insurance,  made 
"  for  account  of  whom  it  may  concern,'"  wa'» 
intended  to  embrace  their  goods,  must  prove 
it.    Steele  v.  Franklin  Ins.  Co.,  17  Penn.  St.,  390. 

12.  By  the  terms  of  the  policy,  insurers 
were  not  liable  unless  the  loss  amounted  to 
seven  and  a  half  per  cent,  on  the  property  in- 
sured. Held,  the  burden  was  upon  the  plaint- 
iff to  show  that  fact.  Merchants  Mat.  Ins.  Co. 
V.  Wilson,  3  Md.,  317. 

13.  The  court  below  instructed  the  jury 
that  the  burden  of  proving  the  breach  of  a 
certain  promissory  warranty  was  upon  the 
defendants.  Held,  error;  for  in  the  contract 
of  insurance,  a  warranty  is  a  condition  or  con- 
tingency, and  unless  that  be  performed,  there 
is  no  contract.  This  holds  true  v/hether  the 
warranty  related  to  things  past,  present,  or 
to  come,  all  which  of  necessity  require  in- 
sured to  aver  performance,  and  therefore  cast 
the  burden  of  proving  that  performance  upon 
insured.  There  are  cases  which  seem  to  he 
against  this  rule,  but  upon  a  careful  examina- 
tion, it  will  be  found  that  the  matter  decided 
in  them  was  not  a  warranty,  but  representa- 
tion merely,  at  least  made  so  by  construction, 
and  therefore  matter  of  defense  only,  the  bur- 
den of  which  must,  always  rest  upon  the  in- 
surers (citing  Catlin  v.  Springfield  Fire  Ins. 
Co.,  1  Sumn.,435;  Houghton  v.  Manufacturers 
Mutual  Fire  Ins.  Co.,  8  Met.,  114;  Underdill 
V.  Agawara  Mutual  Fire  Ins.  Co.,  6  Cush.,  410; 
Jones  Manufacturing  Co.  v.  Manufacturer* 
Mutual  Fire  Ins.  Co.,  8  id.,  83.)  Wilson  v. 
Hampden  Fire  Ins.  Co.,  4  R.  I.,  159. 

14.  The  burden  is  upon  the  plaintiff  to  show 
that  the  difference  between  the  amount 
claimed  and  that  proven  at  the  trial  was  the 
result  of  error,  and  in  the  absence  of  proof  to 
maintain  that  issue,  the  insured  cannot  recover. 
Hoffman  v.  Western  Marine  arid  Fire  Ins.  Co., 
1  La.  An.,  316. 

III.   Geneeaxlt. 

1.  The  omit  of  impeaching  either  the  juris- 
diction, or  the  regularity  of  the  proceedings, 
or  the  existence  of  facts  upon  which  a  decree 
has  been  pronounced,  is  upon  the  party  who 
asserts  that  they  are  irregular  or  insufficient. 
Francis  i>.  Ocean  Ins.  Co.,  6  Cow.,  404. 

2.  The  party  wlio  holds  the  affirmative  of 

42.5 


851 


OPEN  POLICY -OTHER  INSURANCE. 


852 


When  it  vitiates. 


the  issue  cannot  recover,  if  the  evidence  upon 
that  issue  is  equally  balanced.  Rogers  v.  Trad- 
ers Ins.  Co.,  0  Paige  Ch,  583. 

3.  Defendant  alleged:  "The  policy  had 
been  canceled,  and  an  agent  of  the  compau}' 
Jiad  promised  to  surrender  the  note."  Held, 
the  burden  was  on  defendant  to  show  that  the 
agent  was  authorized  to  make  the  promise; 
authority  to  deliver  the  policies  would  not 
confer  upon  the  agent  the  right  to  surrender 
the  note.  Marhlehead  Mut.  Ins.  Co.  v.  Under- 
wood, 3  Gray,  210. 

4.  When  a  statute  makes  a  deed  or  agree- 
ment or  other  act  void,  unless  made  upon  a 
specified  consideration  or  under  specified  cir- 
cumstances, the  party  claiming  under  the 
ileed  or  agreement  or  act  must  show  that  the 
circumstances  existed,  under  which  alone  it 
could  have  validity.  The  other  party  to  be 
affected  may  rest  upon  the  general  prohibition 
(citing  Williams  v.  Insurance  Co.  of  North 
America,  9  How.  Pr.,  365 ;  Sedgwick  Stat.  <& 
Cons.  Law,  117;  Savage  v.  Medbury,  19  N.  Y., 
32).  Peoria  Marine  and  Fire  Ins.  Co.  v.  Wal- 
ter, 22  Ind.,  73. 


OPEN  POIilCY. 

(See  PoLicT.) 


OPIUM. 

(See  Intoxicatino  Dbineb.) 


OTHER  INSURANCE. 

(See  Double  iNauBANCB ;  Estoppel;  Peincipal  akd 
Agent.) 


I.  When  it  vitiates. 

II.  DOES  NOT  VITIATE. 

III.  Questions  for  the  jury. 

IV.  Generally. 

I.  When  it  vitiates. 

1.  If  the  mortgagee  was  authorized  b}'  the 
mortgagor  to  make  subsequent  insurance,  it 
426 


matters  not  in  whose  name  it  was  made,  it  is 
other  insurance  if  intended  to  be  for  the  ben- 
etit  of  the  first  insured ;  and  if  the  mortgagees 
cover  their  own  special  interest  as  mortgagees, 
and  the  mortgagors  agree  to  pay  the  premium, 
and  it  is  clfected  by  the  authority  of  the 
mortgagors,  for  their  benefit  and  at  their  ex- 
pense,  it  avoids  a  policy  made  to  the  mort- 
gagors. Holbrook  v.  American  Ins.  Co.,  1  Cur- 
tis. C.  C,  193. 

2.  Policy  to  mortgagor  assigned  to  the 
mortgagee.  Held,  a  policy  to  the  latter,  and, 
though  voidable  for  breach  of  condition,  it 
avoids  another  policy  to  him,  which  prohib- 
ited other  insurance.  Carpenter  v.  Providence 
Washington  Ins.  Co.,  16  Pet.,  495. 

3.  R.  and  F.  agreed  with  M.  that  he  should 
hold  a  schooner  as  his  own  property  until 
they  should  pay  certain  debts  against  her,  and 
refund  him  so  much  money  as  would  make 
him  and  R.  owners  respectively  of  seven-six- 
teenths of  the  schooner,  and  F.  two-sixteenths. 
M.  procured  two  policies  in  his  own  name, 
"  For  account  of  himself  and  others,  as  inter- 
est may  nppear,"  each  for  $5,500 ;  and  R.  pro. 
cured  two  others,  each  $5,000,  "For  account 
of  himself  and  M."  All  of  tlie  policies  pro- 
vided :  "  If  prior  insurance  has  been  made, 
then  this  company  shall  be  answerable  only 
for  so  much  as  the  prior  insurance  shall  be 
deficient  in  covering  the  loss."  The  two  first 
warranted,  "  Insurance  shall  not  be  made  upon 
the  vessel  exceeding  111,000;"  and  the  two 
last  warranted,  "  Insurance  shall  not  be  made 
upon  the  vessel  exceeding  .?10,000."  Held,  the 
warranties  referred  to  subsequent,  and  not 
prior,  insurance;  that  the  two  first  did  not 
afi'ect  the  two  last  policies,  for  they  were 
"prior  in  date;"  that  the  two  last  were  valid, 
and  therefore  were  other  insurance,  and  a  vio- 
lation of  the  warrant}-;  hence  insured  could 
not  recover  on  either  of  the  two  first.  Mussey 
V.  Atlas  Mut.  Ins.  Co.,  14  N.  Y.,  79. 

4.  K.,  an  insurance  broker,  was  in  the  habit  of 
obtaining  policies  for  about  twenty  companies, 
of  whom  he  received  commissions  upon  such 
risks  as  they  accepted.  He  delivered  the  pol- 
icies and  collected  the  premiums,  among 
which  was  the  policy  in  suit,  which  stipu- 
lated :  "  If  insured  shall  make  any  other  in- 
surance,  and  shall  not,  with  all  reasonable 
diligence,  give  notice  thereof  to  this  corpora- 
tion, and  have  the  same  indorsed  or  otherwise 
acknowledged   in  writing,  the    policy  shall 


Sj3 


OTHER  INSURANCE. 


851 


When  it  vitiates. 


cease."  Subsequently,  insured  increased  liis 
stock,  and  procured  another  policy  throui;h 
K.,  of  which  insurers  had  not  notice  till 
about  twenty  days  after,  which  was  imme- 
diately after  the  loss.  Ueld,  the  notice  was 
not  given  with  reasonable  diligence,  nor  was 
K.  a  person  to  whom  notice  of  it  ought  to 
liave  been  given,  for  when  he  delivered  the 
policy  and  received  the  premium,  his  agency 
was  at  an  end.  Melteii  v.  Ilamiltun  Fire  Ins. 
Co.,  17  N.  Y.,  009;  s.  c,  5  Duer,  101. 

3.  Stipulated:  "To  be  void  if  insured  shall, 
hereafter,  make  any  other  insurance,  and  shall 
not  with  all  reasonable  diligence,  give  notice 
thereof  to  the  secretary,  etc."  About  four 
months  thereafter,  another  policy  was  taken 
from  another  company,  wliicli  stipulated :  "  In 
case  the  insured  shall  have  already  made  any 
other  insurance  not  notified  to  this  company, 
and  mentioned  in  or  indorsed  upon  this  policy, 
this  shall  be  void  and  of  no  effect."  Neither 
company  had  any  notice  that  other  insurance 
was  made  upon  the  property.  Held,  the  policy 
was  void,  and  it  was  immaterial  whether  the 
latter  policy  was  void  or  voidable.  (Selden 
and  Wells,  JJ.,  dissenting).  Bigler  v.  New 
York  Central  Im.  Co.,  23  N.  Y.,  403;  s.  c,  20 
Barb.,  635. 

6.  Stipulated:  "Notice  of  all  previous  in- 
surance upon  the  property  insured  shall  be 
given  and  indorsed  upon  this  policy,  or  other- 
•wise  acknowledged  by  this  company  in  writ- 
ing, at  or  before  the  time  of  their  making  in- 
surauce  thereon ;  and  in  case  of  subsequent 
insurance,  notice  thereof  must  be  given  with 
all  reasonable  diligence,  to  the  end  that  it 
may  be  indorsed  on  the  policy,  subscribed  by 
this  company,  or  otherwise  acknowledged  in 
writing."  Held,  notice  of  other  insurance, 
given  to  a  jjerson  who  had  not  authority  to  act 
for  the  defendant  in  au\'  way,  was  not  suffi- 
cient; that  wliere  the  parties  have  stipulated 
for  a  particular  kind  of  evidence,  upon  a 
given  question,  the  court  lias  no  power  to  al- 
low one  of  the  parties  to  substitute  other  ev- 
idence of  the  fact.  Gilbert  v.  Phcmix  Tns.  Co., 
!16  Barb.,  372. 

7.  The  contract  provided  that  other  in- 
surance  must  not  be  made  upon  the  property 
insured,  unless  such  was  mentioned  in  tlie 
policy  at  the  time  it  was  issued.  Held,  parol 
evidence  was  not  admi.ssible  to  show  that 
pending  the  negotiations  for  the  policy,  and 
tip  to   the  time  of  its  delivery,  insurer  had 


notice  of  the  existence  of  prior  insurance  and 
its  amount,  and  that  such  was  to  stand  and  re- 
main in  force  upon  the  property.  Barrett  v. 
Union  Mutual  Fire  Lis.  Co.,  7  Cush.,  175. 

8.  The  company  sent  to  insured  notice  of 
an  assessment,  in  which  the  loss  in  question 
was  put  dmvn,  under  the  title  "unadjusted." 
Held,  no  waiver  of  llie  condition  requiring 
notice  of  other  insurance.  Forbes  v.  Agawam 
Mutual  Fire  Ins.  Co.,  9  Cush.,  470. 

9.  Company's  by-law  required  consent  of 
the  directors,  signified  in  the  policy  or  by 
indorsement,  signed  by  the  secretary,  to  subse- 
quent insurance.  Held,  the  consent  of  one 
director,  indorsed  upon  the  application,  was 
not  sufBcient.     Ibid. 

10.  Policy  stipulated:  "If  insured  shall 
etlect  subsequent  insurance,  and  shall  not,  with 
all  reasonable  diligence,  give  notice  of  it  to 
this  company,  and  have  it  indorsed  on  the 
policy,  or  otherwise  acknowledged  in  writing, 
the  policy  shall  be  void."  Insured  made 
other  insurance,  and  exhibited  memorandum 
of  it  to  insurer's  agent,  who  was  authorized 
to  receive  notices,  to  enter  them  on  his  book 
and  indorse  them  on  the  policies.  This  pol- 
icy was  out  of  the  hands  of  the  insured,  and 
the  agent  told  him  it  would  make  no  differ- 
ence; that  he  would  enter  it  Dn  his  book. 
Held,  the  policy  was  void.  Worcester  Bank  v. 
Hartford  Fire  Ins.  Co.,  11  Cush.,  265. 

11.  Policy  prohibited  further  insurance, 
unless  indorsed  on  the  policy  at  its  issue.  It 
was  indorsed,  "  Already  .$5,000  in  ^tna  and 
13,000  in  the  Conway  Mutual."  There  was 
in  fact  no  other  insurance  at  that  time;  but  in- 
sured  subsequently  procured  other  insurance 
for  18,000  in  the  Trenton  and  La  Fayette  com- 
panies,  of  which  no  indorsement  was  made. 
Held,  the  policy  was  void.  Comeay  Tool  Com- 
pany V.  Hudson  Eioer  Ins.  Co.,  12  Cush.,  144. 

12.  Policy  prohibited  other  insurauce,  un. 
less  consent  given  in  writing.  Insured  pro. 
cured  a  sul)sequent  valid  policy  without  con- 
sent. Held,  he  could  not  recover.  Bwt  v. 
People's  Mutual  Fire  Ins.  Co.,  2  Gray,  397. 

13.  S.  and  P.  procured  insurance,  loss  if 
any  payable  to  J.  Policy  prohibited  other  in- 
surance unless  notice  should  be  given,  and  as- 
sent of  the  president  obtained  in  writing. 
Held,  insured  could  not  prove  a  waiver  of  the 
condition;  for  that  were  to  substitute  verbal 
in  place  of  written  agreements;  and  even  if 
that  could  be  done,  the  president's  power  hciuij 

427 


655 


OTHER  INSURANCE. 


85a 


When  it  vitiates. 


clearly  limited  to  giving  liis  consent  in  writ- 
ing, liis  parol  consent  was  not  bimiiug  upon  the 
coiporation.  Hale  v.  Mechanics  Mul.  Ins.  Co., 
6  Gray,  169. 

14.  "Further  insurance  prohibited  unless 
the  insured  shall  with  reasonable  diligence 
give  notice  thereof  and  have  the  same  in- 
liorsed,  etc."  Insured  procured  another  poll- 
cj',  the  printed  terms  of  which  prohibited 
other  insurance;  but  the  maker  indorsed  in 
writing,  "other  insurance  permitted  without 
notice."  The  first  insurer  bad  not  notice  of 
this  other  policy  until  after  the  fire.  Held,  the 
second  policy  was  a  valid  insurance,  because 
written  indorsement  annulled  the  printed  pro- 
hibition ;  and  as  notice  of  it  was  not  given  un- 
til after  the  fire  occurred,  the  first  policy  was  of 
no  effect.  Kimball  v.  Howard  Fire  Ins.  Co.,  8 
Gray,  33. 

15.  In  November  and  December,  18G5  the 
Columbian  Insurance  Company  insured 
$34,000  on  the  bark  "  Dreadnought,"  to  ex- 
pire in  November,  1866.  January,  1866,  the 
company  became  notoriously  insolvent  and  in- 
sured proposed  to  it  to  cancel  their  policies 
and  pay  the  premiums  up  to  that  date,  but  tlie 
proposition  was  rejected.  In  February,  1866, 
by  a  decree  of  the  supreme  court  of  New 
York,  the  company  was  dissolved  and  receiv- 
ers appointed.  June  26,  1866,  insured  pro- 
cured $22,000  on  the  bark  in  the  Triton,  New 
England  and  Equitable,  and  a  policy  of  $7,000 
from  defendant,  valuing  the  bark  at  $30,000, 
and  stipulating,  "  If  any  other  insurance  shall 
have  been  made  upon  the  bark  prior  in  date 
to  this  policy,  then  this  insurer  shall  be  an- 
swerable only  for  so  much  as  the  amount  of 
such  prior  insurance  may  be  deficient  towards 
fuily  covering  the  property  hereby  insured. 
Held,  defendant's  policy  never  attached,  for 
there  were  other  policies  upon  the  property  in- 
sured exceeding  its  agreed  value,  at  the  date 
this  policy  was  made.  Ryder  v.  P/uenix  Ins. 
Co.,  98  Mass.,  185. 

16.  The  12th  section  of  insurers  charter 
provided:  "If  there  shall  be  any  other  insur- 
ance upon  the  whole  or  a  part  of  the  property 
insured,  then  the  policy  shall  be  void,  unless 
the  other  insurance  shall  exist  with  the  com- 
pany's consent  indorsed  upon  the  polic}', 
under  the  hand  of  the  secretary."  Held,  this 
condition  could  not  be  waived,  for  the  act  of 
the  legislature  put  it  out  of  the  power  of  the 
insurers  to  insure  property  otherwise  than  as 

428 


provided  in  the  charter,  and  that  therefore  it 
was  not  competent  for  the  insured  to  prove 
the  insurer's  consent  to  the  other  insurance 
by  any  evidence  other  than  an  indorsement 
on  the  policy,  under  the  hand  of  the  secretary 
of  the  comjiauy.  Couch  v.  City  Fire  Ins.  Co., 
38  Conn.,  181. 

17.  Stipulated:  "If  any  other  insur.ince 
has  been,  or  shall  be  hereafter,  made  upon  the 
said  property,  not  consented  to  in  writing 
hereon,  this  policy  shall  be  void."  Consent 
was  given  to  make  $30,000  other  insurance, 
but  other  insurance  was  made  exceeding  tliat 
sum.  iTeW,  the  policy  was  void.  Shurtleffv. 
Phanix  Ins.  Co.,  57  Jle.,  137.- 

18.  The  act  of  incorporation,  made  part  of 
the  contract,  prohibited  other  insurance,  un- 
less the  directors'  consent  was  obtained  and 
indorsed  on  the  policy.  Other  insurance  was 
obtained,  of  which  notice  was  not  given  to  the 
defendants.  Held,  the  policy  was  void,  not- 
withstanding only  two  sections  of  the  charter 
were  printed  on  the  back  of  the  policy,  nei- 
ther of  which  contained  the  prohibition. 
Fabyan  v.  Union  Mutual  Fire  Ins.  Co.,  33  N. 
H.,  203. 

19.  Insured  procured  a  policy  from  the 
Niagara  Ins.  Co.,  in  which  it  was  stipulated: 
"If  insured,  or  any  otiier  person  or  parties  in- 
terested, shall  have  existing  during  the  con- 
tinuance of  this  policy,  any  other  contract  or 
agreement  for  insurance,  whether  valid  or  not, 
on  the  property  hereby  insured,  or  any  part 
thereof  not  consented  to  by  this  company  ia 
writing,  and  mentioned  in  or  indorsed  upon 
this  policy  in  writing,  then  this  insurance 
shall  be  void  and  of  no  effect."  Wliile  tljia 
policy  was  in  force  insured  obtained  another 
from  the  defendant,  whicli  prohibited  other 
insurance  unless  made  by  consent  of  the  di- 
rectors  of  the  last  named  compan}',  signified 
by  indorsement,  signed  by  the  president  an. I 
secretary.  Held,  when  the  plaintilf,  without 
surrendering  or  canceling  the  policy  in  the 
Niagara  Co.,  procured  the  defendant's  policy, 
it  was  a  double  insurance  within  the  piohibi- 
tion,  and  the  defendant  could  not  be  held  lia- 
ble for  fixe  loss.  Gee  v.  Cheshire  County  Mut. 
Ins.  Co.,  55  N.  H.,  65. 

20.  Stipulated:  "Insured  shall  give  notice 
of  all  additional  insurance,  and  of  all  changes 
that  may  be  made  in  such  additional  ineur- 
ances.  Notice  was  given  of  other  insurance; 
$1,000  on  buildings,  $'2,000  on  stock  and  $7,000 


857 


OTHER  INSURANCE. 


858 


When  it  vitiates. 


on  machinery.  Subsequeutly  the  other  policy 
was  reuewed,  but  the  sum  insured  was  subdi- 
vided differently,  of  which  notice  was  not 
given  insurer.  Ueld.  insurers  were  released. 
The  notice  of  additimial  insurance,  without 
notice  as  to  the  changes  which  had  been 
made,  was  insufficient.  Simpson  t.  Peiinsyl- 
xania  Fire  Ins.  Co.,  38  Penu.  St.,  250. 

21.  On  steamboat,  $G,000.  Total  insurance, 
$13,000.  No  policy  was  issued.  But  the 
])rinted  policy  pr(ihibited  other  insurance  ex- 
cept such  as  might  be  approved  and  in. 
Uorscd  by  the  company's  authorized  agent. 
There  were  insurances  e.xceediug  $13,000. 
Held,  the  contract  was  to  be  regarded  as  made 
upon,  and  subject  to  the  condition  contained 
in  the  ordinary  form  of  policies  used  by  the 
company  at  the  time;  that  notice  of  other  in- 
surance was  sutJicient,  if  made  in  such  a  way 
as  to  indicate  that  it  was  intended  as  a  com- 
pliance with  the  provisions  of  those  policies. 
But  if  the  additional  insurance  was  merely 
spoken  of  incidentally,  in  the  course  of  or- 
dinary conversation,  that  would  not  be  such 
a  notice  as  the  law  required;  that  what  a 
secretary  or  clerk  of  an  insurance  company 
might  accidentally  learn  or  hear  in  respect  to 
the  other  insurance  would  not  be  notice  bind- 
ing upou  the  company.  Earekii  Inn.  Co.  v. 
liubinaon,  56  Penn.  St.,  256. 

22.  Stipulated:  "The  aggregate  amount 
insured  in  this  and  other  companies  shall  not 
exceed  two.thirds  of  its  estimated  cash  value." 
Viilued  in  the  policy  at  $1,950;  $1,800  insur- 
aiice  was  granted.  Improvements  were  made 
which  increased  the  value  of  the  building  to 
$4,300.  The  agent  examined  and  reported 
that  the  improvements  did  not  increase  the 
risk.  Insured  procured  $1,000  additional  in- 
surance, and  the  buildings  were  accidentally 
consumed.  Held,  the  value  named  in  the 
policy  must  govern  the  rights  of  the  parties; 
that  if  the  insurance  exceeded  two-thirds  of 
that  value,  the  contract  was  void,  notwith- 
standing the  premises  were,  in  fact,  of  much 
greater  value  than  the  sum  named.  Elliott  v. 
Lycoming  County  Mat.  Ins.  Co.,  60  Penn.  St., 
22. 

23.  A  failure  to  give  notice  to  the  insurer 
of  subsequent  insurance,  in  violation  of  a  con- 
dition, avoids  the  contract.  Harris  v.  Ohio 
Ins.  Co.,  Wright,  544;  s.  C,  5  Ohio,  466;  Bat- 
taile  V.  Merchants  Ins.  Co.,  3  Rob.. (La.),  384. 

24.  The    charter    and    by-laws    provided: 


"  The  president  and  secretary  may  give  leave 
to  make  other  insurance."  Held,  consent 
given  by  a  director  or  the  secretary  was  not 
valid.  Stark  County  Mut.  Ins.  Co.  v.  Hard,  19 
Ohio,  149. 

25.  D.  held  goods  in  store  at  A.  and  at  C, 
upon  which  he  procured  separate  policies. 
The  policy  on  the  goods  at  A.  prohibited  other 
insurance,  but  that  company  consented  to 
transfer  the  policy  to  insure  goods  at  B.  V). 
removed  the  goods  from  A.  to  B.,  and  mingled 
them  with  the  stock  at  B.  Hfld,  the  policy 
written  on  goods  at  B.  was  other  insurance 
upon  the  goods  removed  from  A.;  hence,  the 
latter  policy  was  void.  Washington  Ins.  Co.  v. 
Hayes,  17  Ohio  St.,  433. 

26.  Stipulated:  "If,  without  written  con- 
sent  hereon,  there  is  any  prior  or  subsequent 
insurance,  this  policy  shall  be  void."  An- 
other policy,  for  $3,000.  was  made,  and  about 
two  mimths  after,  one  Martin,  an  agent  of  the 
insurers,  residing  in  another  place,  wrote  upon 
it,  "  other  insurance  to  the  amount  of  $4,000 
is  hereby  permitted."  Martin  did  not  issue 
the  policy,  but  it  was  issued  by  Belts,  the  gen- 
eral agent  at  Chicago.  There  was  no  evidence 
of  any  authority  in  Martin  to  make  the  in- 
dorsement.  Held,  insured  could  not  recover 
without  showing  that  Martin  had  authority  to 
give  the  consent.  Security  Ins.  Co.  v.  Fay,  22 
Mich.,  467. 

27.  Stipulated:  "Other  insurance  proliib- 
ited  unless  consent  is  given  by  the  company 
in  writting."  Insured,  in  his  preliminary 
proofs  of  loss,  stated  he  had  made  other  in. 
surance  upon  the  property.  Held,  fatal  to  the 
recovery,  and  the  statement  iu  the  preliminary 
proofs  dispensed  with  any  other  proof  of  the 
fact.  New  York  Central  Ins.  Co.  1>.  Watson,  23 
Mich.,  486. 

28.  The  owner  of  stock  of  goods  sold 
them.     The  vendee  procured   insurance  and 

.  assigned  the  policy,  with  insurer's  consent,  to 
the  vendor.  It  prohibited  other  insurance, 
but  the  vendee  obtained  other  insurance  for 
his  own  account.  Held,  the  second  was  void. 
Neve  V.  Columbia  Ins.  Co.,  2  McMullen,  230; 
Lcavitt  V.  Western  Fire  and  Marine  Ins.  Co., 
7  Rob.  (La.),  851. 

29.  Other  insurance  prohibited.  Insured 
purchased  another  stock  of  goods,  upon  which 
there  was  a  policy.  He  mingled  the  two 
slocks,  and  took  an  assignment  of  the  last 
policy.     Held,  other   insurance.      Walton  » 

429 


859 


OTHER  INSURANCE. 


86a 


When  it  vitiates. 


Lmiisinna  State  Marine  and  Fire  Ins.  Co.,  3 
Ki>b.  (La.),  563. 

iiO.  Stipulated :  "  In  case  insured  sliall  have 
.ilrcady  any  other  insurance  not  notified  to 
tills  corporation  and  mentioned  in  or  indorsed 
upon  this  policy,  this  insurance  shall  be  void 
and  of  no  effect."  Held,  a  policy  in  another 
company  on  the  same  property  made  prior, 
■without  giving  notice  in  the  manner  indicated, 
leleased  the  insurers.  Duclos  v.  Citizens 
Mutual  Ins.  Co.,  23  La.  An.,  333. 

31.  Under  sec.  2T70  of  the  revised  code  of 
Georgia,  a  second  insurance  upon  the  same 
property,  made  without  the  consent  of  the  in- 
surer, avoids  the  policy,  and  it  is  immaterial 
whether  the  second  policy  is  voidable. 
Lackey  v.  Georgia  Home  Ins.  Co.,  43  Ga.,  4.5G. 

32.  The  policy  prohibited  other  insurance 
without  notice  and  consent  of  the  insurer: 
other  insurance  wag  m.ade.  The  fact  of  giv- 
ing the  notice  was  not  sworn  to  positively. 
The  person  to  whom  it  was  alleged  the  notice 
had  been  given  testified  that  he  never  received 
it.  Held,  the  evidence  did  not  preponderate 
in  favor  of  the  insured  and  therefore  the  judg- 
ment must  be  reversed.  Illinois  Mut.  Ins. 
Co.  V.  Malloy,  50  111.,  419. 

3.3.  Other  insurance  prohibited  unless  no- 
tice given  and  an  indorsement  of  it  made  upon 
the  policy.  Insured  stated  that  there  was  an- 
other policy  for  $3,000  on  the  same  property, 
and  that  it  would  not  be  renewed.  But  it  was 
3'enewed  and  no  notice  was  given  of  it  to  in- 
surer. Held,  the  policy  was  void.  I)eitz  v. 
Mound  City  Mutual  Fire  and  Life  Ins.  Co.,  38 
Mo.,  83. 

34.  Stipulated:  "If  any  other  insurance 
has  been  or  shall  Itereafter  be  made  upon  said 
property  not  consented  to  in  writing  hereon, 
this  policy  shall  be  null  and  void."  Held,  if 
there  was  prior  insurance,  the  insurer  ought 
to  have  had  notice  of  it  when  the  policy  was 
issued,  so  as  to  decide  whether  another  insur- 
ance would  be  prudent,  but  if  subsequently 
made,  prompt  notice  should  have  been  given 
so  as  to  enable  the  insurer  to  elect  either  to 
sanction  it,  or  to  cancel  his  own  policy; 
if  there  were  proof  that  the  two  policies  were 
simultaneous,  still  the  notice  would  h.ive  been 
required,  though  the  condition  was  only  for 
notice  of  a  prior  or  subsequent  insurance. 
Manhattan  Ins.  Co.  r.  Stein,  5  Bush,  6.52. 

35.  The  policy  prohibited  other  insurance, 
either  prior  or  subsequent.    At  the  time  it  was 

430 


made,  and  at  the  time  of  tlie  loss,  there  was 
another  policy  on  the  property,  and  tlii.?  latter 
policy  also  prohibited  other  insurance  upon 
the  same  property.  Held,  the  first  policy  was 
void.    Hygum  v.  .^tna  Ins.  Co.,  11  Iowa,  21. 

36.  Other  insurance  was  prohibited,  but 
there  was  other  insurance  made  without 
such  consent,  of  which  insurer  had  not 
notice  until  after  the  loss.  Held,  the  appoint- 
ment of  an  appraiser  to  determine  the  value 
of  the  property  destroyed,  and  the  failure  to 
refund  the  unearned  premium  from  the  date 
of  its  destruction,  was  not  a  waiver  of  the 
breach  of  the  condition.  Jewett  v.  Home  Ins. 
Co.,  29  Iowa,  .562. 

37.  Other  insurance  was  prohibited  except 
by  consent  indorsed  on  the  policy.  Three 
other  policies  were  made  upon  It,  each  of 
which  stated  that  if  the  interest  of  the  insured 
in  the  land  upon  which  the  premises  stood 
was  a  leasehold,  the  policy  should  be  void, 
unless  such  interest  was  e.xpresslj-  stated.  His 
interest  in  the  land  was  leasehold,  but  the 
three  companies  treated  the  policies  as  valic, 
and  paid  the  claims,  if eW,  they  were  other 
insurance,  and,  being  prohibited  by  the  terms 
of  the  contract,  no  recovery  could  be  had. 
David  T.  Hartford  Fire  Ins.  Co.,  13  Iowa,  69. 

.38.  Stipulated:  "Notice  of  any  other  insur- 
ance already  made,  or  which  shall  afterwards 
be  made  elsewhere  on  the  same  property,  shall 
be  given  so  thJit  a  memorandum  of  it  may  be 
indorsed  on  this  policy,  otherwise  this  policy 
shall  be  void."  Insured  told  agent  she  was 
about  to  get  another  policy.  Held,  notice  of 
an  intention  to  get  another  policy  did  not  s.Ht- 
isfy  the  condition.  Healey  v.  Imperial  Fire 
Ins.  Co.,  5  Nev.,  268. 

39.  Other  insurance  prohibited.  This  con- 
dition was  violated.  Held,  no  recovery  could 
be  had.  Campbell  v.  .^tna  Ins.  Co.,  Cochran, 
21. 

40.  Other  insurance  was  prohibited  unless 
made  with  insurers'  consent.  The  father  of 
the  insured,  without  the  son's  knowledge,  paid 
the  premium  to  another  company  for  another 
policy,  which  was  not  delivered  at  the  time 
the  fire  happened,  but  the  insured  subsequent- 
ly accepted  from  that  company  payment  for 
the  loss.  Held,  it  was  other  insurance,  for  the 
insured  had  ratified  the  act  of  his  father,  and 
the  fir.st  policy  was  therefore  void.  Dafoe  v. 
Johnstoicn  Dist.  Mut.  Ins.  Co.,  7  U.  C.  C.  P.,  55. 

41.  Other  insurance  prohibited.    But  sepa- 


861 


OTHER  INSURANCE. 


862- 


When  it  does  not  vitiate. 


rate  sums  were  insured  on  the  building,  on  the 
machiner}',  and  on  tlie  stock  therein.  A  sec- 
ond insurance,  without  consent,  was  effected 
on  the  buihling  and  on  the  machinery,  but 
none  on  tlie  stock.  Held,  the  policy  upon 
building,  machinery  and  stock,  was  wholly 
void,  and  it  was  immaterial  that  such  second 
insurance  was  with  a  foreign  company,  not 
cauable  of  being  enforced  in  Canada.  Jlamsay 
Woolen  Cloth  Co.  v.  Mutual  Fire  Ins.  Co.,  11  U. 
C.  Q.  B.,  510. 

42.  The  defendant  pleaded  that  the  policy 
was  assigned  to  M.,  who  made  other  insurance 
without  insurer's  consent,  contrary  to  a  condi- 
tion contained  in  the  policy.  Held,  a  good 
plea.  Burton  v.  Oore  Hist.  3Iut.  Ins.  Co.,  14  U. 
C.  Q.  B.,  343. 

43.  Other  insurance  was  proliibited  unless 
made  with  insurers'  consent.  Insured  nego- 
tiated for  another  policy,  arul  took  an  interim 
receipt  for  the  premium.  Held,  it  was  other 
insurance.  Hatton  v.  Beacon  Ins.  Co.,  16  U.  C. 
Q.  B.,  316. 

44.  The  defendants  ple.aded  that  before  and 
after  the  making  of  the  policy,  plaintiffs  pro- 
cured otlier  insurance,  which  was  never  in- 
dorsed on  llie  policy,  and  to  which  insurers 
never  consented.  Plaintiff  replied  equitably, 
that  as  to  the  insurance  made  prior  to  defend- 
ants' policy,  the  company  which  made  it  had 
become  bankrupt,  of  which  notice  was  given 
the  defendant  who  granted  the  policy  sued  on, 
and  received  tlie  premium;  that  as  to  the  in- 
surance made  subsequently,  plaintiff  notified 
defendants'  agent  of  it,  for  him  to  indorse  the 
same  or  to  notify  the  plaintiff  if  defendants  re- 
fused to  consent  to  it;  that  notice  was  never 
given  to  plaintiff  of  the  defendants' dissent, 
and  that  subsequently  tlie  plaintiff  was  re- 
quired by  defendant  to,  and  did  pay,  assess- 
ments on  his  premium  note.  Held,  on  de- 
murrer that  the  replication  was  bad,  for  the 
Btatute  made  the  policy  void  under  the  facts 
pleaded.  Merrill  «.  Niagara  Hist.  Ins.  Co.,  18 
U.  C.  Q  B.,  529. 

45.  Defendant  pleaded  other  insurance  with- 
out notice  or  indorsement  thereof  on  their  pol- 
icy,  contrary  to  the  conditions  of  the  contract. 
Replication  that  the  policy  was  effected 
through  N.;  that  when  the  second  insurance 
was  procured,  plaintiff  had  not  received  de- 
fendant's policy,  and  had  no  knowledge  of  the 
prohibition ;  that  when  he  became  aware  of  it. 
he  gave  notice  of  it  to  defendant's  agent,  and 


caused  it  to  be  canceled;  that  the  said  agent 
informed  him  it  was  not  necessary  to  haver 
said  other  insurance  noted  on  the  policy;  that 
plaintiff  then  procured  other  insurance,  of 
which  notice  was  given  to  defendants  who  in- 
dorsed the  same  and  returned  the  said  policy 
to  plaintiff  as  a  valid  and  subsisting  contract. 
Held,  tlie  replication  was  no  answer  to  the 
plea.  Jacobs  v.  Equitable  Ins.  Co ,  18  U.  C.  Q. 
B.,  14;  s.  c,  17  id.,  35;  s.  c,  18  id.,  373;  s.  c, 
ly  id.,  250;  19  id.,  257. 

II.  When  it  does  not  vitiate. 

1.  Waiver.  The  policy  prohibited  other 
insurance  unless  made  with  insurers  consent. 
There  was  other  insurance  upon  the  property. 
Held,  if  the  agent  of  insurer,  at  the  time  the 
policy  was  made,  knew  of  the  other  insurance, 
the  condition  prohibiting  other  insurance  was 
waived,  or  the  insurer  would  be  estopped  from 
setting  up  tlie  other  insurance  as  a  defense  to 
the  action.  Oeib  v.  International  Ins.  Co.,  1 
Dil.  Oir.  C,  443. 

2.  JIade  by  stranger.  Insured  held  pos- 
session under  a  contract  for  a  deed.  Policy 
prohibited  other  insurance,  unless  with  insur- 
er's consent.  The  holder  of  the  legal  estate 
made  other  insurance  without  notice  to  this 
company.  Held,  no  defense  to  this  action. 
JElna  Ins.  Co.  v.  Tyler,  10  Wend.,  385;  s.  c,  Vi 
id.,  507. 

3.  Sufficient  notice  o£  Stipulated:  "In- 
sured shall,  with  all  reasonable  diligence, give 
notice  of  other  insurance,  and  have  the  same 
acknowledged  in  writing.  He  gave  notice  of 
$6,000  other  insurance  in  one  company ;  but 
this  was  a  mistake,  for  it  was  made  by  twi> 
companies,  equal  sums  each.  Held,  it  was 
enough  for  the  insurers  to  be  informed  of  the 
true  amount.  Benjamin  v.  Saratoga  Mutual 
Firelns.  Co.,  Ill  N.Y.,  4:15. 

4. — A  prior  insurance  was  mentioned  in 
the  applicatiou,  and  was  renewed  when  it  ex- 
pired, of  which  renewal,  notice  was  not  given 
insurers.  Held,  not  a  violation  of  the  condi- 
tion which  required  notice  of  other  insurance. 
Brown  v.  Cattaraugus  Mut.  Ins.  Co.,  18  N.  Y., 
385. 

5. —  Stipulated:  "  If  insured  shall  hereafter 
make  other  insurance,  and  not  with  due  dili- 
gence give  notice  tliereof,  and  have  the  same 
indorsed  upon  this  policy,  or  otherwise  ac- 
knowledged in  writing,  this  insurance  shalli 

431 


863 


OTHER  INSURANCE. 


864 


When  it  does  not  vitiate. 


1)6  void."  Upon  the  face  of  the  policy  the  fol- 
lowing was  written:  "Privilege  for  $4,500 
other  insurance."  Held,  insured  was  not 
bound  to  give  notice  of  the  names  and  amounts 
of  the  other  insurance.  Benedict  «.  OMan  Ins. 
Co..  31  N.  Y.,  389;  s.  c,  1  Daly,  8. 

6.  Made  by  stranger.  Stipulated:  "To  he 
void  if  other  insurance  shall  he  made  without 
consent  in  writing."  Another  person  inter- 
ested in  the  property  procured  insurance,  and 
no  indorsement  was  made  upon  the  policy ; 
but  insurers  had  notice  from  persons  other 
than  insured.  Held,  the  condition  did  not  ap- 
ply to  insurance  made  hy  persons  other  than 
the  insured ;  that  the  notice  of  it,  though  not 
given  by  the  insured,  was  sufficient,  liowley 
f.  Empire  Fire  Ins.  Co.,  4  Abb.  Dec,  131 ;  s. 
c,  36  N.  Y.,  550;  43  N.  Y.  (3  Keyes),  557. 

7.  \mA  or  voidable  jwlity.  Stipulated: 
■"  Other  insurance  permitted  without  no- 
tice till  required,  and  if  any  other  insur- 
ance has  been,  or  shall  hereafter  he  made 
on  said  property  and  not  consented  to,  etc. 
then  and  in  every  such  case,  the  policy 
ehall  be  null  and  void.  In  case  of  loss,  the 
insured  shall  not  recover  any  greater  portion 
of  the  loss  sustained  than  the  amount  hereby  in- 
sured sliall  hear  to  the  whole  amount  insured." 
At  the  time  the  policy  was  made,  there  was 
another  policy  in  favor  of  insured,  which 
covered  this  and  other  property  to  the  amount 
of  $4,500,  "Loss,  if  any,  payable  to  K."  But 
that  policy  prohibited  otlier  insurance  unless 
made  with  the  assent  of  that  company,  and 
that  company  never  had  notice  of  the  de- 
fendant's policy,  but  insurers  had  notice  of 
that  policy.  Held,  the  defendant  was  liable 
for  the  whole  amount  of  the  loss,  for  there 
was  in  law  no  other  insurance  on  the  proper- 
ty mentioned  in  defendant's  policy.  Hand  v. 
Williamshurgh  City  Fire  Ins.  Co.,  57  N.  Y.,  41. 

8.  Sutticieiit  notice  of.  Stipulated:  "If 
there  be  already  any  other  insurance  not  no- 
tifled  to  this  corporation,  the  policy  shall  be 
of  no  effect.  W.  was  employed  to  solicit  risks 
and  negotiate  contracts  with  any  and  every- 
body who  might  wish  to  insure.  Notice  of 
other  insurance  was  given  to  him  orally. 
Held,  he  was  a  proper  person  to  receive  it. 
McEwen  v.  Montgomery  Co-unty  Mut.  Inn.  Co., 
5  Hill,  101. 

9.  What  i.s  an  approval  of.  The  pol. 
icy  prohibited  other  insurance  unless  made 
■with    consent    of     insurer.      Insured    gave 

432 


notice  of  other  insurance.  Insurer's  sec- 
retary replied,  "  We  have  received  notice  of 
additional  insurance."  Held,  the  plaint- 
iff  had  the  right  to  assume  that  it  was  ap- 
proved, for  the  rule  is  well  established  that 
where  the  promise  admits  of  more  meanings 
than  one,  it  is  to  be  performed  in  that  . 
which  the  promisor  apprehended  the  prom- 
isee received  it.  Potter  v.  Ontario  Mut.  Ins. 
Co.,  5  Hill,  147. 

10.  Sufficient  notice  of.  A  verbal  notice  of 
other  insurance,  given  to  a  person  authorized 
to  make  surveys  and  receive  applications,  was 
held  suflScient.  Sexton  v.  Montgomery  Mut.  Ins. 
Co.,  9  Barb.,  191. 

1 1.  What  is  an  approval  of.  Policy  pro- 
vided:  "If  any  other  insurance  shall  be 
made,  notice  thereof  shall  be  given  by  insured 
to  insurer  that  the  same  may  be  indorsed  oa 
said  policy,  or  otherwise  acknowledged  by 
them  in  writing."  Insured  procured  other  in- 
surance, and  gave  notice  of  it,  which  was  ac- 
knowledged but  approval  was  refused  except 
upon  condition  that  the  sum  recoverable  by 
virtue  of  the  policy  should  not  together  with 
all  insurance  thereon,  exceed  two-thirds  of  the 
cash  value  of  the  property  insured.  Held,  in- 
surer  had  no  right  to  impose  a  condition  or  to 
prescribe  terms  not  contained  in  the  policy. 
Westlake  v.  St.  Lawrence  County  Mut.  Ins.  Co., 
14  Barb.,  206. 

12.  Not  other  insurance.  Stipulated: 
"  Incase  anj- other  policy  of  insurance  has  been 
or  shall  be  issued,  covering  the  whole  or  any 
portion  of  the  property  insured  by  this  com- 
pany, the  policy  shall  be  void  unless  notice 
thereof  be  given,  and  the  company's  assent 
thereto  obtained  in  writing."  This  policy  was 
"  upon  stock  in  trade,  consisting  chiefly  of 
ready  made  clothing,  at  146  River  St.,  Troy." 
Defendants  consented  that  the  goods  should 
be  removed  to  the  store  adjoining  No.  148,  at 
which  time  and  place  insured  had  a  large  quan- 
tity of  goods  of  the  same  kind,  insured  in 
another  company,  of  which  other  insurance 
defendant  did  not  have  any  notice.  Held,  not 
other  insurance.  Dissenting,  Ilogeboom  J. 
Foj«  V.  Hamilton  Mut.  Ins.  Co.,  39  Barb.,  303. 

1  :-J.  Estoppel.  The  policy  prohibited  other 
insurance,  unless  with  notice  to  the  in- 
surers, and  with  their  consent  indorsed  upon 
the  policy.  Other  insurance  was  made  of 
wliieh  notice  was  nut  given.  The  policv  ex- 
piled,  application  was  made  to  insurers'  agent 


865 


OTHER  INSURANCE. 


866 


When  it  does  not  vitiate. 


to  renew  it,  and  he  was  then  informed  of  Ihe 
existence  of  the  other  insurances,  and  after 
being  so  informed  lie  made  and  delivered  the 
renewal.  Held,  error  to  e.xcliide  evidence  of 
the  foregoing  facts,  for  if  proven,  tliey  would 
t'slop  tlie  defendant  lo  insist  upon  the  alleged 
forefeilurc.  Carroll  v.  Charter  Oak  Ins  Co., 
SSBarb.,  403;  s.  c,  40;  id.,  21)3;  1  Abb.  Dec, 
316. 

14.  Not  other  insurance.  B.  contracted 
to  purchase  of  A.,  and  subsequently  contracted 
to  sell  to  C,  and  procured  policy  which  stip- 
ulated against  the  making  of  other  insurance, 
unless  consented  to  by  insurers.  C.  procured 
A.  to  make  the  deed  lo  him,  of  which  B.  had 
uo  knowledge.  C.  procured  insurance  upon 
the  same  property.  Held,  not  other  insurance 
within  the  meaning  of  the  parties  (citing  Mu- 
tual Safety  Ins.  Co.  v.  Hone,  3  N.  Y.,  335). 
Acer  V.  Merchants  Ins.  Co.,  57  Barb.,  68. 

15. —  Policy  to  N.,  on  property  owned  by 
him  and  G.  jointly.  Insurer's  agent  was  re- 
<iuested  to  correct  it  so  that  it  would  cover 
their  interests  jointly.  He  made  an  attempt 
so  to  do.  Other  insurance  was  prohibited, 
but  N.  made  otiier  insurance  upon  his  individ- 
ual property,  not  upon  that  owned  by  N.  and 
O.  jointly.  Held,  it  was  not  other  insurance 
within  the  meaning. of  the  contract  (citing 
Oodin  0.  London  Ass.  Co.,  1  Burr.,  489;  Mu- 
tual Safety  Ins.  Co.  v.  Hone,  2  N.  Y.,  335,  340; 
Jitna  Ins.  C.  v.  Tyler,  16  Wend.,  385).  Pitney 
V.  Glens  Falls  Ins.  Co.,  61  Barb.,  335. 

1(>.  Waiver.  On  stock  of  liquors  and 
spirits.  Stipulated:  "If  insured  shall  have, 
or  shall  liereat'ler  make,  any  other  insurance 
on  the  property  insured,  without  consent  of 
this  company  written  hereon,  this  policy  shall 
he  void."  He  procured  another  policy  from 
uuotlier  company,  on  his  stock  of  liquors  and 
spirits  stored  in  the  building  described.  Held, 
it  was  other  insurance  within  the  meaning  of 
the  policy,  but  insured  ought  to  have  been 
l>ermilted  to  prove  that  insurer's  agent  waived 
the  piohibitiou.  The  court  here  refused  to 
follow  the  Massachusetts  cases,  which  are  di- 
rectly .against  this  ruling.  Whilwell  v.  Putnam 
Fire  Ins.  Co,,  6  Lans.,  166. 

17.  —  The  policy  prohibited  other  insur- 
unce,  but  defendant's  local  agent  examined 
otlier  i)olicies  procured  by  insured  upon  the 
same  property.  Held,  a  waiver  of  the  condi- 
tion. Pechner  v.  Phmnix  Ins.  Co.,  6  Lans., 
411. 

38 


18.  V'oidabic  policj'.  Other  insurance  pro- 
hibited. Insured  procured  another  policy, 
but  it  was  to  be  void  in  case  of  prior  insur- 
ance without  notice  to  insurers.  Notice  was 
not  given  to  them.  Held,  the  second  policy 
was  not  other  insurance  within  the  meaning 
of  the  prohibition;  hence  the  first  policy  was 
valid.  J  action  V.  Massachusetts  Mutual  Fire 
Ins.  Co.,  33  Pick.,  418. 

19.  Sufficient  consent.  Stipulated:  "All 
policies  which  may  issue  from  this  company 
to  cover  property  previously  insured  shall  be 
void,  unless  such  previous  insurance  be  ex- 
pressed in  the  policy  at  the  time  it  issued." 
The  following  memorandum  was  written  on 
the  face  of  the  policy:  "$5,000  insured  by 
the  W.  Ins.  Co."  There  was  but  $4,700  in- 
sured  on  the  building  by  that  company.  Held, 
no  defense  to  the  action.  Liscom  v.  Boston 
Mutual  Fire  Ins.  Co.,  9  Met.,  305. 

20.  Voidable  policy.  Insured  procured  an- 
other  policy  on  the  same  property,  but  it  was 
not  binding  in  law,  and  could  not  Iiave  been 
enforced.  Held,  not  other  insurance.  Clark 
V.  New  England  Fire  Ins.  Co.,  6  Cush.,  343. 

2 1 .  Other  insnrance  prohibited.  There  was 
another  policy  upon  the  same  premises,  but  it 
provided  that  any  increase  of  risk  should 
avoid  it.  Insured  proved  that  the  risk  was 
increased.  Held,  it  was  not  other  insurance. 
Jackson  v.  Farmers  Mutual  Fire  Ins,  Co,,  5 
Gray,  53. 

22.  Not  other  insurance.  A  third  person 
interested  in  the  property  had  previously  ob- 
tained insurance  in  the  name  and  for  the  ben- 
efit  of  insured  Iiercin;  but  they  were  ignorant 
of  this  fact,  and  procured  this  insurance.  Held, 
not  other  Insurance  within  the  prohibiting 
terras  of  the  policy.  Nichols  v,  Fayette  Mutual 
Fire  Ins,  Co.,  1  Allen,  03. 

23.  Voidable  policy.  Insured  procured  an- 
other policy,  contrary  lo  the  conditions  of  this. 
It  was  invalid,  but  the  maker  of  it  had  paid 
insured  the  claim.  Held,  it  was  not  other  in- 
surance within  the  meaning  of  the  condition. 
Whether  the  money  paid  under  it  could  be 
recalled  was  a  question  not  necessary  to  be 
settled  in  the  present  case.  Hardy  v.  Union, 
Mutual  Fire  Ins.  Co..  4  Allen,  217. 

24.  Sufficient  consent.  The  policy  recited 
on  its  face  tliat  prior  insurance  had  been  made. 
Held,  sufficient,  notwithstanding  it  provided 
that  the  directors'  consent  must  be  signified 
by  indorsement,  signed  by  the  president  and 

433 


867 


OTHER  INSURANCE. 


SGS 


Wlien  it  does  not  vitiate. 


secretary;  and  where  the  name  of  the  com- 
pany with  which  the  prior  insurance  was 
made  had  not  been  given,  hut  the  amount  was 
named,  it  may  be  renewed  in  tliat  or  any  other 
company  without  further  notice.  First  Bap- 
tist Society  v.  Hillsborough  Mutual  Fire  Ins. 
Co.,  19  N.  H.,  580. 

25.  Sufficient  notice  of.  The  insured  is 
not  bound  to  state  the  particulars  of  the 
amount  of  other  insurance,  unless  specially 
required  to  do  so.  McMahon  v.  Portsmouth 
Mutual  Fire  Ins.  Co.,  23  N.  H.,  15. 

26.  Not  other  insurance.  Policy  provided: 
"  If  insurance  upon  any  house  or  building 
shall  be  or  subsist  in  said  company,  or  in  anj' 
other  office,  or  from  or  by  any  other  person  or 

•persons,  the  insurance  made  by  this  company 
shall  become  void,  unless  such  double  insur- 
ance subsist  with  the  assent  of  the  directors, 
signified  b}^  indorsement,  signed  by  president 
and  secretary."  Insured  made  a  bond  to  con- 
vey an  undivided  half,  and  the  obligees  re- 
turned another,  by  which  they  agreed  to  keep 
one-half  of  the  premises  in  repair  and  good 
condition  for  business,  and  if  destroyed  by 
fire,  water,  or  otherwise,  to  rebuild.  It  was 
also  agreed  that  the  obligor  in  the  tirst  bond 
should  insure  the  property  at  the  expense  of 
all,  and  that  the  insurance  money  that  might 
be  received  should  be  applied  to  rebuilding. 
Held,  the  contract  between  the  insured  and 
his  obligees  was  not  another  or  double  insur- 
ance. Burhank  v.  Rockingham  Mutual  Fire 
Ins.  Co.,  24  N.  H.,  550. 

27.  Estoppel.  Condition  that  notice  of 
other  insurance  made  upon  the  property  in- 
sured must  be  given  to  the  secretary,  and  the 
consent  of  the  directors  obtained.  Insured 
obtained  other  insurance  in  another  company; 
one  person  being  secretary  of  both  companies, 
who  issued  both  policies.  The  same  persons 
were  directors  of  both  companies,  and  exam- 
ined the  applications  made  by  the  insured. 
Held,  insurer  was  estopped  from  saying  that 
they  had  no  notice  of  the  second  insurance, 
or  that  they  had  not  consented  to  it.  Qoodall 
V.  New  England  Mutual  Fire  Ins.  Co.,  25  N.  H., 
169. 

28.  Not  other  insurance.  Action  upon  a 
premium  note.  The  charter  provided  that  the 
policy  should  be  void  if  insur.ance  in  any 
other  company  should  be  made  upon  the  same 
without  consent  of  directors  indorsed  upon 
policj'.    When  defendant  applied  for  the  in- 

434 


surance,  his  property  was  then  insured  in  the- 
New  Hampshire  Mutual,  which  policy  he  sur- 
rendered after  receiving  the  plaintifTs.  No 
indorsement  was  made  upon  it  in  compliance- 
with  the  charter,  but  there  was  evidence  givea 
tending  to  show  that  the  plaintiff's  policy  was 
not  to  take  effect  until  the  surrender  of  the- 
New  Hampshire  Mutual.  Held,  the  plaintiff's 
policy  was  valid,  and  the  defendant  liable  io 
pay  assessments  on  the  note.  Atlantic  Fire 
Ins.  Co.  V.  Goodall,  29  N.  H.,  183. 

29.  —  Action  on  a  premium  note  given  for  a 
policy,  -which  stipulated  that  it  should  be  void 
if  double  insurance  subsisted  without  the  con- 
sent of  the  directors,  given  in  writing.  At 
the  time  the  policy  was  taken,  the  agent  was 
told  that  there  was  another  policy  upon  the 
same  propert}-,  which  would  be  surrendered 
aod  canceled  so  soon  as  this  should  be  deliv- 
ered.  Soon  after  this  was  delivered,  the  maker 
of  the  premium  note  surrendered  the  other 
policy,  and  requested  that  it  be  canceled  from. 
January  22d,  at  noon ;  but  the  letter  did  not 
reach  its  destination  till  February  1st  follow- 
ing, on  which  day  the  polic3-  was  canceled. 
Held,  the  policy  was  a  valid  consideration  for 
the  premium  note.  Atlantic  Mut.  Ins.  Co.  v. 
Goodall,  35  N.  H.,  328. 

30.  Voidahle  policy.  Stipulated:  "To  be 
void,  if  any  subsequent  insurance  shall  ho 
made  upon  the  property  without  consent." 
A  subsequent  policy  was  made,  but  it  was  to 
be  void  if  any  other  insurance  was  made 
without  the  consent  of  that  company  indorsed 
upon  that  policy.  No  indorsement  was  made 
upon  it  in  respect  to  the  other.  Held,  the  sec- 
ond policy  was  not  other  insurance,  for  it  is 
absurd  to  hold  that  to  be  an  insurance  which 
can  be  available  only  if  the  insurance  com- 
pauy  chooses  to  be  hound.  Gale  v.  Belknap 
County  Ins.  Co.,  41  N.  H.,  170. 

31.  Waiver.  Insured  had  two  policies; 
one  in  the  M.  and  another  in  the  N.  Company. 
The  M.  Co.  stopped  payment.  Insured  sur- 
rendered  that  polic}-  to  the  agent  and  received 
the  unearned  premium,  the  polic}-  being  re- 
turned to  the  company;  defendant's  agent, 
having  knowledge  of  that  surrender,  made  the 
policy  in  suit,  which  prohibited  other  insur- 
ance unless  consented  to  by  indorsement. 
Subsequently  the  N.  Company  became  insol- 
vent, and  deftndant's  agent  made  another 
policy  in  the  Q.  Company,  to  take  the  place  of 
the  N.  Co.    No  iu-lorsemcnt  was  made  at  any 


869 


OTHER  INSURANCE. 


870 


When  it  does  not  vitiate. 


time  upon  the  defendant's  policy  consenting 
to  such  other  insurances.  Held,  tlie  jury  had 
a  right  to  regard  the  knowledge  of  defend- 
ant's agent  as  an  agreement  to  waive  tlie 
printed  condition  forbidding  otlier  insurance, 
hence  defendant  was  estopped  to  malie  any 
objection  in  that  respect,  nolwitlistanding  the 
agent  never  communicated  that  linowledge  to 
his  principal.  Hadley  v.  New  Hampshire  Fire 
Ins.  Co.,  55  N.  H.,  110. 

32.  Suffif'ient  notice.  The  policy  required 
notice  of  other  insurance.  Held,  a  written 
notice  was  not  necessary ;  a  verbal  notice  was 
sufficient,  and  it  may  be  given  to  any  .agent  of 
the  corapanj';  other  insurance  prima  fucie 
void,  of  which  no  notice  was  given,  did  not 
defeat  a  recovery.  Schenek  v.  Mercer  County 
Mutual  Fire  Ins.  Co.,  24  N.  J.,  447. 

SH.  Voidable  policy.  Stipulated:  "Persons 
insured  must  give  notice  of  any  other  insur- 
ance made  on  their,  behalf."  Held,  notice 
must  be  given  of  subsequent  as  well  as  prior 
insurance,  but  if  the  other  policy  could  not 
have  been  enforced,  it  is  not  other  insurance 
within  the  intention  of  the  parties.  Stacey  v. 
Franklin  Fire  Ins.  Co.,  2  W.  &  S.,  506. 

Hi.  Not  other  insurance.  Policy  on 
building  required  notice  of  other  insurance 
on  the  same  property.  It  was  indorsed : 
"Other  insurance  permitted  without  notice 
till  required."  There  was  another  policy  on 
"building,  machinerj%  shafting,  belting,  tools, 
lathes,  planes,  stock,  finished  and  unfinished." 
Held,  not  other  insurance.  Sloat  v.  Uoyallns. 
Co.,  49  Penn.  St.,  14. 

35.  Void  policy.  Stipulated:  "The  aggre- 
gate amount  insured  shall  not  exceed  tv?o 
thirds  of  the  estimated  cash  value.  Held, 
policies,  void  <i6  initio,  did  not  constitute  in- 
surance; but  policies  that  were  at  any  time 
valid  were  to  be  treated  as  such.    Mitchell  v. 

■  Lycoming  Ins.  Co.,  51  Penn.  St,  402. 

36.  Waiver.  Stipulated:  "To  be  void  in 
case  other  insurance  shall  be  made  and  not 
immediately  notified  to  the  secretary."  In- 
surer's agent  was  asked  to  take  $4,000  on  the 
risk.  He  forwarded  the  application  to  his 
principals,  and  stated,  if  they  would  not  take 
the  wliolc,  he  would  place  $1,000 'in  anotlier 
company,  of  which  he  was  agent.  His  prin- 
cipals issued  a  policy  for  $.3,000,  and  he  .ac- 
cordingly placed  |1,000  in  the  other  company. 
Eight  months  thereafter  the  agent  indorsed 
consent  to  make  the  other  policy.    Held,  evi- 


dence that  insurers  had  notice  of  the  addi- 
tional  insurance;  that  they  could  not  retain 
the  premium  and  wait  till  a  loss  occurred  to 
make  objection  to  the  other  insurance. 
Farmers  Mat.  Ins.  Co.  v.  Taylor,  73  Penn.  St., 
342. 

37.  Not  other  insurance.  On  store.  Stip- 
ulated: "No  person  shall  be  allowed  to  in- 
sure the  same,  or  any  other  property  connected 
with  it,  in  any  otlier  company  or  at  any  other 
office."  He  subsequently  insured  his  stock  iu 
another  company.  Held,  the  stock  was  not 
connected  with  the  store;  hence  there  was  not 
other  insurance.  Jones  v.  Maine  Mut.  Ins.  Co., 
18  Me.,  155. 

38.  Voidable  policy.  A  second  policy, 
upon  the  same  property,  which  is  invalid, 
does  not  defeat  the  first,  notwithstanding  the 
makers  of  the  second  have  paid  the  sum 
claimed  under  it.  The  by-law  required  other 
insurance  to  be  indorsed  upon  the  policy  whea 
it  was  issued.  Held,  sufficient,  if  the  indorse- 
ment was  made  afterwards  and  approved. 
Pliilhrook  v.  New  England  Mut.  Ins.  Co.,  37 
Me.,  137. 

39.  Not  other  insurance.  Stipulated :  "  la 
case  any  other  contract  of  insurance  upon 
the  property  hereby  insured,  whether  such 
other  contract  shall  be  valid  or  not,  as  against 
the  parties  thereto,  the  insured  shall  not,  ia 
any  case,  be  entitled  to  recover  any  greater 
portion  of  the  loss  than  the  amount  hereby 
insured  shall  bear  to  the  whole  amount  in- 
sured on  said  property."  The  plaintiff,  as  ex- 
ecutor of  AV.,  insured  a  mortgagee's  interest 
in  certain  buildings  and  machincr}-,  and  an- 
other mortgagee  made  other  insurance  upon 
the  same  in  another  company.  Held,  the  stip- 
ulati(m  was  limited  to  other  insurance,  to 
which  insured  could  resort  for  part  of  his 
indemnity;  it  was  not  intended  to  apply  to 
policies  made  by  other  persons  upon  the  same 
property.  Fox  v.  Phcenix  Fire  Ins.  Co.,  52 
Me.,  333. 

40.  Waiver.  The  policy  prohibited  other 
insurance.  It  appeared  insurer's  agent  had 
notice  of  other  insurance,  but  neglected  to 
indorse  it  on  the  policy.  Held,  no  defense  iu 
a  court  of  equitj'.  National  Ins.  Co.  v.  Crane, 
16  Md.,  260. 

41.  Not  other  insurance.  Stipulated:  "Tha 
insured  shall  not  be  entitled  to  dem.and  or  re- 
cover  any  greater  portion  of  the  loss  or  dam- 
age sustained  than  the  amount  hereby  insured 

43o 


871 


OTHER  INSURANCE. 


872 


WTien  it  does  not  vitiate. 


shall  bear  to  the  whole  amount  insured.  And 
it  shuU  not  cover  goods  held  in  trust  or  on 
commission."  Insured  procured  other  poli- 
cies, covering  his  own  propertj'  and  goods 
held  in  trust  and  on  commission.  Held,  tlie 
other  policies  did  not  constitute  a  double  in- 
surance. Baltimore  Fire  Ins.  Co.  v.  Loney,  20 
Md.,  20. 

42.  Waiver.  Stipulated:  "If  any  other 
insurance  has  been, or  shall  hereafter  be  made 
on  said  property,  without  the  consent  of  tliis 
company  in  writing  indorsed  hereon,  Ibis 
policy  shall  be  void."  Insured  applied 
to  this  company  for  the  whole  amount 
of  insurance,  and  it  applied  to  the  Maryland 
company  to  share  the  risk.  The  Maryland 
company,  at  the  request  of  this  company, 
made  the  other  policy  upon  the  premises,  but 
consent  was  not  indorsed  on  this  pnlicj'.  Held, 
it  was  sufficient  for  the  purposes  of  this  case 
to  say  that  the  other  policy  was  neither  prior 
nor  subsequent  insurance,  but  contemporane- 
ous and  uno  fiatuv^'Mh.  it.  Washington  Fire 
Ins.  Co.  V.  Davison,  30  Md.,  91. 

43.  Not  other  insurance.  "  To  be  void  if 
any  other  insurance  be  made  upon  the  interest 
hereby  insured."  Slie  was  seized  at  the  suit 
of  a  creditor,  who  directed  the  sheriff  to  pro- 
cure insurance  upon  her.  Held,  not  within 
the  prohibition.  Marigny  r.  Home  Mat.  Ins. 
Co.,  13  La.  An.,  338. 

44.  —  "On  freight,  warranted  no  other  in- 
surance sh.all  be  made  on  this  property." 
Afler  the  e.xecution  of  the  policy,  the  master, 
a  part  owner,  drew  a  bill  for  7,800  francs,  to 
the  order  of  Cavaroc,  upon  the  consignees  of 
the  ship  at  Bordeaux,  who  accepted  the  draft 
and  insured  the  freight  for  their  own  protec- 
tion, without  any  instructions  from  the  plaint- 
iff or  any  other  person  whatever.  Held, 
insured  were  not  responsible  for  the  acts  of 
those  who  were  not  their  agents,  but  were  act- 
ing for  their  own  individual  interest;  it  was 
not  other  insurance  within  the  meaning  of  the 
contract.  Williams  v.  Crescent  Mut.  Ins.  Co., 
15  La.  An..  651. 

45.  Sufficient  consent.  Insurers'  agent 
contracted  to  deliver  a  regul.ar  policj'.  Held, 
the  term  "regular  policy"  meant  that  per- 
mission to  make  prior  as  well  as  subsequent 
insurance  should  be  indorsed  upon  it;  that  as 
insurers  had  never  made  any  policy  at  all,  nor 
attempted  to  comply  with  the  agreement,  the 
fact  that  other  insurance  was  made  upon  \\\^• 

436 


same  property  could  not  affect  the  right  of 
the  plaintiff  to  recover.  Dayton  Ins.  Co.  v. 
Kelly.  24  Ohio  St.,  345. 

46.  No  other  insnrance.  B.  sold  the 
premises  to  F.,  and  retained  a  lien,  conditioned 
that  F.  should  keep  them  insured,  loss,  if 
any,  payable  to  B.  The  defendant  made  in- 
surance for  F.  Stipulated :  "  In  case  the  in- 
sured or  assigns  shall  make  other  insurance 
without  consent  of  this  company,  tlie  policy 
shall  be  void."  F.  conveyed  to  M.,  and  re- 
tained  a  lien  conditioned  that  M.  should  keep 
the  proper!}'  insured,  loss,  if  any,  payable  to 
F.,  and  M.  insured.  Held,  not  other  insurance 
within  the  meaning  of  the  contract,  for  the 
word  "  assigns  "  meant  assignees  of  the  policy, 
and  not  assignees  of  the  property.  Bates  v. 
Commercial  Ins.  Co.,  1  Cin.  Sup.  Ct.,  523. 

47.  —  6.  owned  tliree  houses,  together  with 
other  propert}'.  He  devised  one  moiety  to  D., 
in  trust  for  his  daughter,  and  the  other  to  M., 
in  trust  for  five  children  of  H.  In  dividing 
the  estate,  the  three  houses  became  the  prop- 
erty of  the  children  of  H.,  one  of  whom  the 
plaintiff  married,  and  slie  became  entitled  to 
two-filths  of  the  houses.  H.  made  insurance, 
■?l,o33.33  on  each  house,  amounting  in  all  to 
$4,000.  The  policy  stipulated:  "  In  case  other 
insurance  shall  be  made  on  their  behalf  on 
the  same,  it  must  be  indorsed  on  the  policj', 
in  which  case  each  office  shall  be  liable  to  the 
payment  of  a  ratable  proportion  of  any  loss 
which  may  be  sustained,  and  unless  such  no- 
tice be  given,  the  insured  shall  not  be  entitled 
to  recover."  The  trustee  made  insurance  upon 
the  same  premises  for  the  benefit  of  the  other 
beneficiaries.  Held,  it  was  not  other  insur- 
ance within  the  meaning  of  the  contract 
Franklin  Marine  and  Fire  Ins.  Co.  v.  Drake, 
2  B:  Mon.,  47. 

48.  AVaiver.  M.  was  agent  for  two  insur- 
ance companies.  L'pon  application  to  him 
he  made  a  policy  of  $5,000  upon  certain  prop- 
ert3',  stipulated:  "Other  insurance  shall  not 
be  made  upon  the  same  without  notice  and 
consent  written  hereon."  At  a  subsequent 
date  insured  applied  to  the  same  agent  for 
other  insurance  upon  the  same  property,  which 
he  granted  in  the  other  company:  but  he  did 
not  indorse  consent  to  it  upon  the  first  policy. 
Held,  the  contract  did  not  require  notice  oj 
prior  insurance  to  be  made  in  writing,  but 
only  that  the  assent  of  the  comp.aoy  sh>)u:.i  so 
appear.      Held,  also,  the  condition  could  bo 


873 


OTHER  INSURANCE. 


87-t 


When  it  does  not  vitiate. 


waived,  and  the  waiver  could  be  established 
by  parol  proof  of  any  notice  of  the  otlicr  in- 
surance  prior  to  the  delivery  of  this  policy; 
and  the  delivery  of  policy  subsequently 
B'ritten,  was  a  written  assent  to  the  other  in- 
surance. Kenton  Ins.  Co.  t).  ^Aenr,  6  Bush,  174; 
Von  Bories  v.  United  Life,  Fire  and  Maruic 
Lis.  Co.,  8  id.,  133. 

49.  —  Stipulated :  "  If  there  is,  or  shall  here- 
after be,  any.  further  insurance  on  tlie  prop- 
erty hereby  insured  without  notice  to  this 
company,  and  its  consent  thereto  written  here- 
on, then  this  policy  sliall  be  void."  One  per- 
son was  the  agent  of  this  and  another  com- 
pany, and  in  that  other  company  other  insur- 
ance was  made  by  the  same  agent,  but  he 
never  indorsed  consent  to  the  other  insurance. 
Held,  this  company  had  the  right  to  cancel 
the  policy  after  notice  of  a  violation  of  any 
of  its  conditious  by  returning  a  proper  por- 
tion of  the  premium;  good  faith  and  fair  deal- 
ing required  the  company,  if  it  intended  to  en- 
force the  forfeiture,  to  adopt  the  necessary 
measures  for  that  purpose  within  a  reascmable 
time  after  notice  of  the  forfeiture;  a  failure  to 
do  so  was  a  waiver  of  the  forfeiture.  Van 
Bories  v.  United  Life,  Fire  and  Marine  Ins. 
Co.,  8  Bush,  138. 

50.  —  The  policy  prohibited  other  iusurance 
without  insurer's  consent  indorsed  upon  it. 
There  was  other  insurance  without  consent 
indorsed.  Held,  if  notice  of  other  insurance 
was  given  to  the  agent  of  insurer,  who  effected 
the  policy,  it  was  notice  to  the  principal,  and 
failure  to  object  to  it  was  a  waiver  of  the  pro- 
hibition (overruling  Hutchinson  v.  Western 
Ins.  Co.,  21  Mo.,  97).  Ilayward  v.  National 
Ins.  Co.,  ^2  Mo.,  181. 

51.  Construction.  On  stock  of  goods.  The 
18th  .section  of  llie  company's  charter,  a  part 
of  the  contract,  prohibited  insurance  by  the 
company  on  any  house  ov  building  then  in- 
sured, unless  consent  were  given  by  directors 
indorsed  on  policy  and  signed  by  president 
and  secretary.  Held,  the  prohibition  did  not 
apply.  Illinois  Mutual  Fire  Ins.  Co.  v.  &Neile, 
13  111.,  89. 

52.  Waiver.  Stipulated:  If  other  Insurance 
shall  be  made  upon  the  same  property  without 
insurer's  consent,  the  policy  shall  be  void. 
There  was  other  insurance  without  consent, 
but  it  had  expired  before  the  loss  occurred. 
Held,  it  did  not  affect  the  right  of  the  insured 
to  recover.  New  England  Fire  and  Marine  Ins. 


Co.  V.  Schettler,  38  III.,  166.  And  at  the  time 
the  policy  was  made  the  agent  of  insured 
told  the  agent  of  insurer  of  the  existence  of 
the  other  insurance.  Held,  that  insured  sh(nild 
not  he  permitted  to  sutler  for  the  neglect  of 
Insurer's  agent  to  indorse  the  notice  oi.  Iho 
policy.    Ibid. 

5;{.  Sufficient  notice  of.  The  same  agents 
represented  all  the  insurers  and  all  the  policies 
were  delivered  to  insured  by  the  same  agents. 
Held,  it  was  notice  to  each  company  of  all  the 
other  policies.  Insurance  Company  of  North 
Ameriai.  v.  McDowell,  50  III.,  120. 

54.  Made  by  a  stranger.  Policy  to  mort- 
gagee. Other  insurance  prohibited.  The 
mortgagor  made  other  insurance  without  in- 
surer's consent.  Held,  the  prohibition  was 
limited  to  the  acts  of  the  insured ;  that  other 
insurance  made  by  the  mortgagor  was  no 
violation  of  the  condition.  Norwich  Fire  Ins. 
Co.,  V.  Boomer,  52  111.,  442. 

55.  Estoppel.  Stipulated:  "If  insured  shall 
procure  any  other  insurance,  and  shall  not 
with  all  reasonable  diligence  give  notice 
thereof,  and  have  the  same  indorsed  hereon, 
this  insurance  shall  be  void."  Application 
was  made  to  defendant's  agents  for  $10,000 
insurance,  who  said  the  rules  of  the  company 
would  not  allow  them  to  take  but  |.5,000,  and 
they  offered  to  procure  the  balance.  Plaintiff 
procured  it  himself,  and  notified  the  agents  of 
that  fact  the  following  day  after  which  this 
policy  was  issued,  and  the  premium  paid. 
Held,  the  defendant  was  estopped  to  set  up 
the  fact  that  other  insurance  was  not  indorsed. 
Horwitz  V.  Equitable  Mut.  Ins.  Co.,  40  Mo., 
557 

56.  Construction.  Stipulated:  "Insured 
sliall  not  make  other  insurance  exceeding 
$20,000."  Insured  was  notified  by  one  of  the 
companies,  that  its  policy  would  be  canceled 
at  a  certain  time.  He  procured  other  in- 
surance in  its  place.  The  cancellation  was 
not  effected  until  a  montli  after  the  other  was 
made;  but  for  some  time  prior  to  the  loss  the 
whole  amount  of  other  insurance  had  been 
greatly  reduced,  and  did  not  then  exceed 
$12,000.  Held,  the  insurer  was  not  discharged. 
Ohenniyer  v.  Globe  Mut.  Ins.  Co.,  43  Mo.,  573. 

57.  Sufficient  notice  of.  The  same  agent 
issued  both  policies  and  both  prohibited  other 
insurance  without  consent  indorsed  thereon. 
Held,  the  oljject  of  the  condition  was  to  re- 
quire notice  of  the  additional  policy,  and  if 

437 


875 


OTHER  INSURANCE. 


876 


WTien  it  does  not  vitiate. 


notice  was  given  to  the  agent  it  was  suflScient. 
Jtussell  V.  State  Ins.Oo.,  55  Mo.,_585. 

58.  Not  other  insurance.  Stipulated:  "To 
he  void  if  insured  shall  have  made,  or  shall 
hereafter  make,  any  other  insurance  on  the 
property,  without  consent  of  the  insurer,  in- 
dorsed on  this  policy."  During  the  negotia- 
tion for  this  policj',  the  agent  was  told  that  a 
prior  policy  existed,  which  would  be  canceled 
as  soon  as  this  became  eflfectual,  and  that  this 
was  made  to  take  the  place  of  that.  There 
was  another  policy  subsequently  made  by  an- 
other company,  but  it  did  not  appear  that  the 
premium  had  been  paid,  or  that  it  had  ever 
been  delivered.  Reld,  there  was  no  other  in- 
surance. Continental  Ins.  Co.  v.  Horton,  28 
Mich.,  173. 

59.  AVaivcr.  Stipulated:  "Other  insur- 
ance shall  not  be  made  without  notice  to,  and 
consent  of  this  company,  in  writing."  The 
plaintilf  averred  that  the  defendant  had  due 
notice  of  the  other  insurance;  that  the  policy 
in  suit  was  delivered  to  defendant's  agent  for 
the  purpose  of  liaving  consent  indorsed  upon 
it,  and  that  other  insurance  was  made  at  the 
agent's  request.  Held,  this  condition,  like  any 
other,  could  be  waived ;  that  insurer  was  es- 
topped by  the  acts  of  its  agent  to  insist  that 
consent  to  the  other  insurance  had  not  been 
indorsed.  Cobb  v.  Ins.  Co.  of  North  America, 
11  Kan.,  93. 

60.  —  Other  insurance  prohibited.  The  evi- 
dence was  conflicting  as  to  whether  defend- 
ant's .agent  knew  of  and  consented  to  the  ad- 
dition.al  insurance,  before  the  loss.  But  after 
the  loss  the  agent  informed  the  defendant  of 
it,  .and  with  full  knowledge  of  the  fticts,  de- 
fend.ant  required  insured  to  furnish  plans  and 
speciticatious  of  the  buildings  destroyed, 
wliich  was  done  at  great  expense  to  tlie  insured. 
Held,  a  waiver  of  the  forfeiture,  for  a  party 
cannot  occupy  inconsistent  positions.  Where 
one  lias  an  election  between  inconsistent 
courses,  he  will  be  confined  to  that  which  he 
first  adopts.  Any  decisive  act,  done  with  a 
knowledge  of  his  rights  and  of  the  fact,  deter- 
mines his  election,  and  works  an  estoppel. 
Webster  v.  Phanix  Ins.  Co.,  36  Wis.,  67. 

61.  Voidable  policy.  Other  insurance, 
wltether  prior  or  subsequent,  unless  made 
with  this  company's  consent  written  hereon, 
shall  render  this  policy  void.  Application 
was  msde  to  defendant's  agent,  December  18, 
18G7.  will)  agreed  to  deliver  the  policy  on  that 

438 


day.  Insured  had  not  received  it  on  the  21st, 
when  he  applied  to  the  agent  of  another  com- 
pany  to  insure  the  property,  paid  the  premium, 
and  the  agent  agreed  to  make  and  deliver  a 
policy  so  soon  as  he  should  receive  blank  pol- 
icies from  his  principal.  These  contained  a 
clause  making  them  void  in  case  prior  or  sub- 
sequent insurance  should  be  made  without 
written  consent  indorsed  upon  them.  Defend. 
ant's  agent  delivered  the  policy  in  suit  on  the 
22d,  and  received  payment  of  the  premium. 
No  information  was  given  as  to  the  transac- 
tion of  insured  with  the  other  agent.  Held, 
the  second  contract  was  not  other  insurance, 
if  that  company  ti'eated  it  as  void  after  it  had 
notice  of  the  making  of  the  first  policy.  A 
policy  which  prohibits  the  making  of  other 
insurance  upon  the  subject  insured,  without 
notice  and  consent  of  the  insurer,  is  voidable 
only,  if  the  prohibition  is  violated;  and  if  suit 
is  brought  upon  a  policy  made  upon  the  same 
subject  at  a  time  prior,  which  also  prohibits 
the  making  of  other  insurance  upon  the  same 
subject,  the  subsequent  policy  is  not  other  in- 
surance, because  it  is  invalid,  and  such  policy 
is  no  violation  of  the  condition  contained  in 
the  prior  policy.  Hubbard  t.  Hartford  Fire 
Ins.  Co.,  33  Iowa,  325. 

62.  AValver.  Stipulated:  "  Other  insurance 
shall  not  be  made,  except  by  consent  of  the 
company,  in  writing."  The  company's  agent, 
who  had  authority-  to  make  and  revoke  con- 
tracts, was  notified  that  insured  intended  ti> 
get  additional  insurance,  to  which  he  con- 
sented, but  did  not  indorse  it  on  the  policy. 
The  policy  expired  by  its  own  terms,  and  was 
renewed  by  the  same  agent.  Held,  if  the 
agent  was  informed  of,  and  did  in  fact  consent 
to  the  other  insurance,  the  policy  was  not  void 
Carrugi  v.  Atlantic  Fire  Ins.  Co.,  40  Ga.,  135. 

63.  Estoppel.  Stipulated:  "The  policy 
shall  be  void  if  other  insurance  shall  be  made 
upon  the  property  insured,  unless  the  comp.a- 
ny's  consent  is  obtained  in  writing  hereon." 
Held,  an  agent  authorized  to  make  and  revoke 
contracts  of  insurance  was  a  proper  person  to 
receive  notice  of  other  insurance;  and  if  such 
notice  were  given,  the  company  was  bound  to 
have  it  indorsed,  or  to  refuse  to  contract,  and 
a  failure  so  to  do  estopped  insurers  from  set. 
ting  up  other  insurance  as  a  defense  to  the  ac 
tion.  Planter's  Mut.  Ins.  Co.  v.  Lyons,  38  Tex., 
253. 

64.  Not  other  insurance.    £3,000  on  wool 


«77 


OTHER  INSURANCE. 


878 


Questions  for  the  jury. 


in  all  or  any  shed  or  store,  on  station,  or  in 
transit  by  laud  only,  or  in  any  shed  or  store  on 
any  wharf  in  Sidney,  until  placed  ou  ship. 
Stipulated;  "No  claim  shall  be  recoverable  if 
the  property  insured  be  previously  or  subse- 
•queutly  insured  elsewhere,  unless  the  particu- 
lars of  such  insurance  be  notified  to  the  com- 
pany   in    writing."      Insured    subsequently 
effected  insurance,  £16,500  upon  wool,  at  and 
from  the  river  Hunter  to  Sydney,  per  ships  and 
steamers,  and  thence  per  ship  or  ships  to  Lon- 
don, including  the  risli  of  craft  from  the  time 
the  wool  is  first  water  borne,  and  of  tranship- 
tnent  or  landing,  and  rcshipment  at  Sydney. 
The  practice  at  Sydney  was  for  persons  acting 
as  stevedores  to  take  the  wool  to  their  stores, 
press  it  and  deliver  it  to  the  ship,  the  steve- 
dore's receipt  being  equivalent  to  the  mate's 
receipt,  which  would  entitle  the  holder  to  a 
bill  of  lading.    The  plaintifl"'s  wool  was  car- 
ried by  several  steamers  from  the  river  Hunter 
<o  Sydney,  and  was  taken  by  plaintiff's  agent 
to  his  own  store  for  the   purpose  of  being 
■weigiied;  and  he  entered  into  a  contract  for 
its  conveyance  to  London.    It  was  then  taken 
from  his  warehouse  to  the  warehouse  of  the 
ship's  stevedore,  and  the  usual  receipts  were 
.given  for  it.    While  it  was  there,  a  part  of  it 
■was  destroyed  by  fire.    Hdd,  the  marine   in- 
■surance  policy  did  not  attach  while  tlie  wool 
was  in  the  warehouse  of  the  stevedore,  and 
■svas  not  other  insurance  within  the  meaning 
of  the  defendant's  policy.  Australian  Agricul- 
tural Co.  V.  Saunders,  10  L.  R.  C.  P.,  668;  af- 
firming 8.  c.  in  the  court  below. 

65.  —  On  goods  his  own,  in  trust  or  on  com- 
mission, deposited  in  certain  warehouses. 
Stipulated:  "A  failure  to  indorse  other  insur- 
ance shall  vitiate  the  polic}'."  P.  deposited  in 
the  warehouses  a  quantity  of  wheat  then  cov- 
ered by  a  floating  policy,  of  which  notice  was 
not  given  to  the  insurers,  but  the  policy  ex- 
pired before  the  loss  occurred.  Held,  no  de- 
fense to  the  action.  Donaldson  v.  Manchester 
Ins.  Co.,  14  C.  C.  S.,  601. 

66.  —  Stipulated :  "  If  there  be  an  insurance 
at  any  other  office  on  the  property  insured  at 
■this  office,  notice  of  such  other  insurance 
must  be  given,  and  the,  same  with  the  several 
amounts  thereof,  must  be  stated  either  in  the 
policy,  or  by  indorsement  upon  it,  oth- 
erwise the  insurance  with  this  office  is  void." 
A  perscm  of  wliom  insured  had  made  large 
jjurchases,  insured  £500  on  the  stock,  and  sub- 


sequently assigned  the  policy  to  the  insured, 
and  on  its  expiration,  it  was  renewed  for  the 
insured,  and  was  in  force  when  the  fire  h:*p. 
pened.  Held,  not  a  breach  of  the  conditiou. 
McDowell  V.  Deacon  Fire  Ins.  Co.,  7  U.  C.  C. 
P.,  311. 

67.  Siifflcient  notice.  By  the  terms  of  the 
policy,  other  insurance  was  forbidden,  unless 
made  with  notice  to,  and  consent  of,  insurers. 
The  policy  gave  permission  to  make  £800 
other  insurance  in  the  .(Etna.  Subsequently, 
insured  gave  notice  that  he  would  procure 
other  insurance  in  the  Equitable,  to  the 
amount  of  £1,300,  which  was  never  done ;  but 
he  procured  £1,000  in  the  Beacon,  and  none 
was  ever  made  in  the  .^Etna.  Held,  the  condi- 
lion  did  not  require  the  name  of  the  company 
in  which  the  other  insurance  might  be  made 
to  be  stated,  therefore  a  mistake  in  that  respect 
could  not  affect  the  validity  of  the  policy. 
Osser  V.  Provincial  Ins.  Co ,  12  U.  C.  C.  P.,  141. 

68.  Voidable  policy.  Other  insurance  pro- 
hibited. There  was  other  insurance  in  the 
name  of  another  person,  in  a  company  in  the 
state  of  Maine,  of  which  notice  was  not  given 
the  defendant.  Held,  in  order  to  avoid  the  de- 
fendant's policy,  it  must  appear  that  by  the 
law  of  Maine  insured  could  recover  upon  the 
policy  issued  by  the  Maine  company.  3Ie. 
Lachlan  v.  .JStna  Ins.  Co.,  4  Allen  (N.  B.),  173. 

III.  Questions  foe  the  jury. 

1.  "Other  insurance  prohibited,  except' 
with  insurer's  assent."  Ten  days  before  the 
fire,  insured  made  application  to  the  agent  of 
another  company,  for  a  policy  upon  the  same 
property,  to  whom  he  paid  the  premium.  But 
that  agent  was  not  authorized  to  issue  policies. 
At  the  time  the  fire  occurred,  the  polic}'  had 
been  made,  but  not  delivered,  nor  had  insured 
received  notice  that  his  application  had  beeu 
accepted.  Held,  the  attention  of  the  jury 
ought  to  have  been  directed  to  the  question, 
whether  any  notice  of  the  other  insurance  had 
been  given,  and  not  limited  to  the  inquiry, 
whether  the  circumstances  justified  the  delay. 
Inland  Ins.  Co.  v.  Stauffer,  33  Penn.  St.,  397. 

2.  "On  stock  of  tobacco  and  cigars  on  stor- 
age in  the  tobacco  shop  of  Albert  Michelson." 
He  procured  insurance  of  .f  4,000  on  his  own 
stock  from  another  company,  and  subsequent- 
ly, while  that  policy  was  in  force,  bought  the 
proner'v  tliat  he  held  ou  storage,  and  took  aa 

439 


879 


OVERLOADING— PAID  UP  POLICY. 


880 


Miscellaneous. 


assignment  of  the  policy  on  it,  the  insurer  of 
it  assenting.  Held,  if  the  goods  which  were 
on  storage  after  purchase  became  part  of  the 
insured  stock  hy  intermixture,  then  there  was 
other  insurance  upon  it;  but  this  was  a  ques- 
tion of  fact  for  the  jury  to  determine.  Peoria 
Marine  and  Fire  Ins.  Go.  v.  Anapow,  45  111., 
86;  s.  c,  51  id.,  283. 

IV.  Generally. 

Stipulated :  "  If  the  same  property  has  been, 
or  shall  be,  insured  by  any  other  compan}', 
without  an  indorsement  thereof  on  this  policy, 
it  shall  be  void."  Held,  a  violation  of  the 
condition  rendered  the  policj*  voidable,  or  to 
be  treated  as  void,  and  did  not  work  an  abso- 
lute nullity  as  to  eitJier  party  in  all  events. 
Insurer  might  by  contract  or  by  conduct  waive 
the  right  to  exoneration,  and  become  estopped 
from  enforcing  the  condition;  but  assenting 
to  an  appraisement  of  the  damaged  property 
could  not  operate  as  a  waiver  of  the  forfeit- 
ure.   Baer  u.  PTuznix  Ins.  Co.,  4  Bush,  243. 


OVERLOADING. 

(See   SEAW0RTHINE89.) 

1.  "Warranted  not  to  load  more  than  her 
registered  tonnage  with  lead,  copper,  marble, 
coal,  slate,  ore,  salt,  stone,  brick,  grain,  or  iron, 
either  or  all  on  any  one  passage."  The  regis- 
tered tonnage  was  1,285,  tons.  She  took  at 
Liverpool  1,064  tons  of  iron,  6  tons  brick  and 
238  tons  of  cannel  coal,  an  excess  of  23  tons 
over  her  registered  tonnage.  A  loss  occurred. 
Insurers  paid  it  in  ignorance  of  the  fact  that 
the  load  exceeded  the  registered  tonnage.  The 
238  tons  of  coal  was  stowed  as  dunnage,  but 
it  was  carried  at  fifty-one  shillings  per  ton 
fi-eight.  and  delivered  at  the  port  of  destina- 
tion. Held,  if  the  coal  could  be  regarded  as 
dunnage,  there  was  no  breach  of  the  warranty ; 
but  that  it  could  not  be  so  regarded,  for  some 
portions  of  cargo  may  be  selected  and  used 
for  trimming  and  settling  the  ship,  which  in 
a  loose  and  popular  sense  are  called  ballast, 
but  they  are  not  ballast  in  a  legal  and  proper 
sense;  and  if  a  part  of  the  cargo  which  paid 
freight  was  used  to  perform  the  office  of  dun- 
nage, it  was  not  legally  or  properly  dunnage; 
410 


hence  the  excess  over  the  registered  tonnage 
was  a  breach  of  the  warranty.  But  Clifford, 
Chase  and  Swain,  JJ.,  dissented.  Inauranca 
Co.  V.  Thwing,  13  Wall.,  672. 

2.  '•  On  ship,  warranted  not  to  load  more 
than  her  registered  tonnage,  with  lead,  marble, 
coal,  slate,  copper  ore,  salt,  stone,  bricks, 
grain  or  iron,  either  or  all,  on  auj-  one  passage, 
and  not  to  carry  guauo  or  lime."  Her  regis- 
tered tonnage  was  1,270  tons.  She  took  on  at 
Liverpool  1,084  tons  of  iron,  6  tons  of  brick, 
238  Ions  cannel  coal.  The  cannel  coal  was 
used  as  dunnage,  and  had  tbatnot  been  used, 
it  would  have  been  necessary  to  have  pur- 
chased planks  for  that  purpose.  Upon  the 
top  of  the  coal  was  jjlaced  a  flooring  of  five 
inch  joists,  upon  which  the  cargo  was  stowed. 
A  bill  of  lading  was  signed  for  the  coal,  and 
freight  was  paid  on  it.  Held,  the  intention  of 
the  warranty  was  to  forbid  the  loading  of  a. 
greater  cargo  than  the  ship  was  properly 
fitted  to  receive;  and  although  it  was  found 
that  the  coal  was  a  suitable  and  proper  article 
for  dunnage,  the  mere  fact  that  freight  was 
paid  upon  it  did  not  make  it  cargo  within  the 
meaning  of  the  warranty.  Thwing  v.  Great 
Western  Ins.  Co.,  103  Mass.,  401. 

3.  Warranted  not  to  load  more  than  her 
registered  tonnage  with  coal.  She  loaded 
more  than  her  registered  tonnage  with  patent 
fuel.  Held,  a  breacli  of  the  warranty.  How- 
ard V.  Great  Western  Ins.  Co.,  109  Mass.,  384> 


PAID  UP  POLICY. 

(See  Wife's  Policy.) 

The  policy  stipulated  that  after  two  annual 
payments,  if  the  insured  wish  to  discontinue, 
the  company  will  issue  a  paid  up  policy  for  as 
many  tenths  of  the  sum  insured  as  there  have 
been  annual  premiums  paid  in  cash.  June 
20,  1S6S,  she  paid  $432.40  in  cash,  and  deliv. 
ered  to  the  company  her  note  for  $212.25,  dua 
in  twelve  months,  the  two  sums  being  lli& 
annual  premium.  On  the  same  date,  1869,  she 
repeated  the  payment  and  note;  and  Aprils, 
1870,  she  notified  the  company  of  her  inten. 
tion  to  discontinue  further  payments,  and 
asked  for  a  paid  up  policy  for  |3,000,  being 
two-tenths  of  the  sum  ,insured,  which  the- 
company  refused   until  the   two  notes  should 


881 


PAROL  CONTRACTS  TO  INSURE. 


883 


When  valiil. 


be  paid  in  cash.  Held,  she  was  not  entitled  to 
a  decree  for  a  paid  up  policy  until  she  satisfied 
the  notes.  Moses  v.  Brooklyn  Life  Ins.  Co.,  50 
Ga.,  196. 


PAROL  CONTRACTS  TO  INSURE. 

I.  When  valid. 

II.  INVALID. 

I.  When  valid. 

1.  Insurance  companies  can  make  agree- 
ments to  insure,  and  these  need  not  be  in 
writing  notwithstanding  the  statute  law  pro- 
vides that  insurance  companies  can  make 
valid  policies  only  when  attested  by  the  signa- 
tures of  president  and  secretary.  Commercial 
ilutual  Marine  Tna.  Co.  v.  Union  Mutnal  Ma- 
rine Ins.  Co.,  19  How.,  318;  2  Curtis,  524. 

2.  The  same  clause  of  the  charter  of  an  in- 
surance company  which  authorized  the  presi- 
dent and  directors  to  make  insurance  against 
fire,  provided  that  such  contracts,  bargains, 
agreements,  policies,  and  other  instruments 
as  might  be  necessary  should  be  in  writing  or 
in  print,  and  under  the  seal  of  the  corpora- 
tion, signed  by  the  president,  and  attested  by 
the  secretary.  Held,  it  referred  only  to  exe- 
cuted contracts  or  policies  of  insurance,  and 
not  to  preliminary  agreements  to  insure  which 
precede  the  execution  of  the  formal  instru- 
ment.    Insurance  Co.  v.  Colt.  20  Wall.,  560. 

3.  The  company's  charter  provided:  "That 
all  the  conditions  of  policies  issued  by  said 
comiJany  shall  be  printed  or  written  on  the 
face  thereof,"  also  "  A  president  or  vice-presi- 
dent shall  he  selected,  either  of  wholn  with 
the  secretary  or  actuary  shall  sign  the  policies 
or  contracts  made  by  order  of  the  board  of 
directors."  General  statutes  of  Missouri,  in 
force  at  the  time  the  charter  was  granted,  pro- 
vided "  parol  contracts  may  be  binding  on 
aggregate  coqwrations  if  made  by  an  agent 
duly  authorized  by  a  corporate  vote,  or  under 
the  general  regulations  of  the  corporation, 
and  contracts  may  be  implied  on  the  part  of 
such  corporations  from  their  corporate  acts  or 
those  of  an  agent  whose  powers  are  of  a  gen- 
eral character."    Held,  a  parol  contract  to  in. 


sure  was  valid.    Hening  v.  United  States  /««. 
Co.,  2  Dil.  Cir.  C.,  26. 

4.  A  parol  contract  for  insurance  made  by 
an  agent  is  valid,  and  a  failure  to  issue  :i. 
policy  after  payment  of  the  proniium  is  no 
defense  to  the  action.  Ide  v.  Phcenix  Ins.  Co., 
2  Biss.,  333. 

5.  An  agent  autliorized  to  receive  premiums 
and  to  make  agreements  to  insure,  to  be  bind- 
ing upon  the  company  as  of  the  date  of  the 
receipt  of  the  premium,  on  condition  that  the 
premium  shall  be  received  and  the  rate  recog- 
nized by  the  company,  and  that  the  company 
shall  be  otherwise  satisfied  with  the  risk.  Held, 
the  company  had  the  right  to  judge  whether 
the  agreement  of  the  agent  to  insure  correa- 
ponded  with  the  instructions  given  him,  but 
that  right  was  confined  witliin  tliose  limits; 
the  company  could  not  arbitrarilj'  refuse  to 
subscribe  a  policy  when  every  prerequisite  by 
themselvfS  prescribed  had  been  fairly  andl 
honestly  complied  with.  And  when  the  agent; 
presents  a  case,  having  received  the  premium, 
the  prima  facie  implication  is  that  tlie  com- 
pany shall  act  upon  it.  If  they  decline  to  act, 
and  fail  to  point  out  any  objection,  tlie  pre- 
sumption is  that  none  exists  withia  the  true 
intent  of  the  proviso,  and  the  company  is 
liable  for  the  loss,  although  the  agent  had  not 
forwarded  the  premium  nor  received  a  policy 
at  the  time  the  property  was  destroyed.  Per- 
kins V.  Washington  Ins.  Co.,  4  Cow,,  645. 

6.  Defendant  authorized  W.  to  receive  pro- 
posals  for  insurance  in  Batavia  and  vicinity, 
to  fix  rates  of  premium,  to  receive  money  sub- 
ject to  such  instructions  as  from  time  to  time 
might  be  given  him ;  accompanied  by  instruc- 
tions to  bind  the  company  during  the  pleasure 
of  its  general  agent,  to  an  amount  not  exceed- 
ing $10,000  upon  alternate  buildings  and  their 
contents;  furnished  him  with  blank  api)Uca- 
tions  for  insurance,  and  blank  certificates,  to 
be  filled  up  and  delivered  to  persons  contract- 
ing, the  application  to  be  sent  to  the  com- 
pany's general  agent,  to  be  by  him  confirmed 
or  rejected.  A  policy  to  be  by  him  issued 
upon  it,  or  the  application  to  be  rejected,  re- 
turned to  agent  with  instructions  to  him  to 
return  the  premium; the  agreement  to  insure 
to  be  binding  until  rejected  by  the  general 
agent.  October  20,  1864,  plaintiff  applied  to 
VV.  for  insurance,  $5,000  on  brewery  buildings, 
to  cover  his  interest  as  mortgagee;  for  one  year. 
W.  accepted  the  risk  at  two  and  a  half  per 

m 


883 


PAROL  CONTRACTS  TO  INSURE. 


884 


When  valid. 


jcent.  Four  days  thereafter,  plaintiff  informed 
W.  that  he  had  become  the  owner  of  tlie  prop- 
■erty,  and  if  the  policy  had  not  been  made,  to 
make  it  to  him  as  owner,  to  which  W.  as- 
.sented.  Plaintiff  frequently  called  upon  W. 
to  get  the  policy,  and  was  alwaj'S  told  tliat  it 
had  not  arrived,  but  that  he  need  give  himself 
no  trouble  about  it,  that  he  was  as  much  in- 
sured as  if  he  had  possession  of  the  policy. 
JNothing  further  was  done  until  after  the  build- 
ings were  consumed,  January  24  18Gu.  W. 
aever  sent  the  application  to  the  general  agent ; 
DO  premium  was  paid.  It  was  also  proved 
that  between  October  15  and  20,  1864,  defend- 
ants then  had  a  risk  upon  the  same  premises 
for  other  persons,  which  was  canceled  by  the 
company's  order,  and  the  policy  surrendered 
because  of  a  rumored  attempt  to  fire  the 
premises.  Held,  as  a  parol  contract,  it 
was  valid;  that  the  agent  had  authority  to 
l)ind  the  company  until  it  decided  to  reject 
the  risk;  that  the  applicant  could  not  hasten 
the  act  of  the  company ;  he  could  only  wait  in 
good  faith ;  and  he  certainly  might  wait  from 
October  to  January.  Fish  v.  Liverpool,  London 
and  Globe  Ins.  Co.,  44  N.  Y.,  538. 

7.  The  evidence  tended  to  show  that  C 
agent  of  the  defendant,  had  authority  to  nego- 
tiate contracts  of  insur  ance,  agree  upon  all  the 
terms,  to  fill  up  and  deliver  poll  cies ;  being  fur- 
nished by  defendant  with  blanks  for  that  pur- 
pose, signed  by  the  president  and  secretary. 
He  agreed,  November  23,  1871,  to  make  a  pol- 
icy upon  the  premises  for  §1,000  for  a  period 
of  three  j-ears,  the  premium  to  be  "  what  the 
property  was  rated  at."  No  policy  was  made, 
January  18, 1872,  when  the  building  was  con- 
sumed by  fire.  Held,  it  was  not  a  parol 
agreement  to  insure  for  three  years,  but  an 
agreement  to  make  and  deliver  a  policy.  Tlie 
amount  insured  was  the  damage  for  a  breach 
of  the  contract.  Angell  v.  Hartford  Fire  Ins. 
Co.,  59  N.  Y.,  171. 

8.  The  tenth  section  of  the  defendant's  char- 
tcr,  provided:  "Policies  of  insurance  and 
other  contracts,  fcmnded  thereon,  thereafter  to 
be  made  or  entered  into  by  the  said  corpora- 
tion, though  not  under  seal,  if  signed  by  the 
president  and  countersigned  by  the  secretarj', 
shall  be  binding  and  obligatory  upon  said 
corporation;"  but  the  first  section  conferred 
power  to  contract  and  to  be  contracted  with, 
and  the  second  section  declared  that  the  cor- 
poration  should  have  f.ower  to  make  contracts 

443 


of  insurance  with  any  person  or  persons. 
Held,  the  tenth  section  did  not  operate  as  a 
limit  on  the  general  powers  given  in  the  first 
and  second  section,  that  they  might  contract 
in  modes  other  than  those  mentioned  in  the 
tenth  section,  hence  a  parol  agreement  to  in- 
sure or  to  renew  a  policy  was  authorized  by 
the  charter.  First  Baptist  Church  v.  Brooklyn. 
Fire  Ins.  Co.,  19  N.  Y.,  305 ;  s.  c,  18  Barb.,  69. 

9.  B.  was  furnished  with  policies  and  cer- 
tificates of  renewal,  signed  in  blank  by  the 
company's  oflJcers,  but  not  to  be  valid  till 
countersigned  by  him.  He  was  authorized  to 
agree  upon  and  settle  the  terms  of  insurance, 
to  accept  risks,  and  to  insert  the  subject  in- 
sured, and  the  term  insured,  in  the  blanks 
mentioned.  Held,  he  had  authority  to  make 
a  parol  agreement  for  the  defendant  to  insure, 
which  was  valid,  notwithstanding  he  neither 
received  the  premium  nor  made  the  policy  or 
renewal.  Post  v.  ^tivi  Ins.  Co.,  48  Barb., 
351. 

10.  The  plaintiff  claimed  an  agreement  to 
insure  a  certain  stock  and  building  to  a 
stated  amount  for  a  definite  period  of  time, 
and  at  a  given  rate  of  premium.  The  parties 
contemplated  the  making  of  a  policy;  one 
was  made  and  tendered,  but  it  was  subject  to 
the  ratification  of  the  agent,  and  he  had  not 
ratified  it  when  it  was  tendered.  Held,  unless 
the  defendants  waived  that  condition  when 
they  tendered  it,  they  could  not  escape  from 
the  continuing  obligations  of  the  oral  contract. 
Kelly  0.  Commonwealth  Ins.  Co.,  10  Bos.,  82. 

11.  B.,  an  insurance  agent  at  Boston,  acted 
for  the  defendant.  I.  asked  him  to  take  the 
risk.  B.  replied,  he  thought  he  could  take  it  in 
the  Farmers  and  Mechanics  and  in  the  Fire- 
men's. He  directed  I.  to  furnish  an  applica- 
tion and  survey.  They  were  furnished,  and 
B.  agreed  to  take  §6,000,  one-half  in  each 
company  at  one  and  a  half  per  cent,  for  one 
year.  Commissions  to  be  divided  Ijetween  the 
agents,  five  per  cent,  to  each.  The  act  of  in- 
corporation  required  contracts  to  be  by  "  pol- 
icies,  signed  by  the  president,  etc."  Held, 
the  provision  in  the  charter  requiring  con- 
tracts  to  be  in  writing  cannot,  in  the  al)sence  of 
words  of  restriction,  be  consUued  to  limit  the 
powers  of  the  cori)oration,  or  to  prevent  them 
from  making  contracts  which  were  within 
the  ordinary  scope  of  their  chartered  powers 
(citing  Mechanics  Bank  v.  Bank  of  Columbia, 
5  Wheat.,  330 ;  Bank  of  Columbia  c.  Patterson, 


«85 


PAROL  CONTRACTS  TO  INSURE. 


886 


When  valid 


7  Cranch,  299;  Bank  of  United  States  v. 
Dandridge,  12  Wheat.,  69;  New  England 
Mut.  Ins.  Co.  1).  DeWolf,  8  Pick..  oC;  Foster  i\ 
Essex  Bank,  t7  Mass.,  497;  Taylor  v.  Merch- 
ants Fire  Ins.  Co.,  9  How.,  390;  Ccnnmercial 
Mutual  Marine  lus.  Co.  v.  Union  Mutual  Fire 
Ins.  Co.,  19  How.,  318).  Sanborn  v.  Firemen's 
Ins.  Co.,  16  Gray,  448. 

12.  Insurers'  charter  provided:  "Allpoli- 
■cies  or  contracts  of  insurance  shall  be  sub- 
scribed by  the  president,  or  other  officer  des- 
ignated for  that  purpose  by  the  board  of  di- 
rectors, and  attested  b}'  the  secretary,  and 
being  so  attested,  shall  be  obligatory  upon  the 
company."  But  a  former  section  of  the  char- 
ter declared:  "The  company  shall  be  capable 
generally,  to  do  and  perform  all  things  rela- 
tive to  the  object  of  the  association ; "  and 
that  object  was  to  make  insurance  contracts. 
Jleld,  the  former  section  of  the  charter  applied 
to  formal  instruments  oulj',  which  were  to  be 
signed  in  the  manner  indicated;  but  the  com- 
pany still  had  power  to  make  agreements  to  in- 
sure,  and  these  were  binding,  notwithstanding 
the  policy  had  not  been  made  or  signed.  Day- 
ion  Ins.  Co.  V.  Kelly,  24  Ohio  St.,  345. 

13.  The  Kentucky  Ins.  Co.  insured  certain 
cotton  against  the  perils  of  navigation,  from 
Columbus  to  New  York;  also  against  loss  by 
fire  while  it  remain  at  the  landing  awaiting 
transhipment  at  Appalachicola.  That  com- 
pany reinsured  with  the  Security  Ins.  Co.; 
both  contracts  rested  wholly  in  parol.  A  poi'- 
tion  of  the  cotton  was  consumed  by  fire  at  the 
landing,  before  any  of  the  policies  were  made, 
and  the  owners  adjusted  it  with  their  insurers, 
■who  paid  the  loss.  Held,  oral  contracts  to  in- 
sure will  be  enforced  in  equity,  even  though 
insurers'  charter  required  all  contracts  to  be  in 
writing.  Seearity  Fire  Ins.  Go.  v.  Kentucky 
Marine  and  Fire  Ins.  Co.,  7  Bush,  81. 

14.  The  comi)an3''s  charter  provided:  "All 
policies  and  contracts  of  insurance  which  may 
be  made  or  entered  into  by  said  corporati<5n, 
sh.all  be  subscribed  by  the  president  or  the 
president  pro  tern,  and  attested  by  the  secretary, 
and  being  so  signed  and  attested,  shall  be 
binding  and  obligatory  on  said  corporation 
without  the  seal  thereof"  Held,  the  words, 
"  all  policies  or  contracts  of  insurance,"  im- 
port executed  policies,  and  not  executory  con- 
tracts  for  policies.  Security  Fire  Ins.  Co.  v. 
Kentucky  ifarine  and  Fire  Ins.  Co.,1  Bush,  81. 

16.  The  insurer  accepted  a  risk  by  writing 


on  the  application:  "  Taken  at  three  per  cent, 
premium."  Held,  the  same  rights  and  liabili- 
ties followed  as  if  a  formal  policy  had  been 
executed.  Woodruff  v.  Columbus  Ins.  Co.,  5 
La.  An.,  G97. 

1 6.  Insurers'  alleged  that  they  were  a  corpo- 
ration created  by  the  laws  of  the  state  of  Con- 
necticut, and  by  that  law  all  policies  and  other 
contracts  were  to  be  made  in  writing,  signed 
by  the  president  and  countersigned  by  the 
secretary;  that  no  policy  or  other  contract  in 
writing  was  ever  granted  to  the  complainant, 
signed  by  the  president  and  countersigned  by 
the  secretary.  Held,  corporations  take  by  im- 
plication all  the  reasonable  modes  of  execu- 
tion which  a  natural  person  may  adopt,  by 
the  exercise  of  similar  powers.  That  general 
authority  to  a  corporation,  to  engage  in  the 
business  of  insurance,  carries  to  it  the  power 
that  a  natural  person  in  the  same  business 
would  have;  hence,  a  body  corporate  can 
make  a  parol  contract  of  insurance,  unless 
plainly  denied  the  power,  by  the  statute  which 
created  it,  and  this  corporation  was  not  denied 
the  right  to  enter  into  parol  agleements  to  in- 
sure (citing  Constant  v.  Allegheny  Ins.  Co., 
3  Wall.  Jr.,  313;  Cole  v.  Green,  6  M.  &  6.,  872; 
Myres  v.  Keystone  Ins.  Co.,  27  Penn.  St.,  268. 
New  England  Ins.  Co.  v.  Robinson,  25  Ind.,  536. 

17.  Two  rules  of  the  corporation  were 
pleaded:  First,  the  premium  shall  be  paid  iu 
conformity  to  the  rules  of  the  company  before 
the  policy  is  issued,  and  the  president  and 
secretary  shall  eacli  be  liable  for  the  amount 
of  premium  delivered  at  the  office  of  the  com- 
pany; second,  a  part  of  any  annual  ijremiuni 
may  be  taken  on  one  or  more  notes  on  inter- 
est, but  every  such  note  shall  be  made  paya- 
ble  before  or  at  the  beginning  of  the  period 
of  the  risk  for  which  the  note  is  given,  so  that 
the  company  shall  not  run  the  risk  for  any 
time  for  which  the  premium  shall  not  have 
been  iictually  paid."  Held,  notice  of  the  first 
rule  did  not  make  it  a  part  of  the  contract ; 
and,  if  there  was  nothing  in  the  charter  to 
prevent,  it  was  competent  for  the  corporation 
to  make  a  contract  in  violation  of  its  own 
rules.  New  England  Life  Ins.  Co.  v.  Hasbrook, 
32  lud.,  447. 

18.  An  oral  .agreement  upon  sufficient  con- 
sideration  to  insure  goods  against  loss  by  fire 
that  sh.all  occur  between  two  points  specified, 
entered  iuto  in  this  state  with  a  party  who  has 
an  insurable  interest  in  tliem,  is  valid.    Mobile 

44;< 


887 


PAROL  CONTRACTS  TO  INSURE. 


888 


When  not  valid. 


Marine  Dock  and  Ins.  Co.  v.  McMillan,  31  Ala., 
711. 

1 9.  Plaintiff  applied  to  insurers'  agents  for 
insurance  upon  a  quantit)-  of  pig  iron,  from 
Milwaukee  to  Cleveland,  which  was  accepted 
by  the  agent  at  a  specified  rate  of  premium, 
insured  to  give  notice  from  time  to  lime  as 
ihe  iron  should  be  shipped,  and  the  name  of 
the  vessel,  all  of  which  was  done.  Held,  if 
the  agents  were  authorized  to  malie  the  con- 
tract, the  defendant  was  liable.  H'orlhwesitei-n 
Iron  Co.  V.  uEtna  Ins.  Co.,  23  Wis.,  160;  s.  c, 
21  id.,  458. 

20.  The  policy  was  not  delivered.  Held, 
competent  to  prove  by  parol  the  nature  of  the 
agreement.  Mills  v.  Albion  Ins.  Co.,  4  C.  C.  S., 
575. 

21.  The  Albion  Fire  and  Life  Ins.  Co.,  in- 
corporated in  England,  with  head  office  at 
Loudon,  maintained  agents  in  difJ'ereut  parts 
of  tbe  country ;  one  at  Edinburg.  il.,  owner 
of  the  steamboat  R.  B.,  plying  between  the 
Clyde  and  Liverpool,  applied  to  the  agent  at 
Edinburg  for  £5,000  insurance  on  her;  the 
agent  gave  a  receipt  for  the  premium,  and 
agreed  that  a  policy  should  be  prepared  at 

.  London  and  delivered  to  insured.  No  policy 
■was  ever  delivered.  Tlie  next  year  a  renewal 
receiptwas  given,  referring  to  a  policy  bynum- 
ber.  It  seems  the  Albion  made  their  own  pol- 
icy for  £3,000,  and  procured  another  for  £2,000. 
She  was  destroyed  by  fire  while  at  sea.  A  pol- 
icy was  then  tendered,  containing  a  clause  ex- 
empting insurer  from  loss  by  fire  while  the 
vessel  should  be  at  sea.  Insurer  alleged  that 
they  were  restrained  by  6  Geo.  I,  ch.  18,  from 
talking  tlie  risk  of  fire.  Held,  the  riglit  of  the 
company  to  m.ake  policies  in  Scotland  need 
not  be  decided.  It  appeared  the  company 
was  in  the  constant  practice  of  taking  fire 
risks  in  Scotland,  therefore  judgment  was 
given  for  the  loss.  Mills  v.  Albion  Ins.  Co.,  G 
S.  &  D.,  409 ;  s.  c,  5  id.,  930. 

22.  The  plaintiff  declared  that  defendants, 
in  consideration  of  certain  premium  paid, 
agreed  to  insure  plaintiff  against  loss  by  fire 
on  certain  property  described,  to  the  amount 
of  £1,500  until  notified  to  the  contrary,  subject 
to  the  conditions  contained  in  the  policies 
usually  issued  by  the  defendant  in  like  cases. 
Averment  tliat  plaintiff  had  performed  all 
things  on  his  p.art  to  he  performed;  that  tlie 
property  had  been  consumed.  Heid,  the 
plaintiff's  best  remedy  would  be  in  equity, 

Ui 


under  the  circumstances  of  the  case,  or  lie 
might  have  an  action  at  law  for  failure  to  de- 
liver the  policy,  if  the  terms  of  the  agreement 
were  fully  settled  bj'  the  parlies.  Jones  v. 
Provincial  Ins.  Co.,  10  U.  C.  Q.  B.,  477. 

II.  When  not  valid. 

1.  Policy  on  steamboat.  She  was  sold  by 
virtue  of  a  decree  of  court,  and  tlie  interest  of 
the  insured  divested.  Insured  asked  a  surren- 
der  of  the  premium  note,  oflVring  to  pay  the 
premium  earned,  which  insurers  refused  to 
deliver,  but  said,  if  the  boat  should  again 
come  to  be  the  propertj-  of  the  insured,  either 
by  purchase  or  compromise,  during  the  terni 
insured,  insurers  would  waive  the  forfeiture 
created  by  the  judicial  sale,  and  the  policy 
should  continue  to  the  end  of  the  term.  In- 
sured repurchased  the  vessel,  and  was  sole 
owner  at  the  time  of  the  loss,  which  occurred 
within  the  term  insured.  Held,  a  policy  of 
insurance  must  be  in  writing;  that  a  waiver 
of  any  conditions  upon  which  it  is  granted 
must  also  be  in  writing;  that  the  policy  was 
at  an  end  by  virtue  of  the  judicial  sale;  that 
it  could  not  be  revived  or  made  to  reattach 
except  bj'  an  agreement  in  writing.  Gockerilt 
V.  Cincinnati  Mut.  Ins.  Co.,  16  Ohio,  148;  over- 
ruled by  Dayton,  Ins.  Co.  v.  Kelly,  24  Ohio  St., 
345. 

2.  Bill  to  compel  the  payment  of  a  loss  on 
a  vessel  for  which  no  policy  had  been  issued. 
The  evidence  was  conflicting  as  to  whether 
any  contract  had  been  completed  between  tha 
parties.  Held,  the  bill  must  be  dismissed. 
Suydam  v.  Columbus  Ins.  Co.,  18  Ohio,  459. 

3.  The  plaintiff  claimed  an  oral  agreement 
to  insure,  but  the  court  held  there  was  not  suf- 
ficient evidence  of  the  agent's  authority  to 
bind  the  principal.  Hartford  Fire  Ins.  Co.  v. 
Wilcox,  57  111..  180. 

4.  The  bill  stipulated  that  D.,  an  insurance, 
broker,  negotiated  with  L.,  the  defendant':, 
agent,  for  insurance  on  certain  property, 
$5,000  from  October  S,  1871,  to  October  8, 
1872,  at  one  per  cent,  premium,  to  be  paid  on 
demand,  the  policy  to  be  written  in  due  course 
of  business.  The  premises  were  burned  ou 
the  following  day.  The  defendant's  agent  de- 
nied that  he  agreed  to  make  the  contract. 
i7eW,  the  bill  must  be  dismissed  because  the 
evidence  did  not  preponderate  in  favor  of  the 
complainant.  Dinning  r.  Phoenix  Ins.  Co.,  68 
111.,  414. 


889 


PAPERS— PARTICULAR  AVERAGE  AND  PARTIAL  LOSS. 


890 


Definition  of  —  Wliat  is  partial  loss  on  ship  —  What  is  not  partial  loss  on  sliip. 


5.  The  act  of  incorporation  and  by-laws  re- 
quired all  the  policies  to  be  in  writing,  and 
tliis  action  was  brought  upon  a  verbal  agree- 
ment. Held,  the  action  could  not  be  main- 
tained Henniiig  v.  Untied  States  Ins.  Co.,  47 
Mo.,  425. 

6.  The  contract  of  insurance,  whether  origi- 
nal or  renewed,  must  be  iu  writing,  under 
eec.  2794  of  the  Code  (citing  Simonton  v.  Liv- 
erpool, London  and  Globe  Ins.  Co.,  51  Ga.,  76j. 
Crughan  v.  Underwriterg  Agency,  53  Ga.,  109 

7.  The  company's  charter  provided  that  pol- 
icies issued  by  the  company  should  be  under 
the  seal  of  the  corporation.  Ileld,  an  unsealed 
policy  could  not  be  given  in  evidence.  Lin- 
dauer  v.  Delaware  Mutual  Safety  Ins.  Go.,  13 
Ark.,  461. 


PAPERS. 

(See  Etidencs;  Proofs  of  I.099.; 


PARTICULAR   AVERAGE   AND 
TIAL  LOSS. 


PAR- 


(See  One-third  New  for  Old;  Warranted  Free 
PROM  Average.) 

I.  Definition  op. 
II.  What  is  partiai,  loss  on  ship 

III.  NOT   partial  loss   ON   SHIP. 

IV.  PARTIAL  LOSS   OP  CARGO. 

V.    Op   PARTICULAR   AVERAGE  ON  CARGO. 

(a)  What  is. 

(b)  not. 

VI.  Rules  for  ascert.4.ining  the  particu- 
lar AVERAGE. 

I.  Definitiox  of. 

Partial  loss  includes  both  ^nerai  and  par- 
ticular average,  and  particular  average  in- 
cludes all  partial  losses  except  general.  Wads- 
worth  V.  Pacific  Ins.  Co.,  4  Wend.,  34. 

II.    WUAT    IS    PARTIAL    LOSS   ON  SHIP. 

1.  Damages  sustained  at  sea,  repaired  and 
made  good  by  purchasers,  are  particular  aver- 
age.    Brookes  r.Orienfnl  Ins.  Co.,  7  Pick.,  259. 

2.  After  a  vessel  is  repaired  and  restored  by 


insurers  to  insured,  he  may  maintain  an  ac- 
tion to  recover  as  for  a  partial  loss,  deficien- 
cies discovered  after  restoration.  Reynolds  v. 
Ocean  Ins.  Co.,  22  Pick.,  191. 

3.  In  estimating  the  amount  of  a  partial 
loss  on  vessel,  if  she  lias  received  a  strain 
which  alters  her  shape  so  that  she  cannot  be 
perfectly  repaired  without  rebuilding, and  lier 
value  is  thereby  diminished,  the  insurer  on 
ship  is  liable  to  the  extent  of  the  diminished 
value,  the  result  of  the  strain,  which  is  to  be 
added  to  the  cost  of  repairs,  and  this,  not- 
withstanding the  repairs  made  rendered  her 
seaworthy,  and  she  was  insured  at  the  same 
premium  and  valuation  as  before  the  injury. 
Oiles  V.  Eagle  Ins.  Co.,  2  Met.,  140. 

4.  In  assessing  damages  where  the  loss  is 
barratrous,  if  the  master  has  sold  portions  of 
the  ship's  tackle,  furniture,  supplies  and  out- 
fits, all  the  losses  consequent  are  charges 
against  the  insurer  who  assumes  tlie  risk  of 
barratry.  Lawton  v.  Sun  Mat.  Ins.  Co.,  2 
Cush.,  500. 

5.  "  Warranted  free  from  average  under  ten 
per  cent."  She  was  valued  at  $15,000,  and  in- 
sured for  $3,000.  An  accident  occurred  by 
which  she  was  broken  and  sunk.  Held,  ex- 
penses incurred  for  the  mere  purpose  of  get^ 
ting  up  the  boat  for  the  purpose  of  repairing 
her  were  not  general  average,  because  there 
was  no  common  danger  and  no  motive  for  a 
common  benefit;  they  were  particular  aver- 
age, and  were  to  be  added  to  the  expense  of 
materials  and  repairs  made,  in  order  to  ascer- 
tain the  amount  of  the  particular  average  loss ; 
and  every  expense  in  which  the  cargo  was  not 
interested,  whether  for  wages,  provisions  ex- 
pended while  the  boat  was  being  taken  to. 
place  of  repairs,  and  while  she  was  being  re- 
paired, if  undertaken  solely  for  the  purpose 
of  putting  the  boat  in  a  situation  for  repairs, 
was  particular  average.  Firemen's  Ins.  Co.  v. 
Fitzhugh,  4  B.  Mon.,  160. 

III.    "What  is  not  partial  loss  on 

SHIP. 

On  boat  (valued)  for  one  year.  She  struck 
and  commenced  leaking.  The  cargo  was 
transferred  to  keel  boats;  and  she  was  pro- 
ceeding to  a  place  where  repairs  could  be 
made,  when  she  struck  a  second  time  and  was 
run  ashore,  but  tilled  with  water.  The  crew 
and  extra  hands  raised   her,  and  by  continued 

445 


891 


PARTICULAR  AVERAGE  AND  PARTUL  LOSS. 


892 


What  is  paxtial  loss  of  cargo,  etc.  —  Rules  for  adjusting  the  particular  average. 


pumping  she  reached  dock.  Held,  the  T\-ages 
aud  provisions  for  the  crew  were  not  a  loss  to 
be  borne  by  the  insurers  of  the  boat,  for  the 
insured  was  bound  to  keep  a  competent  crew 
on  board,  who  were  bound  to  exert  themselves 
to  the  utmost  for  the  safety  of  the  boat,  which 
excludes  any  implication  that  insurer  should 
pay  for  such  services.  May  v.  Delaware  Ins. 
Co.,  19  Penn.  St.,  313.  And  though  the  policy 
permits  a  recovery  for  the  labor  of  the  factors 
aud  servants  of  the  insured  in  preserving  the 
boat  when  damaged,  that  did  not  include 
labor  and  services  of  the  crew.    Ibid. 

IV.  What  is  partial  loss  of  caego. 

On  cotton,  valued.  A  part  of  it  was  lost 
aud  the  balance  brought  to  port  of  destina- 
tion. Insured  notified  insurer  of  his  inten- 
tion not  to  abandon.  Held,  a  partial  loss. 
Sale  V.  Sun  Hut.  Ins.  Co.,  3  Rob.  (N.  Y.),  002. 

Y.  Of  paetictjlak  average  on  cargo. 

(a)   What  is. 

1.  All  losses,  charges  and  expenses  neces- 
sarily, prudently  or  reasonably  incurred,  in 
respect  to  the  property  saved,  from  the  time 
of  the  shipwreck  to  the  time  when  the  prop- 
erty could  be  transported  to  the  place  of  its 
ultimate  destination,  are  charges  upon  the 
property  so  transported,  and  must  be  borne  by 
the  insurers  thereof;  that  transporting  the 
master  and  crew,  their  support,  board  and 
lodging,  and  a  compensation  to  the  seamen 
after  they  became  disconnected  with  the  ves- 
sel, were  proper  charges.  Bridge  v.  Niagara 
Ins.  Co.,  1  Hall  (N.  T.),  423. 

(b)  What  is  not. 

2.  She  sustained  injury  in  descending  the 
Mississippi,  and  was  towed  back  to  New  Or- 
leans. A  charge  of  2%  per  cent,  was  made 
against  the  cargo,  landed  and  restowed.  Held, 
tlie  charge  was  not  proper.  Shiff  v.  Insurance 
Co.,  1  La.  (O.  S.),  305. 


YI.    KULES  FOR  adjusting  THE  PARTIC- 
ULAK   AVERAGE. 

1.  On  cargo.  New  York  to  Cadiz.    Prime 
cost,  $8,189.     Insured  for  $8,000.    A  portion 
446 


of  it,  cost  .$3,161,  was  damaged  by  sea  water. 
It  would  have  sold  for  $4,971,  with  freight, 
$971 ;  but  on  account  of  the  damage,  sold  fo» 
$921.  Held,  the  mode  of  calculating  the  av- 
erage  loss  is  to  take  the  proportion  of  the  dif- 
ference between  the  price  of  the  sound  and 
the  damaged  articles,  at  the  port  of  delivery, 
and  for  the  insurer  to  pay  that  proportion  up- 
on the  value  of  the  goods  specified  in  the  pol- 
icy. Lawrence  v.  New  York  Ins.  Co.,  3  Johns. 
C,  217. 

2.  Where  the  delay  is  not,  in  law,  a  devia- 
tion, and  the  insured  is  entitled  to  recover  for 
a  partial  loss  on  cargo,  the  amount  is  the  dif- 
ference between  the  net  proceeds  of  the  sale.s, 
and  the  cost  of  the  outward  cargo,  including 
the  premium,  with  interest.  Suydam  v.  Marine 
Ins.  Co.,  3  Johns.,  139. 

3.  The  rule  for  determining  the  amount  of 
a  partial  loss  on  ship  is  this:  "Apply  the 
value  of  the  old  materials  toward  payment  for 
the  new,  and  deduct  one-third  new  for  old 
from  the  balance.  Byrnes  v.  National  Ins.  Co., 
1  Cow.,  205. 

4.  On  crates  and  casks  of  earthenware  at 
and  from  New  Orleans  to  Pittsburg,  some  of 
which  were  damaged  when  examined  at  the 
port  of  destination.  Appraisers  appointed  to 
ascertain  the  damage  assumed  as  the  standard 
value  the  importation  cost  at  New  Orleans. 
Held,  correct.  Stewart  v.  Western  Marine  and 
Fire  Ins.  Co.,  11  La.  (0.  S.),  53. 

.5.  The  rule  to  determine  the  amount  of  par- 
tial  loss  oh  goods  is  to  ascertain  what  the 
gross  sales  of  such  goods  would  have  been  had 
they  arrived  sound,  deduct  from  it  the  gross 
sales  of  the  damaged  goods,  ascertain  the  ratio, 
and  applj-  it,  whatever  it  be,  to  the  agreed  val- 
ue,  if  there  be  one,  and  if  there  be  none,  then 
upon  the  cost  of  the  goods  insured.  Evans  v. 
Commercial  Mut.  Ins.  Co.,  6  R.  I.,  47. 

6.  On  corn  from  Cliicago  to  Jlontreal,  with 
permission  to  tranship  at  Kingston  on  stand- 
ard  barges  or'  vessels,  "  From  and  after  the 
landing  thereof,  and  shall  so  continue  till 
landed  at  the  port  of  destination,  but  not  to 
exceed  forty-eight  hours  after  the  arrival,  an- 
chorage or  mooring  of  the  vessel  at  the  port 
of  destination."  The  corn  received  damage 
on  the  voyage,  and  about  400  bushels  were  iu 
a  condition  which  demanded  an  immediate 
sale  at  Kingston.  The  residue,  in  apparent 
good  order,  was  transhipped  for  Montreal, 
where   it   arrived  May  28th.     An  authorized 


893 


PARTIES  TO  THE  ACTION  —  PAYMENT. 


SO* 


Miscellaneous. 


iuspector  examined  it  on  tlie  30th  and  pro- 
munced  it  of  the  grade  "rejected."  It  was 
then  in  what  is  called  a  heating  condition. 
Consigaees  permitted  it  to  remain  in  the  ves- 
sel two  or  three  days,  then  put  it  into  store 
for  the  purpose  of  drying.  Held,  the  market 
price  of  the  corn  was  not  the  basis  of  insurer's 
liability,  because  that  would  involve  him  in 
the  rise  and  fall  of  the  markets,  in  which  he 
had  no  concern;  that  in  determining  the 
liability,  the  sea  damage  was  to  be  ascer- 
tained by  comparing  the  price  for  which  il 
would  have  sold  in  the  market  had  it  arrived 
sound,  witli  the  price  that  it  might  have 
brought  in  its  damaged  condition,  and  by 
applying  the  ascertained  ratio  of  damage  to 
the  valuation  named  in  the  policy,  charging 
insurer  with  any  expense  that  was  reasonable 
and  properly  incurred,  for  the  purpose  of 
ascertaining  the  loss ;  and,  if  it  was  stored  for 
any  purpose  other  than  that  of  ascertaining 
the  extent  of  the  injury,  the  expense  and  loss 
consequent  thereon  were  not  to  be  taken  into 
the  account.  Lamar  Ins.  Co.  v.  McOlashen, 
54  111.,  513. 

7.  A  partial  loss  on  goods  is  to  be  deter- 
mined by  ascertaining  the  ditference  between 
their  gross  proceeds  when  sound  and  the  gross 
proceeds  arising  from  their  sale  after  damage. 
Hurry  v.  Royal  Exchange  Ass.  Co.,  3  B.  &  P., 
308;  s.  o.,  3id.,  430. 

8.  An  average  loss  on  goods  must  be  calcu- 
lated upon  the  invoice  price  and  not  upon  the 
price  in  the  market  at  which  the  damaged 
goods  liave  arrived.  Waldron  v.  Coombe,  3 
Taunt.,  162. 

9.  The  rule  by  which  the  partial  loss  on 
goods  is  to  be  calculated  is  the  ditference 
between  the  gross  proceeds  of  the  damaged 
goods  and  tlie  gross  proceeds  of  the  same  if 
sound.    Johnson  v.  Sheddon,  2  East,  581. 

10.  The  value  of  goods  insured  under  an 
open  policy  is  to  be  ascertained  by  adding 
the  premiums  for  insurance  and  commission 
to  the  invoice  price.  And  the  proportion  of  a 
loss  is  ascertained  by  comparing  the  selling 
price  of  the  sound  commodity  with  the  dam- 
aged part  at  the  port  of  delivery,  and  apply 
that  proportion  to  the  value  at  the  port  of 
loading.     Usher  v.  Noble,  12  East,  639. 


PARTIES  TO  THE  ACTION. 

(See  AcTioH.) 


PARTNERSHIP. 

1.  To  constitute  a  partnership  by  which  the 
act  of  one  will  biud  or  enure  to  the  benefit  of 
the  rest,  there  must  be  a  reciprocal  choice  an  J 
agreement  of  the  pjirties  to  unite  their  stock, 
and  to  share  in  all  risks  of  profit  and  loss. 
Holmes  V.  United  Ins.  Co.,  2  Jchns.  C,  329. 

2.  B.  &  W.  kept  and  sold  goods  upon  the 
premises  prior  to  April,  1856,  in  the  name  of 
B.  &  W.  B.  then  bought  the  stock  in  trade 
and  was  sole  owner;  but  he  continued  the 
name  of  W.  with  his  own,  and  the  business 
was  conducted  in  the  name  of  B.  &  W.  Held, 
using  the  name  of  the  firm  did  not  constitute 
the  goods  partnership  property.  Gould  v.  York 
County  Mutual  Fire  Ins.  Co.,  47  Me.,  403. 

3.  The  deed  of  settlement  provided  that 
persons  effecting  insurances  shall  be  divided 
into  two  classes, — the  participating  class,  and 
the  non-parti(;ipating  class;  that  the  former 
shall  be  entitled  to  share  in  profits  of  the 
company,  but  the  latter  shall  not.  Held,  the 
right  to  participate  in  the  profits  did  not  con- 
stitute insured  a  partner  with  the  proprietors 
of  the  company.  In  re  English  and  Irish 
Church  and  University  Ass.  Soc,  11  W.  R.,  681 ; 
8  L.  T.  (N.  S.),  724. 


PASSAGE  MONEY. 

(See  Fbeioht.) 


PAYMENT. 

I.  What  is. 

II.  NOT. 

I.  What  is. 

1.  The  defendants  (Slate  &  Co.),  ship's  hus- 
bands, and  agents  for  her  owners,  were  author, 
ized  to  make  insurances  on  her  freight,  and 
to  receive  her  earnings.  They  insured  the 
freight  for  $17,000,  valued,  in  their  own  name, 
loss  payable  to  them.  After  the  loss  occurred^ 
Slate  &  Co.  became  insolvent,  and  the  plaintiff, 
one  of  the  owners,  notified  insurers  not  to  pay 
the  claim  to  them;  but  a  portion  of  the  claim. 

447 


895 


PAYMENT. 


896 


What  is  not. 


had  been  paid  the  da}-  prior  to  the  notice. 
Jleld,  the  payment  was  justified.  GillUan  v. 
Hun  Mut.  Ins.  Co.,  41  N.  Y.  (2  Hand),  376. 

2.  Wliere  a  bill  of  lading  is  taken  by  a 
creditor  as  security  for  a  debt  on  his  own  ac- 
count, the  whole  property  passes  by  the  deliv- 
ery and  is  a  satisfaction  of  the  debt  pro  tanto; 
but  this  may  be  rebutted  by  evidence  of  any 
particular  agreement  between  the  parties. 
Mibbert  v.  Carter,  1  Terra,  74.'5. 

3.  The  insurance  broker  debited  the  insurer 
with  the  loss  and  took  the  insurers'  acceptance 
for  the  balance  in  account  between  them,  pay- 
able at  a  time  later  than  that  when  the  loss 
would  be  payable  in  cash.  Held,  the  insured 
could  maintain  an  action  against  the  broker 
for  money  bad  and  received ;  and,  that  the  ac- 
ceptance was  dishonored  and  never  paid,  was 
immaterial.     Wilkinson  v.  Gluy,  6  Taunt.,  110. 

4.  Sealed  policy,  "  To  A.  as  owner,  agent,  or 
otherwise."  The  interest  was  averred  in  Le 
Quesne,  the  real  plaintiflF.  The  defense  was 
payment.  It  appeared  that  insurer  allowed 
credit  for  £1,524,  a  debt  due  by  A.  to  insurer, 
and  paid  him  £1,476,  the  balance  of  the 
loss.  Held,  as  A.  was  the  only  person  who 
could  sue  upon  the  covenant,  payment  to  him 
in  any  mode,  by  wliich  he  was  bound,  was  a 
good  payment  as  against  Le  Qucsne,  and  any 
settlement  which  bound  A.  was  equally  bind- 
ing upon  Le  Quesne,  suing  in  A's  name.  Gib- 
ton  V.  Winter,  5  B.  &  Ad.,  96;  2  N.  &  M.,  737. 

5.  Insured  had  for  several  years  effected  in- 
surances through  D.  &  Co.,  having  general 
and   insurance  accounts  current  with   them. 

-  D.  &  Co.  effected  this  policy  in  September, 
1835.  The  loss  occurred  in  May,  IbSG.  D.  & 
Co.  were  then  indebted  to  insurer  £217,  a  bal- 
ance in  account  for  the  previous  year.  In  the 
following  month  D.  &  Co.  paid  him  £100,  leav- 
ing the  talanoe  to  meet  this  loss,  which  was 
adjusted  in  September  following,  and  made 
payable  in  one  month.  It  was  then  credited 
by  insurer  to  D.  &  Co.,  who  inclosed  to  in- 
surer  a  credit  note  of  the  w-hole  loss,  and  car- 
ried It  to  the  credit  of  insured,  debiting  in- 
sured with  premiums  to  the  end  of  September, 
when  there  was  a  balance  due  insured  upon 
tlie  insurance  account,  which  was  carried  to 
insured's  credit  in  general  account.  At  the 
foot  of  the  credit  note  was  written:  "Above  is 
the  credit  note  of  the  loss  per  Vrow  Elizabeth, 
£1,155  3s.  lOd.,  but  without  our  prejudice  till  in 
caah  from  the  underwriters."  It  was  uroved 
448 


that  the  custom  was  for  brokers  to  settle  losses 
as  between  broker  and  underwriter  in  the  man. 
ner  above  stated,  which  was  well  known  in 
Liverpool,  the  place  where  insured  resided. 
Held,  sufficient  to  establish  the  plea  of  pay- 
ment. Stewart  v.  Aberdein,  4  Mee.  W.,  211;  7 
L.J.  (N.  S.),  Ex.,  292. 

6.  The  broker  procured  the  policy  in  his 
own  name,  in  behalf  of  his  principal.  The 
policy  was  retained  by  him.  A  loss  occurred, 
and  he  pledged  the  policy  to  another  broker, 
and  received  money  on  it  on  account  of  the 
loss.  Held,  a  valid  payment,  for  the  person  to 
whom  it  was  made  had  authority'  to  receive. 
Callow  v.  Kelson,  10  W.  R.,  193. 

7.  Policy  assigned  in  trust  for  the  assignee 
to  repay  himself  a  debt.  Held,  the  insurer 
was  not  bound  to  look  beyond  the  trustee,  and 
a  payment  to  him  would  be  good.  Gurtin  v. 
Jellicoe,  13  Irish  Ch.,  180. 

8.  The  policy  was  assigned  in  trust  for  cer- 
tain  purposes  mentioned,  of  which  the  insurer 
had  notice.  Held,  the  insurer  was  not  bound 
to  see  to  the  application  of  the  fund.  Ford  v. 
Ryan,  4  Irish  Ch.,  342. 

II.  What  is  not. 

1.  If  insured  be  in  debt  to  a  broker,  and 
gives  him  a  policy  to  effect  an  adjustment, 
whicli  he  does,  and  thereon  he  debits  the  in- 
surer with  the  amount,  and  credits  the  insured 
with  it,  there  is  no  payment  to  the  insured 
unless  he  assents.  Bethune  v.  Neilson,  2  Caines, 
139. 

2.  The  assignment  of  a  note  of  a  third  per- 
son does  not  extinguish  the  debt  upon  which 
it  was  assigned,  unless  it  was  received  as  pay- 
ment or  in  satisfaction  of  the  debt.  Patapseo 
Ins:  Co.  V.  Smith,  6  H.  &  J.,  166. 

-  3.  The  commander  of  a  merchant  ship 
owned  one  share  in  her.  He  directed  Lut- 
widge  to  insure  £200  upon  her;  and  Lutwidge 
procured  Watson  and  Thornton  to  make  (he 
insurance ;  and  they  made  it  in  the  name  of 
Lutwidge.  Ship  and  crew  were  lost.  The 
commander's  widow  notified  insurers  of  the 
loss,  and  that  Lutwidge  was  only  a  trustee  for 
her  late  husband,  and  cautioned  them  not  to 
liay  the  money  to  him,  but  to  ])ay  it  to  her. 
Lutwidge,  under  pretense  that  the  deceased 
was  indebted  to  him,  procured  insurers  to 
credit  him  in  account  with  the  claim;  which 
account  was  afterwards  settled  between  tlicm. 


897 


PAYMENT  —  PAYMENT  OF  MONEY  INTO  COURT. 


898 


What  is  not 


Held,  if  the  insurers  had  paid  the  money  to 
Lutwidge  witlioul  notice  that  he  was  a  trustee, 
thej' would  liave  been  indemnified;  but  as  tlie 
settlement  was  made  contrary  to  the  notice 
that  LutwiJge  was  a  trustee,  the  payment  was 
unauthorized;  the  court  .will  not  suffer  a  per- 
son having  nolice  of  a  trust  to  settle  with  a 
trustee,  against  the  directions  of  the  cestui  que 
trust;  that  allowing  it  in  account  with  Lut- 
widge  did  not  alter  the  property,  and  the  in- 
surers were  ordered  to  pay  it  over  to  the  wid- 
ow, and  Lutwidge  must  pay  costs  of  suit,  be- 
cause he  had  drawn  insurers  in,  and  prevailed 
upon  them  by  false  representations  to  settle 
the  account.     Fell  v.  Lutwidge,  Barn.  Ch.,  319. 

4.  After  a  total  loss  and  adjustment,  and 
withiu  a  month,  while  the  policy  remained  in 
the  Itands  of  the  broker,  insurer's  account 
with  the  broker  was  debited  by  the  broker 
with  the  loss,  and  the  insurer's  initials  were 
stricken  off  the  policj'.  The  insurer  and  the 
broker  had  been  ordered  to  pay  the  money  to 
oue  Spliuit.  Held,  the  priucip.nl  is  uever 
tstopped  from  demanding  the  money,  unless 
there  has  been  actually  a  payment  to  the 
broker,  or  credit  given  by  the  insured.  Jell 
e.  Pratt,  2  Stark.,  G7. 

5.  A  broker  was  employed  by  a  person  re- 
siding at  Glasgow,  to  settle  with  his  insurer 
at  London.  The  insurer's  name  was  struck 
off  the  policy,  and  the  broker  credited  with 
the  loss,  from  which  was  deducted  a  sum  of 
money  then  due  by  the  broker  to  the  insurer, 
and  the  balance  w.as  paid  in  cash  to  the  bro- 
ker, who  became  bankrupt,  and  never  paid  any 
of  the  money  to  the  insured.  Held,  the  sum 
paid  in  money  was  a  payment  of  the  loss  pro 
tanto;  but  as  to  the  balance,  for  which  the 
broker  gave  the  insurer  credit,  it  was  no  pay- 
ment. Scott  V.  Irving,  1  B.  &  Ad.,  G05;  Bart- 
lett  ■».  Pentland,  10  B.  &  C,  7G0 ;  8  L.  J.  K.  B.,  364. 

6.  Policy  was  delivered  to  broker  to  settle 
an  adjusted  loss,  payable  in  a  month.  The 
broker  charged  the  insurer  in  account  for  th« 
loss,  and  transmitted  to  the  insured  an  account, 
in  which  he  debited  himself  with  the  loss,  and 
for  that  balance,  insured  drew  a  bill  upon  the 
broker,  which  was  accepted  but  not  paid.  The 
insurer's  name  was  not  struck  off  the  policy. 
Held,  the  insurer  was  not  discharged.  Rusull 
«.  Banglcy,  4  B.  &  A.,  396. 

7.  The  broker  signed  a  policy  in  behalf  of 
the  underwriter.  A  loss  occurred,  and  the  in- 
sured received  from  the  broker  a  credit  note. 

29 


The  practice  was  for  the  broker  and  the  in- 
sured,  if  there  vvas  a  running  account  between 
them,  to  pay  the  credit  note  at  the  end  of  tlie 
month,  but  there  was  no  running  account  in 
this  case.  At  the  time  the  adjustment  was 
made,  the  broker  had  money  in  hand  at  the 
credit  of  the  defendant.  The  broker  subse- 
quently stopped  payment,  and  this  action  was 
brought  against  the  insurer.  Held,  crediting 
the  broker  with  the  loss  was  not  a  payment. 
McFarlane  v.  Oiamiacopulo,  3  H.  &  N.,  860; 
28  L.  J.  Ex.,  72. 

8.  W.,  an  insurance  broker,  employed  by  a 
ship  builder  to  efl'ect  a  policy  upon  a  ship,  re. 
ceived  ship's  papers  after  the  loss  occurred,  to 
adjust  it  with  insurers.  The  policy  was  made 
in  the  name  of  W.,  and  he  retained  possession 
of  it.  An  adjustment  was  made  between  bro- 
ker and  insurer,  and  they  gave  broker  credit 
fur  the  loss  against  premiums  due  by  him  to 
tlicm,  on  other  policies.  Held,  a  payment  in 
money  to  the  broker  would  have  been  good ; 
but  crediting  him  with  Uie  amount  was  not 
payment  binding  on  the  insured.  Sweeting  v. 
Pearce,  7  C.  B.  (N.  8.),  449 ;  s.  c,  29  L.  J.  C.  P., 
265;  afiirmcd  in  Esch'r,  9  C.  B.  (N.  S.),  534;  a. 
o.,  30  L.  J.  C.  J'.,  109 ;  9  W.  R.,  343;  5  L.  T.  (N. 
S.),  79. 

9.  When  the  policy  was  produced,  it  ap- 
pearcd  that  an  adjustment  at  thirty  per  cent, 
had  been  indorsed  upon  it,  and  that  a  pen  had 
been  drawn  through  insurer's  signature.  Held, 
it  was  not  evidence  of  payment.  Adams  v. 
Sanders,  3  Moo.  &  M.,  373 ;  4  C.  &  P.,  3.5. 

10.  D.  &  S.  undertook  to  repair  a  ship.  The 
owner  requested  his  brokers  to  pay  the  amount 
of  his  claim  to  D.  &  S.  as  soon  as  they  should 
receive  it.  The  brokers  had  employed  W.  & 
S.  to  effect  the  insurance,  and  insurers  gave 
W.  &  S.  credit  for  the  loss.  Held,  the  brokers 
were  liable  to  D.  &  S.  for  the  amount,  less  the 
premium.  Dawson  v.  Orr,  24  0.  C.  S.,  566;  34 
Scot.  Jur.,  289. 


PAYMENT  OF  MONEY  INTO  COURT. 

I.  What  it  admits. 

IL  IS  NOT  ADMITTED. 

Ill,  Of  the  effect  of  taking  it  out. 

I.  What  it  admits. 

1.  Payment  of  money  into  court  admits  the 

449 


899 


PAYMENT  or  PREMIUM. 


90» 


Of  the  acknowledgment  in  the  pohcy  or  in  premium  receipts. 


cause  of  action  as  stated  in  plaintiff's  declara- 
tion. Johnson  v.  ColumMan  Ins.  Co.,  7  Johns., 
315. 

2.  Declaration  on  a  special  contract.  De- 
fendant paid  money  into  court.  Eeld,  an  ad- 
mission of  the  right  to  the  amount  brought 
in,  but  it  did  not  waive  any  defense,  even 
though  that  be  to  the  whole  cause;  that  the 
cause  must  proceed  in  the  same  manner  as  if 
the  money  had  not  been  paid  in  at  all.  Elliott 
n.  Lycoming  Coxinty  Ins.  Co.,  66  Penn.  St.,  32. 

3.  The  defendant  paid  money  into  court  to 
the  amount  of  a  partial  loss.  Held,  not  an  ad- 
mission of  a  total  loss.  Rucker  v.  Palgrave,  1 
Taunt.,  419 ;  1  Camp.,  557. 

4.  If  the  action  was  prematurely  brought, 
paying  money  into  court  waived  any  ob- 
jection on  that  ground.  Harrison  v.  Douglas, 
3  A.&E.,396;6N.  &M.,  180. 

II.  What  is  not  adihtted. 

1.  Payment  of  money  into  court  admits  the 
contract  and  damages  to  the  amount  paid  in, 
and  if  the  plaintiff  fails  to  establish  a  right  to 
larger  damages  at  the  trial,  he  must  be  non- 
suited or  have  a  verdict  against  him.  Donnell 
■E.  Colunibian  Ins.  Co.,  2  Sumn.,  366. 

2.  Payment  of  money  into  court  does  not 
.admit  that  the  plaintiff  can  recover  on  a  con- 
tract not  in  his  own  name  nor  made  for  his 
benefit.    Cox  v.  Parry,  1  Term,  464. 

3.  Paying  money  into  court  admits  only 
that  something  was  due.  Harrison  i>.  Dong- 
las,  3  A.  &  E.,  396;  6  N.  &  M.,  180. 

4.  The  payment  of  money  into  court  admits 
that  the  defendant  entered  into  the  contract; 
but  he  is  still  at  liberty  to  contend  that  he  is 
not  liable,  beyond  the  amount  of  such  pay- 
ment, for  a  damage  to  goods  which  were  not 
laden  according  to  the  terms  of  the  policy. 
Mellish  V.  AllnuU,  3  Man.  &  Sel.,  106. 

III.  Of  the  effect  of  taking  it  out. 

When  the  insurer  pays  money  into  court, 
the  insured  will  not  be  precluded  from  pro- 
ceeding for  a  total  loss,  though  he  has  taken 
the  money  out;  provided,  at  the  time  it  is  so 
taken,  the  attorney  for  the  opposite  party  has 
notice  that  the  insured  will  still  proceed  for  a 
total  loss.  Sleght  o.  Rhinelander,  1  Johns., 
193;  B.C.,  2  id.,  .'533. 
450 


PAYMENT  OF  PEEMIUM. 

I.  Op  the  acknowledgment  in  thb  poi.- 

ICY  OR  IN  rKEMIUM  RECEIPTS. 

II.  When  war  prevents  the  payment. 

III.  To  WHOM  PAYMENT  MAY  BE  MADE. 

IV.  When  nonpayment  does  not  affect 

THE  RIGHTS  OF  INSURED. 
V.  NONPAYMENT  IS  FATAL  TO  KKCOT- 

ERY. 

VI.  What  is  a  defense  to. 

I.    Of  the  acknowledgment  in  thh 

policy  or  in  PEEMIUM  KECEIPTS. 

1.  The  application  provided  that  "  The  pol- 
icy shall  not  be  binding  till  the  premium  shall 
have  been  received  by  the  company  or  some 
authorized  agent  in  the  lifetime  of  the  persoa 
whose  life  is  insured."  The  premium  was  to 
be  part  cash  and  part  notes.  Insured  told  the 
agent  to  call  on  his  partner  for  the  cash,  and 
to  send  the  policy  to  him.  The  notes  wer& 
sent  to  the  insured,  who  executed  and  returned 
them  to  the  agent.  In  the  letter  inclosing 
them,  the  company's  agent  wrote :  "  The  cash 
payment  we  will  get  of  Scott  when  the  time 
arrives."  The  policy  recited  the  considera- 
tion, but  upon  the  margin,  noted  that  agenta 
were  not  authorized  to  waive,  alter  or  change 
any  of  the  provisions  of  the  policy.  The  re- 
ceipt which  accompanied  the  policy  contained 
a  notice:  "Agents  must  not  deliver  policies 
till  the  premium  is  received,  as  no  policy  is  in 
force  till  paid  for."  The  policy  was  deliv- 
ered,  together  with  the  receipt,  but  Scott  never 
paid  the  cash  part  of  the  premium.  The  agent 
notified  the  insured  that  Scott  refused  to  pay 
the  premium,  and  the  insured  promised  the 
agent  to  get  the  money  and  send  it  along  in  a 
few  days.  The  insured  became  sick.  The 
agent  wrote  to  him,  inclosing  the  two  pre- 
mium  notes,  and  requested  a  return  of  the  pol. 
icy.  The  insured  died  before  this  letter  reach, 
ed  him.  Held,  the  agents  had  power  to  waive 
the  payment  of  the  premium,  and  to  deliver  the 
policy  without  e.x.actiug  the  cash  premium ;  de- 
livering the  policy,  without  requiring  p.ay- 
mcnt  of  premium,  raised  a  presumption  that 
credit  was  intended;  and  where  a  credit  is  in- 
tended, the  policy  is  valid,  though  the  pre- 
mium be  never  paid.  Miller  v.  Life  Ins.  Co.y 
12  Wall.,  285. 


901 


PAYMENT  OF  PREMIUM. 


902 


Of  the  acknowledgment  in  the  policy  or  in  premium  receipts. 


2.  The  policy  confessed  payment  of  pre- 
mium  and  the  defendant  pleaded  nonpayment 
of  it.  Held,  the  plea  was  no  answer  to  the 
action  nor  was  it  aided  by  an  allegation  that 
a  court  of  chancery  had  enjoined  its  paj'ment. 
Hodgson  v.  Marine  Tns.  Co.,  5  Crancli,  100. 

3.  Stipulated:  "Not  binding  till  the  actual 
payment  of  the  premium.  Held,  it  was  com- 
petent for  insurers  to  waive  the  condition  and 
that  might  be  established  by  evidence,  of 
an  express  agreement  to  that  effect  or  by  cir- 
cumstances; and  delivering  a  policy  con- 
fessing the  payment  of  premium  was  evidence 
of  the  waiver.  Ooit  v.  National  Protection 
Ins.  Go.,  25  Barb.,  180. 

4.  Where  the  insurer  acknowledges  in  the 
policy  payment  of  the  premium,  and  the  in- 
sured  has  afterwards  a  right  to  a  return  of 
premium,  he  may  recover  it  in  an  action  for 
money  had  and  received,  altlimigli  in  truth  he 
gave  only  his  promissory  note  for  the  pre- 
mium, and  the  note  remains  unpaid.  Hem- 
memonji  v.  Bradford,  14  Mass.,  121. 

5.  Stipulated:  "The  insurer  shall  not  be 
liable  till  the  premium  shall  be  aelually  paid 
to  tlie  company;"  but  the  policy  acknowl- 
edged the  receipt  of  the  premium.  Held,  de- 
fendant could  not  be  permitted  to  prove  that 
the  premium  h;ul  never  been  paid,  for  the 
purpose  of  defeating  the  rights  of  insured 
(citing  Providence  Ins.  Co.  v.  Fennell,  49  111., 
180;  New  York  Central  Ins.  Co.  v.  National 
Protection  Ins.  Co.,  20  B.arb.,  468;  Kent's 
Com.,  vol.  3,  p.  2G0).  Baschv. Hiimholdt Mutual 
Fire  and  Marine  Ini.  Go.,  35  N.  .J.,  429. 

6.  The  policy  acknowledged  receipt  of  the 
jireraium,  but  none  was  in  fact  paid.  Held, 
insurer  could  not  set  up  the  non-payment  of 
the  premium  as  a  defense  to  the  action. 
Madison  Ins.  Co.  v.  Pellowes,  1  Disney,  217; 
affirmed,  2  id.,  128. 

7.  The  policy  delivered  to  insured  contained 
an  .acknowledgment  of  the  receipt  of  the  pre- 
mium. Stipulated:  "  No  order  for  insurance 
will  be  of  any  force  unless  the  premium  be 
first  paid  ti''  the  company."  Held,  the  com- 
pany could  not  be  allowed  to  urge  the  non- 
payment  of  the  premium  as  a  defense  to  the 
action.  Consolidated  Fire  Ins.  Co.  v.  Cashow, 
41  Md.,  59. 

8.  The  policy  was  under  seal  and  it  ad- 
mitted the  payment  of  the  premium.  The  de- 
fendant offered  to  prove  that  a  promissory 
note  was  given  for  the  premium,  and  that  it 


had  never  been  paid.  Held,  the  acknowlcdg. 
ment  of  the  consideration  could  not  be  con- 
tradicted by  parol  evidence,  if  the  object  was 
to  make  the  deed  void  (citing  Goit  v.  National 
Ins.  Co.,  25  Barb.,  189;  New  York  Central 
Ins.  Co.  V.  National  Ins.  Co.,  20  Barb.,  48C; 
3  Kent's  Com.,  2G0).  Illinois  Central  Ins.  Co. 
■V.  Wolf,  37  111.,  354. 

9.  Appellant  agreed  to  furnish  the  members 
of  the  Bismarck  Bund  with  life  insurance,  the 
Bund  being  primarily  liable  for  the  premiums, 
the  members  paying  the  Bund  by  weekly  in. 
stallments.  The  policy  recited  payment  of 
the  current  quarterly  premium.  Held,  insurer 
could  not  disprove  the  recital  of  the  policy 
as  a  defense  to  the  action.  Also  it  was  no  de- 
fense  to  the  action  that  insured  was  in  arrears 
to  the  Bund.  Teutonia  Life  Ins.  Go.  v.  Mueller, 
in  III.,  23;  Same  v.  Anderson,  id.,  383. 

10.  The  policy  acknowledged  receipt  of 
cash  premium  and  a  premium  note.  Held, 
the  policy  itself  was  evidence  of  the  fact  of 
payment.  Troy  Fire  Ins.  Co.  v.  Carpenter,  4 
Wis.,  20. 

11.  The  policy  acknowledged  payment  of 
the  premium;  ,aud  insured  paid  it  to  an  itin- 
erant insurance  broker,  through  whom  the 
contract  was  made.  Insurer  entrusted  the 
policy  to  this  itinerant  insurance  broker  for 
delivery  to  the  plaintiff.  Held,  payment  to 
him  was  payment  to  the  insurer.  Held,  also, 
an  acknowledgment  of  the  payment  recited  m 
the  policy  estopped  insurer  from  saying  that 
the  premium  was  not  paid.  Michael  c.  Mutual 
Int.  Co.,  lU  La.  An.,  737. 

12.  "To  be  void,  unless  the  premium  shall 
be  paid  within  thirty  days  after,"  a  date  men- 
tioned. There  were  mutual  accounts  betweea 
the  two  parties,  and  their  course  of  dealing 
was  to  credit  each  other  with  the  premiums 
due  to  each,  and  to  give  receipts  acknowledg- 
ing payments  as  in  cash,  and  from  time  to 
time  to  strike  a  balance  and  make  settlements. 
Receipts  were  accordingly  made  and  deliv- 
ered by  the  defendants  to  tlie  plaintiffs  for 
this  premium,  but  no  cash  had  been  paid  for 
it  at  the  time  of  the  death.  Held,  the  premi- 
ums were  paid  when  the  receipts  were  deliv- 
ered. Prince  of  Wales  Life  Ass.  Co.  v.  Har- 
ding, El.  Bl.  &  El.,  183;  s.  c,  4  Jur.  (N.  S.). 
851 ;  27  L.  .1.  Q.  B.,  297. 

1  3.  The  plaintiff  sued  to  recover  return  pre- 
mium, and  gave  in  evidence  the  policy  signed 
by  the  defendant,  which   ackno^  »,'.5«d   the 

!.:i 


903 


PAYMENT  OF  PREMIUM. 


Wt 


When  war  prevents  the  payment. 


payment  of  the  premium.  No  premium  had 
ever  been  paid  to  tlie  insurer  by  the  broker 
■who  obtained  the  policy.  Held,  the  aclinowl- 
edgmeut  of  the  receipt  of  the  money  in  the 
policy,  as  between  insured  and  insurer,  es- 
topped the  insurer  from  saying  that  the  bro- 
ker never  paid  him  the  premium.  DalzeU  v. 
Mair,  1  Camp.,  532. 

14.  The  policy  recited  the  payment  of  the 
premium,  but  the  brokers  had  not  in  fact  paid 
it  to  the  insurers.  Ueld,  the  receipt  of  the 
underwriter  for  the  premium  was  conclusive 
evidence  for  the  insured  that  he  had  paid  it. 
J)e  Gaminde  v.  Pigou,  4  Taunt.,  246. 

15.  The  policy  was  avoided  bj' a  material 
misrepi;esentation,  not  fraudulent.  Held,  the 
policy  was  conclusive  evidence  for  the  in- 
sured that  the  premium  had  been  paid.  An- 
derson V.  Thornton,  8  Exch'r.,  425. 

II.    "When   wae   pkevents  the   tay- 

MENT. 

1,  A  citizen  and  resident  of  Alabama  ef. 
fected  a  policy  on  his  life,  conditioned  for  the 
payment  of  an  annual  premium  on  a  day 
specified  in  each  and  every  year,  at  Mobile, 
Ala.,  which  was  jjaid  to  insurer's  agent  there, 
up  to  the  3-ear  1861,  and  by  him  remitted  to 
insurer's  principal  place  of  business,  in  New 
York.  In  March,  1861,  insurer  withdrew  all 
agencies  from  Alabama,  and  had  no  agent  in 
that  state  until  1869.  Insured  paid  no  premi- 
ums after  1861,  because  there  was  no  agent  to 
receive  tliem,  and  the  insurrection  against  the 
government  of  the  United  States  prevented 
lawful  intercourse  between  the  state  of  Ala- 
bama and  New  York,  until  May,  1865;  but 
after  that  date  and  before  March,  1866,  insured 
applied  to  insurer  at  New  York,  for  leave  to 
l)ay  all  premiums  in  arrear,  with  interest 
thereon,  who  refused  to  recognize  the  policy 
as  subsisting,  and  declined  the  premiums  and 
interest.  Insured  died,  and  his  executor  made 
claim  for  the  sum  insured,  which  was  refused. 
Held,  the  company  was  bound  to  provide  an 
agent  in  Alabama  to  receive  the  premiums, 
during  the  life  of  insured,  and  that  insured 
was  not  bound  to  p.iy  them  elsewhere;  that 
the  compan}'  could  not  set  up  as  a  defense  the 
nonpayment  of  the  premium,  for  insurer  must 
be  regarded  as  liaving  prevented  insured  from 
paying  the  premiums  as  they  became  due; 
and  the  inability  of  the  company  to  receive 
453 


the  premiums,  because  of  the  unlawfulness  of 
commercial  intercourse  was  equivalent  to  a 
tender  of  and  a  refusal  to  receive  them;  that 
the  contract  was  not  one  of  continuing  per- 
formance,  the  existence  of  which  was  depend, 
ent  on  further  intercourse  between  the  parties; 
that  the  only  effect  the  war  had  was  to  sus- 
pend  its  operation,  and  that  on  the  return  of 
peace,  the  rights  of  the  parties  could  be  en- 
forced  under  it  (citing  Manhattan  Life  Ins. 
Co.  ■!;.  Warwick,  20  Gratt.,  614).  Hamilton  v. 
Mutual  Life  Ins.  Co.,  9  Blatch.,  234. 

2.  Policy  on  the  life,  of  a  resident  of  Rich- 
mond, Va.,  stipulated  for  the  payment  of  an 
annual  premium  at  certain  dates  named,  dur- 
ing the  life  of  the  person  insured.  Defend- 
ants appointed  C.  as  an  agent  to  receive  pre- 
miums at  Richmond,  to  deliver  renewal  re- 
ceipts, and  to  take  the  premiums  that  might 
become  due  on  them.  There  was  no  revoca- 
tion of  his  agency  until  1865.  The  premiums 
were  regularly  paid  to  the  agent  up  to  the 
time  of  death;  those  that  came  due  in  1861 
and  1862  were  paid  in  confederate  money,  re- 
ceipts were  given  in  the  name  of  the  agent  for 
them,  who  advised  the  general  agents  in  New 
Y'ork,  and  was  by  them  instructed  to  receive 
the  premiums  and  hold  them  subject  to  Iheir 
order.  Subsequently  the  agent  addressed  a 
letter  to  the  principal  office  in  London,  staling 
the  death  of  insured,  and  the  amount  jf  con- 
federate money  in  his  hands  for  the  company, 
to  which  no  replj'  w.as  given.  But  in  1866,  the 
general  agents  published  a  notice  at  Rich- 
mond, saying:  "The  company  h.ave  no  busi- 
ness agent  at  Richmond  at  present."  Held, 
the  existence  of  war  after  June  6,  1861,  be- 
tween  north  and  south,  did  not  affect  the  rights 
of  the  parties,  for  the  contract  was  between  a 
citizen  of  a  neutral  power,  and  a  citizen  of  a 
belligerent,  .and  such  contracts  are  valid  by 
the  laws  of  all  countries;  that  whether  the 
payment  of  premiums  in  confederate  money 
was  rightful  must  be  decided  upon  the  state 
of  things  as  they  existed  in  1861  and  1862,  not 
as  they  were  in  1870;  that  the  confederate 
money  was  issued  by  authority  of  a  govern- 
ment de  fiicto,  and  was  valid.  Hence  insurers 
were  liable.  Robinson  v.  International  L''f» 
Ass.  Soc.,  42  N.  Y.  (3  Hand),  54;  s.  c  52  Barb., 
450;  Sands  v.  New  York  Life  Ins.  Co.,  50  N.  Y., 
626;  s.  c,  59  Barb.,  556. 

3.  On  life  of  plaiutiif's  father.  Stipulated: 
"To  bo  void  if  the  annual  premium  shall  not 


906 


PAYMENT  OF  PREMIUM. 


906 


When  war  prevents  the  payment. 


be  paid  at  the  times  designated."  The  phiintifT 
resided  in  Virginia,  and  tlie  defendants  were 
inhabitants  of  tlie  state  of  New  Jersey.  Din- 
ing the  war  between  the  north  and  soutli,  all 
commercial  intercourse  became  unlawful  and 
impossible,  the  plainlitT  being  thereby  pre- 
vented from  paying  the  premiums.  Tlie  per- 
son insured  died  during  the  period  of  such 
nonpayment.  Held,  if  tlie  premiums  had  been 
tendered  during  that  time,  the  defendants 
could  not  lawfully  have  received  them,  both 
the  payment  and  the  receipt  being  in  viola- 
tion of  law,  hence  the  payment  was  excused 
(citing  Lawrence  ».  Twentiman,  1  Roll.  Abr., 
450,  condition  G.,  pi.  10:  Williams  n.  Lloyd, 
Jones  W.,  179;  Lord  Coke,  1  Inst.,  216  Abr.; 
People  ®.  Manning,  8  Cow.,  297;  Barker  v. 
Hodson,  3  M.  &  S.,  2G7;  Hall  v.  Wight,  E.  B. 
&  E.,  746.  Hillyard  v.  Mutual  Benefit  Life 
Ins.  Co.,  35  N.  J.,  415. 

4.  Life  policy  to  a  wife,  a  resident  of  the 
state  of  Georgia,  stipulated  it  should  be  null 
and  void,  and  all  premiums  paid  forfeited,  in 
case  the  annual  premiums  should  not  be  paid 
at  the  date  mentioned  in  the  agreement.  All 
l>aynicnts  were  regularly  made  from  1849  to 
186],  but  those  which  fell  due  in  1862,  during 
the  civil  war  were  not  paid,  because  all  inter- 
course with  the  state  was  interrupted  and  for- 
bidden by  law.  So  soon  as  intercourse  was 
resumed,  the  plaiutifl"  tendered  the  premiums 
tlien  unpaid,  but  the  defendant  refused  them, 
and  declared  the  policy  forfeited.  During  the 
life  of  her  husband  she  brought  this  action  to 
compel  the  defendant  to  receive  the  premiums 
or  to  refund  those  which  had  been  paid  with 
interest.  Ileld,  it  was  a  lawful  contract  at  its 
incei)tion  ;  that  the  existence  of  war  between 
the  two  states,  though  it  prevented  the  trans- 
mission of  the  premiums,  did  not  work  a  dis- 
solution of  the  contract,  bnt  suspended  it,  and 
a  tender  made  seasonably  after  the  termin.a- 
tion  of  hostilities  revived  the  contract.  Cohen 
V.  New  Tork  Mutual  Life  Ins.  Co.,  50  N.  Y., 
610;  Mnrtine  «.  Internatioiud  Life  Ins.  Soc.,  53 
N.  Y.,  339;  s.  c,  62  Barb.,  181 ;  5  Lans.,  535. 

5.  Declaration  on  a  policy  upon  the  life  of 
plaintiff's  husband,  issued  by  the  defendant  at 
Ilartford,  Conn.,  countersigned -by  defendant'.s 
agent  at  Greenville,  S.  C.  Premium  pay- 
able on  or  before  the  14th  day  of  January  in 
every  year.  Stipulated:  "  In  case  the  s;ud  in- 
sured shall  not  p;iy  the  said  annual  premiums 
on  or  before  the  time  mentioned  for  the  pay- 


ment thereof,  the  said  company  shall  not  bo 
liiible  for  the  jiayment  of  the  sum  insured,  or 
any  part  thereof,  and  this  policy  shall  cease 
and  determine."  Averment,  that  the  said  an 
nual  premium  was  paid  to  the  defendant,  at 
Greenville,  in  each  and  every  year  after  the 
making  of  said  policy  to  and  including  the 
payment  of  J;inuary  14,  1859;  that  before  the 
next  premium  became  due,  to  wit,  J:inuary  1, 
1860,  the  defendants  withdrew  their  agent  from 
Greenville,  and  from  the  state  of  South  Caro. 
lina,  and  notified  insured  that  the  policy  had 
been  placed  on  the  home  office  list  for  renewal, 
and  that  thereafter  defendants  would  send  no- 
tice duly  and  regularly  of  the  time  the  annual 
premium  became  due;  that  in  pursuance  of 
such  notice  the  premiums  due  January  14, 
18G0,  and  January  14,  1861,  were  remitted  to 
the  defendants  at  Hartford,  and  that  the  de- 
fendants never  notified  insured  that  any  an- 
nual  premium  was  due  on  said  policy  after 
the  said  14th  day  of  Janu;iry,  1861 ;  that  in- 
sured was  ready  and  willing  to  pay  the  said 
several  annual  premiums  as  the  same  respect- 
ively became  due  and  payjible;  but  the  same 
were  not  paid  for  the  years  1862,  1863,  1864 
and  1865,  because  the  then  existing  insurrection 
and  rebelli(m  against  the  government  of  the 
United  States  had  interrupted  and  prevented 
all  hiwful  communication  by  mail  or  other- 
wise between  Greenville  and  the  city  of  Hart- 
ford, where  the  defendants  had  their  office  and 
place  of  business.  There  was  also  an  aver- 
ment of  the  president's  proclamation,  declar- 
ing the  inhabitants  of  the  state  of  South  Caro- 
lina in  a  stale  of  insurrection  against  the 
United  States,  declaring  all  commercial  inter- 
course between  that  state  and  the  citizens 
thereof  and  the  citizens  of  other  states  unlaw- 
ful; and  that  such  restrictions  and  prohibi- 
tions continued  until  May  22, 1865.  That  after 
the  cessation  of  hostilities,  insured  applied  to 
the  defendant  at  Hartford  to  ascertain  the 
amount  of  unpaid  premiums  and  interest 
thereon,  and  ottered  to  pay  the  same,  with  in- 
terest thereon ;  but  the  defendants  refused  to 
accept  said  offer,  and  denied  that  said  policy 
was  in  force.  Insured  died  April  7,  1869, 
Held,  on  demurrer  to  declarationn,  payment  of 
the  premium  was  possible.  Had  insured  como 
into  the  northern  states  or  employed  an  agent, 
as  he  had  an  opportunity  tt>  do,  the  defend- 
ants could  have  received  the  premiums  without 
violating  any  law.      Hence,  the  court  would 

453 


907 


TAYMENT  OF  PREMIUM. 


908 


When  war  prevents  the  payment. 


not  attribute  to  tlie  law,  consequences  which 
the  party,  by  his  own  act,  had  brought  upon 
himself.  Held,  also,  there  is  a  manifest  dis- 
tiuction  between  a  right  to  insure  and  an 
actual  insurance.  There  was  no  actual  insur- 
ance after  January  14,  18G3,  except  by  com- 
plying with  the  conditions  of  the  contract. 
It  was  an  executory  contract  on  the  part  of 
insured,  and  the  law  preventing  insured  from 
performing  her  part  necessarily  dissolved  the 
contract.  The  court  admits  that  the  cur- 
rent of  authority  is  opposed  to  this  decis- 
ion, but  asserts  that  the  reasoning  given  in 
contrary  decisions  is  not  satisfactory.  Worth- 
iiigton  V.  Charter  Oak  Life  Ins.  Co.,  41  Conn., 
372. 

6.  Policy  upon  a  life;  $181.50  in  hand  paid, 
and  for  the  annual  premium  of  $181..!)0,  com- 
mencing March  13,  1858,  at  noon,  stipulated: 
"  If  the  premiums  shall  not  be  paid  on  or  be- 
fore the  several  days  mentioned  for  the  pay- 
ment thereof,  the  policy  shall  cease  and 
determine."  All  the  premiums  that  became 
due  prior  to  March  13,  18G2,  were  paid,  but 
that  for  18G3  was  tendered  and  refused,  the 
agent's  authority  to  receive  having  been  with- 
drawn. The  insured  resided  in  the  southern 
states  during  the  years  1863,  1863  and  1864, 
while  all  commercial  intercourse  was  inter- 
dicted. Held,  it  was  not  a  contract  of  contin- 
uing performance.  The  contract  of  insurance 
is  sui  generis,  governed  by  a  peculiar  and 
arbitary  code  of  the  modern  common  law,  dis- 
tinguished from  ordinary  commercial  con- 
tracts, and  especially  in  the  effect  of  war 
on  its  preexisting  validity;  the  condition 
mentioned  was  intended  to  reach  a  voluntary 
failure  to  pay  the  premium,  where  there  was 
legal  ability  to  receive  it;  the  policy  was  not 
avoided  by  the  inevitable  nonpayment  of  the 
premium  (citing  Ward  v.  Smith,  7  Wall.,  447;. 
iVcic  York  Life  Ins.  Go.  v.  Clopton,  7  Bush, 
179. 

7.  In  1859,  D.  insured  her  husband's  life 
through  the  company's  agent,  and  paid  the 
annual  premiums  till  1862,  but  failed  to  pay 
tliem,  because  of  nonintercourse  during  the 
war,  for  the  years  1863,  1864  and  1805.  He 
died  in  1865.  She  tendered  the  unpaid  pre- 
miums and  demanded  the  sum  insured. 
Held,  the  contract  was  dependent  upon  the 
payment  of  the  annual  premiums  as  they 
severally  fell  due,  and  a  failure  to  pay, 
from  any  cause  whatever,  could  not  be  reme- 

451 


died  by  a  tender  after  the  death  of  her  hus- 
band. Dillard  v.  Manhattan,  Lift  Ins.  Co.,  44 
Ga.,  119. 

8.  Life  policy,  July  23,  1857.  Stipulated: 
"lu  case  the  said  premiums  shall  uot  be  paid 
on  or  before  the  day  mentioned  for  the  pay- 
ment thereof,  the  company  shall  not  be  liable 
for  the  payment  of  the  sum  insured,  and  this 
policj' shall  cease  and  determine."  Indorsed: 
"No  payment  of  premiums  binding  unless  the 
same  is  acknowledged  by  a  printed  receipt, 
signed  by  an  officer  of  the  company."  Insur- 
er's principal  office  was  in  the  city  of  New 
York,  and  the  premiums  were  paid  in  Rich- 
mond up  to  July  23,  1861,  and  receipts  for  it 
were  delivered  there  to  insured,  signed  by  the 
company's  secretary,  and  countersigned  by  the 
agent  at  Richmond.  At  the  date  of  the  last 
payment  the  agent  had  not  any  printed  re- 
ceipts, but  he  took  the  money,  wrote  to  the 
company  that  he  had  received  it,  and  asked 
for  the  receipt,  stating  he  would  remit  it  so 
soon  as  the  receipt  should  come  to  hand.  He 
also  asked  for  other  receipts,  but  none  wore 
ever  sent.  The  premium  which  became  due 
July  23,  1863,  was  tendered  by  the  insured  to 
the  agent  at  Richmond,  who  stated  that  he 
had  received  instructions  not  to  take  the 
money  or  renew  the  policy.  Insured  died 
November  23,  1863.  Held,  insurers  could  not 
relieve  themselves  of  their  obligation  by  any- 
thing they  could  do  or  leave  undone;  that 
any  disability  on  the  part  of  insurer  to  receive 
the  premium,  not  provided  for  in  the  contract, 
could  uot  affect  the  rights  of  insured.  Mail- 
hattan  Life  Ins.  Co.  v.  Warwick,  20  Graft.,  614, 
Mutual  Benefit  Life  Ins.  Co.  v.  Aticood,  24.  id., 
497;  New  Fork  Life  Iris.  Co.  v.  Hendren,  id., 
536. 

9.  The  insured  agreed,  for  the  payment  ofa 
cash  premium,  and  of  an  annual  premium  so 
long  as  S.  should  live,  to  pay  A.  the  sum  of 
$5,000  within  sixty  days  after  the  death  of  S., 
notice  and  proof  of  the  fact  being  given.  Tlie 
annual  premiums  were  paid  until  the  rebellion 
commenced,  which  prevented  further  remit- 
tances; but  the  premium  was  tendered  to  B., 
who  had  been  insurer's  agent.  Ho  refused  it 
on  the  ground  that  the  war  had  put  an  end  to 
his  agency.  Held,  the  tender  saved  the  rights 
of  insured ;  the  contract  was  not  annulled  by 
the  existence  of  hostilities  between  north  and 
south ;  it  was  suspended  merely.  Statham  v. 
Neie  York  Life  Ins.  Co.,  45  Miss.,  581. 


S09 


PAYMENT  OF  PREMIUM. 


910 


To  whom  payment  may  be  made  —  When  nonpayment  does  not  affect  the  rights  of  the  insured. 


III.    To  WHOM  PAYMENT  MAY  BE  MADE. 

1.  D.,  an  insurance  brolier,  applied  to 
plaintiff  f(.r  permission  to  insure  his  property 
in  one  of  two  companies,  the  Republic  or 
Andes.  The  latter  company  was  selected  and 
plaintiff  made  an  application  which  was  pre- 
sented to  the  agent  who  made  a  policy  aud 
delivered  it  to  D.,  wlio  carried  it  to  plaintiff 
and  delivered  it  to  him,  stating  that  he  would 
want  the  piemium  witliiu  thirty  days.  D. 
called  again  and  received  the  premium,  but 
never  paid  it  over  to  the  company's  agent. 
The  policy  stipulated,  "No  insurance  or  re- 
newal thereof  shall  be  considered  binding  un- 
■til  the  actual  payment  of  the  premium."  The 
■company's  agent  demanded  the  premium  of 
the  plaintiS,  and  upon  his  refusal  to  pay  gave 
notice  that  the  policy  was  canceled,  found- 
ing the  right  to  cancel  upon  the  failure  to  pay 
the  premium.  Held,  the  plaintiff  had  the 
right  to  presume  that  D.  had  authority  to  col- 
lect the  premium ;  he  became  the  representa- 
tivo  of  the  companj-  for  that  specific  transac- 
liou,  and  this  presumption  remained  uotwith- 
fitauding  the  premium  was  not  paid  to  him 
sthen  he  delivered  tlie  policy.  Cahill  v.  Andes 
J7i«.  Co.,  5Biss.,  211. 

a.  C,  a  general  agent  for  defendants,  ap- 
pointed W.  &  D.  subagents.  They  advanced 
to  him  certain  moneys  needed  for  tra\eling 
expenses,  to  be  debited  against  premiums  to 
be  collected  by  W.  &  D.  for  the  defendant.  W. 
made  application  for  a  policy  on  his  life  in 
favor  of  his  wife,  which  was  issued,  and  by 
him  delivered  to  her;  stipulated:  "Not 
binding  until  payment  of  pi-emium."  Held, 
the  court  had  the  riglit  to  regard  the  money 
advanced  to  the  general  agent  as  payment  of 
premium  in  advance.  Thompson  v.  American 
Tontine  Life  Ins.  Co.,  46  N.  Y.,  074. 

IV.    "Whex  nonpatmext  does  not  af- 
fect THE  eights  of  THE  INSURED. 

1.  Credit.  If  the  insured  is  allowed  credit 
•for  the  premium,  the  contract  to  insure  is 
valid,  and  an  agent  authorized  to  make  the 
-contract  foi  the  company  is  authorized  to  give 

credit  for  the  premium.    Insurance  Co.  v.  Colt, 
20  Wall.,  560. 

2.  —  Insurer  issued  a  certificate  of  insur- 
•ance,  upon  which  no  premium  was  paid;  but 
insurer  and  the  person  to  whom  it  was  issued 


had  mutual  credits,  and  at  the  end  of  every 
monih  they  struck  a  balance  of  accounts  and 
made  settlements.  Held,  it  was  a  payment  in 
effect.  Marsh  v.  Northwestern  National  Ins. 
Co.,  3  Biss.,  351. 

3.  AViiiver.  Policy  stipulated:  "Not  to  be 
considered  binding  till  the  actual  p.aymcnt  of 
the  premium."  Insurer's  agent  sent  it  to  in- 
sured,  aud  wrote,  "Should  you  decline  the 
policy,  please  return  it  by  mail;  if  you  retain 
it,  please  send  me  the  premium."  Held,  a 
waiver  of  prepayment;  that  the  policy  became 
effectual  when  the  insured  retained  it.  SheU 
don  V.  Atlantic  Fire  and  Marine  Ins.  Co.,  20 
N.  Y.,  460. 

4.— Stipulated:  "No  insurance,  whether 
original  or  continued,  shall  be  considered 
binding  until  the  actual  payment  of  the  pre- 
mium."  A  certificate  of  renewal  was  mada 
and  delivered  to  the  agent  of  the  insured, 
without  exacting  payment  of  the  premium; 
nor  had  it  been  paid  at  the  time  of  the  fire, 
nearly  three  weeks  after.  Held,  insurers  could 
make  a  valid  contract  of  insurance  without 
exacting  payment  of  the  premium  (citing 
Goitu.  National  Policy  Ins.  Co.,  25  ^arb.,189); 
and  a  delivery  of  the  contract  without  qualifi. 
cation  or  condition,  raises  a  presumption  that 
a  short  credit  was  intended,  and  waived  the 
condition  stated  in  the  polic}-.  Boelien  v.  Wil- 
liamsburg?!, Ins.  Co.,  3."i  N.  Y.,  131. 

5.  Modification.  Life  policy  for  the  benefit 
of  wife  and  children,  stipulated:  "To  be  con- 
tinned  in  force  from  time  to  time  until  tho 
decease  of  H.,  provided  insured  shall  pay,  or 
cause  to  be  paid,  to  said  company  annually, 
OB  or  before  July  15th  in  each  and  every  year, 
the  sum  of  $138.50.  No  insurance,  whether 
original  or  for  which  a  renewal  receipt  h:i» 
been  issued,  shall  be  considered  binding  until 
actual  payment  of  the  premium."  It  was 
proved  that,  at  the  time  a  subsequent  annual 
premium  was  paid,  it  was  understood  and 
agreed,  on  the  part  of  the  company,  that  if 
any  thing  should  happen  to  prevent  'the  iu. 
sured  from  paying  the  premium  on  the  day 
the  same  should  become  payable,  the  policy 
should  not  thereby  become  null  and  void,  and 
that  the  policy  should  continue  in  force  for  » 
reasonable  time  thereafter,  so  that  the  pre- 
mium could  be  paid.  An  annual  premium 
became  due  Julj'  15, 1862,  and  on  the  morning 
of  that  date,  insured  left  his  house  in  appar- 
ent good  health  for  his  place  of  business,  in. 

455    * 


911 


PAYMENT  OF  PREMIUM. 


912 


When  nonpayment  does  not  affect  the  rights  of  the  insured. 


tending  to  pay  the  promium  that  day.  He 
was  stricken  with  paralysis  at  10  o'clock  A. 
M.,  bec.ime  unconscious,  and  remained  so  till 
he  died,  the  following  day.  Held,  the  pay- 
ment of  the  premium  was  a  condition  prece- 
dent to  the  continuance  of  the  policy  for  an- 
other year;  that  the  fatal  condition  of  insured 
on  the  day  the  premium  became  due  did  not 
relieve  plaintiff  from  the  force  of  the  condi- 
tion; that  the  agreement  or  understanding  be- 
tween the  company  and  insured,  to  the  effect 
that  if  anything  should  happen  to  prevent 
p.aymcnt  of  the  preminra  on  the  day  it  became 
due,  the  policy  should  not  be  void,  and  that 
the  party  should  have  the  right  to  make  pa}'- 
mcnt  within  a  reasonable  time,  was  binding 
upon  the  parties  as  a  modification  of  the  con- 
tract; that  the  premium  having  been  tendered 
■within  a  reasonable  time  after  it  became  due, 
entitled  the  plaintiff  to  judgment  (Hunt  and 
Leonard,  JJ.,  dissenting).  Howell  v.  Knicker- 
bocker Life  Ins.  Co.,  44  N.  Y.,  276;  s.  c,  3 
Rob.,  232. 

6.  Misled  by  insurers' agents.  Stipulated: 
"  In  case  the  premium  shall  not  be  paid  to 
the  conipanj'  on  or  before  the  time  prescribed 
for  the  payment  of  the  same,  the  policy  shall 
thereupon  be  forfeited,  cease  and  determine." 
Tlie  contract  was  made  in  Rhode  Island  by 
an  agent.  No  place  of  payment  was  pre- 
scribed. The  agent  who  delivered  the  polifcy 
s.aid  he  would  come  around  regularly  and 
take  up  the  premiums,  that  he  might  some- 
times be  out  West,  "But  you  liold  it  till  I 
come."  He  called  and  received  two  half 
yearly  premiums.  That  which  became  due 
in  January,  1872,  was  ready,  but  it  was  not 
sent  to  the  company's  office  in  New  York,  be- 
cause the  agent  was  expected  to  call  for  it. 
But  his  agency  had  been  revoked.  Held,  the 
defendants  should  have  given  iilaintiff  notice 
of  any  change  in  their  mode  of  doing  busi- 
ness in  respect  to  the  payment  of  the  premi- 
ums; that  it  was  proper  for  tlie  court  to  direct 
the  jury  to  find  whether  the  plaintiff  was 
guilty  of  Inchen  in  not  seeking  a  person  to 
receive  the  premiums.  O'Reilly  v.  Guardian 
Life  Ins.  Co.,  1  Hun.  (N.  Y.),  400;  8.  c,  3  N. 
y1  S.  C,  487. 

7. — The  plaintiff  did  not  have  possession  of 
the  policy,  nor  any  knowledge  as  to  when  the 
premiums  would  become  due.  She  caused 
inquiries  to  be  made  of  defendants  at  tlieir 
ofiBce,  who  told  her  that  they  would  send  the 
4.16 


necessary  information,  but  they  failed  to  do 
so.  She  subsequently  inquired,  found  that 
the  day  of  payment  had  passed,  and  tendered 
the  premium,  which  was  refused.  Slie  s;> 
continued  to  tender  it  until  the  decease  of  her 
husband.  Held,  the  defendant  caused  or  con- 
tributed to  the  plaintifTs  omission  to  pay  the 
premium  the  d.iy  it  was  due,  therefore  they 
could  not  base  a  defense  on  a  state  of  facts 
created  by  themselves.  Leslie  v.  Knickerbocker 
Life  Ins.  Co.,  3  Hun.  (N.  Y.),  016;  s.  c,  5  N. 
Y.  S.  C,  193 ;  Denn  v.  uEtna  Life  Ins.  Co.,  3 
Hun.  (N.  Y.),  358;  B.  c,  4  N.  Y.  S.  C,  497. 

8. — Plaintiff  offered  in  July  to  pay  the 
premium  wliich  would  become  due  August 
31st.  Tlie  agent  said  he  had  not  tlie  receipt 
with  him,  but  would  keep  the  policy  good 
with  the  company.  Held,  evidence  to  sustain 
a  finding  that  tlie  agent  waived  prompt  pay- 
ment of  the  premium.  Shear  v.  Phoenix 
Mutual  Life  Ins.  Co.,  4  Hun.  (N.  Y.),  800. 

9.  Waiver.  Stipulated:  "The  premium  i* 
due  and  payable  upon  delivery  of  the  policy, 
and  where  credit  is  given  to  the  extent  of  four 
months,  this  policy  will  be  valid,  and  in  force 
from  that  time,  but  unless  the  note  or  account 
for  the  premium  shall  be  paid  within  four 
months  from  the  date  of  this  policy,  the  com- 
pany will  not  be  liable  for  anj'  loss  that  may- 
occur  after  the  expiration  of  the  said  four 
months."  "Agents  of  tlie  company  are  not 
permitted  to  waive  any  stipulation  or  condition 
contained  therein."  The  policies  were  sent 
direct  from  the  ofllce  of  the  companj'  to  the 
insured,  without  requiring  prepayment,  and 
without  limiting  the  payment  of  the  premium 
to  any  particular  time.  Held,  it  was  proper 
to  submit  to  the  jury  the  question  whether 
the  condition  recited  was  waived.  Boicman  t. 
Agricultural  Ins  Co.,  3  N.  Y.  S.  C,  261. 

10.  Misled  by  insurers'  agents.  Policy 
provided  that  in  case  it  became  void  for  non- 
payment of  premium,  it  might  be  renewed 
upon  giving  satisfactory  evidence  of  good 
health,  and  payment  of  the  premium.  It  had 
been  the  common  practice  to  receive  the  pre- 
miums after  they  had  fallen  due.  There  waa 
a  failure  to  make  payment  of  premium  when- 
due.  The  person  whose  life  was  insured  be- 
came sick,  and  the  insured  represented  that  he 
was  in  good  health  and  procured  a  renewal  of 
the  policj'.  Held,  the  delay  of  payment  wa-i 
not  without  the  concurrence  of  the  insurer, 
which  was  a  waiver  of  a  literal  compliance 


913 


PAYMENT  OF  PREMIUM. 


914 


When  nonpayment  does  not  affect  the  rights  of  the  inBured. 


•with  the  condition  reriuiring  payment  to  be 
made  at  a  particular  time.  Buckbee  v.  United 
States  Anuuily  and  Trust  Co.,  18  Barb.,  541. 

11. --The  premium  was  due  May  29,  1857; 
but  prior  to  tliat  time  the  general  agents  of 
the  defendant  for  the  United  States,  notified 
tie  insured  that  his  premianj  would  be  due 
May  29th  next,  aud  lliat  unless  the  same 
Should  be  paid  at  the  office  of  society's  agent 
at  Washington,  on  or  before  thirty  days  from 
that  date,  the  policy  would  be  void.  The 
thirtieth  day,  in  numerical  order,  from  May 
29tli,  was  Sunday.  On  Monday,  June  29lh, 
1857,  about  the  hour  of  noon,  insured  tendered 
the  premium  to  the  agent  at  Washington,  who 
refused  to  accept,  on  the  ground  that  the  lime 
for  renewing  the  policy  had  expired  the  pre- 
ceding day.  The  insured  died  August  28, 
1857.  Held,  the  notice  from  the  general  agents 
was  suUlcieut  to  justify  the  insured  in  treat- 
ing the  29th  as  the  time  the  premium  was 
payable,  notwithstaiuling  any  words  in  the 
policy  to  the  contrary,  for  the  agent  had  the 
power  to  construe  the  effect  of  the  agreement ; 
that  as  the  last  of  the  thirty  days  mentioned 
in  the  notice  was  Sunday,  a  tender  made  on 
Monday  w-as  good  in  law.  Cumpbell  v.  Inter- 
national  Life  Soc.  Co.,  4  Bos.,  298. 

12.  —  The  [jlaintiff  applied  to  defendant  for 
time  to  pay  the  premium  which  was  then 
about  to  become  due,  to  which  defendant's 
president  responded  in  writing,  "  Your  policy 
will  remain  in  force,  by  virtue  of  what  has 
alieady  been  paid,  until  November  29,  1870. 
On  that  day  she  presented  the  promissory  note 
of  another  person,  which  was  received  by  the 
company  upon  condition  that  it  would  be 
taken  as  payment  if  satisfactory,  and  that 
until  proper  inquiries  could  be  made  the  ne.xt 
day  the  policy  should  remain  in  force.  On 
the  following  day  the  defendants  rejected 
the  note,  and  refused  to  receive  the  premium 
which  was  then  tendered.  Held,  no  cause  of 
action  could  be  maintained  for  the  purpose 
of  compelling  the  defendant  to  accept  the 
premium  and  acknowledge  the  validity  of  the 
contract.  Hayncr  v.  American  Popular  Life 
Ins.  Co.,  3  J.  &  Sp.  (N.  Y.),  266.  But  upon  a 
reargumcnt,  the  court  held,  that  the  plaintiff 
had  a  right  of  action,  and  adjudged  the  policy 
to  be  in  full  force  and  effect,     s.  c,  4  id.,  211. 

13.  Dies  non.  Stipulated:  "The  premium 
shall  be  paid  quarterly  in  every  year,"  one  of 
which  fell  due  October  1st.    Deceased   was 


taken  sick  September  24th.  The  Sunday  fol- 
lowing was  October  1st.  He  died  in  the  after- 
noon  of  that  day.  Insurer's  office  was  not 
open  on  Sunday  nor  was  there  any  one  there 
to  receive  the  premium,  but  this  fact  was  not 
known  to  plaintiff.  Tlie  premium  was  ten- 
dered and  refused  on  Monday.  Held,  the  law 
sanctioned  the  postponement  of  the  payment 
until  Monday,  for  Sunday  was  not  a  day  for 
the  performance  of  contracts  and  doing  of 
secular  business;  if  the  premium  had  been 
tendered  on  Sunday,  there  was  no  obligation 
to  receive  it,  and  so  it  did  not  become  payable 
till  Monday.  Hitmmond  v.  American  Mutual 
Life  Ins.  Co.,  10  Gray,  306. 

14.  Usage.  Upon  the  question  whether 
there  was  a  completed  contract:  Held,  com- 
petent to  prove  usage  for  the  contract  to  be 
considered  valid  although  premium  has  not 
been  paid.  Baxter  n.  Massasoit  Ins.  Co.,  IS- 
Allen,  320. 

15.  Waiver.  Stipulated:  ''In  case  the 
premium  or  premiums  or  any  premium  note 
given  therefor  or  any  part  of  either  shall  not 
be  paid  to  said  company  on  or  before  the  time 
specified  for  the  p.ayment  of  the  same,  this 
policy  shall  thereupon  be  forfeited,  cease  and 
determine."  Insurers  made  and  delivered  a  re- 
newal certificate,  and  in  it  acknowledged  p,ay- 
ment  of  the  year's  premium,  but  in  it  stated : 
"Provided,  the  notes  given  in  part  payment 
liereof  are  paid  according  to  the  tenor  thereof" 
There  was  conflicting  testimony  as  to  whether 
the  agent  had  extended  the  time  limited  iu 
the  note.  The  unpaid  note  remained  in  the 
agent's  hands,  and  when  produced  upcm  the 
trial,  the  maker's  signature  had  been  torn  off. 
Held,  if  the  company  received  the  amount  of 
the  note  from  their  agent  after  it  was  due,  the 
del,iy  in  making  payment  was  no  ground  of 
forfeiture.  Hodsdon  v.  Ouardian  Life  Ins.  Co., 
97  Mass.,  144. 

16.  Premium  note.  The  policy  was  made 
and  delivered,  and  the  premium  note  delivered 
to  the  broker,  who  failed  to  deliver  it  to  insur- 
ers.  Held,  the  delivery  of  the  premium  note 
to  them  was  not  a  condition  precedent  to  the 
right  of  recovery.  Mayo  v.  Pew,  101  Mass., 
535. 

17.  —  Upon  the  life  of  the  husband.  Pay- 
ment of  the  first  annual  premium  acknowl- 
edged. Stipulated:  "And  a  like  annual 
premium  to  be  paid  on  or  before  April  11th 
in  every  year  during  the  continuance  of  the- 

457 


«15 


PAYMENT  OF  PREMIUM. 


916 


When  nonpayment  does  not  afifect  the  rights  of  the  insured. 


policy;  .and  in  case  any  premium  due  upon 
this  policy  shall  not  be  paid  at  the  day  when 
ipayable,  it  shall  thereupon  become  forfeited 
and  void.  Tliis  policy  does  not  take  effect 
until  the  premium  is  paid."  Insurer  took 
one-fourth  of  first  premium  in  cash,  one- 
fourth  in  a  note  payable  in  six  months,  and 
one-half  in  another  note  payable  in  ninety 
•days  after  demand  in  writing,  after  the  expira- 
tion of  five  years  from  its  date.  The  first  note 
'became  due,  insurer's  agent  demanded  pay- 
ment, and  the  deceased  said  he  would  not  pay 
it  or  have  anything  more  to  do  with  the  com- 
pany; that  he  had  abandonded  the  whole 
thing.  Held,  the  failure  to  pay  the  note  did 
not  affect  the  right  of  the  insured  to  recover 
the  whole  sum  insured;  (he  insurer  could  not 
'take  advantage  of  the  statement  of  the  de- 
ceased, because  they  never  assented  to  it,  for 
they  continued  to  hold  the  notes  and  the  in- 
sured  to  hold  the  policy.  McAllister  v.2few 
England  Life  Ins.  Co.,  101  Mass.,  558. 

18.  Is  payment.  The  premium  became 
■due  February'  9,  1871.  The  company's  agent 
"was  indebted  to  the  firm  of  which  insured 
was  a  member,  and  agreed  with  him  to  pay 
the  premium  and  debit  it  in  account  with  the 
firm.  Held,  sufficient  evidence  to  warrant  the 
jury  in  finding  that  the  funds,  which  insured 
liad  the  right  to  control  and  apply  to  the  pay- 
ment  of  the  premium,  had  come  into  the 
liands  of  the  agent  before  the  premium  be- 
•came  due,  and  was  a  payment  of  the  premium 
Tvithin  the  meaning  of  the  policy.  Chickering 
•0.  Glohe  Mutual  Life  Ins.  Co.,  116  Mass.,  321. 

19.  Waiver.  "In  case  of  failure  to  pay 
assessments,  the  policy  shall  be  void  so  long 
as  the  same  are  unpaid."  After  the  fire  oc- 
curred, the  agent  received  an  overdue  assess- 
ment, and  transmitted  it  to  the  company,  who 
retained  it,  and  no  assertion  of  a  right  to  hold 
the  policy  forfeited  was  made,  until  after  they 
•were  pressed  to  pay  the  loss.  Held,  a  waiver 
of  the  forfeiture.  Lycoming  County  Ins.  Co. 
«.  SchoUenbergcr,  44  Pcnn.  St.,  259. 

20.  Misled  by  in.siirer's  agents.  Life 
policy  in  favor  of  plaintiff.  Stipulated  :  "  The 
premiums  sh.all  be  payable  on  certain  days 
specified ;  that  nonpayment  on  the  days  named 
shall  cause  a  forfeiture  of  all  claims  against 
the  company."  A  premium  became  due  June 
30th.  aud  was  temlered  July  Sth,  but  refused. 
Held,  in  an  action  to  recover  all  the  premiums 
-paid,  it  was  the  plaintiff's  right  to  prove  tliat  ' 

438 


the  company's  custom  was  to  allow  thirty 
days  grace  for  the  payment  of  the  premium, 
aud  that  the  efl'ect  of  the  proof  would  be  to 
curtail  the  clause  of  forfeiture,  and  show  that 
forfeiture  was  not  demandable  at  the  day  or 
at  all,  if  the  premiums  were  paid  in  thirty 
days;  that  if  it  was  the  practice  of  the  com- 
pany to  notify  the  insured  of  the  times  her 
premiums  were  due  and  payable,  or  if  the 
company  dealt  with  lier  so  as  to  induce  a  be- 
lief that  the  forfeiture  would  not  be  insisted 
on  in  case  she  was  derelict  in  making  pay- 
ment, then  they  ought  not  to  be  permitted  to 
take  advantage  of  a  default  which  they  had 
encouraged.  Helms  v.  Philadelphia  Life  Ins. 
Co.,  61  Penn.  St.,  107. 

21.  Credit.  The  question  in  this  case  was 
whether  the  defendant's  agents  agreed  to  re- 
new the  insurance  upon  the  terms  of  the  origi- 
nal policy,  and  to  wait  only  until  the  next  day 
for  the  plaintiff  to  adjust  the  payment  of  the 
premium,  or  until  such  time  as  would  be  con- 
venient. The  policy  stipulated,  "  No  insur- 
ance, whether  original  or  continued,  shall  be 
considered  as  binding  until  the  actual  pay- 
ment of  the  premium."  Held,  if  the  jury  were 
satisfied  from  the  evidence  that  there  was  an 
agreement  to  insure  and  that  the  plaintiff  was 
to  come  in  at  any  time  and  take  his  certificate 
of  renewal,  and  the  plaintiff  was  to  have  cred- 
it on  the  premium,  and  the  plaintiff  acted  upon 
that  agreement,  then  the  defendants  were 
estopped  to  deny  the  execution  of  the  policy. 
Heaton  v.  Mahattan  Fire  Ins.  Co.,  7  R.  I.,  502. 

22.  —  Insured  had  omitted  to  pay  an  as- 
sessment of  $22.58  for  thirty  days  after  the  time 
appointed  for  the  payment,  and  continued  in 
default  to  the  time  the  property  was  consumed. 
Held,  the  omission  did  not  avoid  the  policy. 
Rix  V.  Mutual  Ins.  Co.,  20  N.  H.,  198. 

23.  Embezzlement.  The  plaintiff  was  to 
pay  an  annual  premium  of  $572.70  for  five 
years.  He  paid  the  first  four  in  person  to  de- 
fendant's agents.  Accompanjing  the  notice 
sent  him  showing  when  the  Last  premium 
would  become  due,  the  agent  wrote,  "You 
can  forward  the  premium  by  bank  check,  or 
your  own  private  check  on  any  bank  or  in- 
stitution, or  you  can  send  by  express."  The 
plaintiff  sent  the  fifth  premium  by  an  express- 
man  who  embezzled  the  money.  About  a 
month  after  he  sent  it,  he  wrote  to  inquire 
whether  it  h,ad  been  received.  The  express- 
man was  prosecuted.    Held,  that  a  delivery  of 


J>17 


PAYMENT  OF  PREMIUM. 


918 


When  nonpaj-ment  does  not  affect  the  rights  of  the  insured. 


the  money  to  the  expressman  was  a  delivery 
of  it  to  the  insurance  company.  Currier  v. 
Continental  Life  Ins.  Co.,  53  N.  II.,  538. 

24.  AVaiver.  Boyd  and  Moody  negotiated 
with  insured  for  in.surauee;  Boyd  prejiared 
the  application,  and  stated  that  the  policies 
*hould  be  made  without  dela}'.  Boyd  was  the 
genera]  agent  of  the  company,  and  Moody 
•was  a  partner  with  Fellows,  local  agents  for 
the  same  company.  Moody  told  insured  that 
it  made  no  difference  whether  he  paid  the 
cash  premium  at  that  time  or  when  he  should 
talie  the  policies.  It  was  not  paid,  but  the 
policies  were  made,  signed  and  put  into  the 
hands  of  Fellows  before  the  loss  occurred, 
vho  was  afterwards  directed  by  the  president 
of  the  company  not  to  deliver  them.  Held, 
the  jury  would  have  the  right  to  determine 
from  the  evidence  that  the  insurer  had  waived 
payment  of  the  premium,  notwithstanding  the 
by-laws  of  the  company  required  it  to  be  paid 
before  delivery  of  policies.  Bragdon  v.  Apple- 
tori  Mutual  Fire  Iin.  Co.,  42  Me.,  259. 

25.  Credit.  The  applicant  signed  a  decla- 
ration made  a  part  of  the  policy,  and  in  it 
agreed  that  the  policy  should  not  be  binding 
till  the  premium  should  be  received  by  insur- 
ers or  their  accredited  agent.  Held,  parol  evi- 
dence was  admissible  to  show  a  w'aiver  of  the 
prepayment  of  the  premium,  and  it  would  be 
established  by  proving  the  agent's  verbal 
agreement  that  the  policy  should  take  effect 
immediately,  upon  approval  of  the  applica- 
tion, and  that  the  premium  note  might  be 
made  for  part,  and  the  cash  balance  paid  at 
some  future  time,  provided  the  insurer  had 
allowed  the  agent  to  hold  himself  out  as 
having  authority  to  make  such  agreements; 
the  fact  that  the  agent  was  not  required  or 
expecte  I  to  pay  over  to  the  insurer  the  iden- 
tical money  received  for  insurances  effected 
through  his  agency,  that  he  received  pre- 
miums, mixed  them  with  his  own  moneys, 
credited  insurer  in  general  account,  and 
from  time  to  time  made  general  payments  to 
insuier  on  account,  without  reference  to  any 
particular  preoiium  by  him  received,  and  that 
occasional  settlements  were  made  between  in- 
surer and  agent,  when  their  accounts  were 
adjusted,  the  balance  ascertained  and  paid, 
would  be  evidence  from  whicli  the  jury 
might  infer  insurer  had  recognized  his  acts. 
aheldon  v.  Connecticut  Mutual  Life  Ins.  Co.,  25 
Conn.,  207. 


26.  Waiver.  Insurers'  agent  accepted  the 
risk,  gave  a  binding  receipt  for  the  premium, 
and  agreed  that  a  policy  should  be  procured 
from  the  principal's  office.  No  premium  was 
in  fact  paid.  The  usual  printed  policy  pro- 
vided that  no  insurance  sliould  be  binding 
until  payment  of  premium,  but  the  agent 
agreed  specially  to  give  insured  credit  for  it. 
The  company  never  delivered  the  policy.  Held, 
payment  of  the  premium  was  waived.  Lay- 
ton  Ins.  Co.  V.  Kelly,  24  Ohio  St.,  345. 

27.  Insurers  must  declare  forfeiture.  A 
failure  to  pay  the  premium  at  the  time  stipu- 
lated was  to  create  a  forfeiture  of  the  policy. 
When  the  annual  premium  became  due,  the 
company  accepted  the  cote  of  the  insured  for 
it,  payable  at  a  time  future.  The  note  pro- 
vided the  policy  should  be  void  in  case  the 
money  should  not  be  paid  at  the  time  men- 
tioned in  the  note.  It  was  not  paid  at  matu- 
rity. Held,  by  the  agreement  of  the  parties, 
the  payment  of  the  money  mentioned  in  the 
note  was  a  condition  subsequent;  that  to  ena- 
ble the  insurers  to  work  a  forfeiture  of  the 
policy,  they  must  on  the  day  the  note  became 
due,  during  the  business  hours  of  the  day,  de- 
mand payment,  and  if  not  paid,  declare  the 
policy  forfeited;  that  in  the  absence  of  such 
demand  and  declaration,  the  policy  must  re- 
main valid.  Mutual  Benefit  Life  Inj.  Co.  v. 
French,  2  Cin.  Sup.  Ct.,  321. 

28.  Paid  by  notes.  Policy  on  a  life  for  a 
certain  consideration,  and  a  like  sum  to  be 
paid  on  or  before  March  12th,  of  every  year, 
during  the  continuance  of  the  life.  The  ageu"; 
received  one-fourth  of  the  premium  in  goods; 
one-fourth  in  a  promissory  note  due  at  si-X 
months,  and  the  other  half  in  another  promis- 
sory note  due  in  five  years;  both  notes  were 
payable  to  the  insurers'  order.  The  policy 
stipulated:  "In  case  any  premium  on  this 
policy  shall  not  be  paid  on  the  date  when  pay- 
able,  the  policj'  shall  thereupon  become  for- 
feited and  void ;  the  policy  and  any  sums  that 
shall  become  due  thereon  from  said  compauj-, 
are  pledged  and  hypothecated  to  said  com- 
pan^-,  and  they  have  a  lien  thereon  to  secure 
payment  of  any  premium  on  which  creoit  may 
be  given,  and  of  any  note  or  security  therefor." 
The  six  months  note  was  not  paid  at  maturity: 
insured  died  about  a  month  after  it  ma- 
tured.  Held,  the  contract  treated  the  first 
year's  premium  as  paid.  The  condition  of 
forfeiture    applied    only    to    premiums    that 

459 


919 


PAYMENT  OF  PREMIUM. 


920 


When  nonpayment  does  not  affect  the  rights  of  the  insured. 


shouUl  become  due  in  every  year  tliereafter. 
The  note  which  had  matured  and  was  unpaid 
contained  no  agreement  for  a  forfeiture  of  the 
contract  in  case  the  money  mentioned  in  it 
should  not  be  paid.  Therefore  insurer  was 
lialile  for  the  claim,  less  the  two  notes  out- 
sla  .ling  at  the  time  the  death  occurred.  Neio 
Eii;i,and  Life  Ins.  Co.  v.  Hashrook,  32  Ind., 

44-; 

Z'j.  —  A  general  agent  authorized  to  solicit 
applications  and  receive  the  first  premiums 
has  the  right  to  waive  the  condition  requiring 
the  premium  to  be  paid  in  money.  He  may 
accept  the  promissory  note  of  the  applicant  or 
of  a  third  party  as  payment  of  the  premium, 
or  may  undertake  to  pay  the  premium  him- 
self, and  either  of  these  modes  binds  the  com- 
pany, notwithstanding  the  policy  provides 
that  it  shall  not  be  effectual  till  the  cash  pre- 
mium is  paid  (citing  Goit  v.  National  Protec- 
tion Ins.  Co.,  25  Barb.,  189;  Boehen  v.  Wil- 
liamsburg Ins.  Co.,  35  N.  Y.,  131).  Mississippi 
Valley  Life  Ins.   Co.  v.  Neyland,  9  Bush,  430. 

30.  Credit.  An  agent,  authorized  to  solicit 
insurance  and  receive  premiums,  was  intrusted 
with  blank  receipts,  authorized  to  deliver 
them  upon  payment  of  the  necessary  premi- 
um; they  stipulated  that  the  contract  should 
take  effect  at  the  payment  of  premium  if  the 
company  should  approve  the  application,  but 
if  it  should  be  disapproved,  the  money  should 
be  refunded.  The  agent  was  indebted  to  the 
applicant  $160.  He  took  from  him  an  appli- 
cation for  a  policy  requiring  a  premium  of 
$360 ;  settled  the  debt  between  them,  and  ac- 
cepted and  remitted  to  the  company  the  ap- 
plicant's note  to  the  company's  order  for  the 
balance.  Held,  the  agent  could  make  him- 
self responsible  personally  for  a  portion  of  the 
premium  if  he  had  authority  to  receive  it 
and  the  insured  acted  in  good  faith.  Mis- 
siKsippi  Valley  Life  Ins.  Co.  v.  Nnyland,  9 
Bush.,  430.      ■ 

3 1 .  Paid  by  note.  Policy  for  benefit  of  the 
wife  $10,000,  at  an  annual  premium  of  $690.60, 
payable  August  16th  in  each  and  every  suc- 
ceeding year,  for  nine  years.  Stipulated: 
"  Nonpayment  of  annual  premiums  not  to 
work  a  forfeiture,  but  the  sum  insured  shall 
be  reduced  in  proportion  as  the  sum  of  the  an- 
nual payments  paid  shall  bear  to  the  sum  of 
ten  annual  payments,  and  if  insured  shall  fail 
to  pay  annually  in  advance  the  interest  on  any 
unpaid  notes  or  loans  due  by  insured  to  the 

460 


company  on  account  of  the  annual  premiums 
mentioned,  then  the  company  sliall  not  be  li- 
able for  the  sum  insured,  or  any  part  thereof, 
and  tills  policy  shall  cease  and  determine." 
The  premiums  were  to  be  paid  hall  in  note 
and  half  in  cash.  The  cash  payments  for  18CS 
and  1869  were  paid,  but  that  which  fell  due 
August  16,  1870,  was  not  paid,  nor  was  the  in- 
terest on  the  two  preceding  notes  paid.  The 
husband  agreed  for  a  reduced  policy,  and  the 
companj-  issued  a  certificate  to  that  eflect,  con- 
tinuing the  policy  in  force  to  August  10,  1871, 
conditioned  not  to  be  valid  until  payment  of 
premium  "  as  per  margin."  The  necessary 
amount  of  premium  was  paid.  Insured  failed 
to  pay  the  interest  on  the  notes  which  became 
due  August  16,  1871,  and  died  Januaiy  2,  1872. 
Held,  the  contract  was  completely  executed  so 
far  as  insured  was  concerned ;  the  company 
was  bound  to  enforce  the  payment  of  the  in- 
terest in  the  same  manner  as  though  they  were 
dealing  with  a  stranger  to  the  contract;  th.it 
the  person  for  whose  benefit  the  contract  was 
made  could  not  be  affected  by  the  default  of 
him  to  whom  the  loan  was  made,  except  so  far 
as  the  contract,  by  its  terms,  pledged  or  hj-- 
pothecated  the  insurance  money  for  the  ulli- 
mate  payment  of  the  loan  and  accrued  inter, 
est;  that  the  company  was  bound  to  pay  the 
commuted  or  reduced  amount,  minus  the  last 
note  and  interest  accrued.  St.  Loxiis  Mutual 
Life  Ins.  Co.  v.  Grigsby,  10  Bush,  310. 

32.  Waiver.  Stipulated:  "When  a  note 
has  been  taken  for  a  cash  premium,  any  de- 
fault shall  suspend  the  companj-'s  liabilitj' 
until  payment  made."  Note  was  due  April 
1st.  Insured  had  another  policy  in  the  com- 
pany  with  sis  months  to  run,  he  required  it 
canceled;  insurer  gave  him  credit  for  the  un- 
earned premium,  charged  him  with  the 
amount  of  the  note,  and  stated :  "  You  can  re- 
mit the  balance  with  the  inclosed  receipt  for 
unearned  premium."  On  receipt  of  it,  insured 
inclosed  the  balance,  and  asked  the  company 
to  transmit  the  note.  The  fire  occurred  before 
that  was  done,  and  insurer,  on  hearing  of  the 
fire,  instructed  the  plaintiff  not  to  send  the 
premium.  Held,  when  the  company  agreed 
to  receive  payment  of  the  balance  of  the  pre- 
mium, and  to  give  credit  for  the  unearned  pre- 
mium on  the  other  policy,  the  waiver  of  for- 
feiture  was  complete.  Sims  v.  State  Ins.  Co., 
47  Mo.,  54. 

33.  Payment  after  death.    Policy  to  the 


«21 


PAYMENT  OF  PHEMIUM. 


922 


When  noiipaymenb  does  not  affect  the  rights  of  the  insured. 


jilainlilT  upon  Iicr  husband's  life  for  an  annual 
jiremium,  !f"J;!.tiO,  one-fourth  of  which  was  paid 
in  cash,  and  the  balance  in  three  equal  sums 
by  promissory  notes,  payable  in  three,  six  and 
nine  months.  The  last  matured  August  15th, 
and  was  not  paid.  Insured  died  on  that  day, 
and  without  giving  any  notice  of  the  death, 
the  note  was  paid  and  taken  up  on  the  19th. 
Jleld,  no  defense  to  the  action.  Frochlich,  v. 
Atlas  Life  rim.  Co.,  47  Mo.,  406. 

34.  Misled  by  iii.surer's  agents.  Stipu- 
lated: "  If  default  shall  be  made  in  the  pay- 
ment of  any  of  the  annual  premiums,  at  the 
time  limited  for  their  respective  payments, 
such  default  shall  not  work  a  forfeiture  of  the 
policy,  but  the  sum  insured  sliall  be  com- 
muted, or  reduced  to  such  proportionate  part 
of  the  whole  as  the  premiums  paid  shall  bear 
to  the  ten  annual  payments  stipulated  to  be 
paid.  Also,  agents  not  authorized  to  grant 
permits,  make,  alter  or  discharge  contracts  or 
waive  forfeitures.  Receiving  premium  after 
the  day  limited  is  an  act  of  grace,  and  forms 
tio  precedent  in  regard  to  future  payfuents."  A 
premium,  due  March  28th,  was  tendered  two 
days  thereafter,  and  reftised.  Previous  pre- 
miums had  always  been  paid  weeks  after  they 
were  due,  and  had  been  received  without  ob- 
jection ;  some  of  tliem  had  been  received  with- 
out objection  si.v  weeks  after  due,  and  similar 
facts  were  proven  in  respect  to  another  policy 
on  the  same  life,  by  the  same  insurer.  Held. 
time  was  not  the  essence  of  the  contract;  for 
the  conduct  of  the  p.arties  themselves  did  not 
allow  such  a  construction;  by  accepting  pre- 
miums after  they  were  due,  insurer  had  in- 
tluced  insured  to  believe  that  a  failure  to  com- 
pl)' strictly  witli  the  terms  of  payment  would 
not  prejudice  the  rights  of  insured.  Thompson 
v.  St.  Louis  Mutual  Life  Im.  Co.,  52  Mo.,  469. 

3Ty.  Usage.  The  policy  was  made  Febru- 
ary 2.5th,  confessing  payment  of  premium,  and 
stipulating  there  should  be  no  insurance  until 
payment  of  premium.  Insured  paid  the  pre- 
mium March  1st,  after  the  loss,  but  before  in- 
surer  received  notice  of  it.  Insured  was  per- 
mitted to  prove  that  by  general  usage  of  the 
company,  payment  of  the  premium  was  not 
required  at  the  time  policies  were  delivered; 
and  as  evidence  of  that  usage,  receipts  for  pre- 
miums bearing  date  after  policies  had  com- 
menced to  run  were  given  in  evidence.  Held, 
the  payment  of  the  premium  after  the  tire  had 
no  eflfect  upon  the  contract,  for  it  was  :i  -jom- 


pleted  contract  when  the  policy  was  deliv- 
ered. Pino  v.  Merchants  Mut.  Ins.  Co.,  19  La. 
An.,  214. 

36.  Credit.  At  the  time  the  contract  waa 
entered  into,  the  premium  was  not  paid,  but 
the  insurer's  agent  was  requested  to  send  the 
bill  to  the  treasurer  of  the  society  insured,  for 
payment,  to  which  the  agent  replied:  "That's 
all  right."  The  policy  was  made  and  depos- 
iled  in  the  safe,  subject  to  call.  The  compa- 
ny's clerk  was  instructed  to  collect  the  pre- 
mium. He  called  several  times  at  the  hall  of 
insured  for  that  purpose,  but  did  not  find  any 
person  who  represented  them.  Held,  the  con- 
tract  was  complete,  and  the  nonpayment  of 
the  premium  was  no  defense  to  the  action.  La 
Societe  v.  Morris.  24  La.  An.,  347. 

37.  Extension  of  time.  Stipulated:  "Pol- 
icy shall  be  forfeited  if  a  member  fails  to  pay 
an  assessment  called  for  within  thirty  days 
after  a  publication  of  five  consecutive  days  of 
the  notice."  August  8,  1870,  the  company 
published  a  notice  in  which  members  were 
required  to  make  payment  at  the  office  within 
thirty  days  of  date  of  publication,  to  be  made 
eight  consecutive  days  in  the  N.  O.  Times, 
Bee,  Daily  Picayune,  and  German  Gazette. 
The  notice  under  which  forfeiture  was  claimed 
was  published  for  seven  days,  and  the  forfeit- 
ure was  declared  before  thirty  days  had 
elapsed.  Held,  the  second  notice  was  an  ex- 
tension of  the  time  of  publication ;  that  the 
courts  do  not  favor  forfeitures,  and  those  who 
would  enforce  them  must  bring  themselves 
strictly  within  the  terms  of  the  forfeiture. 
Fitzpatrick  v.Mtdual  Benevolent  Life  Ins.  Ass'n, 
25  La.  An.,  443. 

38.  Dies  non.  Stipulated:  "Tlte  premium 
must  alwa3's  be  paid  before  12  o'clock  noon 
of  the  day  upon  which  it  falls  due ; "  also  for 
the  payment  of  a  certain  consideration  "  in 
nine  aunual  pa3'ments  to  be  made  on  or  be- 
fore May  7th  in  each  year  until  the  last  pay- 
ment is  completed,  May  7,  1878;  and,  of  the 
interest  annually  on  all  premium  notes  upon 
this  policy,  on  or  before  May  7th  at  noon  in 
each  year,  until  the  said  notes  are  paid." 
May  7,  1870,  the  premium  for  the  ensuing 
year  was  settled  by  payment  of  one-eighth 
thereof,  in  cash,  and  three  promissory  notes 
of  ifl2i)  each,  payable  at  three,  six  and  nine 
months  without  grace.  The  other  half  con- 
stitutes a  loan,  the  interest  on  which  was 
included  in  the  settlement.    The  receipt  for 

401 


1*23 


PAYMENT  OF  PREMIUM. 


924 


When  non  payment  does  not  affect  thu  rights  of  the  insured. 


the  money  and  the  notes  stated,  "  In  case  said 
notes  or  either  of  them  shall  not  be  paid  on  or 
before  the  maturity  thereof,  said  policy  shall 
ill  once  become  void  without  notice."  Each 
note  provided  that  the  policy  was  to  be  void 
in  case  this  note  is  not  paid  at  maturity  ac- 
cording to  contract  in  said  policy.  One  of 
the  notes  fell  due  on  Sunday,  August  7lh. 
Insured  died  at  one  o'clock  Monday,  August 
8th.  Held,  the  note  was  not  due  legally  till 
Monday  the  8th,  and  insured  had  all  of  Mon- 
day to  pay  it,  for  the  note  and  the  receipt  con- 
tained the  stipulation  in  general  terms,  "  if 
not  paid  at  maturity."  Leigh  v.  Etiickerbocker 
Life  Ins.  Co.,  26  La.  An.,  436. 

39.  Misled  by  insurer's  agents.  Policy 
upon  a  life,  for  an  annual  premium  due  in 
Match,  every  year.  Tlie  premium  was  not 
paid  until  November,  and  the  renewal  receipt 
was  ante  dated.  Insurer's  agent  had  occasion- 
ally advanced  the  premium  for  insured,  and 
bad  assured  her  that  it  was  not  necessary  for 
her  to  pay  it  on  the  exact  day  named  in  the 
policy.  He  had  induced  insured  to  believe 
that  he  had  advanced  this  premium  when  she 
paid  it  in  November;  she  stated  to  the  insur- 
er's agent  that  her  husband  was  in  the  state 
of  Missouri ;  that  she  had  received  a  letter 
from  him  and  he  has  in  his  usual  health;  she 
made  tlie  same  statement  to  the  company's  med- 
ical examiner.  Held,  her  statements  were  mere 
representations,  independent  of  the  contract, 
and  collateral  to  it;  though  they  were  untrue, 
tliey  could  not  affect  her  rights  nor  tbe  com- 
pany's liability,  because  they  did  not  in- 
duce the  risk,  nor  were  they  material  to  it. 
Mutual  Benejit  Life  Ins.  Co.  v.  Robertson,  59 
111.,  123. 

40.  Stranger  liable  for.  Premium  paya- 
ble quarterly.  The  Bismarck  Bund  became  I  iii- 
ble  to  insurers  for  the  preuiiums.  They  fell 
due  on  the  9th  days  of  October,  January,  April 
and  July  of  each  year.  The  premium  which 
matured  January  9, 1873,  was  not  paid  because 
insured  neglected  after  January  1,  1873,  to  pay 
Ills  weekly  dues  to  the  Bund.  He  died  Feb- 
ruary 26,  1873.  Held,  the  Bund  was  liable  to 
insurer  for  the  ultimate  payment  of  the  pre- 
mium upon  which  the  company  could  rely  if 
it  chose,  and  carry  the  risk.  The  company 
made  no  declaration  of  forfeiture  in  the  life- 
lime  of  the  insured.  His  death  fixed  the  lia- 
bility of  all  parties  to  the  agreement  which 
then  became   absolute.    Hence  insurer  must 

■162 


not  be  allowed  to  set  up  the  nonpayment  of 
the  premium  in  avoidance  of  tlie  claim.  Ten- 
tonia  Life  Ins.Co.  v.  Anderson,  77  111.,  382. 

41.  Misled  by  insurer's  agents.  Policy 
for  annual  premium  of  $6."i.20  to  be  paid  on 
or  before  August  3 1st  in  each  year, stipulated: 
"If  premium  shall  not  be  paid  on  or  before 
the  day  herein  mentioned  or  any  note  or  notes 
received  by  the  company  in  part  payment  of 
any  premium  on  the  day  or  days  on  which 
the  same  shall  become  due  (except  note  given 
for  half  the  annual  premium  payable  twelve 
months  after  date)  or  shall  not  renew  such 
note  when  the  same  shall  become  paj-able,  or 
pay  the  interest  or  discount  thereon  the  policy 
shall  be  void.  The  dividend  or  profits,  if  any, 
which  may  become  payable  shall  be  applied 
toward  the  payment  of  the  note  taken  for  half 
premium,  and  insured  in  case  this  policj-  shall 
cease  or  become  void,  shall  be  liable  to  pay  all 
the  notes  taken  for  premiums  which  shall  re- 
main unpaid  (except  the  balance  remaining 
unpaid  on  the  note  taken  for  half  premium, 
payable  twelve  months  from  date)."  It  was  the 
company's  custom  to  send  to  policyholder  in 
every  year  prior  to  the  date  the  annual  premi- 
ums  would  become  due,  a  statement  of  the 
amount  to  be  paid  and  a  note  for  the  balance. 
Premium  which  became  due  August  31, 1866, 
was  not  paid.  October  24th  following,  de- 
ceased sent  a  letter  to  the  agent  at  Milwaukee, 
covering  $35,  and  in  reply  received,  an  ac- 
knowledgment of  itwitb  a  renewal  note  for 
him  to  execute,  and  a  request  to  remit  |2.30. 
Notice  was  never  sent  of  the  amount  of  cash 
or  note  which  the  company  required  to  settle 
the  premium  that  became  due  August  31, 
1867.  Insured  became  sick  August  30, 1867, 
and  died  September  10th,  following,  the 
premium  for  that  year  being  unpaid.  Held, 
deceased  had  the  right  to  give  his  note  for  one- 
half  the  annua!  premium;  that  he  could  not 
know  what  amount  of  cash  was  required  till 
informed  bj'  the  compan}-,  for  it  alone  knew 
the  amount  of  the  dividend.  Hence  insurer 
could  not  insist  upon  a  forfeiture  of  the  policy 
for  nonpayment  of  premium.  111.  S.  C.  Home 
Life  Ins.  Co.  v.  Pierce,  5  Ins.  L.  J.,  290. 

42.  AValver.  October  6, 1862,  after  the  pre- 
mium was  overdue,  tlie  company  received  it 
and  wrote:  "  As  this  is  past  due,  it  will  accord 
with  our  rules  for  you  to  send  us  a  certificate 
of  good  health,  and  in  your  case,  we  will  be 
satisfied  with  your  own.    You  did  not  instruct! 


925 


PAYMENT  OF  PREMIUM. 


926; 


When  nonpayment  does  not  affect  the  rights  of  the  insured. 


me  where  to  send  the  renewal  receipt,  and  so 
I  have  not  incUiscd  it."  Held,  receiviug  the 
prtmium  renewed  the  policy,  unless  it  was 
understood  it  was  taken  ui)on  condition  that 
a  certificate  of  good  health  must  be  delivered. 
Hockwell  V.  Mutual  Life  Ins.  Co.,  20  Wis.,  335. 
But  upon  a  subsequent  trial  it  was  held, 
whether  that  was  the  condition  was  a  question 
for  the  jury  to  determine  from  all  the  sur- 
rounding facts  (s.  c,  21  id.,  548);  and  upon  the 
third  trial,  the  jury  found  a  verdict  for  the 
plaintiff,  which  was  affirmed  (s.  c,  27  id., 
372). 

43.  Waiver.  Stipulated:  "Whenever  a 
promissory  note  shall  be  taken  for  the  cash 
premium,  the  policy  shall  be  issued  upon  the 
express  condition  that  if  the  note  is  not  paid 
within  sixty  da^-s  after  due,  all  obligations  of 
the  company  to  insured  shall  be  suspended 
until  such  time  as  the  note  shall  be  fully  paid ; 
and  whenever  an  assessment  shall  have  been 
made  upon  premium  notes,  and  the  sum  de- 
termined which  each  person  shall  pay,  if  such 
sum  shall  not  be  paid  within  thirty  days  after 
demand,  the  directors  may  at  their  option  an- 
nul the  policy  and  may  retain  the  note  and 
collect  the  sum  so  assessed."  The  executive 
committee  notitied  insured  that  unless  the 
class  of  policy  holders,  of  which  he  was  one, 
paid  their  assessments  by  a  spccilied  future 
day,  their  policies  would  be  annulled  on  that 
day.  After  the  loss  occurred,  and  with  knowl- 
edge of  it,  and  more  than  sixty  days  after  the 
note  was  overdue,  defendant  received  the  un- 
paid premium.  Seld,  the  notice  was  nothing 
more  than  a  threat.  If  insurer  would  exercise 
the  right  to  annul  the  policy  tor  unpaid  assess- 
ments, it  must  be  done  unccmditioually,  in 
plain  and  positive  terms,  for  the  law  will  not 
allow  one  party  to  put  an  end  to  his  liability 
by  saying  to  the  other  before  or  after  default, 
"  Unless  you  perform  your  part  of  the  con- 
tract by  a  certain  future  day  (naming  it),  I 
shall  elect  to  consider  myself  relieved  from  its 
obligations."  Held,  also,  insurer  had  the 
right  to  take  what  premium  had  been  earned 
up  to  the  time  the  policy  was  in  force; but  ac- 
cepting the  whole  of  it,  was  receiving  compen- 
sation for  the  risk  when  the  loss  occurred ;  and 
the  acceptance  of  the  full  premium,  being  in- 
consistent with  the  assertion  that  the  policy  was 
suspended  when  the  loss  occurred,  must  be  re- 
garded as  an  intention  on  the  part  of  insurer 
to  waive  the  forfeiture,  hence  the  policy  was 


in  force  when  the  loss  happened.    Joliffe  v. 
Madison  Mutual  Ins.  Co.,  39  Wis.,  111. 

44.  Misled  by  inssurer's  agents.  Stipu- 
lated for  the  payment  of  premiums  upon  a 
day  named.  Five  premiums  were  paid  to  ono 
agent,  to  whom  insured  said  when  he  paid  the 
last:  "  I  suppose  my  notices  go  to  Clinton,  as 
my  policy  is  dated  there,  but  I  want  it  changed 
to  Lyons."  The  agent  told  him  it  was  not 
necessary;  that  they  had  a  complete  record  in 
the  office,  and  when  a  policy  holder  changed 
his  post  office  address,  it  was  noted,  and  that 
he  would  be  around  to  collect.  The  agent 
quitted  the  company's  service,  never  told  any 
of  the  officers  what  he  had  said,  and  no  notice 
was  sent  to  insured.  The  premium  became  due 
and  was  not  paid,  and  insured  died  four  day» 
after  it  was  overdue.  Held,  if  the  company's 
agent  gave  the  insured  reasonable  ground  ti> 
believe  that  a  strict  performance  with  respect 
to  the  payment  of  the  premium  would  not  bo 
required,  then  an  offer  to  pay  after  the  death 
of  the  person  insured  was  a  good  tender. 
Mayer  v.  Mutual  Life  Ins.  Co.  of  Chicago,  3S 
Iowa,  304. 

45.  Paid  by  notes.  Stipulated:  "Pay- 
ment to  be  made  upon  proof  of  notice  and 
death,  less  the  balance  of  the  year's  premiums, 
and  all  notes  given  for  premiums,  if  any.  If 
the  premiums  or  the  interest  upon  any  note 
given  for  premiums  shall  not  be  paid  on  or 
before  the  days  mentioned  for  payment  thereof, 
then,  and  in  every  such  case,  the  company- 
shall  not  be  liable  for  the  payment  of  the 
whole  sum  assured;  and  if  default  shall  be 
made  in  the  payment  of  any  premium,  they 
will  pay,  as  above  agreed,  as  many  tenth  parts 
of  the  orginal  sum  insured  .as  there  shall  have 
been  complete  annual  premiums  paid  at  the 
time  of  such  default."  The  consideration 
was  $24.84  semi-annually,  in  cash,  and  the 
annual  premium  note  of  $43.25.  Held,  the 
entire  premium  for  each  year  was  to  be  $93.93 ; 
that  it  was  not  necessary  to  pay  the  annual 
premium  notes  in  order  to  continue  the  policy, 
because  the  contract  expressly  provides  that 
the  company  shall  not  be  liable  to  pay  the 
whole  sum  insured,  but  shall  have  the  right 
to  deduct  premiums  or  interest  upon  any  notes 
given  for  premiums.  Ohde  v.  Northwestern  Life 
Ins.  Co.,  40  Iowa,  357. 

46.  Not  condition  precedent.  Policy  on 
the  life  of  a  slave  for  five  years,  upon  payment 
of  an  annual  premium.    This  payment  was- 

463 


927 


PAYMENT  OF  PREMIUM. 


928 


When  nonpayment  docs  not  afFect  the  rights  of  the  insured. 


not,  by  the  terms  of  the  policy,  made  a  condi- 
tion on  which  insurance  was  to  continue. 
Held,  failure  to  pay  the  premium  did  not  affect 
the  company's  liability.  Wotidfiii  v.  Ashcville 
Mat.  Ins.  Co.,  6  Jones'  Law,  558. 

47.  misled  by  insurer's  agents.  The  de- 
•ceased  became  delinquent  in  payment  of  dues, 
but  he  subsequently  transmitted  to  the  com- 
pany a  sum  of  money  in  payment  of  all  dues, 
which  was  received  and  retained  without  noti- 
fying him  whether  it  was  or  was  not  satisfac- 
tory. Held,  a  waiver  of  the  default;  if  the 
luouey  was  not  sufficient  to  pay  the  past  dues, 
it  was  the  duty  of  the  company  promptly  to 
to  have  notified  him  of  the  fact.  The  com- 
pany could  not  remain  silent  till  after  his 
death  and  then  deny  that  he  was  a  member. 
Oeorgia  Uasonic  Mutual  Life  Ins.  Co.  v.  Gib- 
son,  52  Ga.,  640. 

48.  Construction.  Policy  executed  Octo- 
ber 15,  1870,  provided  for  the  payment  of 
the  annual  premium  on  or  before  October 
15th  of  each  year.  Stipulated :  "  If  the  first 
annual  premium  shall  have  been  duly  paid, 
and  default  shall  be  made  in  the  payment  of 
any  premium  thereafter  to  become  due  and 
payable,  then  such  default  shall  not  work  a 
Ibrfeiture  of  this  policy;  but  if  it  be  surren- 
dered within  thirty  days  after  date  of  such 
default,  this  company  will  issue  a  paid  up 
policy,  payable  as  herein  before  provided,  for 
the  amount  which  could  have  been  bought 
■with  the  net  value  of  this  policy.  The  first 
premium  was  not  paid  October  15,  1870,  but 
it  was  paid  January  19,  1871,  and  the  second 
annual  premium,  due  October  15,  1871,  was 
not  paid  at  the  time  of  the  death  of  the  person 
insured,  which  took  place  October  2-lth.  Held, 
lip  to  October  15, 1871,  it  was  an  insurance  for 
the  sum  named  in  the  policy;  after  that  time 
it  was  an  insurance  for  such  an  amount, 
"  fully  paid  up,"  as  could  have  been  pur- 
chased with  the  net  value  of  the  policy,  and 
nothing  more.  Mound  City  Mutual  Life  Ins. 
Co.  u.  Twining,  12  Kan.,  475. 

49.  Payment  tendered  in  time.  Stipu- 
lated: "This  insurance  shall  be  subject  to 
conditions  indorsed,"  among  which  were  the 
Ibllowing:  "No  policy  will  be  considered 
valid  for  more  than  fifteen  days  after  the  ex- 
piration of  the  period  limited  therein,  unless 
the  premium  and  duty  for  the  renewal  shall 
have  been  paid  within  the  time.  Insurance 
for  a  less  period  than  ouc  year  will  terminate 

464 


at  six  o'clock  of  the  evening  of  the  day  speci- 
fied, without  the  allowance  of  fifteen  days." 
The  year  expired  March  25,  1831,  and  the  loss 
occurred  on  the  31st,  at  which  time  no  pre- 
mium had  been  tendered.  Held,  insurers  were 
liable,  for  the  contract  was  an  insurance  for 
one  year  and  fifteen  days.  McDonnell  v.  Carr, 
1  Hayes  &  Jones,  256. 

50.  Stranger  liable  for.  Policy  on  life  for 
the  payment  of  an  annual  premium  in  May. 
Insured  borrowed  a  sum  of  money  from  insur- 
ers, and  gave  bond,  with  surety,  the  surety 
being  bound  for  the  premium.  Insured  deliv- 
ered to  the  company  an  accepted  bijl  for  the 
premium,  dated  June  21st,  at  fifty  days,  which 
was  dishonored.  He  died  suddenly,  in  Lon- 
don, September  22d.  Held,  the  surety  would 
have  had  no  right  before  the  death  of  insured 
to  free  himself  from  his  obligation  to  pay  the 
premium,  hence  insurers  could  not  relieve 
themselves  from  the  policy  by  notifying 
the  surety  of  their  abandonment  of  all  claims 
against  him  for  the  premium  in  arrear.  Held, 
also,  acceptance  of  the  bill  was  payment  of  the 
premium.  Reversed,  and  a  trial  by  jury  or- 
dered. Barker  ®.  North  British  Ins.  Co.,  9  S. 
&  D.,  869 ;  6  id.,  83 ;  3  Scot.  Jur.,  567. 

61.  New  agreement.  Stipulated:  "  No  in- 
surance will  be  held  in  force  until  the  pre- 
mium shall  have  been  actually  paid  to  the 
company,  nor  shall  any  policy  be  valid  be- 
yond fifteen  days  after  the  expiration  of  any 
year,  unless  the  premium  for  its  renewal  shall 
have  been  actually  paid  to  the  company.  In- 
surances may  be  revived  within  any  period 
not  exceeding  three  months,  on  proof  satisfac- 
tory to  the  directors,  of  the  unimpaired  health 
of  the  person  whose  life  is  insured,  and  pay- 
ment of  a  fine  of  ten  shillings  per  cent,  on  the 
sum  insured."  Directions  wore  given  to 
agents,  that  "Every  policy  must  be  revived 
within  fifteen  days  after  the  same  becomes 
due,  or  it  will  become  void.  If  any  persoa 
shall  omit  to  renew  his  life  insurance  within 
the  fifteen  days  before  mentioned,  the  agent 
shall  immediately  give  notice  to  tlie  secretary, 
and  such  policy  shall  not  be  afterwards  re- 
newed without  the  fine,  and  subject  to  the 
restrictions  stated  in  the  general  printed  pro- 
posals and  conditions  of  the  company.  All 
receipts  for  the  renewal  of  life  assurances  not 
paid  within  a  month  from  the  expiration  of 
the  policies  are  to  be  returned  to  the  otfice  at 
the  cud  of  that  period."    Insurer's  agent  took 


929 


PAYMENT  OF  PREMIUM. 


930 


When  nonpayment  is  fatal  to  recovery. 


Ijills  for  llie  amount  of  the  several  premiums, 
and  (lebitetl  himself  with  the  premium  in  ac- 
count with  the  company.  The  bills  were  not 
paid,  and  he  tonk  securily  for  tliem.  A  subse- 
quent i)remium  became  due  in  December,  184G. 
The  usual  rcccdpt  was  forwarded  by  insurers 
to  agent.  It  was  not  jiaid,  nor  did  the  agent, 
at  the  time  it  was  due,  debit  himself  with  the 
premium;  but  in  his  next  quarterly  accounthe 
*lid  so,  and  shorlly  afterwards,  at  request  of 
insurers  treasurer,  paid  the  amount.  Similar 
transactions  took  place  in  1817  and  1848.  The 
life  stopped  in  1849,  and  the  receipts  for  the 
premiums  disposed  of  in  this  way  still  re- 
mained in  the  agent's  possession,  and  were 
afterwards  redelivered  to  the  company.  Held, 
an  action  should  be  brought  to  iry  the  ques- 
ti(m  whether  the  retention  of  the  premiums, 
with  knowledge  of  all  the  facts,  did  not  con- 
stitute  a  new  contract  to  reinstate  the  policy. 
But  if  the  life  had  fallen  before  they  had 
knowledge  of  the  fact,  there  would  not  be  any 
«?videuce  of  a  new  contract.  Buateed  v.  West 
tif  England  Ins.  Co.,  5  Irish  Ch.,  553. 

.52.  AViiiver.  The  plaintiff  admitted  non- 
payment of  premiums  within  the  period  re- 
■quired  by  the  terms  of  policy,  but  relied  upon 
the  receipt  for  the  premiums  delivered  by  the 
company's  agent  as  amounting  to  a  waiver  of 
payment,  or  a  contract  to  revive  the  policy. 
The  company  pleaded  a  condition  of  the  pol- 
icy providing  for  a  specific  mode  for  settling 
the  rights  of  the  parties  in  case  of  a  lapse 
within  a  limited  period.  Held,  the  condition 
in  the  policy  did  not  preclude  the  parties  from 
waiving  the  lapse  in  any  other  mode  they 
might  agree  to.  Supple  v.  Cann,  9  Ir.  C.  L. 
R,  1. 

Y.    When  nonpayment  is  fatal  to 

KECOVEKY. 

I.  Premium  became  due  June  1,  1873;.  the 
general  agent  wrote  July  9th,  inquiring  wheth- 
er insured  wished  to  renew  the  policy;  to 
which  no  reply  was  given  till  August  38th, 
when  a  draft  was  remitted  covering  the  amount. 
The  general  agent's  clerk,  in  the  absence  of 
his  employer,  acknowledged  receipt,  stating 
that  when  the  general  agent  should  return 
proper  renewal  receipt  would  be  transmitted. 
Insured  died  September  1st.  The  premium 
was  remitted  to  the  company,  who  directed 
the  general  agent  not  to  deliver  renewal  receipt 
30 


until  furnished  with  satisfactory  evidence  of 
the  good  health  of  insured.  The  policy  and 
renewal  receipts  contained  notices  that  agents 
had  no  authority  to  receive  premiums  after 
due.  Iliid,  notices  to  insured  of  the  agent's 
limited  authority,  and  payment  to  him  of  an 
overdue  premium,  would  not  revive  the  policy 
unless  the  principal  had  notice  of  the  fact 
and  remained  silent  (U.  S.  Cir.  Ct.,  Ohio). 
McOowan  v.  Charter  Oak  Life  Ins.  Co.,  4  Am. 
L.  Rec.  559. 

2.  Insured  was  owner  of  schooner,  for  which 
he  held  policy,  !^5,000,  to  expire  Decembers, 
1809;  premium  paid  by  promissory  note,  to 
mature  October  8,  18G9.  Stipulated  in  the 
note  and  policy:  "In  case  this  note  is  not 
paid  at  maturity,  the  full  amount  of  premium 
shall  be  considered  earned,  and  the  policy 
void  while  the  note  remained  overdue."  She 
left  the  port  of  Oconto,  bound  for  Chicago, 
on  the  night  of  October  7th,  and  ran  aground 
on  Strawberry  Reef,  near  the  outlet  of  Green 
Bay,  about  2  o'clock  on  the  morning  of  the 
8th.  The  master,  who  was  owner,  made  in- 
etfectual  efforts  to  get  her  of!',  then  took  a 
boat  to  Menomonee,  where  he  arrived  at  about 
11  o'clock  in  the  morning.  He  telegraphed 
to  his  agents  in  Chicago  to  pay  the  note,  and 
payment  was  made  at  11:30  A.  M.  of  the  8th, 
without  disclosing  the  condition  in  which  the 
vessel  then  was.  Held,  she  was  lost  when  she 
was  stranded  on  the  bar,  for  she  was  then  a 
helpless  and  inert  mass,  incapable  of  perform- 
ing the  functions  of  a  ship,  and  the  insurers 
were  therefore  discharged.  Per  Blodgett,  J., 
northern  district  of  Illinois.  (There  must  be  . 
some  error  as  to  the  time  when  the  note 
became  due,  because,  if  it  fell  due  on  the 
8th,  the  maker  had  all  that  day  to  make  pay- 
ment. The  vessel  was  lost  at  3  A.  M.  on  that 
day,  while  the  note  was  not  overdue.  Ed.) 
Cdrdwell  v.  Republic  Ins.  Co.,  7  Chi.  Leg. 
News,  383. 

3.  Policy  on  a  life.  Premium  became  pay- 
able April  10,  1847;  death  occurred  three  days 
thereafter,  and  a  day  or  two  thereafter  premi. 
um  was  tendered  to  insurer's  agent,  who  de- 
clined  to  receive  it.  Plaintiff  was  permitted 
to  give  in  evidence  a  prospectus  delivered  by 
the  defendant  before  the  application  was 
signed,  which  recited:  "Every  precaution  is 
taken  to  prevent  a  forfeiture  of  the  policy.  A 
party  neglecting  to  pay  his  annual  premium 
within  thirty  days  after  it  is  due,  or  paying 

465 


931 


PAYMENT  OF  PREMIUM. 


932 


When  nonpayment  is  fatal  to  recovery. 


assessments  within  the  sixty  days  specifiecl  in 
the  charter,  or  refusing  to  give  satisfactory 
security  on  tlie  note,  forfeits  the  interest  he 
has  in  the  policy."  Held,  the  policy  must  be 
consitiercd  as  embracing  the  entire  contract 
between  the  parties,  that  the  prospectus  could 
not  be  received  to  aid  the  plaintifTs  case. 
Ruse  1).  Mutual  Benefit  Life  Ins.  Co.,  23  N.  Y., 
516;  s.  c,  26  Barb.,  556;  24  N.  Y.,  653;  see  s. 
c,  8  Ga.,  534. 

4.  Stipulated:  "  In  case  the  note  or  obliga- 
tion given  for  the  premium  herefor  be  not 
paid  at  maturity,  the  full  amount  of  the  pre- 
mium shall  be  considered  as  earned,  and  this 
policy  becomes  void,  while  said  note  or  obliga- 
tion remains  overdue  and  unpaid."  The  note 
became  due,  and  while  it  remained  unpaid  a 
loss  occurred.  Held,  insured  had  no  right  of 
actiim ;  and  an  agreement  by  the  company's 
agent,  that  the  note  might  lie  over  for  a  few 
days,  was  an  agreement  not  to  press  payment. 
It  was  not  an  agreement  to  continue  or  revive 
the  policy.  Wall  v.  Home  Ins.  Co.,  36  N.  Y., 
157 ;  s.  c,  8  Bos.,  597. 

5.  Polic}'  upon  the  husband's  li-fe  for  the 
sole  and  separate  use  of  his  wife,  acknowl- 
edged payment  of  the  premium.  Stipulated: 
"  If  at  any  time  any  note,  check  or  draft,  other 
than  the  premium  note,  for  one-half  of  the  an- 
nual premium,  shall  be  given  in  payment,  or 
in  part  payment  of  any  premium  then  due,  or 
to  become  due,  and  such  note,  check  or  draft 
shall  not  be  paid  according  to  the  provisions 
thereof,  then  the  policy  shall  become  immedi- 
ately void,  and  the  insurers  released  from'  all 
obligations  under  it."  No  cash  was  paid,  but 
four  notes  were  given  by  the  husband :  one 
for  half  the  premium,  and  the  other  three 
equal  sums  each  for  the  other  half,  payable  at 
three,  six  and  nine  months,  respectively.  They 
contained  an  agreement  that  in  case  of  non- 
payment at  maturity,  the  policy  should  be- 
come void.  The  note  which  matured  in  three 
months  was  overdue  when  the  husband  died. 
Held,  insurers  were  released.  Baker  v.  Union 
Life  Ins  Co.,  43  N.Y.  (4  Hand),  283;  s.  c,  6 
Abb.  Pr.  (N.  S),  144;  37  How.  Pr.,  126. 

0.  The  policy  lapsed  for  a  failure  to  pay 
premiums  due  in  September  and  December, 
1869,  and  March,  1870.  On  the  28th  cf  the 
last  month  the  premiums  were  paid  and  re- 
ceived, and  the  person  for  whose  benefit  the 
policy  was  made  signed  a  paper  stating  that 
insured  was  then  well  and  in  as  good  health 
466 


as  when  first  examined.  It  appeared  she  ha(J 
a  severe  attack  of  inflammatory  rheumatism  in 
February  preceding,  which  resulted  in  disease 
of  the  heart,  and  from  which  she  died  withia 
six  days  after  the  premium  was  paid.  Held, 
the  policy  was  void.  Harris  v.  EquitaUe  Life 
Ass.  Soc,  3  Hun.  (N.  Y.),  724;  s.  c,  6  N.  Y.  S. 
C,  108 ;  affirmed,  13  Abb.  L.  J.,  248. 

7.  R.  made  insurance  upon  his  life,  and  as- 
signed the  policy  to  his  wife,  whicli  stipu- 
lated: "A  failure  to  pay  any  note  given  for 
the  premium,  shall  render  the  policy  void." 
December  11,  1869,  about  six  months  after  the 
assignment,  she  delivered  her  husband'.s- 
promissory  note  for  1120.84,  payable  four 
months  after  date,  without  grace,  in  part  pay- 
ment of  the  premium,  upon  which  there  was- 
a  printed  clause  providing  that  the  policy 
should  be  void  if  the  note  should  not  be  paid 
at  maturity.  .The  money  mentioned  in  the 
note  was  tendered  April  12,  1870,  but  defend- 
ant refused  it.  Her  husband  died  August  9th, 
same  year.  Held,  insurers  were  rele.ased. 
Roehner  v.  Knickerbocker  Life  Im.  Co.,  4  Daly, 
512. 

8.  Permission  to  reside  south  expired  Julj- 
1,  1870,  and  the  premium  was  due  October  27, 
1870.  A  person  was  sent  to  pay  it.  The 
agent  in  charge  of  the  business  required  an 
additional  premium  of  two  and  a  half  per 
cent.,  because  the  insured  was  then  at  New 
Orleans.  The  agent  was  asked  if  he  would 
keep  the  policy  alive  till  next  day,  until  the 
person  who  sent  him  could  be  seen.  The 
agent  said  he  would.  On  the  following  day, 
the  whole  premium  was  oftered  to  the  com- 
pany, including  the  sum  required  for  residence 
in  the  South,  and  it  was  refused.  Held,  the 
policy  ceased  to  have  any  valid  force  after 
July  1,  1870;  that  the  agreement  of  the  agent 
to  hold  it  good,  from  the  time  the  annual 
premium  became  due  to  the  following  day, 
was  not  binding,  because  it  was  without  con- 
sideration. Evans  v.  United  States  Life  Ins. 
Co.,  3  Hun.  (N.  Y.),  587;  s.  c,  6  N.  Y.  3  C, 
331. 

9.  The  premiums  were  to  be  paid  on  or  be- 
fore  the  25th  days  of  October,  January,  and 
April,  then  next,  and  an  annual  premium  oa 
or  before  July  2oth.  Stipulated :  "  To  be  void 
in  case  the  premiums  shall  not  be  paid  at 
maturity."  The  premiums,  which  fell  due  in. 
April  and  Jul)'  respectively,  were  not  paid, 
but  the  plaintiff  took  the  policy  to  the  insurer's- 


933 


PAYMENT  OF  PREMIUM, 


931 


When  nonpayment  is  fatal  to  Mcovery. 


oflBce  on  the  last  day  of  July,  and  speaking  to 
a  cleik  who  was  behind  a  desk  in  the  office, 
inquired  wliether  the  premium  had  been  paid. 
lie  took  the  policy,  examined  a  large  book, 
and  said  it  had  not  been  paid.  Slie  asked 
him  if  she  could  pay  tliem,  and  he  replied, 
"  Certainly  you  can."  He  made  a  memoran- 
dum of  the  amount  on  the  policy,  and  she 
said  that  she  would  carry  the  money  to  the 
office  on  the  following  day,  to  which  he  re- 
plied, "  I  will  save  you  the  trouble,  I  pass  by 
your  house  every  day."  He  called  at  her 
house,  took  the  money,  and  delivered  to  her 
two  receipts,  upon  the  face  of  which  it  was 
expressed  they  should  not  be  valid  unless 
countersigned  by  H.,  who  was  the  clerk 
spoken  to.  He  countersigned  them  before  de- 
livery, of  all  which  the  company's  secre- 
tary was  subsequently  informed ;  but  it  ap- 
peared that  n.  had  no  authority  to  receive 
premiums  upon  forfeited  policies,  and  no 
proof  was  given  to  show  that  he  h.ad  author- 
it'  to  sign  the  name  of  the  secrelarj'  to  re- 
ceipts given  by  him.  Held.,  the  evidence  was 
not  sufficient  to  entitle  the  plaintifT  to  recover. 
Kolgera  v.  Chinrdinn  Life  Ins.  Co.,  2  Lans., 
480;  s.  c,  58  Barb.,  185;  9  Abb.  Pr.  (N. 
S.),  91. 

10.  The  pliiintifT  neglected  to  pay  one  (;f 
the  assessments  on  his  premium  note.  The 
policy  provided:  "In  case  the  insured  shall 
neglect  to  pay  any  assessment,  the  insurance 
shall  be  void."  Held,  the  parties  may  insert 
what  conditions  they  please  in  a  policy,  so 
long  as  they  are  not  contrary  to  public  policy, 
therefore  the  policy  was  void.  Beadle  v.  Che- 
nango County  Mut.  Ins.  Co.,  3  Hill,  161. 

11.  Stipulated:  "No  insurance  shall  take 
effect  until  the  cash  premium  is  actually  paid 
at  the  office  of  the  company;  and  every  agent 
or  other  person  forwarding  applications  or 
receiving  premiums  is  the  agent  of  the  appli- 
cant and  not  of  the  company."  The  applica- 
tion was  made  through  B..  who  received  the 
policy,  delivered  it  to  plaintiff,  and  received 
the  premium;  but  he  did  not  ofler  to  pay  it 
over  to  the  company  till  after  the  loss  oc- 
curred. B.  had  an  account  with  the  company, 
which  he  settled  monthly.  Insurers  rendered 
their  account  at  the  end  of  the  month  as  usual, 
but  did  not  include  premium  for  this  policy, 
upon  which  a  loss  li.id  occurred.  He  called 
their  attention  to  tlie  omission,  and  tendered 
the  premium,  but  they  refused  it.    Held,  not  a 


a  completed  contract.  Mulrey  v.  SJiawmut 
Mutual  Fire  Ins.  Co.,  4  Allen,  IIG. 

12.  Stipulated:  "To  be  void  on  failure  to 
p!iy  the  premium  on  or  before  the  several  days 
when  the  same  shall  become  due,  or  shall  fail 
to  pay  when  due,  any  notes  or  other  obliga- 
tions given  for  the  premium."  A  promissory 
note  was  given  for  a  part  of  the  premium  due 
April  15,  18G7.  It  was  unpaid  when  insured 
died,  May  22,  18G7.  Held,  insurers  were  dis- 
charged.  Pitt  v.  Berkshire  Life  Ins.  Co.,  100 
Mass.,  ,500. 

1 .3.  A  failure  to  pay  the  annual  premium  at 
the  time  when  it  becomes  due,  avoids  the  pol- 
icy, and  the  statute  of  1861,  ch.  186,  cannot  be 
invoked  to  aid  insured,  where  the  policy  was 
issued  prior  to  the  passage  of  the  law.  Sfmio 
V.  BerkshireLife Ins.  Co.,  103  Mass.,  254. 

14.  The  person  whose  life  was  insured, 
obtained  "permission  to  navigate  as  a  mari- 
ner, or  officer,  between  Boston,  Philadelphia 
and  Baltimore,  on  the  prior  payment,  auy 
year,  of  an  additional  premium  of  five  dol- 
lars." He  paid  the  first  additional  premium, 
the  year  terminating  August  4,  1869.  Held, 
a  failure  to  pay  the  additional  premium  for 
the  year  beginning  August  4,  1870,  and  being 
employed  in  the  summer  and  autumn  of  that 
year  as  a  steamboat  engineer  between  Boston 
and  Hingham,  avoided  the  policj'.  Ayre  v. 
New  England  Mutual  Life  Ins.  Co.,  109  Mass., 
430. 

1.5.  The  plaintiff  employed  a  broker  to 
effect  the  insurance.  He  prepiired  the  appli- 
cation, delivered  it  to  defendant's  agent,  and 
received  the  policy,  which  stipulated:  "No 
insurance  proposed  is  to  be  considered  in 
force  until  tlie  premium  is  actually  paid." 
The  plaintiff  said  to  the  broker,  it  was  not  con- 
venient to  pay  the  premium,  but  if  he  was  not 
safe  he  would  get  the  money.  The  broker 
exhibited  the  policy  and  replied,  it  would  be 
safe  for  thirty  days.  Plaintiff  asked  him  to 
keep  the  policy.  The  property  was  burned 
within  that  time.  /jTsW,  the  broker's  willing- 
ness to  give  credit  did  not  make  the  contract 
binding;  hence  there  was  no  contract.  Mar- 
land  V.  Royal  Ins.  Co.,  71  Penn.  St.,  393. 

16.  The  consideration  was  a  sum  certain 
paid  upon  the  delivery  of  the  policy,  and  alike 
sum  quarterly  thereafter  in  each  and  every 
year  in  advance.  Stipulated:  "And  in  case  it 
shall  not  be  paid  on  or  before  the  several  days 
specified,  the  policy  shall  be  void."     A  pr& 

467 


935 


PAYMENT  OF  PREMIUM. 


936 


When  nonpayment  is  fatal  to  recovery. 


mium  became  due  September  8,  1865,  which 
was  not  tendered  until  October  1st,  following. 
The  agent  then  refused  to  receive  it,  becau.se 
the  person  whose  life  was  insured  was  then  ill, 
from  which  illness  she  never  recovered.  Held, 
insurers  were  released,  unless  there  was  evi- 
dence that  they  had  waived  prompt  payment. 
Catoir  v.  American  Life  Im.  and  Trust  Co.,  33 
N.  J.,  487.  And  evidence  that  the  defendant's 
general  agent  had  consented  to  receive  the 
premium  after  it  became  due,  and  had  prom- 
ised to  accept  it  and  to  deliver  the  receipt,  was 
not  binding  upon  the  company,  because,  by 
the  terms  of  the  policy,  it  was  expressly  stated 
that  the  agent-had  not  authority  to  waive  for- 
feitures.   Ibid. 

1 7.  The  by-laws  provided :  "  If  the  insured 
shall  neglect  for  the  space  of  ten  daj's,  when 
personally  called  upon,  to  pay  any  premium 
or  assessment,  the  policy  shall  be  suspended 
until  the  same  is  paid;  but  if  the  insured  shall 
refuse  to  pay  any  assessment,  the  directors  may 
terminate  the  same  "by  giving  notice  in  writ- 
ing, provided  such  termination  shall  not  affect 
the  validity  of  the  policy  or  note  so  far  as  re- 
spects past  dues."  In  the  month  of  Maj', 
1855,  a  stage  driver  saw  insured  and  presented 
a  paper  purporting  to  be  an  assessment  made 
by  insurer  against  insured,  and  stated  that  he 
had  received  it  from  the  company's  agent  at 
Augusta.  Insured  said  he  would  have  some 
money  in  a  few  days,  and  would  settle  it.  The 
bill  was  subsequently  returned  unpaid.  A  loss 
occurred,  and  insurer  collected  the  assessment. 
Held,  insurer  was  not  liable.  Nash  v.  Union 
Mut.  Ins.  Co.,  43  Me.,  343. 

18.  In  consideration  of  .f  IGO,  to  be  paid  by 
insured  within  fittcen  days  from  the  date  of 
the  policy,  November  11, 1867,  insurers  agreed 
to  make  good  all  such  loss  or  damage  to  the 
property  described,  for  one  year  from  that 
date;  stipulated:  "  The  company  shall  not  be 
jeld  liable  until  the  premium  is  actually 
paid;"  also:  "If  the  premium  is  not  paid 
within  fifteen  days  from  its  date,  the  policj- 
shall  be  null  and  void."  A  loss  occurred 
within  tifteeu  days  from  its  date,  and  the  pre- 
mium was  tendei'ed  within  that  time.  Held, 
the  policy  did  not  attach  until  payment  of  the 
premium,  and  the  company  was  not  bound  to 
take  it  after  the  loss  occurred.  Bradley  v.  Po- 
tomac Fire  Ins.  Co..  33  Md.,  108. 

19.  Insurers  made  an  endowment  policy 
upon  the  life  of  Charles  at  the  age  of  twenty- 

468 


four,  in  favor  of  his  wife,  payable  to  her  when 
he  should  attain  the  age  of  forty  years,  or  at 
his  death,  should  it  occur  sooner,  for  the  con- 
sideration  of  an  annual  premium  of  $279,  pay- 
able on  or  before  February  21st  in  each  and 
every  year.  Two  annual  premiums  were  pai>I, 
partly  in  cash,  and  partly  by  two  notes.  Short, 
ly  after  the  payment  of  the  last  premium  the 
policy  was  surrendered,  and  another  for  about 
one-eighth  the  value  of  the  former  was  made 
and  delivered,  in  the  margin  of  which  was 
this  condition-  "This  policy  is  conditional 
on  tlie  interest  on  two  notes,  given  in  part  pay- 
ment for  two  premiums  paid  on  No.  10,608, 
being  paid  in  advance."  Held,  the  matter 
stated  in  the  margin  was  a  part  of  the  con- 
tract,  and  a  failure  to  pay  the  interest  accord. 
ing  to  the  terms  of  the  notes  released  insurers. 
Patch  V.  PhcBwix  Mutual  Life  Ins.  Co.,  44  Vt., 
481. 

20.  Stipulated:  "  If  the  insured  shall  neglect 
for  the  space  of  ten  daj-s  to  pay  any  assess- 
ment demanded,  the  policy  shall  be  suspended 
till  the  assessment  is  paid."  Held,  if  the  loss 
occurred  after  the  expiration  often  days  from 
demand,  and  before  payment  of  the  assess- 
ment, no  recovery  could  be  had.  Blanchird 
V.  Atlantic  Mutual  Fire  Ins.  Co.,  33  N.  H.,  9. 

21.  Application  made  for  insurance.  $4,200, 
on  goods  from  Natchez  to  Alexandria.  In- 
surers' president  accepted  the  risk,  made 
the  policy  November  10,  1834,  and  laid  it 
aside  for  the  applicant.  Before  the  appli- 
cant called  for  it  or  paid  the  premium,  the 
goods  were  totally  lost.  It  was  a  rule  of  the 
defendant  not  to  consider  an  insurance  effected 
until  payment  of  the  premium  or  delivery  of 
the  policy,  and  a<;op3'  of  this  rule  was  kept 
constantly  displaj-ed  in  the  office.  Held,  not 
a  completed  contract.  Flint  v.  Ohio  Ins.  Co., 
8  Ohio,  501. 

22.  Stipulated:  "The  annual  premium  shall 
be  payable  on  the  day  named,  and  in  case  it 
is  not  paid,  the  policy  shall  be  null  and  void, 
and  wholly  forfeited;"  also  stipulated:  "No 
agent  of  the  company,  except  the  president  or 
secretary  can  waive  any  forfeiture  or  alter 
this  or  any  other  condition  of  the  policy." 
The  agent  stated  that  he  was  absent  when  the 
premium  became  due,  December  1st ;  that  the 
insured  executed  a  premium  note  for  .^6,  and 
a  cash  note  for  $8,  but  no  money  was  paid ; 
that  the  insured  requested  him,  when  he  was 
about  to  remit  to  the  company,  to  call  and  get 


037 


PAYMENT  OF  PREMIUM. 


938 


When  nonpayment  is  fatal  to  recovery. 


tlio  money,  which  the  agent  promised  to  do; 
that  lie  called  for  the  money,  hut  the  insured 
was  very  busy  at  that  time,  co\i!d  not  leave 
what  he  was  doing  and  asked  .agent  to  call 
again  when  he  was  making  liis  next  remit- 
tance; that  when  he  made  his  next  remittance 
he  forgot  to  call.  While  insured  was  in  a 
dying  condition  the  agent  informed  some  of 
the  friends  of  the  insured  of  the  facts  in  regard 
to  the  last  premium.  It  was  then  paid  and 
remitted,  tli,e  agent  delivering  the  receipt 
antedated.  Held,  the  policy  was  invalid  at 
the  time  of  his  death ;  that  the  evidence  in 
the  case  did  not  show  lliat  the  company  were 
estopped  to  make  this  defense.  Union,  Mutual 
Life  Ins.  Co.  v.  McMiUen,  24  Ohio  St.,  67. 

a3.  Stipulated:  "In  case  the  premium  shall 
not  he  paid  on  or  before  the  time  herein  men- 
tioned for  tlie  payment  of  the  same,  the  com- 
pany shall  not  be  liable  for  the  payment  of 
the  sum  insured  or  any  part  thereof;  and  on 
nonpayment  ol  any  such  premium,  or  note,  or 
security,  or  any  part  thereof  when  due,  all 
claims  of  the  policy  shall  be  forfeited  to  said 
company,  and  the  policy  shall  be  void."  A 
premium  note  to  mature  August  22,  1855,  was 
received  for  a  part  of  the  premium,  hut  the 
note  was  not  paid  at  maturity.  There  had 
been  neither  demand  lor  payment,  nor  offer 
to  make  payment,  when  insured  died.  Held, 
the  recital  of  the  policy,  that  the  premium 
for  the  first  year  had  been  paid,  was  not  con- 
clusive, because  the  indorsement  shows,  that 
notwithstanding  the  recital  of  a  credit  being 
contemplated  and  given,  the  policy  was  to  be 
void  iu  case  the  premium  note  should  not  be 
paid.  Robert  u.  New  Enyland  Life  Ins.  Co.,  1 
Disney,  355. 

24.  Term  policy  on  schooner.  Stipulated: 
"And  in  c;ise  the  notes  or  obligations  given 
for  the  premium  therefor  or  any  p:irt  thereof, 
be  not  paid  at  maturity,  the  full  amount  of  the 
premium  shall  be  considered  as  earned,  and 
this  policy  becomes  void  w-hile  said  past  due 
notes  or  obligations,  or  any  part  thereof, 
remain  overdue  and  unpaid."  Insured  gave 
an  indorsed  note  for  the  premium,  upon 
which  was  a  memorandom  substantially  like 
the  stipulation  set  out  in  the  policy.  The  note 
became  due  October  30th;  she  was  lost  No- 
vember 12th,  and  on  the  19th,  insurer's  agent, 
with  notice  of  the  loss,  accepted  payment  of 
the  note,  surrendered  it  and  remitt.-d,  the 
money  to  insurers.    Jield,  the  policy  was  in- 


effectual at  the  time  the  loss  occurred;  taking 
the  money  did  not  make  insurers  liable  for 
the  loss.  Williams  v.  Albany  City  Ins.  Co.,  19 
Mich.,  451 ;  Williams  v.  Jiepuhlic  Ins.  Co.,  id., 
4G9. 

2^.  Stipulated  :  "  If  the  said  premiums  sliall 
not  be  paid  on  or  before  the  d;i}'S  nicntioned 
for  the  payment  thereof,  at  the  office  of  the 
company  in  the  city  of  New  York,  or  to 
agents  when  they  produce  receipts  signed  by 
the  president  or  secretary,  then  and  in  eveiy 
such  case,  the  company  shall  not  be  li;ible  for 
the  payment  of  the  sum  insured."  Held,  a 
failure  to  pay  the  premiums  without  showing 
any  legal  excuse  was  fatal  to  the  plaintiff's 
case.  Williams  v.  Washington  Life  Ins.  Co.,  81 
Iowa,  541. 

26.  The  policy  stipulated  that  the  premiums 
should  be  paid  April  lOtli,  annually,  and  if 
they  were  not  then  paid,  the  company  should 
not  be  liable  for  the  insurance  or  any  part 
thereof,  and  the  policy  should  cease  and 
determine.  By  the  prospectus  delivered 
by  the  company's  agents  to  insured  it  was 
stated,  "a  party  neglecting  to  pay  his  prem- 
ium within  thirty  days  after  it  becomes 
due  forfeits  the  interest  he  has  in  the  policy." 
The  premium  which  became  due  April  10, 
1847,  was  not  paid  at  that  time.  Insured  died 
four  days  after;  but  within  the  thirty  days 
mentioned  in  the  prospectus,  the  premium 
was  tendered  to  the  company's  agent.  Held, 
the  prospectus  was  inadmissible  to  extend  the 
terms  and  obligations  of  the  contract,  that  the 
policy  was  in  force  up  to  April  10, 1847,  and 
on  that  day  it  ceased  and  determined  because 
the  premium  then  due  was  not  paid,  and  in- 
sured had  no  more  right  to  call  upon  the  com- 
pany for  the  insurance,  than  he  had  to  call 
upon  any  other  company  or  citizen  for  it  (cit- 
iug  Tarleton  v.  Staniforth,  5  Term,  695).  3fut- 
ual  Benefit  Ins.  Co.  v.  Ruse,  8  6a.,  534. 

27.  A  premium,  which  became  due  April 
25,  1870,  was  not  paid  at  the  time  the  in- 
sured died,  but  the  plaintiff  offered  evidence  to 
prove  that  prior  to  the  execution  and  deliv- 
ery  of  the  policy  one  Laird,  acting  as  the 
agent  of  the  comp;in}',  told  deceased  that  it 
would  make  no  difference  if  the  premiums 
were  not  paid  regularly  to  the  day,  and  evi- 
dence was  also  given  of  the  company's  custom 
to  receive  payment  of  premiums  after  the  day 
of  payment  had  expired  from  living  persons 
insured.    Held,  the  policy  was  void  for  non- 

469 


939 


PAYMENT  OF  PREMIUM. 


940 


When  nonpayment  is  fatal  to  recovery. 


payment  of  the  premium ;  that  proof  of  a  cus- 
tom to  alh)\v  persons  who  were  living  to  pay 
overdue  premiums  was  not  evidence  of  a 
custom  to  receive  premiums  when  the  com- 
pany had  notice  that  the  person  insured  was 
dead.  Sullican  v.  Cotton  States  Life  Ins.  Co., 
43  6a.,  433. 

28.  The  agent  took  to  his  own  order  a  note 
of  insured  for  tlie  cash  portion  of  t:ie  first 
premium  and  delivered  a  receipt  showing  thai 
insured  was  entitled  to  a  policy  for  $5,000  if 
the  company  accepted  his  application,  but  if 
it  should  be  rejected  then  the  note  was  to  be 
returned  and  the  receipt  canceled.  A  policy 
was  issued  and  sent  to  the  agent  whenever  de- 
livered it.  The  note  was  not  paid  at  matu- 
rity;  the  second  annual  premium  became 
due,  insured  neglected  to  pay  it,  and  died. 
Held,  it  was  unnecessary  to  determine  what 
the  rights  of  the  parties  would  have  been  had 
insured  died  before  the  second  premium  be- 
came due;  but  when  it  became  due  and  was 
unpaid  the  policy  lapsed  and  no  recovery 
could  be  had  on  it.  Securiti/  Life  Ins.  Co.  v. 
Gobcr,  50  Ga.,  404. 

29.  Stipulated :  "  If  the  note  given  for  the 
cash  premium,  or  any  premium,  or  auy  part 
thereof,  shall  remain  unpaid  and  past  due  at 
the  time  of  such  loss  or  damage,  this  policy 
shall  be  void  and  of  no  effect."  Insured  gave 
a  premium  note  to  insurer's  agent,  and  insur- 
ers gave  him  notice  when  the  note  would  ma- 
ture, and  that  he  must  psiy  his  premium  and 
save  his  policy.  The  agent  to  whom  he  de- 
livered the  note  was  indebted  to  insured  and 
promised  to  pay  the  note  for  him,  but  failed  to 
do  so.  Held,  he  could  not  recover.  Ferebee 
V.  North  Carolina  Home  Ins.  Co.,  68  N.  C ,  11. 

30.  Stipulated:  "Not  binding  till  counter- 
signed by  its  autliorized  agent  or  officer  C,  or 
sucli  subagent  as  may  be  designated  by  him, 
and  the  advance  premium  paid."  C.  informed 
insured  under  date  April  12th,  tliat  the  policy 
!iad  been  received,  and  directed  the  premium 
to  be  sent  either  by  express  or  post  office  order 
to  him.  Insured  was  taken  sick  May  11th, 
and  on  that  day  a  package  of  money,  the  pre- 
mium, was  directed  to  C.  Insured  died  May 
13th,  C.  received  the  money  June  3d,  and  di- 
rected the  policy  to  be  sent  to  insured.  It  was 
countersigned  June  17th  and  forwarded  to  the 
late  residence  of  insured,  in  complete  ignor- 
ance of  liis  deatli.  Held,  the  contract  was  not 
consummated  till  the  payment  of  the  premium 

470 


May  11th;  it  was  the  duty  of  insured  to  com- 
municate to  the  company  any  material  change 
taking  place  in  his  health,  between  the  time 
of  making  the  application  and  tlie  transmis- 
sion of  the  premium;  hence  plaintiff  was  not 
entitled  to  recover.  Whitley  v.  Peidmont  and 
Arlington  Life  Ins.  Co.,  71  N.  C,  480. 

31.  A.,  local  agent  for  the  insurer,  held  a 
policy  on  his  own  life.  The  annual  premium 
was  payable  March  5,  1871,  thirty  days  of 
grace  being  allowed  within  whicli  the  premi- 
um might  be  paid,  at  the  entire  option  of  the 
company.  April  3,  1871,  he  inclosed  the  pre- 
mium  to  the  general  agent,  at  which  time  he 
was  quite  sick,  and  continued  to  grow  worse 
till  the  7th,  when  he  died.  The  package  of 
money  was  made  up  to  be  sent  by  express,  A. 
being  also  the  agent  of  the  express  company. 
It  was  accidentally  delayed  until  the  10th,  and 
was  received  b}'  the  general  agent  on  the  same 
day.  Held,  the  insurers  were  discharged. 
Donald  v.  Life  Ins.  Co.,  4  So.  Car.,  321. 

32.  On  steamboat.  Stipulated:  "In  case 
auj'  note  or  obligation  given  for  the  premium 
on  this  risk  shall  not  be  paid  at  maturity,  such 
failure  of  payment  shall  terminate  this  insur- 
ance, and  said  note  or  obligation  shall  be  con- 
sidered the  premium  for  the  risk  thus  termi- 
nated. The  policy  acknowledged  the  receipt 
of  Chas.  Muhleman's  note  as  the  consideration, 
payable  at  nine  months,  but  the  note  delivered 
was  signed  "steamer  Potomac  and  owners,  per 
Chas.  Muhleman."  It  was  not  paid  at  matur- 
ity, and  while  it  remained  unpaid  she  was  lost. 
After  the  loss,  the  money  was  tendered  to  a 
clerk  of  insurers,  who  received  it  under  pro- 
test. Held,  the  policy,  by  its  terms,  ceased  to 
be  operative  when  the  note  became  due  and 
unpaid;  that  the  receipt  of  the  money  by  the 
clerk  did  not  cure  the  forfeiture;  hence  insur- 
ers  were  discharged.  Muhleman  v.  National 
Ins.  Co.,  6  W.  Va.,  508. 

33.  The  premium  was  not  paid,  but  the 
practice  was  to  give  a  credit  of  about  thirly 
days.  Insured  paid  one-third  of  it,  and  insur- 
er notified  him  that  if  tlie  balance  should  not 
be  paid  within  twelve  daj-s,  the  policy  would 
be  canceled.  It  was  not  paid  within  that 
time,  and  the  premises  were  burned  eight  or 
ten  days  later.  The  policy  gave  insurer  the 
right,  for  any  cause,  to  cancel  the  policy  by 
refunding  the  unexpired  pronium  pro  rata. 
Held,  the  company  had  a  right  to  rescind  tlie 
contract;  that  the  money  not  being  paid  at  the 


<»41 


PAYMENT  OF  PREMIUM. 


912 


When  nonpajTuent  is  fatal  to  recovery. 


time  mcnlioned,  no  further  act  was  necessary 
to  perfect  tlie  rescission.  Benjsoii  v.  Builders 
Ins.  Co.,  38  Cal.,  541. 

34.  A  poHcy  issued  October  31,  18G7,  stip- 
ulated: "In  consideration  of  $207.21  in  liand 
jiaiii  and  of  the  sum  of  !f2G7.21  to  be  i)aid  on 
or  before  tlie  last  days  of  February-  and  June 
next,  and  of  all  loans  and  interest  made  upon 
this  policy  at  any  time,  and  of  the  annual 
premium  of  $1,202.45,  to  be  paid  on  or  before 
October  31st  in  every  year  during  the  contin- 
uance of  this  policy,  or  within  thirty  days 
after  the  several  payments  as  above  shall  be 
due  and  payable,  or  with  the  consent  of  the 
company  half  or  quarterl}-  or  thrice  yearly 
in  advance  with  interest,  one-third  of  which 
inay  be  indorsed  as  a  loan,  do  insure  the  life 
of  B.  C.  H.,  etc.,  15,000  to  be  paid  within 
ninety  days  after  due  notice  and  satisfactory 
evidence  of  death,  any  balance  of  the  yeal's 
premium,  when  not  all  paid  at  the  commence- 
ment of  the  year,  or  any  indebtedness  to  the 
company  on  account  of  this  policy  being  first 

•  deducted."  Insured,  with  the  consent  of  the 
company,  elected  to  pay  the  premium  thrice 
yearly.  He  paid  one  premium,  but  failed  to 
pay  that  which  became  due  the  last  of  Febru- 
tiry,  1870 ;  and  on  April  21st  tendered  it  to  the 
.company,  who  declined  to  receive  it.  He 
■died  May  6th.  Held,  a  credit  was  not  given 
for  the  second  and  third  installments;  that 
the  clause  which  gave  insurer  the  right  to 
■deduct  any  indebtedness  under  the  policy  was 
satisfied  by  the  circumstance  that  one  third  of 
«ach  year's  premium  could  be  indorsed  as  a 
loan,  but  insured  was  not  released  from  paj-ing 
any  installment  when  it  became  due  by  the 
terms  of  the  contract;  the  right  to  deduct  any 
installment  not  due  at  death  could  not  be  con- 
strued to  compel  the  insurer  to  pay  the  sum 
insured  with  the  right  to  deduct  an  install- 
ment overdue  when  death  occurred.  Howard 
t.  Continentnl  Life  Ins.  Co.,  48  Cal.,  229. 

35.  Policy  for  an  annual  premium  of  £33, 
payable  by  quarterly  installments  of  £8  5s. 
«ach.  Stipulated:  "If  the  insured  shall  die 
before  the  whole  of  the  quarterly  p.iyment 
shall  become  payable,  it  shall  be  lawful  for 
the  insurer  to  deduct  and  retain  from  the  sum 
insured  so  much  as  shall  be  sufBcient  to  paj' 
and  satisfy  the  whole  of  the  premium  for  that 
je_ar,  reckoning  the  year  to  commence  from 
August  2d."  The  third  quarterly  payment 
■became  due  and  was  unpaid  at  the  time  of  the 


death  of  the  person  insured.  Held,  it  was  a 
policy  from  quarter  to  quarter,  leaving  the  in- 
sured  at  liberty  to  drop  it  at  the  end  of  any 
quarter,  hence  thei-e  was  no  continuing  liabil- 
ity on  the  company,  unless  the  quarterly  pre- 
mium was  paid  at  the  lime  it  became  due. 
Sheridan  v.  Phainijs  Life  Ass.  Co.,  El.  Bl.  & 
El.,  1,50;  4  Jur.  (N.  S.),  831;  27  L.  J.  Q.  B., 
227;  7  W.  R.,  106;  reversed  in  Exchequer, 
wherein  it  was  held  that  the  contract  was  an 
annual  insurance,  and  not  from  quarter  to 
quarter:  that  the  insurer  had  the  right  to  de- 
duct from  the  sum  insured  the  quarterly  pre- 
miums not  paid  (s.  c.  El.  BI.  &  El.,  159;  28  L. 
J.  Q.  B.,  94;  5  Jur.  X.  S.,  142).  But  this  was 
reversed,  and  the  judgment  of  the  Q.  B.  .af- 
firmed. Phmnii  Life  Ass.  Co.  v.  Sheridan,  8 
H.  L.  Gas.,  745;  s.  c,  7  Jur.  (N.  S.),  174;  31  L. 
J.  Q.  B.,  91 ;  3  L.  T.  (N.  S.),  564;  3  El.  &  El., 
763.' 

36.  Against  accidental  death,  premium  pay- 
able Januar}'  22d,  in  each  year,  for  one  year 
ending  January  22,  1852;  to  be  extended. 
"  Provided  the  insured,  on  or  before  or  within 
twenty -one  days  after  January  22, 1852,  and  on 
or  before  or  within  twentj'-one  days  after  .Jan- 
uary 22d,  in  every  succeeding  year,  so  long  as 
the  acting  directors,  for  the  said  company, 
shall  accept  the  same,  shall  pay  or  cause  to  be 
paid  to  the  insurers  the  annual  premium,  etc., 
the  insurers  will  jiay  the  sum  insured  within 
three  calendar  months  after  death  from  acci- 
dent or  violence;  if  the  premium  shall  be  un- 
paid  for  twenty-one  days  next  after  it  shall  be- 
come due,  the  policy  shall  be  absolutely  void, 
and  the  insured  shall  forfeit  all  claim  there- 
under; and  in  every  case  when  the  premium 
shall  become  due,  the  directors  shall  be  at  lib- 
erty to  terminate  the  risk  bj'  refusing  to  ac- 
cept such  premium."  The  premium  due  Jan- 
uary 22,  1856,  was  not  paid,  and,  on  the  27th 
following,  an  accident  happened  which  caused 
death  February  1st.  Held,  there  was  no  right 
to  keep  the  policy  alive,  by  payment  or  ten- 
der of  the  premium,  within  twenty-one  days 
after  it  became  due,  because,  by  the  terms  of 
the  contract,  the  directors  could  refuse  to  re- 
ceive it,  and  terminate  the  risk  at  the  end  of 
the  year;  but  if  that  were  otherwise,  a  failure 
to  tender  it  (there  was  none)  within  twenty, 
one  days  settled  the  question.  Simpson  v.  Ac- 
cidental Death  Ins.  Co.,  2  C.  B.  (N.  S.),  257; 
8.  c,  3  Jur.  (N.  S.),  1079;  26  L.  J.  C.  P.,  289. 

37.  Stipulated:    "To  be  void   if  the  pre- 

47 1 


04S 


PAYMENT  OF  PREMIUM. 


944 


When  nonpayment  is  fatal  to  recovery. 


miums  shall  not  be  pp.id  within  tliiity  days 
after  they  shall  respectively  become  due,  but 
the  policy  may  be  revived  within  three  cal- 
endar months,  on  satisfactory  proof  of  the 
health  of  the  life  insured,  and  payment  of  a 
certain  fine."  Premium  became  due  October 
13,  1855.  The  person  insured  died  November 
13tli  following.  The  plaintitf,  for  whose  ben- 
efit Iho  policy  was  effected,  teudered  the  pre- 
mium on  the  14tb,  which  was  received,  and 
for  which  a  receipt  was  given,  both  parties 
being  ignorant  of  the  death.  Held,  the  re- 
ceipt of  the  premium  did  not  revive  the  pol- 
icy; that  payment  of  it  within  thirty  days 
after  it  became  due,  but  after  the  death  of  the 
person  insured,  was  not  a  compliance  witli  the 
condition.  Pritchard  v.  Merchants  and  Tra- 
ders Mutual  Life  Ins.  Co.,  3  C.  B.  (N.  S.),  622; 
s.  c,  4  Jur.  (N.  S.),  307;  27  L.  J.  C.  P.,  169. 

38.  "From  November  11,  1802,  to  Decem- 
ber 25,  1803,  premium  to  be  paid  yearly,  on 
December  25th,  and  to  continue  so  long  as  in- 
sured shall  pay,  and  directors  shall  accept  the 
premium,  to  be  paid  witliin  fifteen  days  after 
the  day  limited,  upon  pain  of  forfeiture.  No 
insurance  to  take  effect  till  payment  of  pre- 
•  raium."  By  advertisement,  made  part  of  the 
policy  by  agreement,  insurers  engaged  that  all 
persons  insured  for  one  j'ear  or  more  should 
be  considered  insured  for  fifteen  days  beyond 
the  date  their  policies  would  expire.  A  loss 
happened  within  fifteen  days  after  December 
25,  1803,  at  which  time  the  premium  had  not 
been  paid,  but  it  was  tendered  immediately 
and  refused.  Held,  no  contract  existing  at  the 
tine  of  the  loss;  insurers  had  the  right  to  ac- 
cept or  refuse  it  Salcin  v.  James,  6  East,  571; 
Tarleton  ■c.  Staniforth,  5  Term,  095;  1  B.  &  P., 
470;  affirmed  in  Exch.,  3  Anst.,  707. 

.S9.  Stipulated :  "  That  if  any  member  shall 
neglect  to  pay  the  quarterly  premiums  for 
fifteen  days  after  they  are  due,  it  shall  be  de- 
clared void,  unless  the  member,  continuing  in 
as  good  health  as  when  the  policy  expired, 
shall  pay  the  arrears  within  six  months,  and 
five  shillings  per  month  extra."  The  life  in- 
sured expired  when  a  quarterly  payment  was 
overdue ;  b'ut  his  executor  tendered  tlie  sum 
within  fifteen  days  after  it  was  due.  Held, 
the  terms  of  the  policy  required  the  payments 
to  be  made  during  the  lifetime  of  the  person 
insured,  and  while  in  as  good  health  as  he  %vas 
when  the  policy  expired.  Want  v.  Blunt,  12 
East,  183.  . 

473 


40.  Tlie  policy  was  effected  through  tlie 
company's  agent  at  Hull;  the  premium, 
payable  March  15,  1833,  was  not  in  fact 
paid  till  the  12th  day  of  April,  following, 
to  the  agent,  who  gave  the  usual  receipt 
for  one  year  from  March  15,  1833.  At  the 
foot  of  the  receipt  was  the  following:  "If 
this  receipt  be  not  taken  up  within  fif- 
teen dajs  from  the  day  the  premium  be- 
comes  due,  it  must  be  returned  to  the  office, 
as  after  that  period,  the  insurance  being  can- 
celed, the  several  receipts  will  be  of  no  avail. 
(See  conditions  of  insurance  in  the  printed 
proposals  of  the  company.;"  The  agent  was- 
required  to  give  immediate  notice  to  the  office 
of  all  premiums  not  paid  within  fifteen 
days  after  due,  and  omitting  so  to  do,  they 
were  to  be  treated  by  the  company  as  paid,  and 
he  was  to  be  debited  with  them,  and  held  re- 
sponsible for  them.  Notice  was  not  given  by  the 
agent  of  the  failure  to  pay  this  premium,  and 
the  company  debited  it  to  the  agent.  Held, 
the  agent  had  no  authority  to  make  a  new- 
contract  varying  the  time  of  payment;  that 
the  receipt  given  was  not  proof  against  the 
company  that  a  new  contract  had  been  made 
on  the  terms  of  the  old;  that  debiting  the 
agent  with  the  amount  of  the  premium  did 
not  make  the  company  liable  upon  the  policy, 
for  that  was  a  matter  between  the  agent  and 
the  company;  that  there  was  but  one  ground 
upon  wliich  the  company  could  be  held  liable, 
namely,  a  new  contract,  which  the  evidence 
failed  to  establish.  Acey  v.  Fernie,  7  Mee.  & 
W.,  151. 

41.  The  company  had  notice  that  a  life  pol- 
icy had  lapsed  for  nonpayment  of  the  last  pre- 
mium, but  forgetting  that  fact,  paid  the 
money  to  representatives  of  the  insured.  Held. 
the  company  was  entitled  to  recover  the 
money  back,  for  if  a  party  makes  a  payment 
on  the  supposition  that  a  fact  is  true  which 
afterwards  proves  to  be  untrue,  he  may 
recover  it  back.  Kelly  x>.  Solari,  11  L.  J.  Ex., 
10. 

42.  A  loan  was  granted  by  an  insurance 
company,  on  bond  with  sureties,  and  a  policy 
effected  as  collateral  security.  The  premi- 
ums were  not  paid  at  the  time  they  became 
due;  they  were  demanded,  and  actions  brought 
against  the  sureties  of  the  bond,  who  refused 
to  pay  them.  Held,  upon  a  bill  filed  to  restrain 
the  actions  at  law,  nothing  appeared  in  the 
case  to  show  that  any  recovery  could  be  hail 


J)45 


PEKILS  OF  THE  SEAS  —  PILOTAGE. 


9iS 


When  failure  to  take,  is  a  defense. 


upon  the  policy,  and  tlicrefore  the  bill  was  dis- 
missed.   Jidge  v.  Dake.,  18  L.  J.  Ch.,  183. 

VI.  "What  is  a  defense  to. 

P.  became  insurer  upon  three  ships.  After 
one  had  arrived  he  became  bankrupt,  and  in- 
sured procured  a  second  insurance  upon  the 
others.  Ileld,  the  assignee  of  F.  could  not  re- 
cover premiums  on  the  risks  not  determined 
■when  lie  became  a  bankrjjpt.  Elliott  v.  An- 
derson, Faculty  Dec.  1781  to  1787,  p.  343. 


PERILS  OF  THE  SEAS. 

(See  PoLioT.) 


PERISHABLE  ARTICLES. 

(See  Warranted  Free  from  Averigb.) 


PHYSICIAN. 

(See  Mesicai.  Attehsant.) 


PILOTAGE. 

(See   Seawobthikess.) 

I.  When  failitre  to  take,  is  a  defense. 

II.  NOT  A  DEFENSE. 

III.  Pilot's  neglect  is  no  defense. 

I.  "When  failiiee  to  take,  is  a  defense. 

1.  She  ran  on  the  bar  off  Charleston.  The 
provisions  on  board  were  nearly  expended, 
and  the  master  feared  she  might  be  driven  out 
to  sea  again  if  an  attempt  were  not  made  to 

enter  the  harbor  immediately.    Therefore  he 


ventured  in  without  waiting  for  a  pilot  to 
come  to  him.  Held,  the  master  was  not  justi- 
fied in  making  the  harbor  without  a  pilot. 
De  Pau  v.  Jones,  1  Brev.,  437. 

2.  If  a  vessel  sustain  injury  in  consequence 
of  a  failure  to  take  a  pilot  when  one  ought  to 
have  been  taken,  the  loss  is  not  by  a  peril  ot 
the  sea.  M'MiUan  v.  Union  Ins.  Co.,  Rice,  248. 
But  if  she  is  lost,  and  it  cannot  he  attributed 
to  the  want  of  a  pilot,  then  it  is  a  loss  by  perils 
of  the  sea,  though  she  had  no  pilot  at  the  time. 
The  absence  of  a  pilot  where  it  is  customary 
to  take  one,  does  not  make  the  vessel  unsea- 
worthy.    Ibid. 

3.  On  steamboat  from  New  Orleans  through 
the  mouth  of  the  Mississippi  to  Mobile  and 
return.  Held,  in  every  well  appointed  port 
where  pilots  are  to  be  had,  a  vessel  ariiving 
upon  pilotage  ground  is  bound  to  lake  one;, 
that  duty  is  imperative  when  approaching  a. 
river  of  difficult  access,  where  the  navigation) 
Tr^quires  not  only  nautical  skill,  but  local 
knowledge  and  constant  practice ;  having  on. 
board  a  skillful  and  experienced  master  did 
not  satisfy  the  requirelnents  of  the  law,  there- 
fore the  insurers  were  released.  Whitney  v. 
Ocean  Ins.  Co.,  14  La.  (O.  S.),  485. 

4.  On  cargo.  New  Orleans  to  Brazos.  She 
was  wrecked  in  crossing  the  bar  at  the  mouth 
of  the  river.  The  master  did  not  employ  ,<v 
pilot  in  crossing  the  bar.  Held,  although 
there  is  no  implied  warranty  of  seaworthiness 
except  at  the  commencement  of  the  voyage,  it 
is  still  the  duty  of  insured  to  keep  his  vessel 
seaworthy  during  the  voyage,  if  it  be  in  his 
power  to  do  so;  and  if  from  neglect  of  the 
owner  or  his  agents  the  vessel  becomes  un- 
seaworthy  by  damage  or  loss  in  her  hull  or 
equipments  during  the  voyage,  the  owner 
must  repair  or  supply  the  loss,  if  it  is  in  his 
power  to  do  so;  if  it  is  customary  for  vessels 
to  take  a  pilot  at  any  particular  place,  and  the 
master  fails  to  take  one  when  it  was  in  his 
power  to  do  so,  that  failure  must  be  consid- 
ered as  producing  a  positive  and  definite  in- 
crease  of  risk.  McDowell  v.  General  Mut.  Ins. 
Co.,  7  La.  An.,  684. 

5.  On  ship  at  and  from  Riga  to  London- 
deny.  She  was  driven  by  stress  of  weather 
to  Scalpa  in  the  Hebrides,  which  was  a  pilot's 
fare  waj'  and  a  place  of  difiicult  navigation. 
There  were  two  entrances  to  the  anchorage^ 
the  west  and  north  passage.  The  former  the 
most  difficult,  owing  to  sunken  rocks.     There 

473 


Di7 


PILOTAGE—  PIRATES. 


948 


When  failure  to  take  is  not  defense  —  Pilot's  neglect  is  no  defense. 


-were  no  licensed  or  branch  pilots  nearer  than 
Stornoway,  twenty-five  miles  distant;  but 
there  were  two  lighthouse  keepers  and  many 
^fishermen  acquainted  with  the  navigation.  It 
■was  the  custom  for  masters  not  acquainted 
with  the  passage  to  take  one  of  these  men. 
The  master  took  one  of  the  lighthouse  keep- 
ers, who  brought  her  safe  to  anchor  at  one 
o'clock,  within  three  hours  of  full  tide,  and 
gave  the  master  sufficient  information  to  go 
out  without  assistance.  She  lay  there  till  next 
morning,  when  the  master  attempted  to  go 
•out  by  the  west  passage.  She  commenced  to 
■weigh  anchor,  but  dragged  and  struck  a 
sunken  rock  near  the  common  roadstead, 
slipped  off  when  the  tide  fell,  and  went  to  the 
bottom.  Held,  the  failure  of  the  master  to 
procure  the  aid  of  persons  familiar  with  the 
navigation  to  pilot  her  out  was  a  breach  of 
duty  which  discharged  the  insurers.  Thomson 
1).  Bisset,  4  C.  C.  S.,  670. 

6.  The  vessel  was  lost  while  she  ought,  but 
did  not,  have  a  pilot  on  board.  Held,  insured 
was  bound  to  have  a  person  on  board  qualified 
to  navigate  her;  and  for  a  failure  to  do  so,  the 
insurers  were  discharged.  Law  v.  Hollings- 
worth,  7  Term,  160. 


II.    When  failuee  to  take,  is  no  de- 
fense. 

1.  On  Schooner  engaged  in  the  coasting 
'trade.  She  ■was  wrecked  on  the  Marjdaad 
side  of  the  Potomac  while  steering  for  a  port 
in  Virginia  The  statute  of  Maryland  pro- 
hibited persons  from  acting  as  pilots  if  they 
were  not  licensed  by  the  proper  authorities. 
Her  mate  ■was  acting  as  pilot.  He  had  no 
license,  but  was  a  person  well  qualified  for  the 
duties.  It  was  customary  for  masters  and 
mates  of  vessels  of  her  size,  engaged  in  the 
same  trade,  to  ^ct  as  pilots.  Held,  no  defense 
to  tlie  action.  Keeler  v.  Fireman's  Ins.  Co.,  3 
Hill,  250. 

2.  A  public  law  of  the  state  of  Pennsyl- 
vania provided  that  vessels  of  more  than  sev- 
euty-five  tons  burden  should  take  a  pilot  to 
tlie  capes  of  the  Delaware,  or  forfeit  and  pay 
to  the  warden  a  sum  equal  to  half  pilotage. 
Held,  it  was  not  obligatory  on  owner  or  master 
to  employ  a  pilot,  and  that  she  was  seaworthy 
■without  one.  Flanigen  v.  Washington,  Ins. 
■Co.,  7  Penn.  St.,  306. 

474 


3.  The  insurers  defended  on  the  ground 
that  the  vessel  had  not  been  provided  with  a 
branch  pilot.  Insured  gave  evidence  to  prove 
that  by  general  custom  they  were  exempted 
from  providing  any.  Held,  a  question  for  the 
jury.    Cox  v.  Charleston  Ins.  Co.,  3  Rich.,  831. 

4.  On  steamship  to  run  from  New  Orleans 
to  the  Rio  Grande,  and  there  to  navigate  be- 
tween Bagdad  and  Camargo.  She  was  in 
charge  of  a  pilot  of  established  reputation 
and  entire  competency,  but  not  licensed;  one 
of  the  class  to  whom  it  was  custmary  to  en- 
trust vessels  crossing  the  bar  at  Rio  Grande. 
Held,  insured  was  entitled  to  recover.  Ho- 
mingo  v.  Merchants  Mut.  Ins.  Co.,  19  La.  An., 
479. 

5.  She  arrived  off  the  river  Sierra  Leone 
and  signaled  a  pilot,  but,  getting  none,  about 
10  o'clock  at  night  attempted  to  enter,  took 
the  ground  and  was  lost.  Held,  the  master's 
error  was  no  defense  to  the  action  if  he  was 
of  competent  skill.  Phillips  v.  Headlam,  2  B. 
&  Ad.,  380. 

6.  From  Aberdeen  to  Memel.  She  arrived 
at  Memel,  took  in  cargo  and  waited  for  her 
clearance.  The  British  vice  consul  advised 
the  master  to  make  his  way  out  without  wait- 
ing  for  the  clearance,  because  the  place  was 
threatened  with  an  embargo.  The  master 
slipped  her  cables  and  ran  out  without  taking 
a  pilot,  but  she  struck  the  bar  and  was  lost. 
Vessels  which  remained  were  put  under  an 
embargo  soon  after  she  sailed.  Held,  the  act 
of  the  master  being  bona  fide  to  avoid  threat- 
ened  danger,  the  insurers  must  respond  for  the 
loss.  Pillans  d.  Dalgerno,  Faculty  Dec,  1808 
to  1810,  p.  1. 


III.  Pilot's  neglect  is  no  defense. 

Under  37  Geo.  Ill,  ch.  78,  vessels  were  re- 
quired to  take  a  pilot  up  the  river  to  Liverpool ; 
she  was  stranded  in  consequence  of  the  pilot's 
neglect.  Held,  the  insurers  were  liable.  Car- 
ruthers  t.  Sydebotham,  4  Mau.  &  Sel.,  77. 


PIRATES. 

(See  Capture  and  Seizubx.) 


Di9 


PLEADING. 


950 


What  is  sufficient. 


PLEADING. 

I.  What  is  siTFriciENT. 

(a)  Of   declaration,  complaint,  hill  or 

petition. 

(b)  Of  pleas,  answers  or  replications. 
II,  What  is  not  sufficient. 

(a)  Of  declaration,  complaint,  hill  or 

petition. 

(b)  Of  pleaji,  anstcers  or  replications. 
III.  What  isrusT  be  specially  pleaded. 

IV.  NEED  NOT  BE  SPECIALLY  PLEADED. 

V.  THE  PLEADINGS  ADMIT. 

VI.  DO  NOT  iUJMIT, 

VII.  Of  pkesumptions. 
"VIII.  Surplusage. 
IX.  Generally. 

I.   What  is  sufficient. 

(a)  Of  declaration,  comjplaint,  Mil  or 
petition. 

1.  Time  policy  on  ship.  The  declaration 
averred  that  the  plaintiffs  were  interested  at 
the  time  of  the  loss,  to  the  amount  of  the  in- 
surance, and  the  defendant  demurred  .specially, 
because  it  did  not  appear  that  the  plaintiffs, 
were  interested  in  her  at  the  time  the  policy 
-was  made,  nor  when  the  risk  commenced. 
Held,  the  declaration  was  good.  Henshaw  J). 
Mutual  Safety  Ins.  Co.,  2  Blatch.,  99.  And  in 
other  counts  it  was  averred  that  the  policy  was 
made  for  the  use  and  benefit  of  the  plaintiffs 
as  trustees  for  a  certain  railroad  companj',  and 
that  as  such  trustees  they  were  interested  at 
the  time  of  the  loss.  Held,  suflScient,  for  they 
were  not  bound  to  set  forth  the  extent  and  na- 
ture of  their  trust.     Ihid. 

2.  The  plaintiff  need  not  aver  that  the  loss 
<lid  not  happen  from  invasion,  etc.,  for  these 
are  provisos  for  the  benefit  of  the  insurer,  and 
he  must  allege  and  prove  them  in  defense  to 
the  action.  So  too  the  plaintiff  need  not  aver 
that  the  magistrate  was  the  magistrate  nearest 
the  loss.  Luunshury  «.  Protection  Ins.  Co.,  8 
Conn.,  459;  Cornell  v.  Le  Roy,  9  Wend.,  I(j3; 
Catliii  V.  Springfield  Fire  and  Marine  Ins.  Co., 
1  Sumu.,  434. 

3.  The  policy  prohibited  the  use  of  certain 
things  in  the  premises  insured.  Held,  the 
plaintiff  need  not  negative  a  breach  of  the  pro- 
Jiibitory  conditions;  the  breach  being  matter 


of  defense,  must  be  stated  in  the  defendant's 
answer.  Hunt  v.  Hudson  River  Ins.  Co.,  2 
Duer,  481. 

4.  The  plaintiff  did  not  set  out  the  condi- 
tions of  iusurauce.  Held,  no  variance,  because 
they  were  condilions  sebsequent.  Though  a 
breach  of  them  would  operate  as  a  bur  to 
plaintiffs  recovery,  their  performance  does  not 
constitute  a  part  of  his  cause  of  action. 
Forbes  v.  American  Mutual  Life  Ins.  Co.,  15 
Gray,  249. 

5.  The  bill  prayed  that  the  policy  be  deliv- 
ered up  to  be  canceled ;  also  that  a  commis- 
sion might  issue  for  the  exainiuatiou  of  wit- 
nesses. Held,  the  prayer  for  a  commission  to 
take  testimony  did  not  make  it  multifarious. 
Commercial  Mut.  Ins.  Co.  v.  McLoon,  14  Allen, 
351. 

»j.  The  plaintiff  did  not  aver  that  the  loss 
did  not  happen  from  iuvasiuu,  etc.  Held,  it 
was  not  necessary'  to  do  so,  because  that  was 
matter  for  the  defendant  to  aver  and  prove. 
Lounsbury  v.  Protection  Ins.  Co.,  8  Conn.,  459. 

7.  The  declaration  averred  the  interest  iu 
the  property  insured,  its  loss  by  fire,  and  that 
the  defendants  had  due  notice  thereof,  accord- 
ing to  the  conditions  of  the  policy.  The 
plaintiffs  in  error  sought  to  reverse  the  judg- 
ment, on  the  ground  that  it  was  not  alleged 
that  they  had  due  notice  and  proof  of  the  loss, 
according  to  the  requirements  of  the  statute. 
Held,  no  ground  of  error.  Conway  Fire  Ins. 
Co.  V.  Sewall,  54  Me.,  352. 

8.  Plaintiff  declared  upon  a  certificate  of 
insurance,  signed  by  insurer's  secretary  and 
countersigned  by  the  agent  who  accepted  the 
risk,  which  stipulated,  that  the  plaiutiffs  were 
"insured,  according  to  the  tenor  and  condi- 
tious  of  insurer's  printed  policies,  to  be  bind- 
ing until  a  regular  policy  shall  be  issued  from 
the  principal  office,"  etc.  The  conditions  of 
a  regular  policy  were  not  set  out  in  plaintifls 
petition,  nor  were  there  any  averments  in  it 
showing  an  observance  of  the  terms  and  con- 
ditions of  a  regular  policy.  Held,  the  court 
would  examine  the  whole  record,  to  determine 
whether  it  was  sufiicient  to  support  the  judg- 
ment; that  as  the  defendants  had,  for  the  pur- 
pose  of  proving  nonobservance,  set  out  the 
conditions  of  a  regular  policy,  the  record  was 
good.  Dayton  Ins.  Co.  v.  Kelly,  24  Ohio  St., 
345. 

9.  In.sured  stated  in  their  complaint  that 
1  the  defendant    insured    the    plaintiff  to  the 

475 


f»61 


PLEADING. 


952 


What  is  buificient. 


amount  of  $3,000,  on  10,000  bushels  of  oats. 
Jleld,  an  averment  of  interest.  liising  Sun 
Ins.  Co.  V.  Slaughter,  20  Ind.,  520. 

10.  The  declaration  of  the  wife  made  to 
procure  llie  policy  was  not  set  forth  in  the 
complaint.  Held,  the  complaint  was  good 
without  it,  because  it  was  not  the  foundation 
of  the  action ;  though  it  be  considered  a  part 
of  the  contract,  it  was  not  such  a  part  as  in- 
sured was  bound  to  set  out  in  her  complaint. 
Mutual  Benefit  Life  Ins.  Co.  v.  Cannon,  48  Ind., 
264. 

11.  The  plaintiff  alleged  that  he  had  duly 
fulfilled  all  the  conditions  of  said  policy  on 
his  part.  Held,  sufficient,  frfr  it  was  all  the 
practice  act  requires.  2  Wag.  St.,  1020,  sec. 
42.  Richardson  v.  North  Missouri  Ins.  Co.,  57 
Mo.,  413. 

1 2.  The  plaintiff  need  not  aver  a  waiver  of 
notice  of  loss;  proof  of  it  may  be  made  with- 
out any  special  averment  (citing  Russell  «. 
State  Ins.  Co.,  55  Mo.,  585).  Schultz  v.  Mer- 
chants l7is.  Co.,  57  Mo.,  831. 

1 3.  The  defendant  is  not  entitled,  at  com- 
mon law,  to  have  oyer  of  an  instrument  not 
under  seal.  Commercial  Ins.  Co.  v.  Mehlman, 
48  111.,  313.  But  the  statute  requires  the 
plaintiff  in  all  actions  founded  upon  written 
agreements,  to  file  with  his  declarations  a 
copy  of  the  agreement.  —  [Ed. 

14.  The  conditions  of  the  policy  were  not 
set  forth  in  haee  verbce,  but  their  legal  effect 
was  stated,  and  it  was  averred  that  immediate- 
ly, and  within  a  reasonable  time  after  the  loss, 
the  insured  forwarded  to  the  secretary  of  the 
insurer  a  statement,  verified  by  affidavit,  of 
the  time  and  origin  of  said  fire.  Held,  suffi- 
cient; that  it  is  not  necessary  for  the  insured 
to  set  forth  clauses  or  conditions  which  do  not 
affect  his  right  of  action;  hence  it  was  not 
necessary  to  aver  that  other  insurance  was  not 
made  upon  the  property,  for  the  plaintiff  is 
not  obliged  to  anticipate  and  negative  every 
possible  e.Kception,  answer  or  objection  the 
insurer  may  oppose  to  the  claim.  Troy  Fire 
Ins.  Co.  V.  Carpenter,  4  Wis.,  20. 

15.  The  complaint  did  not  allege  that  in- 
surer's charter  authorized  insurance  against 
loss  by  fire,  nor  did  it  allege  that  insured  was 
owner  of  all  the  goods  lost.  The  allegation  in 
this  respect  was  tliat  "  insured  made  applica- 
tion for  insurance  on  plaintifTs  stock  of  sad- 
dlery, harness,  saddlery-hardware,  whips  and 

a  great  variety  of  otlier  goods,  such  as  are 
476 


usually  kept  for  sale  in  a  wholesale  ;uul  retail 
country  saddle  and  harue.ss  manufactoiy." 
Held,  it  was  unnecessary  to  allege  that  insur- 
er's charter  autlic  rizid  insurance  ag.iinst  loss 
by  fire  specifically,  for  the  complaint  alleged 
authority  lo  make  insurance  upon  goods  and 
chattels,  and  that  must  include  all  kinds  of 
insurance.  Western  Massachusetts  Ins.  Co.  v. 
Duffey,  2  Kan.,  347. 

16.  E.xhibits  annexed  to  a  bill  cannot  be 
examined  for  the  purpose  of  determining 
whether  a  demurrer  should  be  sustained  or 
overruled.  It  is  sufficient  if  the  bill  itself 
discloses  a,  prima  facie  right,  notwithstanding 
it  fails  to  state  that  all  the  conditions  and  stip- 
ulations of  the  contract  upon  which  it  was 
founded  have  been  observed  and  performed. 
Statham  v.  New  York  Life  Ins.  Co.,  45  Miss., 
581. 

17.  The  complaint  averred  that  the  proper- 
tj'  was  the  plaintifl''s,  and  that  he  liad  an  interest 
in  it  as  the  owner  thereof;  it  was  also  averred 
that  the  plaintiff  duly  fulfilled  all  the  condi- 
tions of  said  insurances  respective!}'  on  his 
part.  Held,  the  complaint  was  good.  Ferrer 
1).  Home  Mut.  Ins.  Co.,  47  Cal.,  416. 

18.  It  is  not  necessary  to  aver  that  the  com- 
pany  has  complied  with  the  statute  authoriz- 
ing it  to  do  business  in  the  state.  Oermania 
Ins.  Co.  V.  Curran,  8  Kan.,  9. 

19.  Tlie  policy  excepted  loss  caused  by  Are 
which  should  ensue  from  the  falling  of  a 
building,  and  it  was  averred  in  the  complaint 
that  the  loss  was  caused  by  fire  and  not  bj-the 
falling  of  any  building.  Held,  the  averment 
was  sufficient.  Ferser  v.  Home  Mut.  Ins.  Co., 
47  Cal.,  416. 

20.  On  goods.  The  plaintiff  declared  that 
the  defendant  became  an  insurer  of  the  prem- 
ises in  the  policy  mentioned.  Held,  sufficient. 
Haughton  v.  Ewbank,  4  Camp.,  88. 

21.  The  declaration  averred  that  divers 
goods  were  put  on  board,  and  that  the  policy 
was  made  on  said  goods.  Held,  good  on 
special  demurrer.  Be  Symons  v.  Johnston,  5 
B.  &  P.,  77. 

22.  Commissioners,  appointed  to  take  pos- 
session of  ships  and  other  effects  detained  or 
brought  into  the  ports  of  Great  Britain,  insured 
in  their  own  names  and  averred  the  interest 
in  themselves  in  one  count,  but  in  another  there 
was  no  averment  of  interest  in  any  one.  Held, 
upon  demurrer  the  counts  were  good.  Craii- 
furd  v.  Hunter,  8  Term,  13. 


S53 


PLEADING. 


954 


What  is  sufficient. 


2.'$.  In  declaring  for  a  loss  on  a  foreign  ship 
til'  re  was  no  averment  for  whose  use  or  hene- 
fit  iLc  policy  was  made,  nor  that  tlic  plaintiif 
lii-d  any  interest,  property  or  concern  in  the 
ship.  i7«W, the  declaration  was  good.  Na/ites 
V.  T/wmpson,2  East,  885. 

24.  Stipulated :  "  Payment  of  claims  shall 
lie  made  out  of  the  capital  stock  and  funds  of 
the  company."  Held,  it  was  not  necessary  for 
insured  to  aver  tliat  the  capital  stock  and 
funds  were  sufficient  to  satisfy  the  claim,  for, 
if  the  want  of  funds  would  he  any  defense,  it 
should  have  been  specially  set  up  bj'  the  in- 
surers because  they  only  could  know  the  state 
of  their  funds.  Sunderland  Marine  Ins.  Co. 
V.  Kearney,  16  Q.  B.,  925;  15  Jur.,  1006;  20  L. 
J.  Q.  B.,  417. 

2.5.  Policy  to  insure  debts.  It  was  alleged 
in  the  declaration  that  the  plaiutilTs  had  done 
all  things  necessary  on  their  part  to  he  per- 
formed, but  that  the  defendant  had  refused  to 
p.ay.  Held,  sufficient.  And  the  defendants 
pleaded  nonpayment  of  a  premium,  and  that 
the  policy  was  canceled  and  declared  void  in 
consequence  of  said  nonpayment.  Held,  a 
good  plea.  Bamberger  v.  Commercial  Credit 
Milt.  Ass.  Co.,  15  C.  B.,  676;  1  Jur.  (N.  S.), 
500. 

26.  The  declaration  set  forth  the  making  of 
the  policy  and  then  averred  that  the  premises 
were  consumed  by  fire  .July  27,  1847,  and  that 
the  plaintiif  had  thereby  sustained  damage  to 
the  amount  of  £250;  that  the  necessary  notices 
and  proofs  of  loss  were  made,  and  assigned 
the  breach  in  the  usual  form,  to  which  there 
was  a  general  demurrer.  Held,  the  plaintiff 
was  not  bound  to  aver  that  the  property  was 
his,  for  there  was  no  warrantj'  in  the  policy 
to  that  effect,  hence  the  demurrer  must  be 
overruled.  Oilberl  v.  National  Ins.  Co.,  12  Ir. 
L.  R.,  143. 

27.  It  was  averred  under  a  videlicet,  that  the 
fire  happened  July  29th,  and  that  uolice  was 
■given  the  same  day ;  that  the  particular  account 
was  made  August  20th,  and  that  the  declara- 
tion of  the  loss  under  oath  was  made  JIarch 
27th.  Held,  no  objection  could  be  taken  to 
the  declaration,  for  the  plaintiff  was  not 
bound  by  the  dates  mentioned,  and  therefore 
not  compelled  to  make  his  proof  conform  to 
them,  and  whether  the  matters  alleged  were 
done  in  proper  time  was  a  question  of  proof. 
Ketchum  v.  rrotectionIns.Co.,lA\\en{i^.B.), 
136. 


28.  Stipulated:  "If  insured  shall  make 
any  other  insurance,  and  shall  not  with  all 
reasonable  diligence  give  notice  thereof  to  in- 
surei',  and  have  the  same  indorsed  on  the 
policy  or  otherwise  acknowledged  in  writing, 
the  policy  shall  cease."  The  plaintiff  averred 
subsequent  insurance  and  notice  thereof  to 
insurer,  and  that  insurer  neglected  and  refused 
to  indorse  the  same  on  the  policy.  Held,  it 
was  unnecessary  for  the  pleader  to  aver  a  re- 
quest to  indorse.  It  was  sufficient  if  the  pol- 
icy  was  tendered  for  that  purpose.  Demill  o. 
Hartford  Fire  Ins.  Co.,  4  Allen  (N.  B.),  341. 

29.  Stipulated  that  the  insurers  might  at 
their  option  replace  or  rebuild  the  property 
insured.  Held,  it  w.as  unnecessary  to  negative 
in  the  declaration  insurer's  failure  to  rebuild, 
for  it  was  a  condition  subsequent,  matter  of 
defense,  and  was  upon  the  insurer  to  allege 
and  prove,  ./^tna  Ins.  Co.  v.  Phelps,  27  111., 
71. 

(b)  Of  2>^eas,  answers  or  repllcaUons. 

30.  Action  for  an  assessment  upon  a  deposit 
note.  The  defendant  denied  "that  any  such 
assessment  had  been  made  as  is  set  forth  in 
the  plaintiff's  declaration."  Held,  sufficient  to 
authorize  defendant,  at  the  trial,  to  deny  the 
validity  of  the  assessment.  People^ s  Equitable 
Mutual  Fire  Ins.  Co.  v.  Arthur,  7  Gray,  267. 

iJl.  The  plaintiff'  in  his  declaration  alleged 
a  waiver  of  the  condition,  which  required 
action  to  be  brought  within  a  certain  time. 
Held,  sufficient  for  the  defendant  to  deny  in 
clear  and  distinct  terms  that  any  such  waiver 
had  been  made.  Vogel  v.  People's  Mutual 
Fire  Ins.  Co.,  9  Gray,  23. 

32.  The  pleas  alleged  a  condition  and  non- 
compliance, using  the  language  of  the  condi- 
tion. Held,  sufficient;  for  where  a  question 
of  law  is  not  involved,  it  is  enough  if  the 
breach  be  assigned  in  the  words  of  the  con- 
tract or  condition  (citing  1  Chilty  PL,  332). 
Dewees  v.  Manlmttan  Ins.  Co.,  34  N.  J.,  344. 

33.  The  defendant  was  under  terms  to 
plead  issuably.  He  pleaded  a  setoff  for  a 
total  loss  upon  a  policy  of  insurance  on 
freight.  The  plaintiff  signed  judgment  on 
the  ground  that  the  plea  was  not  issuable. 
The  court  set  the  judgment  aside  without 
costs.  Thomson  v.  Redman,  12  L.  J.  Ex., 
310. 

477 


955 


PLEADING. 


95ff 


What  is  not  sufficient. 


S-l.  Two  insurers  filed  a  bill  for  discovery; 
tlie  policy  of  oue  was  under  seal,  but  the 
other  was  not.  Meld,  it  was  not  multifarious 
on  that  ground.  Mills  i\  Campbtll,  3  You.  & 
Coll.,  389. 

'ia.  The  bill  charged  fraud  in  effecting  the 
policy  by  means  of  misrepresentations  as  to 
the  health  of  the  assured;  also  that  the  party  for 
whose  benefit  the  insurance  was  made  had  no 
interest,  and  prayed  for  discover}-  and  an  in- 
junction, but  there  was  no  offer  to  repay  the 
jiremiums.  The  defendants  omitted  to  answer 
the  charge  as  to  want  of  interest,  and  an  ex- 
ception was  taken  to  the  answer  on  that 
iiround.  Held,  the  exception  should  be  over- 
ruled. JDesborough  v.  Ou>iewis,3  You.  &  Coll., 
175. 

36.  The  sixth  plea  alleged  that  the  property 
was  incumbered  by  mortgage,  and  that  the 
plaintiff  did  not  make  a  true  statement  of  his 
title  to  the  land.  The  plaintiff  replied  that 
the  title  to  the  land  was  not  incumbered. 
IFeld,  a  good  replication;  it  was  sufficient  to 
traverse  the  incumbrance.  Williamson  v.  Ni- 
ufjara  District  Ins  Co.,  14  U.  C,  C.  P.,  15. 

37.  Policy  on  steamer  against  loss  by  fire. 
Plea,  insured  warranted  that  the  total  amount 
of  insurance  should  not  exceed  £6,000,  three- 
fourths  of  her  value;  that  the  insuranc(!  on 
her  exceeded  that  sum.  Replication:  -the  war- 
ranty referred  to  total  insurance  against  fire, 
and  that  it  did  not  exceed  the  amount  men- 
tioned in  the  warranty.  Held,  the  replication 
was  good ;  that  the  defendant  might  have  re- 
joined, reaffirming  the  condition  to  be  as  tliey 
liad  alleged,  and  denying  tliat  it  was  such  as 
the  iilaiutiff  asserted.  Noad  v.  Provincial  Ins. 
Co.,  18  U.  C.  Q.  B.,  584. 

38.  Plea:  the  plaintiff"  was  required  to  de- 
liver an  account  of  the  loss  in  writing,  veri- 
fied by  his  oath;  also,  his  books  of  accounts, 
and  to  permit  extracts  to  be  made  from  his 
books.  Held,  not  double,  for  the  allegations 
are  all  to  be  taken  together  as  sustaining  one 
ground  of  defense.  The  plea  traversed  the 
delivery  of  the  particular  account,  and  set  up 
fraud.  Held,  a  plea  of  fraud  only,  for  denying 
the  delivery  of  the  particular  account  did  not 
support  the  charge  of  fraud.  The  plaintiff 
averred  a  general  performance  of  all  matters 
and  things  on  his  part  to  be  performed.  The 
action  was  covenant.  Plea,  traversing  the  per- 
formance of  all  the  acts.  Held,  good,  for  there 
is  no  plea  of  the  general  issue  in  the  action  of 

478 


covenant.     EctcJiurn  t.  Protection  Ins.  Co.,  1 
Allen  (N.  B.),  13G, 

II.  What  is  not  sufficient, 

(a)  Of  declaration,  com/plaint,  hill  or 
petition. 

1.  Policy  made  in  New  Jersey,  payable 
there.  Held,  the  insured  could  not  recover 
unless  he  averred  and  proved  an  insurable 
interest  in  the  life  insured.  Ruse  v.  Mutual 
Benefit  Life  Ins.  Co.,  US  N.  Y.,  516;  s.  c,  3(> 
Barb.,  556;  24  N.  Y.,  653;  see  s.  c,  8  Ga.,  534. 

2.  The  complaint  contained  no  averment  of 
interest,  either  in  the  plaintiff  or  his  assignor, 
in  the  subject  matter  insured.  Held,  bad  on 
general  demurrer.  Fowler  v.  New  York  Indem- 
nity Ins.  Co.,  26  N.  Y.,  422 ;  s.  c,  23  Barb.,  143. 

3.  Policy  for  account  of  whom  it  may  con- 
cern, loss,  if  any,  payable  to  the  plaintiffs. 
The  action  was  brought  in  the  name  of  the 
plaintiffs,  and  the  complaint  averred,  that 
S.  was,  at  the  time  of  the  making  of  the  policy, 
and  at  the  time  of  the  loss,  the  person  for 
whom  the  insurance  was  effected  and  whom  it 
concerned,  and  that  S.  was  interested  in  said 
property  to  an  amount  exceeding  all  insurance 
thereon.  Held,  the  complaint  was  insuffi- 
cient, because  it  did  not  aver  that  the  plaintifls 
were  interested  in  the  subject  insured,  or  that 
the  policy  was  made  to  them  as  trustees  or 
agents.  Freeman  v.  Fulton  Fire  Ins.  Co.,  38 
Barb.,  347;  s.  c,  14  Abb.  Pr.,  398. 

4.  Acti(m  on  a  policy  on  goods  contained 
in  certain  premises  described.  The  com- 
plaint set  out  the  contract  and  averred  a  loss 
"  by  reason  of  a  fire  taking  place  in  the  cellar 
of  said  premises."  Held,  insufficient  because 
it  failed  to  state  that  the  goods  insured  were 
injured  or  destroyed  by  fire.  Bodi  v.  Rutgers 
Fire  Ins.  Co.,  6  Bos.,  23. 

5.  Policy  to  A.  "for  account  of  whom  it 
may  concern,  loss  if  any  payable  to  him. 
Valued  policy  to  be  proof  of  interest."  Pol- 
icy set  out  in  hire  cerha,  « itii  an  averment  that 
he  has  performed  all  the  conditions  and  agree- 
ments on  his  part  to  be  pprfnrnip.l :  but  there 
was  no  averment  that  the  plaintiff  was  inter- 
ested in  the  subject  matter.  Held,  unless  the 
policy  upon  its  face  imported  that  the  insured 
was  interested  iq  the  subject  insured,  there 
must  be  an  averment  of  interest,  and  in  the 
absence  of  it,  upon  demurrer,  the  complaint. 


957 


PLEADING. 


95» 


What  is  not  sufficient. 


must  be  held  insufficient.  Williams  v.  In/tur- 
ante  Company  of  North  America,  9  IIow.  Pr., 
86.5. 

6.  The  defendant,  for  a  good  consideration, 
promised  to  pay  such  assessments  as  should 
be  thereafter  made  against  the  policj'.  Held, 
a  general  count  was  sufficient,  because  where 
one  party  has  fulfilled  his  part  of  the  contract, 
and  the  other  party  becomes  obliged  to  pay 
money,  a  general  count  is  sufficient  (citing 
Hale  ».  Handy,  26  id.,  206;  Mitchell  v. 
Gile,  12  N.  H.,  390).  New  Ilampshire  Mutual 
Fire  Ins.  Co.  v.  Hunt,  30  N.  H.,  219. 

7.  The  promise  was  averred:  "To  pay  in 
such  proportions,  and  at  such  times,  as  the 
directors,  agreeably  to  the  act  of  incorporation 
and  by-laws  of  the  company,  may  require." 
The  breach  assigned  was  the  nonpayment  of 
an  assessment,  but  there  was  no  averment  that 
the  assessment  had  been  ordered  agreeably  to 
the  act  and  by-laws,  nor  was  the  time  at 
which  it  had  been  ordered  averred.  Seld, 
bad  on  demurrer  (citing  1  Chitty  PI.,  326,328; 
Com.  Dig.  Pleader  G,  45,  47;  2  Saunders,  181). 
Atlantic  Mutual  Fire  Ins.  Co.  v.  Young,  38  N. 
H.,  451. 

8.  The  policy  referred  to  an  application 
stipulating :  "If  such  application  does  not 
truly  describe  the  property,  this  policy  shall 
be  null  and  void."  Held,  it  was  a  part  of  the 
contract,  and  the  papers  were  to  be  read  to- 
gether, as  if  they  were  one;  and  as  it  was  part  of 
the  contract  it  was  necessary  for  complainant 
to  set  it  out  in  the  complaint,  and  to  aver  and 
prove  a  compHiince  with  all  its  conditions. 
Bobhitt  V.  Liverpool,  London  and  Globe  Ins.  Co., 
66  N.  C,  70. 

9.  Open  policies  to  insure  "Such  sums  as 
shall  be  specified  by  application  and  mutu- 
ally agreed  and  indorsed  upon  the  policy." 
Held,  setting  out  the  policy  and  indorsements 
was  not  sufficient,  for  the  indorsement  did  not 
purport  to  have  been  made  by  the  company; 
that  it  was  necessary  to  aver  a  mutual  agree- 
ment in  respect  to  the  indorsement.  Crane  v. 
Emnsmlle  Ins.  Co.,  13  Ind.,  446. 

10.  If  the  action  is  founded  on  a  written 
instrument,  the  original  or  a  copy  must  be 
tiled  with  the  complaint,  and  if  it  is  not,  the 
defect  may  be  reached  by  demurrer.  In  order 
to  comply  with  this  rule,  the  paper  must  be 
identified  by  reference  to  it,  and  it  must  be 
made  an  exhibit.  Peoria  Marine  and  Fire  Ins. 
Co.  V.  Walser,  22  Ind.,  73. 


1 1.  In  declaring  upon  the  statute,  the  aver- 
ments must  be  sufficient  to  bring  the  case 
within  the  words  of  the  statute;  if  this  is  not 
done  tlie  judgment  must  be  arrested.  liaber  v. 
Jones,  40  Ind.,  436. 

12.  The  policy  was  made  part  of  the  com- 
plaint, and  it  stipulated,  that  persons  who  shall 
sustain  loss  shall  forthwith  give  notice  of  it 
to  the  company,  and  shall  render  a  particular 
account  of  it,  signed  and  sworn  to  by  the  in- 
sured, and  shall  state  whether  any  and  what 
other  insurance  was  made  upon  the  property, 
giving  copies  of  the  written  portion  of  the 
policies,  also  the  cash  value  of  the  interest  of 
the  insured,  etc.  The  complaint  alleged,  th.it 
"  though  proof  of  said  loss  has  been  duly 
made  and  notice  given,  yet  the  defendant  has 
not  made  the  plaintiff  good  in  said  loss,  etc." 
Held,  the  complaint  would  have  been  sufficient 
if  there  had  been  a  general  allegation,  that 
the  plaintiff  had  performed  "  all  the  con- 
ditions on  his  part,"  for  such  an  allegation  is 
equivalent  to  a  reference  to  each  condition 
precedent,  and  when  coupled  with  an  averment 
that  he  had  performed,  implies  that  all  acts 
necessary  in  that  performance  have  been 
done;  but  in  the  absence  of  such  an  averment 
the  complaint  was  insufficient.  Home  Ins.  Co. 
V.  Duke,  43  Ind.,  418. 

1 3.  The  complaint  failed  to  show  that  the 
losses  for  which  the  assessment  w.as  ordered 
occurred  while  the  maker  of  the  premium 
note  was  a  member  of  the  company.  Held, 
insufficient.  Manlove  v.Naj/lor,38  Ind.,  424; 
Same  v.  Nato,  39  id.,  289;  Same  v.  Header,  id., 
371;  Whitman  v.  Mason,  40  id.,  189;  Hasha- 
gan  v.  Manlove,  42  id.,  330;  Tippecanoe  Town- 
s!tip  V.  Manlove,  39  id.,  249 ;  Downs  v.  Ham~ 
mond,  47  id.,  131. 

14.  Stipulated:  "The  boat  shall  bi  com- 
pletely provided  with  master,  officers  and 
crew."  Held,  the  plaintiff  must  aver  and 
prove  that  she  was  so  provided.  Sf.  Louis  Ins. 
Co.  V.  Glasgow,  8  Mo.,  713. 

1  5.  Revised  Code  of  1857.  art.  57,  p.  303,  re- 
quires the  plaintifl'to  allege  in  his  declaration 
that  the  defendant  is  a  foreign  insurance  com- 
panj'  and  a  corporation;  and  that  the  person 
upon  whom  pnicess  was  served  was  its  agent, 
duly  appointed  and  authorized  to  be  served 
with  process  f»r  that  company.  The  sum- 
mons must  conform  to  the  declaration  in  de- 
scribing the  agent,  and  a  full  return  by  the 
slicrill  and  the  auditor's  certificate  must  ap- 

479 


959 


PLEADING. 


960 


What  is  not  sufficient. 


pear  in  the  record  to  sustain  a  judgment  by 
<iefault.  Continental  Ins.  Co.  v.  Manafield,  45 
Miss.,  311. 

16.  Stipulated:  "If  thi.s  polici'  be  made 
tipou  or  refer  to  an  application,  etc.,  such  ap- 
plication shall  be  considered  a  part  of  the 
■contiact  and  a  warranty  by  insured."  The 
proof  showed  that  the  policy  was  predicated 
upon  an  application.  Held,  it  was  not  neces- 
sary for  the  insured  to  make  any  averment  in 
respect  to  the  application  (dissenting,  Chris- 
tiancy,  J.,  citing  in  support  of  his  dissent, 
<31endale  Woolen  Co.  v.  Insurance  Co.,  21 
Conn.,  19;  Duncan  v.  Sun  Ins.  Co.,  6  Wend., 
488;  Burritt  v.  Saratoga  Ins.  Co.,  5  Hill,  188; 
Chaffee  v.  Cattaraugus  Ins.  Co.,  18  N.  Y.,  376; 
Battles  D.  York  County  Ins.  Co.,  41  Me.,  208; 
Egan  v.  Mutual  Ins.  Co.,  5  Denio,  320;  Jen- 
nings ■».  Chenango  County  Ins.  Co.,  2  id.,  7.5; 
Eoutledge  d.  Burrell,  1  H.  Bl.,  254;  Worsley 
».  Wood,  6  Term,  710;  Geach  v.  Ingall,  14  M. 
&  W.,  95;  Strong  ii.  Rule,  3  Bing.,  315;  Ken- 
nedy V.  St.  Lawrence  Ins.  Co.,  10  Barb.,  285; 
Murdock  v.  Chenango  County  Ins.  Co.,  2  N.  Y  , 
■210;  WiLson  v.  Herkimer  County  Ins.  Co.,  6  N. 
Y.,  53;  Tebbetts  v.  Hamilton  Ins.  Co.,  1  Allen, 
a05;  Ripley  v.  Mina.  Ins.  Co.,  30  N.  Y.,  136;  1 
Phillips  on  Ins.,  5th  ed.,  413,  414,  sec.  756; 
1  Arnould  on  Ins.,  578).  Throop  v.  North 
American  Ins.  Co.,  19  Mich.,  423. 

17.  An  allegation  in  the  complaint  that  the 
sum  sued  for  is  now  due  is  a  mere  conclusion 
of  law.  The  action  was  founded  upon  three 
policies,  set  out  in  Imee  verb(E.  The  complaint 
Uid  not  show  that  sixty  days  had  elapsed  after 
notice  and  proof  of  the  loss,  according  to  the 
stipulations  set  forth  in  the  policy;  but  it  did 
allege  due  notice,  proof  of  the  fire,  loss 
and  demand,  that  no  part  had  been  paid 
^'  and  that  the  whole  sum  is  now  due."  Held, 
it  did  not  show  that  si.xty  days  had  elapsed 
after  the  loss  and  proof  of  the  same;  and 
therefore  the  judgment  must  be  reversed. 
Doyle  V.  Phxnix  Ins.  Co.,  44  Cal.,  264. 

18.  The  declaration  alleged  an  insurance 
lost  or  not  lost  upon  the  ship  Hoop,  valued 
at  £1.460,  and  that  she  was  not  at  the  time  the 
policy  was  made,  or  at  the  time  the  loss  hap- 
pened, or  at  any  other  time  whatsoever,  the 
property  of  nor  belonging  to  the  king,  or  any  of 
his  subjects,  that  the  insured  were  the  persons 
who  gave  the  orders  and  were  employed  to  ef- 
fect the  policy,  and  averred  a  loss  by  arrest  or- 
dered by  the  king.    The  defendant  demurred. 

480 


Held,  the  policy  must  be  taken  to  be  on  interest, 
and  not  a  wagering  policy,  tlint  it  was  neces- 
sary to  aver  an  interest  in  the  plaintiff,  and 
without  such  an  averment  the  plaintiff"  couUl 
not  recover.    Cousins  v.  Naiites,  3  Taunt.,  513. 

19.  A  statement  of  evidence  is  not  equal  to 
an  averment  of  fact.  The  fact  should  be 
averred.  It  is  not  sufficient  to  state  something 
from  which,  under  some  circumstances,  be- 
tween the  parties,  the  jury  might  possibly  be 
induced  to  find  the  fact.  Daicson  v.  Wrench, 
3  E.\chr.,  359;  18  L.  J.  Ex.,  229. 

20.  The  declaration  stated  that  the  plaintiffs 
by  certain  persons  using  and  carrying  on  busi- 
ness, and  in  the  said  policy  of  insurance  des- 
ignated and  described  by  the  names,  .style  and 
firm  of  Dewar  and  Cullinford,  the  agents  of 
the  plaintiffs  in  that  behalf  caused  to  be  made 
with  the  defendants  a  certain  policy  of  insur- 
ance, etc.  Held,  on  special  demurrer  that  the 
declaration  was  bad  because  the  christian 
names  of  the  plaintiffs  were  not  stated,  and 
there  was  no  excuse  shown  for  such  omission. 
Sturgev.  i?rt7in, 4  Exchr.,  646;  19  L.  J.Ex.,  119. 

al.  On  ship  for  twelve  months.  Accord. 
ing  to  usage  or  custom,  the  policy  was  not  to 
be  considered  as  effectual  during  a  certain  pe- 
riod, for  which  notice  was  to  be  given  by  in- 
sured to  insurer,  and  for  that  period  a  certain 
portion  of  the  premium,  commensurate  with 
that  period,  was  to  be  returned  by  insurer.  It 
was  averred  that  insured  gave  the  requisite 
notice  that  the  vessel  was  "  oft"  risk  "  for  that 
period,  and  that  a  certain  p(U'tion  of  the  pre- 
mium had  been  returned.  Held,  without  any- 
new  agreement  the  policy  would  revive  of 
itself;  that  there  was  no  necessitj'  to  aver  a 
new  agreement,  for  if  there  was  such  a  cus- 
tom, and  it  was  to  be  taken  as  binding  upon 
the  parties,  the  policy  would  revive  when  the 
vessel  was  again  upon  risk  ;  that  if  there  was 
no  such  custom  the  policy  was  never,  in  point 
of  law,  suspended,  and  this  made  it  necessary 
for  insured  to  aver  in  his  declaration  a  com- 
pliance with  all  the  warranties;  having  failed 
to  do  so,  the  declaration  was  bad  in  substance. 
Hutchinson  v.  Read,  4  Exchr.,  761 ;  19  L.  .J.  Ex., 
222. 

22.  Assumpsit  upon  an  agreement  to  pay 
such  loss  as  might  be  sustained  from  any  act 
of  fraud  or  dishonesty  committed  by  C,  who 
had  made  default  in  paj'ing  over  poor  rales 
tliat  lie  had  collected.  The  declaration  did 
not  aver  that  his  authority  to  collect  was  de- 


961 


PLEADING. 


963 


What  is  not  sufficient. 


rived  from  liis  wairant.  Held,  a  demurrer  tii 
il  must  be  sustained.  Guardians  of  Carrick 
on  Shnnnon  Union  v.  Ouaranty  Society,  3  Ir.  C. 
L.,  422. 

23.  The  terms  of  tlic  poliey  were  not  fullj- 
Ret  forth  in  tlic  pleadings;  but  tlie  policy  was 
marked  by  the  oflieer  of  the  court  for  liie  pur- 
pose of  idcutitication.  Held,  the  court  was  at 
liberty,  under  sees.  03  and  64  of  the  common 
law  procedure  act  of  1853,  to  read  the  original 
document  as  if  incorporated  in  the  record. 
Annntrong  v.  Turquand,  9  Ir.  C.  L.,  32. 

24.  Time  polic}'  on  steamer  plying  on  the 
waters  of  "  lakes  Huron,  St.  Clair,  Erie  and 
Ontario,  the  bay  of  Quinte,  river  St.  Law- 
rence, to  Prescptt,  from  April  4th  to  December 
1,  1844."  Averment  that  she  set  sail  from  St. 
Catherines,  bound  on  a  voyage  to  Port  Dal- 
bousie,  situated  on  lake  Ontario,  thence  down 
the  lake  to  Kingston  on  the  said  river  St.  Law- 
rence, aud  that  she  was  lost  on  the  voyage 
aforesaid.  Held,  on  demurrer,  the  declaration 
was  insufficient,  because  it  did  not  appear  that 
St.  Catherines  was  a  port  within  the  geograph- 
ical limits  of  the  contract,  nor  did  it  appear 
that  the  loss  occurred  within  the  period  of 
time  covered  by  the  contract.  Mittleberger  o. 
British  American  Ass.  Co.,  2  U.  0.  Q.  B.,  439. 

25.  Policy  to  B.  Three  months  thereafter 
insurer  indorsed,  "  Loss,  if  any,  payable  to  T." 
Jldd,  in  an  action  by  T.,  the  judgment  must  be 
arrested,  there  being  no  averments  connecting 
B.with  the  indorsement.  Commercial  Ins.  Co. 
V.  Treasury  Bank,  61  111.,  483. 

26.  The  plaintiff  averred  that  the  goods  in- 
sured "  Were  burnt,  consumed,  and  destroyed 
by  fire."  Held,  he  could  recover  for  only  such 
as  -were  bnrnt,  consumed  and  destroyed  by  Are ; 

■  that  he  could  not  recover  for  any  lost  or  dam 
aged  by  water,  or  stolen,  etc.  Thompson  v. 
Montreal  Ins.  Co.,  6  U.  C.  Q.  B.,  319. 

(b)  Of  pleas,  answers  or  replications. 

27.  The  perils  insured  against  were  perils 
of  river,  tire,  enemies,  pirates,  assailing  thieves, 
and  all  other  losses  which  shall  come,  etc. 
The  defendant  pleaded,  1st,  that  part  of  the 
cargo  was  gunpowder,  that  it  was  unskillfully, 
negligently,  and  carelessly  stowed,  in  conse- 
quence of  which  it  took  fire  and  caused  the 
loss;  2d,  that  the  loss  was  caused  by  the  neg- 
ligence of  the  officers  and  crew,  who  carried 
a  lighted  candle  or  lamp  to  the  gunpowder, 

31 


by  which  it  was  ignited ;  3d,  that  she  received 
aud  had  on  board  a  quantity  of  gunpowder, 
which  increased  the  risk,  contrary  to  the  true 
intent  and  meaning  of  the  policy;  and  4tli, 
that  the  loss  was  caused  by  the  officers  and 
crew  of  the  boat,  in  taking  and  receiving  largo 
quantities  of  gunpowder,  and  by  carelessly 
keeping  the  same,  which  ignited  and  caused 
the  loss.  Held,  the  pleas  were  no  answer  to 
the  action.  Waters  d.  Mercliants  Louisville 
Ins.  Co..  11  Pet.,  213;  s.  c,  1  McLean,  275. 

28.  The  declaration  failed  to  allege  an  aban- 
donment. //eW,  the  allegation  was  not  neces. 
sary.  Hodgson  v.  Marine  Ins.  Co.,  5  Cranch, 
100.  The  plea  alleged  a  material  misrepre- 
sentation, but  it  did  not  state  in  what  particu- 
lar the  misrepresentation  was  material.  Held, 
the  plea  was  bad,  because  it  ought  to  have 
been  made  to  appear,  upon  the  face  of  the 
plea,  that  the  risk  was  affected  by  the  repre. 
sentation.     Ibid. 

29.  If  fraud  is  interposed  as  a  defense  to  au 
action,  the  facts  must  be  disclosed  to  show 
what  was  fraudulent.  Sterling  v.  Mercantile 
Mut.  Ins.  Co.,  32  Penn.  St.,  75. 

30.  Defendant  pleaded  that  the  assured  wa« 
asked  to  state  whether  he  had  been  afflicted, 
during  the  past  seven  years,  with  any  severe  or 
constitutional  disease,  and  what.  To  which  he 
answered :  "  Six  years  ago,  had  typhoid  fever ; 
no  other  serious  illness."  Averment  that  the 
insured  has  been  afflicted  with  a  severe  aud 
serious  disease  and  illness,  known  as  inflam- 
mation of  the  lungs.  Replication :  that  insured 
had  no  such  disease  which  rendered  an  insur- 
ance on  his  life  more  than  usually  hazardous, 
or  with  which  the  directors  of  the  company 
ought  to  have  been  made  acquainted.  Held, 
a  departure.  Scott  v.  Insurance  Co.,  9  Phila., 
266. 

31.  The  defendant  pleaded  that  plaintiff,  at 
the  time  of  effecting,  obtaining  and  executing 
said  policy,  did  misrepresent  the  uses  aud 
purposes  to  which  the  buildings  insured  were, 
by  the  plaintiff",  put,  so  as  to  cause  said  insur- 
ance  to  be  effected  at  a  lower  premium  than 
ought  to  have  been,  and  contrary  to  the  terni.s 
and  conditions  of  said  policy."  Held,  bad, 
because  the  plea  would  be  substantiated  by 
proof  of  any  immaterial  statements  carelessly 
made  by  the  insured  in  respect  to  the  purposes 
for  which  the  building  was  used.  Dcwees  v. 
Manhtttan  In».  Co.,  34  N.  J.,  244. 

32.  In  assumpsit  on  a  special  agreement, 

4«1 


963 


PLEADING. 


964 


What  is  not  suiEcient. 


where  the  right  of  action  depends  upon  a  con- 
dition precedent,  performance  of  which  is  al- 
leged in  the  declaration,  defendant  maj-,  in- 
stead of  pleading  the  general  issue,  deny  the 
alleged  performance  of  the  cond  ition,  and  put 
himself  upon  the  countr)'.'  But  where  the 
condition  and  its  performance  are  not  spe- 
cially alleged  in  the  declaration,  defendant 
may  tender  a  special  issue  on  the  perform- 
ance, by  putting  the  condition  upon  record, 
and  averring  its  nonperformance.  In  such 
case  the  plea  must  conclude  with  a  verifica- 
tion. Deweei  v.  Manhattan  Ins.  Co.,  34  N.  J., 
244. 

33.  The  defendant  pleaded  that  hy  the  con- 
ditions of  the  policy  no  action  could  be  main- 
tained, unless  commenced  within  twelve 
mouths  next  after  the  loss.  The  plaintiff  re- 
plied that  the  defendant,  within  the  twelve 
month.=i  next  after  the  loss,  had  waived  such 
condition.  Held,  the  replication  was  bad, 
because  it  did  not  show,  with  that  degree  of 
certainty  required  by  the  rules  of  pleading, 
what  the  plaintiff  expected  to  prove  in  rebut- 
tal of  the  special  plea.  Oakman  v.  City  Ins. 
Co.,  9  K.  I.,  356. 

34.  Policy  dated  March  14th,  to  commence 
March  9,  1866,  insuring  the  life  of  a  horse, 
provided:  ''Insurer  shall  not  be  liable  if  the 
animal  was  diseased  at  the  time  of  insurance." 
Answer  averred,  that  when  the  policy  was 
issued  the  horse  was  diseased ;  that  when  the 
policy  issued  the  horse  was  dead.  Seld,  no 
answer ;  because  there  was  no  averment  that 
the  horse  was  diseased  or  dead  "at  the  time 
of  tlie  insurance."  American  Horse  Im.  Co., 
T.  Patterson,  28  Ind.,  17. 

35.  The  defendant  answered  that  he  made 
the  promissory  note  in  consideration  of  a  pol- 
icy of  insurance  made  by  a  foreign  insurance 
company;  that  the  contract  was  entered  into 
in  this  state,  through  an  agent  resident  there- 
in. Held,  the  answer  was  insuillcient,  for  it 
did  not  show  a  noncompliance  with  the  stat- 
ute. Black  V.  Enterprise  Ins.  Co.,  38  Ind., 
223. 

36.  The  defense  tendered  in  this  paragraph 
was,  that  the  policy,  upon  which  the  action 
was  founded,  had  been  canceled,  and  insurer 
released  from  liabilitj-.  The  defendant  set 
out  in  this  paragraph  the  evidences  of  the  re- 
scission and  release.  Held,  these  should  have 
been  stricken  out,  for  a  party  must  not  plead 
his  evidence   (citing  Vanschoick   v.  Farron, 

483 


2.5  Ind.,  310;  Lyttle  v.  Lyttle,  37  Ind.,  285.> 
King  v.  Enterprise  Ins.  Co.,  4.5  Ind.,  43. 

37.  The  7th  paragraph  of  the  answer  alleged 
an  over  valuation  of  the  property  destroyed  by 
fire;  but  it  did  not  allege  that  the  overvalua- 
ation  was  made  to  the  insurer;  nor  that  it  was 
under  oath;  nor  that  it  was  made  in  the  pre- 
liminary proof.  Held,  a  demurrer  to  it  was 
properly  sustained.  Aurora  Fire  Inn.  Co.  c. 
Johnson,  46  Ind.,  315. 

38.  The  plea  alleged  that  a  fire  place  was 
insecure  at  the  time  the  policy  was  made,  and 
that  the  plaintiff  fraudulently  concealed  that 
fact.  Held,  the  plea  was  bad,  because  it  did 
not  apprise  the  plaintiffs  of  the  facts  relied  on 
to  establish  the  defect;  that  the  word  "fraud- 
ulent" did  not  magnify  or  identify  the  fact 
concealed.  Kentucky  and  Louisville  Ins.  Co. 
r.  Southard,  8  B.  Mon..  634. 

39.  Stipulated:  "  In  case  the  insured  shall 
become  so  far  intemperate  as  to  impair  hi* 
health  or  to  induce  delilJum  tremens,  this  pol- 
icy shall  be  void."  The  answer  alleged  that 
by  the  proof  furnished  by  the  claimant,  it 
fullj'  appears  that  the  insured  just  before  hi» 
death,  and  while  said  policy  was  in  force,  was 
suffering  from  delirium  tremens  from  drink. 
Held,  the  answer  presented  no  ground  of  de- 
fense to  the  action.  Connecticut  Mutual  Life 
Ins.  Co.  t.  Siegel,  9  Bush,  450. 

40.  If  the  execution  of  a  policy  of  insur- 
ance, properly  described  in  the  declaration,  i& 
not  denied  by  afiidavit,  it  cannot  be  rejected 
on  the  trial.  Illinois  Mutual  Fire  Ins.  Co.  v. 
Marseilles  Manf'g  Co.,  6  111.,  236. 

41.  The  policy  prohibited  a  change  of  title 
or  any  undivided  interest  in  the  property  in- 
sured,  without  consent  of  the  company. 
Held,  a  plea  setting  up  an  assignment  but 
failing  to  aver  that  the  company  had  not  as- 
sented to  it,  was  bad,  for  the  court  will  pre- 
sume that  the  conditions  were  complied  with 
until  the  contrary  is  made  to  appear.  Peoria 
Marine  and  Fire  Ins.  Co.  v.  Lewis,  18  111.,  553. 

42.  The  defendant  pleaded  nil  debit  to  an 
action  of  debt  brought  upon  a  judgment  ren- 
dered in  another  state.  Held,  not  a  good  plea. 
Knickerbocker  Life  Ins.  Co.  v.  Barker,  55  111., 
241. 

43.  Stipulated:  "  Where  re.al  and  personal 
property  insured  shall  be  alienated,  sold  un- 
der execution  or  decree,  or  the  title  shall  be  ia 
any  manner  transferred  or  changed,  the  insur- 
ance shall  cease,  unless  the  policy  shall  hav« 


9G5 


PLEADING. 


966 


What  is  not  sufficient. 


been  duly  assigned  or  confirmed  by  consent 
of  the  directors,  to  the  actual  owner  or  owners ; 
no  policy  shall  be  deemed  to  have  been  as- 
signed or  confirmed  unless  the  consent  of  the 
directors  is  cerlitied  on  the  policy  by  the  sec- 
retary of  the  company."  Insurer  iilcaded 
that  insured,  by  deed  under  seal,  sold  and  con- 
veyed the  property  without  the  company's 
consent,  in  violation  of  the  15th  condition  of 
the  policy  declared  upon,  whereby  the  policy 
ceased  to  be  binding  and  became  void.  Held, 
a  bad  plea,  because  it  is  not  averred  that  the 
conveyance  was  made  before  the  loss  oc- 
curred, and  because  it  is  not  averred  that  the 
directors  did  not,  after  the  alienation,  confirm 
the  policy  to  the  actual  owner.  Illinois  Fire 
Ins.  Co.  V.  Stanton,  57  III.,  354. 

44.  Stipulated:  "  If  any  change  takes  place 
in  the  title  or  possession  of  the  property, 
wliether  by  sale,  legal  process  or  judicial  de- 
cree, or  voluntary  transfer  or  conveyance,  * 
*  *  this  policy  shall  be  void."  Plea:  That 
after  the  making  and  delivery  of  said  policy, 
and  before  the  happening  of  the  loss,  to-wit, 
September  1,  1873,  a  change  took  place  in  the 
title  of  the  property  insured  by  voluntary 
.transfer,  without  consent  of  the  defendant,  and 
said  policy  then  and  there  became,  and  was 
and  has  ever  since  been  and  now  is  v,pid. 
HelcL,  the  ple^i  wa.s  iasuflicieut,  for  what  con- 
stitutes change  of  title  by  volunfarj'  transfer 
must  be  stated  so  that  an  issue  can  be  taken 
upon  the  fact  or  facts.  111.  S.  C.  Clay  Fire 
and  Marine  Ins.  Co.  t>.  Wusterhausen,  7  Chi. 
Leg.  News,  358. 

45.  There  was  a  plea  of  the  general  issue, 
also  a  special  plea  setting  up  special  matter 
of  defense,  admissible  under  the  plea  of  the 
general  issue.  Held,  no  error  to  strike  out  the 
special  plea.  City  Fire  Ins.  Co.  v.  Carrugi, 
41  Ga.,  660. 

46.  The  defendant  pleaded  nonpayment  of 
premium;  also,  that  the  plaintiff  was  guilty  of 
niisrepre.scniations  in  describing  the  premises 
insured,  and  that  plaintitl'  liad  concealed  ma- 
terial facts  from  the  insurers.  Held,  insurers 
could  not  be  permitted  to  say  that  there  was 
no  contract,  and  at  the  same  time  assert  that 
there  was  a  contract,  which  was  void.  Michael 
V.  Mut.  Ins.  Co.,  10  La.  An.,  737. 

47.  A  part  of  the  answer  professed  and  as- 
sumed to  answer  the  entire  cause  of  action, 
but  if  good  at  all,  it  was  applicable  to  a  part 
of  the  cause  of  action.    Held,  tUn  rule  under 


the  code  is  the  same  as  at  common  law.  If  a 
party  has  a  partial  defense  to  an  action,  he 
must  set  it  up  as  such,  and  if  he  sets  it  up  as 
an  answer  to  tlie  whole  cause,  a  demurrer  to 
it  will  be  sustained.  Fitzsimmons  v.  City  Fire 
Ins.  Co.,  18  Wis.,  234. 

48.  The  action  was  Ijy  an  assignee;  and 
under  the  plea  of  payment  the  defendant  gave 
in  evidence  a  judgment  against  insurer  as  gar- 
nishee. Held,  a  departure  from  the  pleadings, 
and  that  it  could  be  taken  advantage  of  by 
w.ay  of  instructions  to  the  jury.  Walters  -o, 
Wasliinrjton  Ins  Co.,  1  Cole,  404. 

49.  .€100  on  three  several  ships,  to  continue 
only  till  anj'  one  of  them  arrived.  Two  wcro 
lost;  the  defendant  pleaded  that  one  of  the 
ships  arrived  with  value  of  £100,  to  which 
there  was  a  demurrer.  Held,  no  plea,  for  the 
£100  is  on  .all  the  ships,  and  was  not  saved  by 
the  arrival  of  one;  that  as  to  the  arrival  of  the 
goods  in  that  one,  it  was  a  good  plea  pro  tanto. 
Hichirds  r.  Coicel,  3  Keb.,  174. 

50.  The  plaintifl"  alleged  that  the  ship, 
tackle,  etc.,  were  sunk  and  destroyed ;  and  the 
defendant  traversed  specially,  "That  the  ship, 
tackle,  etc.,  were  sunk  and  destroyed."  Held, 
the  plea  was  bad  because  the  traverse  was 
conjunctive,  whereas  it  ought  to  have  been  in 
the  disjunctive.  Gornm  v.  Sweeting,  2  Saund., 
300. 

5 1 .  The  defendant  applied  for  leave  to  plead 
that  the  policy  was  not  under  seal,  and  it  was 
refused.     Weld  v.  Foster,  5  L.  J.  C.  P.,  13. 

52.  The  declaration  averred  a  total  loss  of 
the  ship  insured,  for  that  by  stormy  winds  and 
weather  she  became  leaky  and  broken  inso. 
much  that  it  became  expedient  and  necessary 
to  sail  to  the  nearest  port;  that  there  the 
master  was  unable  to  procure  money  to  make 
repairs,  and  it  thereupon  became  expedient 
and  necessary,  for  the  benefit  of  all  interested, 
to  sell  her;  and  she  was  sold  accordingly,  and 
became  a  total  loss  to  the  insured.  Plea :  that 
as  to  so  much  of  the  loss  as  was  occasioned 
by  the  captain's  inabilit3'  to  procure  money  to 
make  repairs,  the  same  was  occcasioned  by 
the  default  and  negligence  of  the  plaintiff. 
Held,  the  plea  was  bad  on  general  demurrer, 
because  it  leaves  unanswered  a  part  of  the 
declaration  which  shows  a  good  cause  of  ac- 
tion DeVaiix  c.  Astell,  10  L.  J.  C.  P.,  46. 

oii.  The  defendant  pleaded  a  release,  by 
deed,  of  the  causes  of  action,  and  the  plaintiff 
replied,  demanding  oyer,  of  the  release,  and 

483 


967 


PLEADING. 


968 


What  is  not  sufficient. 


then  averred  tliaf  the  money  so  released  was 
due  for  other  and  dilicrent  contracts  than  those 
in  the  deehiration  mentioned.  Held,  bad  on 
demurrer,  because  it  neither  traversed  nor  con- 
fessed the  allegations  of  the  plea.  Wilkiiuon 
V.  Lindo,  10  L.  J.  Ex.,  94. 

54.  A  defendant  is  not  at  liberty  to  traverse 
any  single  fact  included  in  the  general  issue ; 
the  defendant  cannot  traverse  the  payment  of 
the  premium  or  the  plaintifTs  promise  to  ob- 
serve the  conditions  of  the  policy.  Suther- 
land V.  Pratt,  11  Mee.  &  W.,  296;  13  L.  J.  Ex., 
235;  13  id.,  240;  7  Jur.,  261. 

55.  The  defendant  pleaded  that  the  damage 
mentioned  in  the  declaration  occurred  before 
the  plaintiff  became  interested.  Held,  bad, 
upon  general  demurrer.  Sutherland  v.  Pratt, 
U  Mee.  &  W.,  296;  12  L.  J.  E.K.,  235;  13  id., 
246;  7  Jur.,  261. 

56.  On  cotton  mills,  engine  house  adjoin- 
ing, and  steam  engine  therein,  worked  by  day 
only.  The  application,  part  of  the  policy, 
contained  this  question:  "  Do  j-ou  work  it  by 
night  or  by  day?"  Ans.  "We  work  it  by 
day."  Plea:  the  said  steam  engine  and  cer- 
tain parts  of  the  gear  were  worked  by  night, 
and  not  by  day.  Held,  a  bad  plea,  because 
the  words  "  worked  by  day  "  applied  to  the 
mill  only.  Whitehead  v.  Price,  3  C.  M.  &  R., 
447;  5  Tyrw.,  825;  1  Gale,  151. 

57.  On  vessel  in  the  name  of  A.  for  others 
not  named.  The  real  plaintiff  averred  the  in- 
terest iu  him,  aud  that  the  policy  was  made 
by  A.  for  his  benefit.  Plea:  that  the  policy 
was  not  made  bj'  A.  for  account  of  the  plaints 
iff,  nor  for  his  use  and  benefit.  Held,  upon 
speoial  demurrer  that  it  amounted  to  a  plea  of 
nunassumpsit,  and  was  therefore  bad.  Redmond 
V.  Smith,  7  M.  &  G.,  457;  8  Scott  N.  R.,  2C0; 
8  Jur.,  711 ;  13  L.  J.  C.  P.,  159. 

■  58.  "  Warranted  free  from  average,  unless 
general,  under  three  per  cent.,  or  the  ship  be 
stranded.''  Insured  stated  two  breaches,  viz. : 
that  she  ran  aground  and  it  became  necessary 
to  let  go  her  larboard  and  kedge  anchors,  and 
to  cut  the  cables;  that  the  anchors  and  cables 
were  left  in  the  sea  and  lost,  and  she  was  fur- 
ther strained  and  damaged,  whereby  the  in- 
sured sustained  a  general  average  loss.  Sec- 
ond breach:  That  plaintiff  sustained  an 
average  loss  on  ship,  masts,  ropes  and  cables 
to  an  amount  larger  than  three  per  cent,  on  all 
the  mone}'s  insured  thereon.  Two  pleas: 
First,  tliat  the  anchors  and  cables  were  not 
4P4 


left  in  the  sea  and  lost.  Second,  that  plaintiff 
had  not  suffered  an  average  loss  on  ship, 
masts,  ropes  and  cables  to  the  amount  of  three 
per  cent.  Held,  the  pleas  were  biid  because 
tlie  fraverses  were  too  large.  Held,  also,  the 
first  breach  was  sufficient,  but  the  second  was 
not,  because  it  did  not  distinctly  appear  by 
averment  that  the  loss  amounted  to  three  per 
cent,  on  the  value  of  the  ship.  Dawson  v. 
Wrench,  3  Exchr.,  359;  18  L.  J.  Ex.,  229. 
And  notwithstanding  that  the  plea  to  the  sec- 
ond breach  was  bad,  there  must  be  judgment 
for  the  defendant  upon  the  second  breach. 
Ibid. 

59.  Plea,  that  the  policy  was  in  writing, 
and  made  after  35  Geo.  Ill,  ch.  63,  that  de- 
fendant  did  not  subscribe  it  nor  was  the 
name  of  the  defendant  expressed  or  specified 
in  or  upon  the  ptilicy  according  to  the  intent 
and  meaning  of  that  act.  Held,  bad  in  sub- 
stance, for  6  Geo.  I,  ch.  18,  which  prohibited 
any  partnership  other  than  the  two  chartered 
companies  from  underwriting  a  marine  policy 
had  been  repealed  by  5  Geo.  IV,  ch.  114-  tliat 
a  subscription  in  the  name  of  the  partnership 
firm  was  a  compliance  with  35  Geo.  Ill,  ch.  63 
sec.  11.  Held,  also,  that  the  plea  was  double, 
because  it  put  in  issue  the  execution  of  the 
policy  and  raised  an  objection  to  it  under  35 
Geo.  Ill,  ch.  63,  sec.  11.  Heid  v.  Allan,  4 
E.xchr.,  326;  19  L.  J.  Ex.,  39;  13  Jur.,  1082; 
Doiodall  V.  Allan,W  L.  J.  Q.  B.,  41. 

60.  "On  stock  in  trade  iu  oil  store,  having 
no  manufacturing  process  therein,  and  on 
stock  in  trade  iu  the  open  j'ard."  Stipulated  : 
"  If  alteration  sliall  be  made  to  any  building 
insured,  by  which  the  risk  to  it  or  the  insured 
property  is  increased,  the  alteration  must  be 
immediately  notified  to  the  company,  that  it 
may  be  allowed  by  indorsement;  ollierwise 
the  policy  will  be  void."  Insured  declared 
for  a  loss  of  stock  in  trade  in  open  yard,  and 
averred  that  the  warranty  as  to  the  oil  store 
had  been  waived ;  for  that  insured  had  been 
allowed  to  manufacture  by  boiling  varnish, 
and  that  after  the  waiver,  the  stock  in  the  yard 
was  burned.  Three  pleas:  First,  an  altera- 
tion was  made  in  the  oil  store,  by  which  the 
risk  to  it  and  to  the  stock  was  increaned,  of 
which  insurer  had  not  notice.  Second,  two 
boilers,  in  the  policy  mentioned  as  being  out- 
side the  store,  were  removed  inside,  which  in- 
creasejl  the  risk  to  the  building,  the  stock 
therein,  aud  to  the  stock  in  the  open  yard,  of 


969 


PLEADING. 


1)70 


When  is  not  sufficient. 


•which  insurer  luul  not  any  notice.  Third,  in- 
sured carried  on  in  tlie  oil  store  llie  hazardous 
trade  of  varuish  making,  which  increased  the 
risk  to  it,  and  to  tlie  stock  in  trade,  of  which 
insurer  had  not  any  notice.  And  to  tliese 
were  replications  de  iiijurin.  Held,  tlie  altera. 
tions  did  no\,  per  se,  increase  the  risk,  but  tlie 
question  to  be  .subniilted  was,  wlietlier  the  use 
and  application  of  the  boilers  increased  it. 
Held,  also,  the  second  plea  was  bad,  because  it 
did  not  aver  that  there  was  a  perpetual  use  of 
the  boilers,  for  the  averment  would  be  satis- 
fied by  proving  the  boiling  of  varnish  in 
tliem  on  one  occasion  only,  and  that  would 
not  avoid  the  policy.  Held,  also,  the  third 
plea  was  bad,  because  it  was  directed  to  the 
■whole  declaration,  in  which  there  was  an 
averment  that  the  trade  of  a  varnish  boiler 
haii  been  waived.  Barrett  v.  Jenny,  3  Exc, 
535;  18  L.  J.  E.\.,  215. 

61.  The  defendant  pleaded  that  the  insur- 
ance was  procured  by  fraud.  Held,  they  must 
make  a  special  issue  on  the  allegation  of 
fraud,  or  withdraw  it  from  the  record.  Camp- 
bell V.  Aberdeen  Fire  and  Life  Ina.  Ass.  Co.,  3 
C.  C.  S.  (N.  S.),  1010. 

62.  Plea  to  the  whole  declaration,  that 
some  of  the  buildings  insured  contained  di- 
vers furnaces  and  stoves  used  in  the  process 
of  manufacturing,  and  that  contrary  to  the 
terms  of  the  policy  they  were  not  mentijned 
in  it.  ift'M,  a  bad  plea,  because  it  purported 
to  answer  the  whole  declaration,  yet  it  ap- 
peared that  only  a  part  of  the  buildings  in- 
sured had  stoves  and  furnaces;  also  it  was 
bad  for  duplicity,  because  furnaces  and  stoves 
were  double  defenses,  the  existence  of  either 
being  a  sufficient  single  defense.  Daniel  v. 
Robinson,  Batty,  650. 

63.  The  court  gave  leave  to  plead  nonas- 
sumpsit,  and  the  defendant  pleaded  that  the 
defendant  himself  did  not  undertake,  etc. 
Held,  the  plea  must  be  set  aside  on  motion. 
Wilson  V.  Lynch,  1  Hud.  &  B.,  336. 

64.  Plea:  that  the  vessel  not  being  seawor- 
thy when  she  sailed,  the  pursuers  were  not 
entitled  to  recover.  Held,  bad,  because  it  was 
tjo  general.  Baker  v.  Scottish  Sea  Ins.  Co.,  17 
C.  C.  S.,  417 ;  27  Scot.  Jur.,  178. 

66.  Stipulated:  "In  case  of  accident,  the 
company  shall  have  the  right  to  interfere  and 
rescue  her  from  peril,  and  to  repair  her  if  the 
insured  shall  refuse  or  neglect  to  do  so;  and 
the  aeiB  of  either  party  in  saving  and  repair- 


ing her  shall  not  be  construed  as  a  waiver  of 
nor  an  acceptance  of  an  abandonment."  The- 
defendant  pleaded  that  she  was  wrecked;  that 
insured  refused  to  rescue  and  repair  her;  that 
defendant  rescued  her  from  the  peril  and  re- 
paired her,  and  had  oficred  to  return  her  to 
the  possession  of  the  insured  on  pjiyment  of  a 
fair  proportion  of  the  charges  and  expenses 
incurred.  Held,  the  plea  was  bad,  for  it 
amounted  to  a  statement  that  there  was  not  a 
total  loss  of  the  vessel,  and  failed  to  afford 
the  means  of  determining  whether  the  cost  of 
repairs  were  or  vvere  not  so  large  as  to  bring 
the  case  within  the  English  rule  which  gov. 
erns  constructive  total  losses.  Meagher  v. 
Home  Ins.  Co.,  10  U.  C.  C.  P.,  313. 

66.  A  plea  which  merely  alleges  that  tho 
property  insured  was  insured  in  another 
office  is  bad,  because  it  does  not  set  out  the 
particulars  of  the  other  insuriince.  Uamsay 
Woolen  Cloth  Co.  n.  Mutual  Fire  Ins.  Co.,  11 
U.  C.  Q.  B.,  516. 

67.  The  declaration  averred  the  perform- 
ance of  conditions,  the  rendition  of  a  particu- 
lar account  upon  oath,  showing  no  other  in- 
surance  on  the  premises.  The  fifth  pica  set 
up  a  condition  requiring  a  particular  account 
of  the  loss  under  oath,  and  a  statement  as  to 
whether  any  and  what  other  insurance  e.\. 
isted  on  the  premises  at  the  time  of  the  fire. 
Averment  that,  although  the  plaintiff  had  de- 
livered a  particular  account,  he  had  neglected 
to  state  whether  any  other  insurance  existed 
at  the  time  of  fire.  Held,  the  plea  was  bad, 
for  the  traverse  did  not  come  within  the  con- 
dition of  the  policy.  Williamson  v.  Niagara 
District  Ins.  Co.,  14  U.  C.  C.  P.,  15. 

68.  Plea:  If  any  other  insurance  should 
be  made,  whether  prior  or  subsequent  to  the 
date  of  policy,  insured  were  to  give  notice  of 
it  to  iusurers,  and  have  it  indorsed  on  the 
policy;  that  several  insurances  were  made 
u])on  the  property  insured  (setting  them  out), 
of  which  defendants  neverhad  any  notice  until 
after  the  loss,  and  the  same  were  never  indorsed 
upon  the  policy.  Replication:  PlaintilTgave 
due  notice  to  defendant  of  all  other  insurance, 
but  defendant  neglected  to  indorse  it  on  the 
policy.  Held,  the  replication  was  bad,  for  in 
a  i)roceeding  at  law,  it  was  necessary  to  aver 
an  indorsement  upon  the  policy,  whatever  the 
rule  might  be  in  equity.  Noad  v.  Provincial 
Ins.  Co.,  18  U.  C.  Q.  B.,  .584. 

69.  Plea:    She  ran  aground  and  was  there 

485 


971 


PLEADING. 


972 


What  must  be  specially  pleaded. 


stranded;  that  insured  should  have  employed 
prompt  measures  for  her  protection  and  re- 
covery, and  when  recoverd,  should  have  re- 
paired lier,  but  he  neglected  so  to  do,  and  that 
according  to  the  terms  of  the  policy,  defend- 
ant rescued  her  from  peril,  repaired  her,  and 
made  her  as  sound  and  as  good  as  she  was  be- 
fore the  accident  occurred,  and  ofl'ered  to  re- 
store her  to  the  insured  on  payment  of  a  fair 
proportion  of  the  expenses  and  costs  of  re- 
pairs; but  insured  refused  to  receive  her. 
Held,  a  bad  plea.  Meaglier  v.  ^tna  Ins.  Co., 
19  U.  C.  Q.  B,  530. 

70.  Plea:  Policj'  contained  a  condition 
that  in  case  a  promissory  note  should  be  given 
for  the  premium,  and  it  should  not  be  paid  at 
maturity,  the  full  amount  of  the  premium 
should  be  considered  earned,  and  the  policy 
should  be  void  while  the  note  remained  un- 
paid ;  that  the  premium  was  paid  by  plaiutift''s 
promissory  note,  which  became  due  before 
sixty  days  had  elapsed  after  proof  of  loss,  and 
before  commencement  of  suit.  Held,  a  bad 
plea.  Meagher  v.  .Mtna  Ins.  Co.,  19  U.  C.  Q. 
B.,  530. 

71.  Defendant  pleaded  a  provision  of  the 
policy,  that  the  construction  of  furnaces  in 
buildings  to  be  insured  must  be  strictly  de- 
scribed, or  if  subsequently  introduced,  notice 
must  be  given  and  the  company's  consent  pro- 
cured ;  that  if  the  risk  should  be  increased  by 
any  means  within  the  control  of  insured,  or 
the  premises  occupied  so  as  to  render  the  risk 
more  hazardous,  the  policy  should  be  void, 
unless  the  company's  consent  were  obtained. 
Averment:  Plainliflfmade  an  addition  to  the 
premises,  and  put  into  it  two  furnaces  of 
which  defendants  had  not  notice  or  knowl- 
edge.  Held,  a  bad  plea,  for  the  condition  did 
not  prohibit  the  putting  of  furnaces  into  ad- 
tlitious.    Lomas  v.  British  America  Ass.  Co., 

■  22  U.  C.  Q.  B.,  310 ;  Heneker  o.  Same,  13  id.,  99. 

72.  The  defendant  pleaded  an  increase  of 
risk  without  notice  to  defendant.  Plaintiif 
replied  a  stipulation  of  the  policy  that  in  case 
the  risk  should  be  increased  it  should  be  op- 
tional with  the  defendant  to  terminate  tiie  pol- 
icy. Averment:  Defendant  did  not  termi. 
nalethe  policy.  Held,  bad,  because  it  did  not 
aver  that  the  defendant  had  notice  of  the  in- 
crease of  the  risk.  Lomas  v.  British  America 
Ass.  Co.,  23  U.  C.  Q.  B.,  310;  Heneker  v.  Same, 
13  id.,  99. 

7S.  The  defendant  tiled  a  special  traverse, 
486 


that  the  plaintiff"  was  not  interested  in  the 
goods  insured.  Held,  obnoxious  to  a  demur- 
rer, because  it  was  too  broad,  for  if  he  was  in- 
terested  in  any  degree,  he  was  entitled  to  re- 
cover  pro  tanto.  Ketchum  v.  Protection  Ins. 
Co.,  1  Allen  (N.  B.),  13G. 

III.  What  must  be  specially  pleaded. 

1.  Covenant  on  a  policy  under  seal.  Defend- 
ant offered  in  evidence  special  matter  of  de- 
fense. Held,  everything  relied  on  to  avoid  a_ 
contract  under  seal  must  be  pleaded  specially, 
and  without  a  special  plea,  setting  up  the  spe- 
cial matter  of  defense,  it  was  not  admissible. 
Marine  Ins.  Co.  v.  Hodgson,  6  Cranch,  206. 

2.  The  defendant  pleaded  nothing  but  the 
general  issue.  The  plaintiff  gave  in  evidence 
the  policy,  which  made  the  application  for  it 
a  part  of  the  contract,  and  warranted  the  truth 
of  certain  statements  therein  contained.  The 
defendant  proved  that  certain  of  the  statements 
were  untrue.  The  court  instructed  the  jury 
to  disregard  the  evidence,  because  there  was 
no  special  plea  for  its  admission.  Held,  error, 
because  the  general  issue  was  suflicieut  to  let 
in  the  proof.  Jacobs  v.  National  Life  Ins.  Co., 
1  MacArthur,  484. 

3.  The  preliminary  proof  stated  that  the 
premises  were  occupied  as  a  dwelling  house. 
Held,  the  insurer  could  not  defend  on  the 
ground  that  the  premises  were  used  as  a  gro- 
cery or  liquor  store,  because  that  defense  was 
not  set  up  in  the  defendant's  answer.  Malier 
V.  Hibernian  Ins.  Co.,  6  Hun.  (N.  Y.),  353. 

4.  If  the  defendant's  charter  contains  an 
exception  as  to  the  right  to  make  certain  con 
tracts,  the  defendant  must  ple.ad  the  fact.  Fee- 
ny  V.  People's  Fire  Ins.  Co.,  2  Rob.  (N.  Y.),  599. 

5.  The  insurer  cannot  rely  on  a  misrepre- 
sentation to  defeat  the  action,  unless  it  is 
speciiied  as  a  ground  of  defense  in  the  answer, 
notwithstanding  it  is  first  disclosed  by  the  evi- 
dence of  insured.  Haskins  v.  Hamilton  Mut. 
Ins.  Co.,  5  Gray,  343 ;  Mulry  v.  Mohawk  Val- 
ley Ins.  Co.,  5  Gray,  541. 

6.  Defendant  cannot  give  proof  of,  nor  ask 
instruction  upon,  any  matter  not  stated  as  a 
ground  of  defense  in  the  answer.  Fogg  e.  Grif- 
fin, 3  Allen,  1. 

7.  The  defendant  pleaded  non  infregil  con- 
ventionem  onlj",  and  offered  evidence  tending 
to  show  that  the  time  in  which  the  company 
had  to  repair  and  restore  the  property  was  es- 


973 


PLEADING. 


n7i 


What  must  be  specially  pleaded. 


tended.  The  court  instructed  the  jury  that 
parol  evidouce  was  not  admissible  to  show 
that  insured  consented  to  allow  such  repairs 
to  be  made  after  the  time  limited  in  the  policy 
lor  repairs.  Held,  the  evidence  was  inadmis- 
sible, for  there  was  no  plea  to  which  it  could 
lie  applied.  Franklin  Fire  Im.  Co.  v.  Hamill, 
6Gill,  87;5Md.,  170. 

8.  Insurer  insisted,  upon  the  trial,  tliat  the 
interest  of  insured  had  been  misrepresented, 
but  the  court  refused  to  subiuit  the  question  to 
the  jury.  Held,  no  error,  for  insurer  must 
plead  this  specially,  which  was  not  done  in 
this  case.  Sussex  County  Mut.  Ins.  Co.  v.  Wood. 
Tuf,  26  N.  J.,  541. 

9.  The  9th  rule  of  the  supreme  judicial 
court  requires  parties  to  file  "  specifications 
of  tlie  nature  and  grounds  of  defense,  and  on 
the  trial  of  the  action  they  shall  be  confined 
to  the  grounds  of  defense  therein  set  forth, 
and  all  matters  in  the  writ  and  declaration  set 
forth,  not  specially  denied,  shall  be  re- 
garded as  admitted  for  the  purposes  of  the 
trial."  Held,  if  the  declaration  alleged  due 
notice  and  proof  of  loss,  according  to  the  con- 
dition of  the  policy,  insured  was  not  bound 
to  prove  notice  of  the  fire  to  the  insurers,  nor 
that  they  had  delivered  proofs  or  statements  of 
loss.     Fox  V.  Comctiy  Fire  Ins.  Co.,  5:i  Me..  107. 

10.  Insurer  cannot  urge  any  matter  of  de- 
fense unless  it  has  been  set  up  in  his  specifica- 
tions of  defense.  Dyer  v.  Fiscataqua  Fire  and 
Marine  Ins.  Co.,  53  Me.,  118;  Castonv.  Mon- 
mouth Mut.  Fire  Ins.  Co.,  54  Me.,  170. 

11.  Insurer  offered  evidence  to  show  that 
the  policy  had  been  canceled,  but  the  court 
told  the  jury  that  it  was  not  competent  for  de- 
fendant to  deny  the  existence  of  the  contract. 
Held,  no  error,  for  plaintiff  counted  upon  the 
policy,  alleging  its  due  execution,  and  defend, 
ant  could  not  show  a  rescission  unless  the 
affidavit  required  by  rule  79  was  in  the  record. 
Peoria  Marine  and  Fire  Ins.  Co.  v.  Perkins,  16 
Mich.,  380. 

12.  Stipulated:  "The  insured  shall,  if  re- 
<iuested,  exhibit  to  the  insurer  his  books  of 
accounts,  invoices,  etc."  Held,  not  included 
in  the  plaintiff's  general  allegation  of  per- 
formance of  all  conditions  precedent;  the  re- 
fusal and  failure  of  insured  so  to  do  was  mat- 
ter of  defense;  that  defendant  having  alleged 
demand,  refusal  and  neglect,  the  plaintiff  was 
bound  to  deny  or  excuse  compliance,  and  evi- 
dence 'n  excuse  was  not  admissible,  because 


there  was  no  issue  tendered  for  it.    Mueller  v. 
Putnam  Fire  Ins.  Co.,  45  Mo.,  84. 

18.  When  new  matter  is  relied  upon  as  a 
defense  to  the  action,  it  must  be  stated  in  the 
answer.  By  merely  answering  the  allegations 
in  the  plaintiff's  petition,  the  defendant  can 
try  only  such  questions  of  fact  as  are  neces- 
sary to  sustain  the  plaintiff's  case.  Northrup 
V.  Mississippi  Valley  Ins.  Co.,  47  Mo.,  435. 

14.  Stipulated:  "  The  action  shall  be  barred 
unless  brought  within  si.x  mouths  after  the 
loss."  Held,  it  could  not  be  taken  advantage 
of  by  demurrer;  defendant  must  plead  it 
specially,  for  the  effect  of  the  stipulation  may 
have  been  taken  away  bj-  a  new  promise  or 
waiver.  Carter  v.  Humboldt  Fire  Ins.  Co.,  13 
Iowa,  287. 

15.  Stipulated:  "If  there  appear  any  fraud 
or  false  swearing,  the  claimant  shall  forfeit  all 
claims  by  virtue  of  this  policy."  Insurer 
pleaded  the  general  issue  only.  Held,  evi- 
dence of  fraud  was  not  admissible.  Flynn  v. 
Merchants  Mut.  Ins.  Co.,  17  La.  An.,  135. 

IG.  The  insurers  offered  ti)  prove  that  the 
insured  misrepresented  the  risk,  but  pleaded 
the  general  issue  onlj'.  Held,  the  evidence 
was  not  admissible.  Pino  v.  Merchants  Mut. 
Ins.  Co.,  19  La.  An.,  214. 

17.  Defendants  filed  a  plea  of  nonas- 
sumpsit,  with  notice  of  special  matter,  setting 
up  tiiat  insured  had  not  an  absolute  estate  to 
the  premises,  the  title  to  which  was  fraudu- 
lently concealed  from  the  defendants ;  that 
the  premises  were  incumbered  by  mortgages, 
judgments  and  mechanics'  liens,  which  were 
not  disclosed  at  the  lime  the  insurance  was 
made;  that  the  risk  was  increased  after  the 
policy  was  made,  contrary  to  the  terms  of  the 
contract,  and  that  the  buildings  were  inten- 
tionallj'  destroyed  by  fire  by  a  person  at  th:!"; 
time  a  member  of  the  corporation.  Held, 
under  this  plea  and  notice,  the  defendants 
could  give  in  evidence  illegality  of  the  cou- 
tract,  noncompliance  with  express  or  implied 
warranties,  want  of  interest,  misrepresentation 
or  concealment,  or  noncompliance  with  any 
of  the  terms  of  the  policy.  Illinois  Mutual 
Fire  Ins.  Co.  v.  Marseilles  Manvfacturing  Co., 
6  111.,  236. 

18.  Stipulated:  "Keeping  of  gunpowder 
shall  avoid  the  policy."  There  were  eleven 
cans  of  gunpowder  for  sale  on  the  premises 
.at  the  time  of  the  fire.  The  complaint  alleged 
tluil  the  plnintilf  hail  in  all  respects  faithfully 

487 


075 


PLEADING. 


976 


What  need  not  be  specially  pleaded  —  What  the  pleadings  admit,  and  what  they  do  not  admit. 


complied  with  all  terms  and  conditions  of  the 
said  policy  on  her  part  to  be  kept,  observed 
and  performed.  This  allegation  w:vs  not  de- 
nied, nor  did  the  answer  set  up  the  keeping 
of  gunpowder  as  a  defense.  Held,  the  fact 
tliat  there  were  eleven  cans  of  gunpowder  for 
sale  on  the  premises  was  irrelevant  to  any 
issue  in  the  cause;  it  should  have  been  set  up 
by  the  defendant,  aud  an  issue  raised  upon  it; 
and  in  the  absence  of  such  issue,  the  plaiutitt' 
must  recover.  Cassacia  v.  Phomix  Ins.  Co.,  28 
Cal..  628. 

19.  The  defendant  oifered  matter  admis- 
sible as  an  affirmative  defense,  but  it  was 
not  set  up  in  the  answer.  Held,  inadmis- 
sible. Mayor,  etc.,  of  New  York  v.  Brooklyn 
Im.  Co.,  43  N.  Y.  (-1  Keyes),  465;  s.  c,  3  Abb. 
Dec,  251 ;  41  Barb.,  231. 

20.  Certain  specified  inflammable  articles 
■were  prohibited,  but  no  defense  was  presented 
by  the  pleadings  on  the  ground  that  the  pro- 
hibited articles  were  kept.  Upon  the  trial, 
evidence  was  given,  without  objection,  which 
established  the  fact  tliat  one  of  the  prohibited 
articles  was  upon  the  premises  at  the  time  of 
the  fire.  The  defendant  moved  for  a  nonsuit. 
Held,  it  was  properly  overruled.  Williams  v. 
Mechanics  and  Traders  Ins.  Co.,  54  N.  Y.,  577. 

21.  Kule  104  provides:  "  In  case  the  com- 
pany shall  rely  iu  whole  or  in  part  upon  the 
failure  of  the  plaintiflf  to  perform  or  make 
good  any  promise,  representation  or  warranty 
not  contained  in  the  policy,  but  set  forth  iu 
any  other  paper  or  instrument  in  the  hands  of 
the  insurer,  the  notice  under  the  general  issue 
shall  declare  the  same,  and  indicate  the  breach 
relied  on."  The  defendant  filed  notliing  but 
the  plea  of  the  general  issue.  Upon  the  trial, 
it  appeared  that  the  plaintiff  warranted  the 
truth  of  certain  statements  made  in  his  appli- 
cation, among  which  was  the  statement  that 
tlie  premises  were  mortgaged  for  $5,000.  It 
also  appeared  that  they  were  mortgaged  for  a 
much  larger  sum.  Held,  the  defense  on  that 
ground  was  one  which  defendants  had  the 
right  to  waive;  and  the  fact  that  no  notice 
was  attached  to  the  general  issue,  precluded 
them  from  raising  that  defense  at  the  trial,  for 
it  was  not  in  issue.  The  mere  fact  that  the 
whole  or  any  portion  of  the  evidence  showing 
such  a  breach  was  introduced  by  the  plaintift" 
as  a  part  of  his  case  would  make  no  dittercnce. 
The  case  must  be  disposed  of  in  accordance 
•with  the  issue  made  between  the  parties.  Home 

488 


7ns.  Co.  V.  Curtis  (Sup.  Ct.  Mich.),  5  Ins.  Law 
Jour.,  120. 

IV.     "What  ^'EED   not  be  specially 

PLEADED. 

1.  Under  a  general  or  specific  denial  of  any 
part  of  a  complaint,  the  defendant  may  give 
evidence  to  disprove  the  matter  affirmatively 
alleged  in  the  complaint.  Oreenfield  v.  Massa- 
chusetts Mutual  Life  Ins.  Co.,  47  N.  Y.,  430. 

2.  The  defendants  denied  general  Ij',  and 
averred  that  they  had  reason  to  suspect  that 
the  loss  was  altogether  fraudulent.  Held,  suf- 
ficient to  admit  evidence  tending  to  show  that 
the  loss  was  fraudulent,  or  that  the  plaintiff 
had  not  the  goods  alleged  to  have  been  lost. 
Brugnot  v.  Louisiana  State  Ins.  Co.,  12  La.  (O. 
S.),  326. 

3.  Insurers  pleaded  nil  debet.  Held,  proof 
of  fraud,  or  false  swearing  as  to  the  amount 
of  the  loss,  was  admissible  under  that  plea 
(citing  1  Chitty  on  PI.,  481 ;  2  Greenl.  Ev.,  281). 
Phanix  Ins.  Co.  v.  Munday,  5  Cold.,  547. 

V.  What  the  pleadings  adsht. 

1.  The  defendant  alleged  certain  facts  in 
their  answer  as  a  defense  to  the  action ;  and 
plaintifl"  filed  a  repl'.cation  in  which  he  stated 
that  the  defendants  had  waived  the  matters 
stated  in  the  answer.  Held,  an  admission  of 
of  the  facts  set  up  in  the  answer.  Murphy  r. 
People's  Equitable  Mutual  Fire  Ins.  Co..  7 
Allen,  239. 

2.  Plaintiff  averred  a  delivery  of  the  partic- 
ular account  of  the  loss,  and  that  the  defend, 
ant  waived  all  imperfections  and  deficiencies 
of  the  same,  and  consented  to  amended  proofs 
of  loss;  the  defendant  did  not  traverse  these 
averments.  Held,  by  failing  to  traverse  them 
they  were  admitted.  Peoria  Marine  and  Fire 
Ins.  Co.  t.  Lewis.  18  111.,  553. 

VI.  TThat  the  pleadings  do  not 

ADMIT. 

1.  If  the  instrument  does  not  show  on  its 
face  an  apparent  execution,  a  failure  to  deny 
its  execution  under  oath  does  not  admit  its 
execution.  Peoria  Marine  and  Fire  Ins  Co.  v. 
Walser,  22  Ind.,  73. 

2.  The  plaintiff  decl.ired  for  a  total  loss,  and 
the  defendant  pleaded  fraudulent  concealment 


977 


PLEADING. 


978 


Of  presumption  —  Surplusage  —  Generally. 


only.  Held,  a  total  loss  was  not  admitted. 
King  ®.  Walker,  2  H.  &  C,  384;  33  L.  J.  K.\., 
167;  6.  c.  affirmed,  3  H.  &  C,  209;  11  Jur.  (N. 
S.),  43 ;  33  L.  J.  E.x.,  325 ;  13  W.  R.,  232. 

3.  Plaiutiff  declared  lor  a  loss  of  wheat  in 
a  certain  warehouse.  Defendant  pleaded  that 
lie  was  not  interested.  Ildil,  the  pleadings 
did  not  admit  the  quantity  deelared  for.  Clark 
«.  Western  Ass.  Co.,  2.5  U.  C.  Q.  B.,  209. 

VII.  Of  pkesumtion. 

1.  Several  special  pleas,  to  which  there  was 
a  demurrer  which  was  sustained.  Held,  if  a 
good  special  plea  is  adjudged  insufficient  by 
tlie  court  below,  this  court  will  not  presume 
that  the  court  below  did  not  adhere  to  its  de- 
cision, therefore  it  will  uot  be  presumed  that 
the  special  matter  was  given  in  evidence  un- 
der the  plea  of  the  general  issue.  The  record 
must  show  affirmatively  that  the  special  mat- 
ter was  admitted,  or  the  judgment  will  be  re- 
versed. Albany  City  Fire  Ins.  Co.  v.  Keating, 
46  Dl.,  394. 

2.  There  was  an  unanswered  plea  in  the 
record,  but  the  evidence  tendered  in  it  might 
have  been  given  under  another  plea  tiled. 
Held,  no  ground  for  reversal.  Atlantic  Ins. 
Co.  V.  Wright,  22  111.,  463. 

3.  There  were  several  counts  in  the  declara- 
tion, some  of  which  were  good,  and  others  de- 
fective. The  jury  found  generally.  Held,  the 
party  complaining  was  bound  to  have  the  jury 
directed  to  disregard  the  defective  counts; 
failing  to  do  so  no  ground  of  error  could  be 
urged  on  the  insufficiency  of  the  declaration 
if  any  one  count  was  good.  Peoria  Marine 
and  Fire  Ins.  Co.  v.  Whitehill,  25  111.,  466. 

VIII.  Surplusage. 

Redundant  averments,  unnecessary  exhibits, 
and  useless  verbiage,  ought  to  be  stricken  out 
upon  motion  or  by  tlie  court  of  its  own  mo- 
tion (citing  Hynds  v.  Hays,  25  Ind.,  31).  King 
V.  Enterprise  Ins.  Co.,  45  id.,  43 ;  Mutual  Bene- 
fit Life  Ins.  Co.  v.  Cannon,  48  id.,  264. 

IX.  Genekallt. 

1  Surprise.  The  plaintifi"  has  a  right  to 
know  what  questions  the  defendant  intends  to 
litigate,  hence  the  defendant  cannot,  in  the 
court  above,  present  questions  not  distinctly 


raised  by  the  pleadings.    Weed  v.  Schenectady' 
/««.  Co.,7Lans.,  452. 

2.  Videlicet.  The  insured  is  not  tied  dowa 
to  the  dates  stated  in  his  complaint;  he 
may  prove  that  a  notice  was  given  of  the  loss 
at  a  date  earlier  than  that  laid  in  the  com- 
plaint. Hooey  v.  American  Mut.  Ins.  Co.,  2 
Duer,  554. 

3.  Reply  not  required.  The  legal  efl'ect  of 
the  answer  was  a  denial  of  the  facts  set  up  in 
the  plaintiffs'  petition.  Held,  a  reply  was  not 
required.  Dayton  Ins.  Co.  v.  Kelly.  24  Ohio 
St.,  345. 

4.  Traverse.  The  action  was  founded  upon 
a  certificate  of  insurance  whicli  referred  to  a 
policy  by  number.  The  insurer  pleaded  that 
the  policy  referred  to  was  never  made,  but 
that  according  to  the  custom  and  dealing  be- 
tween the  parties  the  certificate  was  made  sub- 
ject to  the  conditions  usually  contained  in  pol- 
icies at  that  time  issued  by  the  insurer.  In- 
sured traversed  the  pleas,  and  insurer  offered 
a  copy  of  policies  usually  issued  by  the  in- 
surer at  the  time.  Held,  admissible,  for  in- 
sured could  not  traverse  the  pleas  and  then 
deny  to  insurer  the  right  to  introduce  proof  to 
sustain  them.  Home  Ins.  Co.  v.  Favorite,  4ft 
111.,  263. 

5.  Ore  teiius.  Actions  originating  before 
justices  of  the  peace  require  no  pleadings  in 
the  appellate  court,  except  defenses  under  the 
statute  of  limitations,  setoff,  and  matter  of 
abatement.    Heller  v.  Crawford,  37  Ind.,  279. 

G.  Written  contract.  If  there  is  no  allega- 
tion that  the  contract  is  in  writing,  and  no 
cop3'  of  it  is  filed,  the  presumption  is  that  the 
contract  declared  on  is  not  in  writing;  but  if 
the  contract  stated  in  the  pleading  is  one  which 
the  law  requires  to  be  in  writing,  then  the 
pleading  is  obnoxious  to  a  demurrer  (citing 
Harper  v.  Miller,  27  Ind.,  277).  King  v.  Enter- 
prise Ins.  Co.,  45  Ind.,  43. 

7.  Jurisdiction.  The  answer  was  in  the 
nature  of  a  plea  to  the  jurisdiction.  Held,  it 
must  be  strictly  construed,  and  no  presump- 
tions allowed  in  favor  of  defective  averments. 
Arnet  V.  Mechanics  Mut.  Ins.  Co.,  22  Wis.,  516. 

8.  NUl  tiel  corporation.  A  corporation, 
when  sued  on  a  contract  made  by  it,  cannot 
plead  nul  tiel  corporation  unless  it  is  mis- 
named, or  there  has  been  a  dissolution;  for 
the  plea  is  absurd,  because  it  appears,  and  yet 
pleads  that  it  does  not  exist.  McCttllough  v 
Talledega  Ins.  Co.,  46  Ala.,  376. 

489 


*)T9 


POLICY  (OY  THE). 


980 


Who  has  authority  to  procure  —  When  it  attaches. 


.  9.  Total  includes  j)artial.  Averment,  total 
Joss.  The  jury  touniUor  a  partial  loss.  Jleld, 
plaintiff  was  entitled  to  recover  what  he 
proved,  though  it  was  partial  instead  of  total. 
■Gardiner  v.  Crosedale,  1  W.  Bl.,  198;  2  Burr, 
904. 

10. —  The  declaration  averred  a  total  loss, 
caused  by  sale  of  ship  iu  a  port  of  refuge,  into 
which  she  had  been  driven  by  perils  of  the 
sea.  Held,  sufficient  to  support  a  parti.al  loss, 
the  master  having  sold  her  because  he  could 
not  procure  funds  to  repair.  Devaux  v.  Astell, 
4  .Jur.,  1135. 

1 1.  Several  breaches.  Two  breaches  were 
assigned  in  the  declaration.  One  was  ad- 
judged sufficient,  the  other  insufficient.  Held, 
the  court  must  give  judgment  upon  each 
breach  separately,  tlie  same  as  if  the  defend- 
ant had  pleaded  to  one  and  demurred  to  the 
other.  Dawson,  v.  Wrench,Z  Exchr.,  359;  18 
X.  J.  Ex.,  329. 

12.  Inconsistent  counts.  Two  counts:  The 
first  upon  a  loss  by  perils  of  the  sea ;  the  sec- 
ond by  barratry  of  the  master.  Held,  one  of 
them  must  be  stricken  out,  because  they  did 
not  establish  a  distinct  subject  matter  of  com- 
plaint within  the  meaning  of  the  rule,  H.  T.^ 
4  Will.,  4.  Blyth  v.  Shepherd,  9  Mee.  &  W., 
763;  11  L.  J.  Ex.,  293;  6  Jur.,  489. 

13.  —  The  mode  or  particular  facts  to  estab- 
lish a  waiver  ought  not  to  be  stated  in  the 
pleadings,  for  that  would  be  pleading  the  evi- 
deuce.  It  is  the  duty  of  the  pleader  to  state 
the  ultimate  fact.  Ketchxim  v.  Protection  Ins. 
Co.,  1  Allen  (N.  B.),  130. 


POLICY  (OF  THE). 

<See  Open  Policy  ;  Paid  up  Policy  ;  ViLiD  and  Void 
Policy;  Wife's  Policy.) 


I.  Who  h.vs  authority  to  procure. 
II.  When  it  attaches. 

III.  DOES  NOT  .\TT.iCH. 

IV.  Whose  interests  are  covered. 

v.  NOT  covered. 

VI.  What  pl.\ces  are  within  the  de- 
scription. 

pl.^ces  are  not  within  the 
description. 

property  is  within  the  de- 
scription. 


VII. 
VIII. 

490 


IX.  What  property  is  not  within  the 
description. 

X.  causes  of  loss  ARE  WITHIN. 
XL  NOT  WITHIN. 

XI  I.  DAMAGES  ABE  COVERED. 
XIII.  NOT  covered. 

XIV.  When  it  terminates. 
XV.  does  not  terminate. 

XVI.  CEASES  AND  REVIVES. 

I.  Who  has  axithoeitt  to  pkocuee. 

A.  ordered  goods  of  B.,  at  Bristol,  for  Rouen, 
and  directed  his  London  agents  to  insure;  but 
B.,  in  ignorance  of  that,  caused  them  to  be  in- 
sured. The  jjolicy  effected  by  the  London 
agents  was  void  on  the  ground  of  conceal- 
ment. There  was  proof  tending  to  show  that 
the  agent  of  A.  directed  B.  to  make  the  insur- 
ance. Held,  whether  it  was  made  by  previous 
authority  or  subsequent  acquiescence  was  im- 
material, if  A.'s  agent  had  an  implied  authnrity 
to  effect  the  policy.  Barlow  v.  Ltckie.  4 
3Ioore,  8. 

II.  When  it  attaches. 

1.  At  and  from  Kingston,  Jamaica,  to  Alex- 
andria. She  took  a  cargo  at  Kingston  for 
Baltimore  and  Alexandria  and  sailed,  intend, 
ing  to  go  first  to  Baltimore  and  thence  to 
Alexandria,  but  before  she  arrived  at  the  divid- 
ing point  was  captured.  Held,  it  was  an  in- 
tended deviation  only,  and  not  a  noninceptiou 
of  tlie  voj-age  insured.  Marine  Ins.  Co.  ■». 
Tucker,  3  Cranch,  357. 

2.  Policy  on  ship  at  and  from  a  port  named 
will  attach  in  port,  although  she  be  at  the  time 
undergoing  extensive  repairs,  and,  in  general 
sense,  for  the  purposes  of  the  whole  voyage,  he 
utterly  unseaworthy.  M'Lanahanv.  Universal 
Ins.  Co.,  1  Pet.,  170. 

3.  The  premium  was  due  July  16, 1870.  On 
the  first  of  October  following,  insured  applied 
to  defendant's  agent  to  reinstate  the  policy, 
which  was  done,  insured  furnishing  his  own 
certificate  that  he  was  in  good  health,  and  was 
also  examined  by  the  company's  pliysician. 
The  renewal  receipt  was  delivered  on  the  14th 
following.  Defendant  asked  the  court  to  in- 
struct that  if  the  deceased  had  any  derange- 
ment of  health  between  October  1st  and  14th, 
and  that  fact  was  couce.iled  from  defendant, 
plaintiff'  could    not    recover.    Held,    it    was 


^81 


POLICY  (OF  THE). 


962 


When  it  attaches. 


properly  overruled,  for  there  was  no  obligation 
restiug  upon  the  deceased  or  plaintitl'  to  fur- 
nish the  company  with  further  statements  of 
his  physical  condition  helwecn  the  dates  men- 
tioned. Diiy  V.  Mutual  Benefit  Life  Ins.  Co.,  1 
MacA.,  598. 

4.  The  policj'  was  not  delivered  until  several 
days  after  its  date,  but  it  was  dated  the  day  the 
premium  was  paid.  Held,  it  took  effect  by 
relation  from  its  date.  Lightbody  v.  North 
America  Ins.  Co.,  33  Wend.,  18. 

5.  Ship  sprung  aleak  as  soon  as  she  got  to 
sea,  returned  to  port,  discharged  cargo  and 
found  that  it  proceeded  from  causes  existing  at 
time  cargo  was  taken  in;  that  she  was  not  sea- 
.worthy  when  she  sailed.  Repairs  were  made 
and  cargo  reshipped,  and  she  proceeded  on 
her  voyage.  Held,  the  policy  attached  while 
she  was  in  i)ort;  that  insurers  were  liable  after 
lier  return  to  port,  and  while  she  was  on  sub- 
sequent liomcward  voyage.  I'oylor  v.  Lowell, 
3  Mass.,  331. 

6.  From  Bordeaux  to  India.  "Risk  at  an 
end  when  master  shall  have  landed  cargo  and 
■entirely  invested  the  proceeds  in  produce  of 
India."  Another  policj'  upon  cargo  on  board 
the  same  ship  "from  India  to  port  of  dis- 
charge in  the  United  States,  with  liberty  to 
stop  and  trade  at  the  Isle  of  Prance,  or  Bour- 
bon, or  both."  She  arrived  at  Sumatra,  dis- 
posed of  part  cargo  for  produce,  sailed  with  it 
and  balance  of  outward  cargo,  and  arrived  at 
Isle  of  France,  disposed  of  outward  cargo, 
and  took  on  produce  for  home  cargo.  Held, 
llie  second  policj'  attached.  Cleccland  v. 
Fetti/place,  3  Mass.,  391. 

7.  "  On  cargo  and  freight "  at  and  from  a 
port  attaches,  notwithstanding  the  vessel 
needs  repairs  to  make  her  seaworthy.  Ship, 
■while  at  Vera  Cruz  with  a  cargo  on  board, 
■was  found  unscaworlhy  for  the  voyage;  but 
she  sailed  thence,  and  from  necessity  put  into 
Campeachy,  where  she  discharged  cargo, 
ca-xlki-d,  reloaded  it  and  sailed.  She  took  in 
at  another  port  a  quantity  of  logwood,  and 
there  commenced  to  leak  again,  but  got  under 
■way  for  port  of  discharge.  She  put  into 
Campeachy  again  from  necessity,  and  again 
proceeded,  and  again  put  into  Campeachy 
from  necessity,  where  the  cargo  was  wholly 
unladen  and  vessel  repaired  and  made  sea- 
worthy. The  cargo  was  sold  to  defray  the  ex- 
pense of  repairs.  She  again  took  another 
•cargo,  with  which  she  arrived  in  the  United 


States,  /{eld,  the  policy  attached  at  "Vera 
Cruz  and  again  at  Campeachy,  after  she  was 
made  seaworthy,  and  that  insurers  were  enti- 
tied  to  ))oth  the  premiums.  Merclmnts  Ins. 
Co.  V.  Chipp,  11  Pick.,  56. 

8.  On  ship.  "At  and  from  Calais,  July 
ICtli,  noon,  and  at  and  from  all  ports  and 
places  to  whicli  she  may  proceed  in  the  coast- 
ing business  for  six  months."  Neither  party 
knew  when  she  sailed  from  Calais.  There 
was  no  evidence  that  she  was  at,  or  was  prose- 
cuting her  voyage  from  Calais  on  the  day 
named;  but  it  appeared  that  it  was  the  inten- 
tion  of  both  parties  to  insure  on  time  without 
regard  to  the  place  where  she  might  be.  Held, 
the  policy  attached.  Martin  v.  Finhing  Ins. 
Co.,  20  Pick.,  389. 

9.  "  Upon  a  vessel,  building  at  Perry,  to  take 
effect  as  soon  as  waterborne,  at  and  from 
Perry,"  etc.  She  was  waterborne  the  day  bo- 
fore  the  policy  issued.  Held,  if  she  was 
waterborne  when  the  policy  was  executed  it 
took  effect  at  once.  Cobb  v.  New  England 
Mutual  Marine  Ins.  Co.,  6  Gray,  192. 

10.  Open  policy.  "  On  wine,  brandy,  sweet 
oil,  and  other  merchandise,  as  interest  may 
appear,  with  fifteen  per  cent,  on  the  invoice,  to 
be  shipped  to  insured  during  six  months  frum 
and  after  tirst  day  of  August,  1831,  lost  or  not 
lost,  at  and  from  Havre  and  any  port  or  ports 
of  France  south  of  it."  She  commenced 
loading  about  July  10th,  and  continued  until 
August  6th,  the  day  she  sailed.  Hdd,  the 
word  shipped  did  not  mean  putting  on  board 
or  lading,  but  dispatching  the  goods;  that  the 
policy  included  all  goods  on  board  at  the  time 
she  sailed,  if  her  sailing  was  -within  six 
months  from  August  1st;  taking  the  goods  on 
board  before  August  1st  did  not  take  them 
away  from  the  protection  of  the  policy. 
Sorhe  v.  Merchants  Ins.  Co.,  6  La.  (O.  S.),  185. 

11.  She  cleared  for  Antwerp,  but  her  desti- 
nation w.as  Portsmouth.  The  pulicj'  was 
written  from  Charleston  to  Portsmouth.  Held, 
no  defense  to  the  action.  McFee  v. South  Caro- 
lina Ins.  Co.,  2  McCord,  503. 

1 2.  "  On  goods  from  London  and  Ramsgate 
to  Nantz,  with  liberty  to  call  at  Ostend."  She 
cleared  for  Ostend  onlj-,  but  sailed  for  Nantz 
direct.  Held,  the  insurers  were  liable  for  the 
loss.  The  policy  was  executed  July  Tth.  The 
ship  took  in  her  cargo  between  July  24th  and 
August  17th.  She  sailed  August  24th.  The 
proclamation  for  making  reprisals  on  French 

491 


983 


POLICY  (OF  THE). 


984 


When  it  attaches. 


ships  was  Jated  July  29th,  and  published  July 
31st.  But  the  evidence  satisfied  tlie  court  that 
all  parlies  had  in  contemplation  the  war  risis 
when  the  policy  was  made.  Held,  the  insurers 
■were  liable.    Planche  v.  Fletcher,  1  Doug.,  351. 

13.  On  cargo  from  Plymouth  to  Malta, 
with  liberty  to  touch  any  port  tor  any  purpose 
whatsoever.  She  touched  at  Penzance  and  took 
part  of  the  goods  described  in  the  policy. 
Held,  the  policy  covered  the  goods  taken  at 
Penzance.     Violett  v.  Allnutt,  3  Taunt,  419. 

14.  Ou  freight  from  Grenada  to  London. 
There  was  but  one  custom  house  for  the 
island.  She  arrived  there,  and  at  one  place 
discharged  part  of  cargo,  then  proceeded  to 
two  others  and  discharged  part,  leaving  a 
residue  to  be  discharged  at  a  fourth  place, 
where  she  was  to  take  on  her  home  cargo; 
but  was  lost  before  she  reached  it.  Held,  not 
a  deviation,  and  that  she  was  lost  while  pur- 
suing a  purpose  of  the  voyage.  Warre  v. 
Miller,  4  B.  &  C,  538;  s.  c,  1  C.  &  P.,  237; 
affirmed,  4  L.  J.  K.  B.,  8;  7  D.  &  R,  1. 

15.  From  Landscroua  to  Wolgast.  They 
were  laden  at  Gottenburg,  some  months  before 
the  voyage  commenced.  She  sailed  from 
Gottenburg  and  arrived  at  Landscrona,  where 
a  part  of  the  cargo  was  taken  out  on  the  quay 
to  enable  the  custom  house  officers  to  inspect 
and  examine  the  whole;  the  duties  of  which 
were  paid.  Gottenburg  was  a  hostile  port. 
She  was  captured  by  a  French  privateer  and 
condemned.  Sweden  was  not  a  cobelligerent 
with  France.  Held,  Landscrona  was  to  be  re- 
garded  as  the  loading  port,  and  the  insurers 
were  accordingly  liable.  Nonnen  v.  Beid,  16 
East,  176. 

16.  "On  freight  against  perils  of  the  sea 
and  all  other  perils,  losses,  and  misfortunes 
that  had  or  sliould  come  to  the  hurt,  detri- 
ment  or  damage  of  the  subject  matter  of  the 
insurance."  She  was  taken  into  dock  for  re- 
pairs, and  a  full  cargo  was  ready  for  her  be- 
fore the  repairs  were  completed.  After  they 
were  finished,  in  making  the  attempt  to 
talie  her  from  the  dock  into  the  river,  siie  was 
greatly  damaged  and  was  condemned  as  un- 
worthy of  repairs,  broken  up  and  sold.  Held, 
the  loss  of  freight  was  within  the  policy. 
BeVaux  v.  Janson,  8  L.  J.  (N.  S.)  C.  P.,  284; 
5  Bing.  (N.  C),  579;  3  Jur.,  678. 

17.  On  ship  at  and  from  Havana  to  Green- 
ock. While  passing  over  a  shoal  in  the  har- 
bor ;it  Havana,  she  ran  against  an  anclior  and 


received  injury.  Held,  the  policy  had  at- 
t'dclied,  and  insurers  were  liable.  UauylUoa  v. 
Empire  Marine  Int.  Co.,  1  L.  R.  E.\.,  206 ;  4 
H.  &  C,  41 ;  12  Jur.  (N.  S.),  376;  35  L.  J.  Ex., 
117;  14  W.  R.,  645;  15  L.  T.  (N.  S.),  80. 

18.  "On  hides,  by  ship  or  ships,  to  be  de- 
clared." The  plainlifl''s  clerk  made  out  a  slip 
declaring  £2,455  on  hides  on  the  Socrates,  but 
they  were  shipped  on  the  Socrate  and  totally 
lost.  The  jury  found  that  both  parties  in- 
tended to  insure  the  hides  on  any  vessel  ou 
which  they  might  happen  to  be,  tliough  they 
both  supposed  it  to  be  the  Socrates.  Held,  the 
defendants  were  bound  to  insure  on  any  ships 
selected  by  the  insured,  and  the  misnomer  was 
therefore  immaterial.  Jonides  v.  Pacific  Fire 
and  Marine  Ins.  Co.,  6  L.  R.  Q.  B.,  674;  25  L. 
T.  (N.  S),  490;  affirmed  in  Ex.,  7  L.  R.  Q.  B  , 
517;  41  L.  J.  Q.  B.,  190;  21  W.  R.,22;  26  L.  T. 
(N.  S.),  738. 

19.  Plaintiffs  made  a  policy  on  cargo  at 
and  from  Liverpool  to  any  ports  in  any  order, 
backwards  and  forwards  on  the  coast  of  Africa, 
and'  thence  back  to  a  port  of  discharge  in  the 
U.  K.  Outward  cargo  to  be  considered  home- 
ward interest  twenty  four  hours  after  licr  ar- 
rival at  her  first  port  of  discharge."  They 
procured  reinsurance  subject  to  all  clauses 
and  conditions  of  the  original  policy,  at  and 
from  any  port  or  ports  in  any  order  on  the 
west  coast  of  Africa,  to  port  of  discharge  in 
the  U.  K.,  risk  to  commence  from  the  loading 
of  the  goods  at  as  above.  After  she  had  ar- 
rived at  lier  first  port  of  discharge  and  re- 
mained more  than  twenty-four  hours,  the 
goods  were  lost.  Held,  "On  the  loading  of 
the  goods  at  as  above,"  must  be  qualified  by 
the  words  of  the  original  policy,  "  Outward 
cargo  to  be  considered  homeward  interest 
twenty-four  hours  after  her  arrival  at  her  first 
port  of  discharge."  For  if  there  is  anything 
to  show  that  the  loading  was  to  commence  at 
a  time  prior  to  the  .attaching  of  the  policy,  or 
that  the  word  "  loading  "  was  used  in  a  sense 
diflferent  from  the  mere  putting  on  l)oard,  then 
that  sense  shall  prevail.  Hence,  the  contract 
of  reinsurance  attached  on  the  goods  on  board 
immediately  after  the  expiration  of  twentj- 
four  hours  from  the  time  she  arrived  at  her 
first  port  of  discharge  on  the  coast  of  Africa. 
Joyce  v.  Realm  Marine  Inn.  Co.,  7  \,.  R.  Q.  B., 
580;  41  L.  J.  Q.  B.,  356;  27  L.  T.  (N.  S.),  144. 

20.  Insured,  a  common  carrier,  sometimes 
carried  goods  on  deck  at  shipper's  request  and 


-985 


POLICY  (OF  THE). 


086 


When  it  does  not  attach. 


risk.  At  other  times,  for  his  own  conveni- 
ence,  he  carried  goods  on  deck  whicli,  by  the 
terms  of  the  bills  of  lading,  wore  to  be  under 
deck;  and  for  the  purpose  of  protecting  him- 
self against  liability  in  such  cases,  he  pro- 
cured au  open  policy  "Against  loss  by  jetti- 
son, the  several  shipments  to  be  subsequently 
declared."  He  accepted  a  parcel  of  cotton  at 
Alexandria,  to  be  carried  upon  deck;  but  his 
agent,  by  mistake,  gave  a  bill  of  lading  for  it 
under  deck.  It  was  not  declared  upon  the 
policy,  and  other  shipments,  some  of  them 
subsequent  in  date  to  this,  were  declared,  and 
the  whole  amount  of  the  policy  appropriated. 
This  shipment  was  lost  by  jettison,  and  the 
shipper  demanded  payment  for  it  of  the  car- 
rier  Thereupon  insured  altered  a  prior  dec- 
laration made  upon  the  policy,  and  substituted 
the  shipment  in  question.  It  was  found 
specially  that  according  to  the  usage,  a  policy 
of  this  character  attaches  to  the  goods  in  the 
order  in  which  they  are  shipped,  and  in  that 
order  the  insured  is  bound  to  declare  them; 
that  in  cjise  of  mistake  in  declaring  shipments 
in  their  order,  the  insured  is  bound  to  rectify 
them,  which  had  been  sometimes  done  even 
after  a  h)ss.  Held,  the  bill  of  lading  put  the 
cotton  at  the  risk  of  the  carrier;  that  the 
usage  was  binding  upon  both  parties;  that 
the  insured  had  the  right  to  correct  his  decla- 
ration, even  after  the  loss  had  occurred;  that 
the  plaintiff  was  eutitled  to  recover  the  value 
of  the  goods  lost.  Stephens  v.  AuBtralasimi 
Ins.  Co.,  8  L.  R.  C.  P.,  18;  43  L.  J.  C.  P.,  12. 

21.  "  Interest  or  no  interest,  on  any  ship  he 
should  come  in,  from  "Virginia  to  Loudon,  the 
money  to  be  paid,  though  his  person  should 
escape  or  the  ship  be  retaken."  He  embarked 
on  the  Speedwell ;  she  sprung  a  leak,  and  he 
was  put  on  board  the  Friendship,  arriving 
safe  in  Loudon,  but  the  Speedwell  was  taken. 
Held,  the  underwriter  was  liable,  for  the  insur- 
ance was  on  the  ship  in  which  he  commenced 
the  voyage.    Hick  v.  Barrell,  3  Strange,  1348. 

III.  When  it  does  not  attach. 

I.  On  cargo  from  Ncvitas  to  New  York. 
She  arrived  at  Nevitas,  was  permitted  to  sell 
but  a  small  part  of  her  outward  cargo  there. 
She  made  sail  for  Jamaica  October  16th,  and 
was  lost  between  Nevitas  and  Jamaica.  Held, 
the  policy  never  attached.  Riehirdx  v.  Marine 
Ins.  Co.,  3  Johns.,  307. 


2.  On  ship  at  and  from  Calcut'ta  to  New 
York,  with  liberty  to  touch  at  Madras.  She 
went  to  Madras  and  sailed  direct  for  New 
York.  Held,  the  vo^'age  insured  never  com- 
inenced ;  that  the  policy  never  attached,  and 
the  insured  was  entitled  to  a  return  of  the  pre- 
mium. Murray  v.  Columbian  Ins.  Co.,  4 
Johns.,  443. 

3.  The  policy  was  written.  Vera  Cruz  to  New 
York.  She  had  taken  a  cargo  from  New  York 
to  Vera  ("ruz,  and  after  some  sea  damage  and 
other  difficulties,  arrived  at  Vera  Cruz,  but 
was  not  permitted  to  land  her  cargo  or  to 
make  repairs.  She  afterwards  reached  New 
Orleans,  from  which  place  the  supercargo  in- 
formed the  owners  that  she  would  proceed  to 
Havana  for  a  market;  and  insurers  indorsed 
upon  the  policy  that  she  might  proceed  from 
New  Orleans  to  Havana,  thence  to  New  York, 
for  an  additional  premium  of  one-half  per 
Cent.  She  did  not  go  to  Havana,  but  landed 
her  cargo,  took  another  for,  and  arrived  in 
New  York.  Held,  the  insurer  must  return  the 
premium,  for  the  vessel  never  took  a  cargo  at 
V^eraCruz;  the  indorsement  upon  the  policy 
was  something  superadded  to  it,  but  did  not 
constitute  the  contract;  in  making  the  in- 
dorsement both  parties  made  a  mistake  in 
point  of  law,  under  ignorance  of  the  facts, 
which  could  not  be  used  to  the  prejudice  of 
either.  Scriba  v.  Insurance  Co.  of  North  Amer- 
ica, 2  Wash.  C.  C,  107. 

4.  From  St.  Andreas,  with  liberty  of  two 
ports  on  the  Spanish  Main  to  Baltimore.  The 
order  stated  that  she  was  reported  sailed  from 
San  Bias  for  St.  Andreas.  She  was  lost  on  the 
voyage  from  San  Bias  to  St.  Andreas.  Held, 
the  insurers  were  not  liable.  Maryland  Ins. 
Co.  V.  Bossiere,  9  G.  &  J.,  121. 

5.  The  ship's  agents  at  Cadiz  were  directed 
to  freight  her  for  the  Clyde.  She  arrived  at 
Cadi?,  when  it  was  found  inexpedient  to  com- 
ply with  the  instructions.  She  was  put  up 
for  Liverpool,  and  the  change  of  destination 
reported  to  her  owners,  who  effected  insur- 
ance from  Cadiz  to  her  port  of  discharge  in 
St.  Georges  Channel  including  the  Clyde. 
But  circumstances  iuduced  her  agents  to 
again  alter  her  destination,  and  the  master 
was  ordered  to  load  for  Newfoundland,  of 
which  advice  was  sent  to  her  owners  under 
date  February  28,  1810.  But  before  her  cargo 
was  all  in,  she  was  driven  on  shore  in  a  storm 
at  Cadiz,   and   burned   by  the   French.     The 

493 


987 


POLICY  (OF  THE). 


98S 


When  it  does  not  attach. 


judge  admiral  and  the  court  of  session  found 
that  there  was  no  evidence  that  ilie  voyage  to 
Britain  had  heen  abandoned,  but  the  lord 
chancellor  found  that  the  voyage  to  Britain 
ought  to  be  considered  as  having  been  aban- 
doned before  the  loss  of  tlie  vessel.  I'asker  v. 
Cuaiiinyham,  1  Bli.,  87. 

(i.  On  cargo  at  and  from  Lyme  to  Loudon.  It 
was  shipped  at  Bridport  harbor,  a  member  of 
and  about  nine  miles  to  the  eastward  of  the 
perl  of  Lyme  and  nearer  to  London.  She 
was  captured  between  Bridport  and  London. 
Held,  the  policy  did  not  attach  upon  goods 
laden  at  Bridport.  Constable  v.  Noble,  2  Taunt., 
40.5. 

7.  At  and  from  Maryland  to  Cadiz.  She 
cleared  from  Maryland  to  Falmouth,  giving  a 
bond  to  land  the  goods  in  Britain,  etc.,  and 
the  owner  made  athdavit  in  which  he  stated 

"she  was  bound  to  Falmouth.  The  bills  of 
lading  were  to  Falmouth  and  a  market.  There 
was  no  evidence  that  she  was  destined  to 
Cadiz,  but  many  circumstances  raised  the 
suspicion  she  was  bound  to  Boston  to  supply 
the  American  army.  She  was  captured  at  a 
poiut  in  the  course  from  M;u-yland  before  slic 
iiad  reached  the  point  to  diverge  for  Fal- 
mouth. Held,  a  deviation,  merely'  intended 
but  never  carried  into  effect,  is  no  deviation, 
but  if  there  was  no  intention  to  make  the  voy- 
age to  Cadiz,  the  policy  did  not  attach.  Wool- 
dridge  v.  Boydell,  1  Doug.,  16. 

8.  On  arrival  of  ship  the  goods  were  put  on 
board  a  lighter  and  brought  to  plaintiff's 
wharf;  but  the  roughness  of  the  weather  pre- 
vented lauding.  Insured  said  that  he  would 
look  to  the  landing.  They  were  lost  in  the  night. 
Held,  insurers  were  discharged.  Strong  v. 
jV'atoH^,  4B.  &'P.,  10. 

9.  On  freight,  valued,  from  Demarara,  Ber- 
bice  and  the  Windward  and  Leeward  Islands!  to 
London.  She  agreed  for  a  fi eight  from  Ber- 
bice  to  London,  but  took  a  cargo  of  brick 
and  planks  from  Demarara  to  Berbice,  be- 
tween which  she  suffered  damage  which  pre- 
vented her  from  earning  any  freight.  Held, 
the  voyage  from  Demarara  to  Berbice  had 
jiolhing  to  do  with  the  voyage  insured.  Sellar 
■0.  Ale  Vicker,  4  B.  &  P.,  23. 

1 0.  Valued  policy  upon  ship  and  goods,  at  and 
from  the  coast  of  Africa  to  the  ship's  port  of 
discharge  in  the  United  Kingdom,  with  liberty 
to  touch  at  all  ports  and  places  whatsoever 
and  wheresover  ■  to  trade  backwards  and  for- 

494 


wards  in  any  order;  to  call  at  or  proceed  t'> 
the  Azores,  Madeira,  etc.,  and  all  African, 
islands,  beginning  the  adventure  on  the  gouda 
from  the  loading  thereof,  twenty-four  hours, 
after  her  arrival  on  the  coast  of  Africa,  in-i 
eluding  risk  in  boats  loading  and  unloading, 
with  liberty  to  load,  unload,  sell,  barter  or 
e.vchange  with  any  ships  or  factories  whereso- 
ever she  might  call.  She  was  on  the  coast  of 
Africa  for  many  months,  and  at  the  time  of 
the  loss,  which  was  to'al,  had  on  a  part  of  the 
out  cargo,  about  £800,  and  part  of  the  home 
cargo,  £4,150.  Held,  the  question  was  not. 
What  was  the  intention  of  the  parties;  but 
what  was  the  meaning  of  the  words  used? 
There  was  nothing  in  the  policy  to  pro- 
tect the  out  cargo.  Hickman,  v.  Carstairs,  5  B. 
&  Ad.,  651 ;  3  L.  J.  (N.  S.)  K.  B.,  28 ;  3  N  &  M., 
560. 

11.  "  On  ship  and  outfit,  voyage  from  Syd- 
ney,  New  South  Wales,  to  Otaheite,  during  hei; 
stay  and  back."  Insurers  were  notified  she 
had  sailed  for  Maquarie  Island  on  a  fishing 
and  sealing  voyage,  and  was  to  return  tu 
Hobartstovvn,  and  insured  desired  the  policy 
to  be  corrected  accordingly.  Insurer's  agent 
inserted,  "  with  leave  to  call  at  Maquarie 
Island  and  all  other  parts  for  South  Sea  fishr 
ing  and  sealing."  She  sailed  fnmi  S_vduey 
for  a  fishing  and  sealing  voyage  and  went 
directly  to  Maquarie  Island  to  deliver  sui~ 
plies  to  certain  men  who  had  been  left  there 
on  a  preceding  voyage,  and  to  take  in  what- 
ever oil  might  have  been  provided  by  them, 
and  if  it  was  not  enough  for  a  cargo,  to  pro- 
ceed to  the  other  South  Sea  Islands.  While 
waiting  in  one  of  the  harbors  off  Maquarie 
Island,  she  was  wrecKed  in  a  gale.  Sydney 
was  about  1,600  miles  from  Maquarie  Island, 
and  about  2,000  from  Otaheite.  There  was  no 
evidence  of  an  intention  to  go  to  Otaheite. 
Held,  before  insured  could  recover,  it  must 
appear  that  a  voyage  was  commenced  either 
to  Otaheite  direct  or  tia  Maquarie  Island. 
Lord  V.  Robinson,  6  L.  J.  K.  B.,  212. 

1 2.  "  From  St.  Michaels  or  all  or  any  of  the 
Western  Islands  to  England."  She  arrived  at 
St.  Michaels  in  a  very  disabled  condition,  and 
remained  there  about  twenty-four  hours  in 
great  danger  in  a  gale.  She  was  blown  out  to 
sea  and  lost.  Held,  it  was  necessary  for  her 
to  be  once  at  the  place  in  good  safety;  that  if 
she  arrived  there  a  mere  wreck,  the  policy  nev- 
er attached.  Parmeler  n.  Couaim,  3  Camp.,  235. 


989 


POLICY  (OF  THE). 


99a 


When  it  does  not  attach. 


13.  Ship  and  freight  were  insured  from  a 
port  in  the  U.  K.  to  a  jjorl  of  discharge  iu  tlie 
BalUc,  and  during  lier  stay  tlicre  and  at  and 
from  tlience  to  her  port  or  ports  of  discliarge 
in  the  United  Kingdom.  There  was  a  second 
policy  at  and  from  Riga,  on  the  sliip,  £3,000, 
and  on  the  freight  £1,200  valued,  which  de- 
clared that  it  was  in  continuation  of  tlie  two 
others.  Her  papers  were  taken  from  lier  at 
Riga  and  sent  to  St.  Petershurg,  and  both 
ship  and  cargo  were  sequestered,  seized  and 
sold  at  Riga.  Held,  the  safet}'  required  to  give 
commencement  to  the  risk  taken  in  the  second 
policy  was  a  physical  safety  from  the  perils 
insured  against,  and  not  a  freedom  from  po- 
litlcal  danger.    Bell  v.  Bell,  2  Camp.,  475. 

14.  Policy  from  Gottenbnrg  to  Riga,  begin- 
ning the  adventure  upon  the  loading  thereof. 
She  sailed  from  London  with  a  cargo,  pro- 
ceeded  to  Gottenburg,  thence  to  Riga.  Held, 
the  policy  never  attached.  Horneyer  v.  Lush- 
ington,  15  East,  46 ;  3  Camp.,  85. 

1 5.  At  and  from  October  20,  1786,  from  any 
ports  in  Newfoundland  to  Falmouth,  or  her 
ports  of  discharge  in  England.  On  the  1st, 
she  left  a  port  in  Newfoundland,  went  to  the 
banks,  fished  till  the  7th,  and  sailed  that  day 
for  England.  She  was  lost  in  November  fol- 
lowing,  on  her  voyage  home.  Held,  the  in. 
sured  could  not  recover.  Way  v.  Modigliani, 
2  Term,  30. 

1  6.  On  ship  and  cargo,  "  At  and  from  all 
and  every  port  on  the  coast  of  Brazil,  after 
September  17th,  to  the  capo  of  Good  Hope, 
beginning  the  adventure  on  the  goods  from 
the  loading  thereof  aboard  the  said  ship  at  all 
and  every  port,  etc.,  on  the  coast  of  Brazil 
from  September  17,  1800,  and  upon  the  ship  in 
the  same  manner,  with  liberty  to  sail  to  any 
places  backwards  and  forwards,  under  the 
Portuguese  government,"  etc.  Held,  the  policy 
did  not  attach  upon  any  cargo  not  laden  for 
the  homeward  bound  voyage,  nor  did  it  attach 
on  the  ship  until  cargo  for  the  homeward 
voyage  was  taken.  Robertson  v.  French,  4 
East,  130;  4  Esp.,  246. 

17.  Lost  or  not  lost  at  and  from  New  York 
to  Quebec  during  the  ship's  stay  there,  for  any 
purpose,  and  back  to  Liverpool,  begining  the 
adventure  upon  said  goods  and  merchandize, 
from  the  loading  thereof  on  board  the  said 
ship.  The  ship,  goods,  and  merchandise  shall 
be  valued  at  £1,000  on  profit  on  cargo.  The 
■words  in  italics  were  written,  all  the  others 


printed.  Insurer's  agent  chartered  her  while 
she  was  on  a  trip  to  New  York  to  proceed 
thence  to  Quebec,  and  then  to  take  a  cargo  of 
timber  for  the  plaintilTto  Liverpool,  for  which 
cargo  plaintiff  had  contracted.  She  proceed- 
ed from  New  York  for  the  purpose  of  taking 
the  cargo,  but  was  lost  on  the  voyage.  The 
cargo  could  not  be  sliipped  during  the  ship- 
ping season  in  consequence  of  her  failure  to  ar- 
rive. Beld,  that  the  policy  never  attached  be- 
cause there  was  never  any  cargo  laden.  HaU 
Jieadv.  Tounrj,  6  El.  &  Bl.,  313;  s.  c,  2  .Jur., 
(N.  S.),  970;  25  L.  J.  Q.  B.,  290. 

18.  On  cargo  valued,  "  With  liberty  to  in- 
crease the  value,  on  the  homeward  voyage^ 
from  the  loading  thereof,  including  risk  of 
craft  and  to  endure  until  discharged  and  safe- 
ly landed,  with  liberty  to  load,  reload,  ex- 
change, sell  or  barter,  all  or  either  goods  or 
property  on  the  coast  of  Africa  and  African 
Islands,  and  with  any  vessels,  boats,  factories^ 
canoes;  and  to  transfer  interest  from  the  ves- 
sel to  any  other  vessel,  or  from  any  other  ves- 
sel to  this  vessel,  in  port  or  at  sea,  and  in  any 
ports  or  places  she  may  call  at  or  proceed  to, 
without  being  deemed  a  deviation."  She 
landed  a  part  of  her  cargo  at  a  factory  for  the 
purpose  of  barter,  and  was  lying  at  anchor, 
taking  produce  from  the  factory,  when  it  took, 
fire  and  was  consumed  with  its  contents. 
Held,  the  property  which  was  intended  for  her 
but  which  was  in  the  factory  was  not  covered 
by  the  policy.  Harrison  i\  Ellis,  7  El.  &  Bl., 
465;  s.  c,  3  Jur.  (N.  S.),  908;  26  L.  J.  Q.  B., 
239. 

19.  Plaintiffs  underwrote  a  policy,  "On 
chartered  freight,  guano,  from  Baker's  Island, 
while  there,  and  thence  to  a  port  in  England." 
They  procured  reinsurance,  lost  or  not  lost, 
ujwu  freight  from  Baker's  Island  to  a  port  of 
call  or  disch.arge  in  the  U.  K.  Beginning 
the  adventure  from  the  loading  of  said  vessel, 
and  terminating  when  she  shall  be  moored  as 
above  at  a  safe  anchorage,  to  pay  as  may  be 
paid  on  original  policy.  She  had  taken  iu 
two-thirds  of  a  cargo,  the  balance  was  ready 
when  she  was  wrecked.  Held,  the  reinsurers 
were  not  responsible  fur  any  loss  before  the 
vessel  was  completelj-  loaded.  Jones  v.  Nep- 
tune Marine  Ins.  Co.,  7  L.  K.  Q.  B.,  703;  41  L. 
J.  Q.  B.,  370;  27  L.  T.  (N.  S.),  308. 

20.  Insured  represented  the  building  in  his 
application  as  furnished  with  a  brick  chim- 
ney, which   was  untrue.      Held,  the    policy 

495 


091 


rOLICY  (OF  THE). 


092 


Whose  interests  are  covered. 


never  attached,  but  he  was  entitled  to  recover 
the  premium.  Scott  v.  Niagara  District  Mut. 
Ins.  Co.,  25  U.  C.  Q.  B.,  119. 

IV.    "WuOSE    INTERESTS     ARE   COVERED. 

1.  Persons  not  named  in  policy.    "  To  H. 

€.  &  Co.,  on  account  of  A.  B.  &  Co., 
on  propertj'  consigned  to  H.  C.  &  Co.  by 
regular  invoice  and  bill  of  lading.  Risks 
applicable  hereto  to  be  reported  to  this 
company  for  indorsement  on  the  policy, 
as  soon  as  known  to  insured."  Gold  was 
shipped  by  L.  S.  &  Co.,  by  bill  of  lading  in 
their  name.  The  invoice  was  by  U.  B.  of 
San  Francisco,  addressed  to  U.  B.  &  Co.  at  New 
York,  the  heading  of  which  was,  "Shipped 
by  A.  B.  &  Co.,  to  be  delivered  to  H.  C.  &  Co." 
They  called  the  attention  of  insurer's  presi- 
dent to  the  bill  of  lading  and  invoice.  He 
said  it  made  no  difference,  and  directed  the 
insured  to  an  entry  clerk  who  made  the  in- 
dorsement, and  the  premium  was  afterwards 
paid.  Held,  the  consignment  and  bill  of  lad- 
ing  were  nominally  to  U.  B.,  but  really  to  the 
insured ;  that  the  acts  and  words  of  the  com- 
pany's president  were  properly  received,  to 
show  how  the  defendants  led  insured  to 
construe  or  understand  the  contract.  Block 
«.  Columbian  Im.  Co.,  i2  N.  Y.  (3  Hand),  393 ; 
s.  c,  3  Rob.,  29G. 

2.  —  On  machinery.  "Loss,  if  anj-,  paya- 
ble to  B."  It  expired  January  9,  1863.  B. 
had  delivered  the  property  to  S.  &  Sons,  for 
them  to  keep  it  insured  to  secure  the  payment 
of  the  balance  of  purchase  monej',  but  it  was 
to  be  considered  his  jiropertj'  until  paid  for. 
After  the  polic}'  expired,  defendant's  agent 
inquired  of  the  plaintiff  (the  agent  of  B.),  how 
much  of  the  purchase  money  was  then  un- 
paid, and  on  being  informed  that  the  amount 
■was  $1,000,  he  asked  if  he  would  pay  the  pre- 
mium to  insure  it.  Plaintiff  agreed  to  do  so, 
and  the  policy  was  renewed  for  that  amount 
in  the  name  of  B.  The  plaintiff  held  a  mort- 
gage on  the  property  insured,  and  had  fore- 
closed it  before  the  tire  occurred,  of  which  B. 
had  not  an}'  notice.  Held,  the  renewal  of  the 
policy  was  a  contract  with  B.,  and  that  his  in- 
terest in  it  for  the  unpaid  purchase  money 
was  sufficient  to  maintain  the  action.  Tall- 
inan  v.  Atlantic  Fire  and  Marine  Ins.  Co.,  42 
N.  Y.  (3  Keyes),  87 ;  s.  c,  4  Abb.  Dec,  345 ;  re- 
versing  s.  c,  29  How.  Pr.  71. 

49G 


?>.  Sold  but  not  removed.  "  On  refined 
carbon  oil,  their  own,  or  held  by  them  in 
trust,  or  on  commission,  or  sold  but  not  re- 
moved."  A  portion  of  tlie  property-  was  sub- 
sequently sold,  but  not  removed  at  the  time  of 
the  fire.  The  purchasers  had  not  made  auy 
insurance  on  it.  Held,  "sold,  but  not  re- 
moved," was  intended  to  cover  that  which 
had  been  sold  and  of  which  a  legal,  binding 
delivery  had  been  made;  the  ownership  and 
right  of  control  of  which  had  passed,  but 
which  had  not  been  in  fact  removed;  that  it 
was  different  from  the  phrase,  "sold,  but  not 
delivered,"  which  applies  to  property  sold, 
but  of  which  the  ownership  has  not  been 
changed  by  a  delivery  in  pursuance  of  the 
contract.  Waring  v.  Indemnity  Fire  Ins.  Co., 
45  N.  Y,  606. 

4.  — The  plaintiff  stated  in  his  preliminar}- 
proofs  of  loss,  that  the  firm  of  Irving,  Clark 
&  Co..  of  which  he  was  the  principal  mem- 
ber, manufactured  Ihe  goods  insured ;  that  he 
had  furnished  all  the  capital  to  the  firm,  was 
its  sole  creditor,  and  that  his  interest  in  it 
would  cover  all  the  assets  of  the  firm.  It  ap- 
peared that  Clark  and  the  plaintiff  had  aban- 
doned all  intention  of  a  copartnership,  and 
that  Clark  was  to  be  paid  for  his  services. 
Held,  the  facts  as  stated  in  the  preliminary 
proofs  were  conclusive;  that  if  the  evidence 
of  Clark  and  the  plaintiff"  did  not  harmonize 
with  the  statements  in  the  preliminary  proofs, 
it  must  be  rejected;  but  that  the  plaintiff  was 
the  substantial  owner  of  the  properly  insured  ; 
hence  the  policy  was  efl'ectual,  though  made 
to  the  plaintiff"  individually.  Irving  v.  Excel- 
sior Ins.  Co.,  1  Bos.,  507. 

5.  Death  of  insiu-ed.  The  original  policy 
was  issued  to  plaintiff's  testator.  After  his 
death,  it  was  renewed  from  year  to  year  to  the 
plaintiff  and  her  cocxecutor.  He  died  before 
the  last  renewal,  and  subsequently  the  execu- 
trix conveyed  the  property,  but  took  a  mort- 
gage back  to  secure  part  of  the  purchase 
money.  The  policy  pr(>hibited  any  transfer 
or  termination  of  the  interest  of  the  insured 
"  iu  this  policy,  eiiher  by  sale  or  otherwise." 
Held,  the  death  of  the  testator  did  not  termi- 
nate the  contract;  that  the  transfer  of  the 
property  and  taking  back  the  mortgage  was 
no  breach  of  the  condition;  hence  insurers 
were  liable.  Phelps  v.  Oehhard  Fire  Ins.  Co., 
U  Bos.,  404. 

6.  Property  not  owned  by  insured.  Policy 


993 


POLICY  (OF  THE). 


994 


■WTiose  interests  are  not  covered. 


to  N.,  on  wool  owned  jointly  by  him  and  6. 
Within  two  weeks  after  it  was  received,  N. 
returned  it  to  tlie  agent,  informed  him  that  it 
was  designed  to  include  the  interest  of  G. 
The  agent  inserted:  "  In  case  of  loss,  if  any, 
one-half  payable  to  G.,  as  his  interest  may 
appear."  N.  had  other  insurance  on  his  own 
property,  which  was  not  consented  to  by  the 
defendant,  contrary  to  the  printed  terms  of  the 
contract.  Held,  under  the  evidence  disclosed, 
the  court  was  bound  to  construe  it,  as  an  in- 
surance upon  the  joint  property  of  N.  &  G., 
because  it  was  clearly  the  intention  of  both 
parties  to  regard  it  as  such  (citing  Solmes  v. 
Kutgers  Fire  Ins.  Co.,  42  N.  Y.  (3  Keyes),  416). 
ntney  v.  Glens  Falls  Ins.  Co,  61  Barb.,  335. 

7.  —  "  On  freight  cars  owned  or  used  by  the 
company."  Insured  had  in  their  possession 
and  use  two  freight  cars,  the  property  of  an- 
other company.  Held,  insured  had  an  insura- 
ble interest  in  them,  to  the  extent  of  their 
value,  and  was  entitled  to  recover  for  the  loss 
(citing  Vermont  &  M.  R.  R.  Co.  v.  Fitchburg 
R.  R.  Co.,  14  Allen,  463;  Eastern  R.  R.  Co.  ■» 
Relief  Fire  Ins.  Co.,  98  Mass.,  430).  Common- 
wealth V.  Hide  and  Leather  Ins.  Co.,  113  Mass., 
136. 

8.  — Goods  owned  by  two  jointly,  insured 
in  the  name  of  one.  Insurer's  agent  slated  to 
insured  it  wouJd  make  no  ditierence  to  insure 
in  the  name  of  one  or  both  parties;  and  there, 
upon  the  polic}'  was  made  in  the  name  of  one. 
//«W,  the  policy  covered  the  intijrest  of  both, 
and  the  action  could  be  maintained  in  the 
name  of  the  one  insured  for  the  whole  amount 
of  the  loss.  Manhattan  Ins.  Co.  v.  Webster,  59 
Penn.  St.,  227. 

9.  — On  stock  in  trade  on  consignment,  or 
held  in  trust.  Held,  it  covered  goods  bought 
on  joint  account,  with  a  person  not  named  in 
the  policy,  to  be  sold  for  their  mutual  profit. 
Mill'iudonv.  Atlantic  Ins.  Co.,  8  La.  (O.  S.),  5.58. 

10.  —  G.,  a  part  owner,  mortgaged  his  inter- 
est in  the  sliip  to  D.  &  A.,  the  defendants.  They 
insured  to  the  full  amount  of  their  mortgage, 
valuing  her  at  the  same,  and  debiting  G.  with 
the  premium.  Subsequently  G.  wrote,  direct- 
ing defendants  to  insure  a  further  sum  of 
i'l,30U,  which  was  made  upon  the  ship  gen- 
erally, and  not  upon  any  particular  shares  or 
interest.  Subsequently  he  directed  them  to 
procure  further  insurance  of  £3,000  upon  her 
from  Liverpool  to  Maranham ;  and  again  he 
directed  them  to  add  £600  for  the  same  voy- 

32 


age,  and  thereafter  he  directed  a  further  insur- 
ance  of  £500  upon  her  freight,  valued  at  £1,000. 
She  was  totally  lost  on  the  voyage  between 
Maranham  and  Liverpool,  December  6,  1837. 
In  Maieli,  1838,  G.  became  bankrupt,  and 
plaintift",  a  part  owner,  brought  this  action  to 
recover  his  portion  of  the  insurance.  Held, 
it  was  for  the  jury  to  say  whether,  at  the  time 
defendants  made  the  insurance,  they  knew 
that  the  policies  were  to  cover  the  interests  of 
persons  other  than  G.  If  that  was  the  fact, 
the  plaintifl'  was  entitled  to  recover.  Braik  v. 
Doufjlas,  4  Myl.  &  Cr,,  320, 

1 1.  Carrier.s.  "  On  goods  their  own  and  in 
trust  as  carriers  "  Stipulated  :  "  Goods  held 
in  trust  or  on  commission  are  to  be  insured 
as  such,  otherwise  the  policy  shall  not  extend 
to  cover  such  property."  Held,  it  covered  tlia 
whole  value  of  goods  in  the  warehouse  in 
plaintiff's  possession  as  carriers,  and  was  not 
limited  to  tiieir  interest  as  carriers,  notwith- 
standing the  insured  were  not  liable  to  the 
owners  of  the  goods  for  the  loss  of  them,  be- 
cause insurers  received  the  premium  upon  the 
full  value.  London  c6  Northieestern  Railwny 
Co.  V.  Glyn,  1  El.  c%  El.,  653 ;  s.  c,  5  Jur.  (N.  S.), 
1004  ;  38  L.  J.  Q.  B.,  188. 

V.  Whose  inteeests  aee  not  coveeed. 

1.  Where  the  policy  is  made  in  the  name 
of  an  agent  to  insure  another  named.  Held, 
none  but  the  person  named  can  prove  an  in- 
surable interest;  a  stranger  to  it  cannot.  Rus- 
sel  V.  New  England  Marine  Ins.  Co.,  4  Mass., 
83 ;  Graves  v.  Boston  Marine  Ins.  Co.,  2  Cranch, 
315. 

2.  R,,  a  citizen  of  the  U.  S.,  resident  in  Phil- 
adelphia, made  insurance  on  specie  from  Cape 
St,  Francois  to  Philadelphia,  "Warranted  neu- 
tral  property."  A  loss  happened,  and  insurers 
paid  R.  in  full,  but  he  discovered  that  only 
$1,152  were  his  property,  and  returned  the  bal- 
ance  to  his  insurers.  The  plaintiff  brought  this 
suit  to  recover  the  money  so  returned,  alleg- 
ing  that  the  policy  was  intended  to  cover  their 
interest.  Held,  they  could  not  recover.  Bav- 
diiy  ».  Union  Ins.  Co.,  3  Wash.  C.  C,  391. 

3.  M.  purchased  a  cargo,  and  L.  was  inter- 
ested in  it  one-third,  with  which  he  was  charg- 
ed by  M.  The  invoice  and  bill  of  lading  were 
made  in  their  joint  names,  and  L.  directed  his 
correspondent  to  place  the  proceeds  to  the 
credit  of  M.    Held,  in  the  absence  of  an  in- 

497 


995 


POLICY  (OF  THE). 


996 


Whose  interests  ai'e  not  covered. 


tention,  proved,  to  cover  the  interest  of  any 
person,  other  than  M.,  his  recovery  must  be 
j'imited  to  liis  own  interest,  two-thirds.  Mur- 
%iy  II.  Columbian,  Ins.  Co.,  11  Johns.,  303. 

4.  Policy  to  A,  to  cover  tlie  interests  of  A. 
&  B.  in  an  adventure,  the  wliole  venture  being 
owned  by  three.  Held,  the  interests  of  A.  & 
B.  were  covered,  but  not  the  interest  of  the 
third,  notwithstanding,  by  tlie  terms  of  the 
policy,  liis  interest  would  seem  covered.  Pa- 
cific Ins.  Co.,  V.  Gatlett,  4  Wend.,  75;  affirming 
6.  c,  1  id.,  oGl. 

5.  A  part  owner  effected  insurance,  intend- 
ing it  to  be  for  his  own  and  for  account  of  an- 
other, but  the  policy  read:  "  For  account  of 
whom  it  may  concern,  or  for  account  of  the 
owners."  Held,  any  person  interested  in  the 
vessel,  might  claim  the  benefits  of  the  policy; 
but  where  the  policy  coutaius  no  words  im- 
porting auy  interest  in  any  person,  other 
than  the  insured,  none  but  the  insured  shall 
be  allowed  to  claim  the  benefits  of  it. 
Turner  v.  Burroics,  5  Wend.,  541 ;  affirmed,  8 
id.,  144. 

6.  Where  the  policy  is  made  to  one  person 
without  any  words,  such  as,  "  for  the  benefit  of 
whom  it  may  concern,"  or,  "  as  the  property 
may  appear,"  it  is  for  the  sole  benefit  of  that 
one  person.  Burgher  v.  Columbian  Ins.  Co., 
17  Barb.,  274. 

7.  Policy  made  to  A.  None  of  his  own 
goods  were  on  the  ship,  but  others  were  con- 
signed to  him,  of  which  he  had  no  notice  nor 
intention  to  insure.  Held,  they  were  not  with- 
in the  policy.  Toppaii  v.  Atkinson,  3  Mass., 
3(J5. 

8.  No  representation  was  made  to  the  in- 
surer,  that  any  other  person  was  interested 
with  insured  in  the  subject,  aud  the  contract 
was  made  with  him  upon  his  sole  account. 
Held,  he  could  not  recover  be3'ond  the  value 
of  his  own  interest.  If  the  insured  acts  for 
others,  he  must  make  known  the  relation  in 
■which  he  stands.  Dumas  v.  Jones,  4  Mass , 
C47. 

9.  Policy  made  by  a  master,  who  is  also 
part  owner,  "on  property  on  board,  for  the 
owners  of  the  vessel."  Held,  it  covered  his 
own  interest,  joint  aud  separate,  but  not  the 
interest  of  the  other  owners.  Foster  ®.  United 
States  Ins.  Co.,  11  Pick.,  85. 

10.  Part  owner  of  ship  may  insure  his  in- 
terest without  stating  its  nature  or  extent ;  aud 
if  he  holds  as  administrator,  he  maj'  insure 

498 


without  stating  the  capacity  in  which  h« 
holds,  but  he  cannot  recover  for  the  interest 
of  another  person.  Finney  v.  Warren  Ins. 
Co.,  1  Met.,  16. 

II.  J.  &  J.  insured  $1,100  on  170  tons  coal, 
and  $2,700,  on  the  freight  of  the  same  at  and 
from  New  York  to  San  Francisco,  payable  to 
them  for  account  of  whom  it  concerns.  Stip- 
ulated: "To  be  void  if  assigned,  transferred 
or  pledged  without  insurer's  consent  in  writ- 
ing." P.  &  C.  were  the  owners  of  the  coal, 
.and  had  prepaid  the  freight.  The  insurance 
was  made  at  their  instance,  for  their  benefit, 
and  the^'  paid  the  premiums.  They  sold  all 
their  interest  in  the  adventure  to  M.,  the 
plaintilf.  J.  &  J.  indorsed  the  policy  to  P., 
he  indorsed  it  to  the  plaintff;  to  all  of  which 
insurers  assented.  The  property  was  lost. 
Held,  the  indorsements  were  mere  orders,  and 
transferred  nothing  but  what  might  be  recov- 
ered on  the  interest  of  the  party  originally 
insured;  as  the  persons  for  whose  benefit  the 
policy  was  obtained  had  sold  all  their  interest 
in  the  subject  insured,  to  which  the  insurei 
had  not  assented,  no  recovery  could  be  had 
upon  the  policj-.  JUinturn  v.  Manufacturers 
Ins.  Co.,  10  Gray,  501. 

1 2.  "  On  his  five-eighth  catchings  of  the 
good  whaling^ship  called  tlie  Contest.  Aa 
fast  as  oil,  bone  and  other  articles  of  cargo 
are  procured,  this  insurance  is  to  attach  ott 
the  ship  owner's  interest  therein  exclusivelj', 
about  two-thirds  of  which  is  to  apply  to  this 
policy,  the  crew's  share  (about  one-third)  not 
being  covered  by  this  insurance."  Held,  the 
policy  must  be  applied  to  a  definite  and  fixed 
proportion  of  the  catchings  according  to  the 
ratio  of  the  lays  agreed  on  by  the  shipping 
articles,  and  this  ratio  of  interest  continued 
until  the  close  of  the  voyage,  whatever  may 
be  the  state  of  the  accounts  with  the  crew. 
Sicift  D.  Mercantile  Mut.  Ins.  Co.,  113  Mass., 
287. 

1 3.  Policy  to  W.  &  J.,  copartners  in  trade. 
After  the  death  of  J.,  W.  continued  to  pur- 
chase and  add  to  the  stock,  which  was  con- 
sumed  within  the  term  insured.  Held,  W.,  as 
surviving  copartner,  could  recover  for  the 
goods  which  were  the  property  of  W.  &  J. ; 
but  as  to  goods  purchased  after  the  death  ol 
J.,  prima  facie,  the  policy  did  not  include 
them.  Wood  v.  Rutland  Mutual  Fire  Ins.  Co., 
31  Vt.,  552. 

14.  G.  and  H.  were  equal  owners;   and  H. 


907 


POLICY  (OF  THE). 


908 


Whose  interests  are  not  covered. 


insured  lier  for  $1,500,  valued  at  |2,.j00.  Held, 
the  policy  did  not  cover  tlie  interest  of  G.; 
that  H.  was  not  liable  to  G.  for  any  part  of  the 
money  received  from  the  insurers.  Qnrrell  v. 
Banna,  5  H.  &  J.,  413. 

15.  Where  it  does  not  appear  upon  the  face 
of  the  instrument  for  whom  or  wliose  benefit 
the  contract  was  made,  extrinsic  evidence  is 
admissible  for  the  purpose  of  ascertaining 
who  was  in  fact  concerned.  Newson  v.  Doug- 
lass,! H.  &  J.,  417.  And  if  it  appears  that  the 
contract  was  made  for  the  benefit  of  a  person 
■without  previous  communication  with  him  on 
the  subject,  his  adoption  of  it  afterwards  will 
cause  it  to  enure  for  his  benefit.  Ibid.  But 
no  one  can  by  subsequent  adoption  avail  him- 
self of  a  policj',  who  w.as  not,  at  the  time,  in 
the  contemplation  of  the  party  procuring  it, 
though  he  had  an  interest  in  the  thing  in- 
sured.   Ibid. 

16.  Policy  to  insure  "D.,  president  of  the 
:  ^  &  C.  R.  K.  Ce.,  and  for  the  J;  &  L.  P. 
...  iC.  Co.,  against  loss  or  damage  by  fire  on 
merchandise,  being  such  as  may  be  placed  in 
the  depots  hereinafter  named  for  conveyance 
to  and  from  the  city  to  Lake  Pontchartrain. 
The  risk  in  the  cars  is  also  to  be  covered  by 
this  insurance."  Stipulated:  "Goods held  in 
trust  or  on  commission  shall  be  declared  as 
such,  otherwise  this  policy  shall  not  cover 
such  property."  Held,  insurers  were  not 
bound  to  do  anything  more  than  indemnify 
the  railroad  company  against  the  loss  or  dam- 
age  it  liad  sustained  from  the  destruction  or 
deterioration  of  such  merchandise  by  fire ;  and 
as  there  was  no  evidence  that  the  railroad 
company  was  owner  of  any  of  the  goods  de- 
stroyed, it  was  necessary  to  prove  some  loss  or 
liability  of  the  railroad  company  by  fire,  be- 
fore any  recovery  could  be  allowed.  Duncan 
«.  Sun,  Mut.  Ins.  Co.,  13  La.  An.,  486. 

17.  E.  &  F.  were  owners  of  a  steamboat, 
upon  which  they  held  the  defendant's  policy. 
They  sold  her  to  A.,  B.,  C.  &  D.,  and  assigned 
the  policy  to  them,  to  wiiich  insurers  assented. 
D.  afterwards  sold  his  interest  in  the  bo.it  to 
his  co-owners  A..,  B.  &  C,  but  did  not  assign 
his  interest  in  the  policy  to  them.  Held,  D.'s 
interest  in  the  policy  did  not  pass  by  the 
sale  to  A.,  B.  &  C,  unless  insurers  .issenled 
to  it.  Walker  v.  Firemen's  Ins.  Co.,  3  Handy, 
256. 

18.  Policy  to  H.,  who  was  then  a  copartner  I 


with  B.  They  were  joint  owners  of  a  stock 
of  goods  which  insurers'  agent  solicited  H.  to 
insure.  H.  said  to  the  agent  he  did  not  think 
lie  had  a  right  to  Insure  B.'s  share,  to  whicli 
the  agent  replied,  lie  had  a  right  to  insure  the 
whole,  hence  the  policy  was  made  in  the 
name  of  H.  only.  Held,  it  covered  the  undi- 
vided  interest  of  H.  and  no  more,  because 
there  was  no  evidence  tending  to  show  an  in- 
tenti(m  to  make  the  policy  for  the  benefit  of 
the  firm.  Peoria  Marine  and  Fire  Ins.  Co.  v. 
Hall,  12  Mich.,  203. 

19.  There  was  a  policy  of  insurance  upon 
the  cargo,  at  and  from  Galatz,  or  any  other 
place  or  places  on  the  Danube,  to  Emden,  and 
any  other  place  or  places  on  the  continent,  be- 
tween Havre  and  Hamburg,  at  and  from 
thence  to  port  or  ports  of  discharge  in  the  U. 
K.,  with  leave  to  call  for  orders,  and  to  natur- 
alize the  cargo  as  per  printed  agreement  an- 
nexed, to  return  twenty  shillings  per  cent,  if 
the  risk  shall  end  at  the  port  of  naturalization. 
The  shippers  (the  insured)  sold  the  cargo  free 
on  board  at  Galatz,  including  freight  and  in- 
surance to  Emden.  The  loss  occurred  after 
she  reached  Emden.  Held,  the  purchasers 
could  not  maintain  an  action  upon  the  pol- 
icy, lonides  v.  Hartford,  5  H.  &  N.,  944 ;  39  L. 
J.  Ex.,  .30. 

20.  Policy  to  A.  on  a  cargo  of  linseed  from 
Constantinople  to  portof  call  and  discharge  in 
the  U.  K.,  risk  of  craft  or  lighters  to  and  from 
the  brig.  Bill  of  lading  was  made  to  A.  or  as- 
signs ;  he  sold  the  cargo  to  be  delivered  at  port 
of  destination  in  sound,  merchantable  condi- 
tion, payment  to  be  made  fourteen  days  after 
ready  for  delivery  ;  and  A.  indorsed  the  bill  of 
lading  to  the  plaintirt".  She  arrived  at  port  of 
destination,  and  part  of  the  cargo  was  put  into 
public  lighters,  one  of  which  sank  at  the 
wharf.  The  purchaser  had  not  paid  for  it  at 
the  time.  Insured  subsequently  transferred 
the  policy  to  the  purchaser.  Held,  the  pur- 
chaser cimld  not  recover  upon  the  policy  he- 
cause  at  the  time  of  the  sale,  there  was  no 
agreement  it  should  carry  the  insurance, 
nor  could  any  intention  to  do  so  be  inferred, 
because  A.  had  the  right  to  retain  tlie  policy 
for  his  own  protection  until  the  right  delivery 
of  the  cargo;  that  the  sale  divested  A.  of  all 
interest,  and  the  policy  was  then  determined. 
North  of  England  Oil  Cake  Co.  v.  Archangel 
Maritime  Ins.  Co.,  10  L.  K.  Q.  B.,  249. 


499 


999 


I'OLICY  (OF  THE). 


1000 


What  places  are  within  the  description. 


VI.  What  tlaces  aee  within  the  ue- 

SCKIPTION. 

1.  A  policy  upon  timber  iu  a  ship  yard, 
limited  to  certain  boundaries.  Held,  evidence 
was  admissible  to  prove  whether  the  parties 
meant  that  the  insurance  should  be  limited  to 
a  yard  bounded  by  lines  exactly  defined  and 
limited  by  streets,  or  to  a  yard  as  it  was  in 
fact  used  by  the  insured  in  conducting  their 
business;  and  for  tliat  purpose  it  was  compe- 
tent to  prove  that  it  was  usual  for  the  owners 
of  ship  yards  in  New  York  to  keep  their  stock 
of  timber  on  the  sidewalks  and  in  the  streets 
in  the  vicinity  of  their  j'ards,  as  well  as  in 
them.    Webb  v.  National  Ins.  Co.,  3  Sandf ,  497. 

2.  The  plaintiffs,  as  trustees  of  a  railroad, 
made  insurance  "  On  any  property  belonging 
to  the  said  Trust  Company  as  trustees  and 
lessees  as  aforesaid,  for  which  they  may  be 
liable ;  it  matters  not  of  what  the  property  may 
consist  or  where  it  may  be,  provided  it  is  on 
premises  owned  or  occupied  by  said  trustees, 
and  situate  on  their  railroad  premises  in  the 
city  of  Racine,  Wis."  The  railro.ad  company 
had  purchased,  and  the  plaintiffs  as  mort- 
gagees and  trustees  owned,  certain  wharf 
property  fronting  on  Root  river.  The  cars 
came  to  the  river,  and  the  wharf  was  used 
for  the  transferring  of  freight  between  boats 
and  cars.  Plaintifl's  owned  a  dredgeboat,  to 
keep  the  water  a  sufficient  depth  in  front  of 
tlie  wharf;  and  while  made  fast  to  the  wharf,  it 
was  consumed  by  fire.  Held,  the  boat  was  in 
plaintiffs  possession  anne-xed  to  the  railroad 
premises,  and  was  therefore  upon  the  property 
of  the  ijlaintitTs  within  the  meaning  of  thb 
policy.  Farmers  Loan  and  l^rust  Co.  v.  Har- 
mony Fire  and  Mitrine  Ins.  Co.,  51  Barb.,  33; 
6.  c,  affirmed,  41  N.  Y.  (2  Hand),  619. 

3.  "On  their  road  furniture,  consisting  of 
locomotive  engines  and  cars  of  all  descrip- 
tions and  snow  plows  on  the  line  of  their  road 
and  in  ac'-il  use;  but  not  on  machine  or  re- 
pair shcj  '  The  owners  of  a  wharf  iu 
Charlestown  laid  a  track,  the  whole  length  of 
the  wharf,  which  connected  the  Charlestown 
Branch  Railroad  with  the  Fitchburg  Railroad 
for  the  purpose  of  conveniently  shipping  and 
receiving  ice.  The  cars  for  which  this  action 
was  brouglit  were  drawn  over  the  Fitcliburg 
and  Charlestown  Branch  Railroads  and  left 
one  night  on  tlie  Hack  at  the  extreme  end  of 
the  wharf,  four  hundred  and  forty  feet  from 

500 


the  line  of  llie  Charlestown  Branch,  near  a 
shed  used  by  the  occupants  of  the  wharf  to 
store  shavings  and  sawdust  A  fire  origi- 
nated in  the  shed  and  consumed  the  cars. 
Held,  the  court  must  look  at  the  nature  of  the 
property  insured  as  well  as  the  words  of  the 
contract,  to  ascertain  the  intention  of  the  par- 
ties ;  that  if  at  the  time  of  the  loss  llie  cars 
were  upon  a  track,  which,  by  adoption  and 
for  all  practical  purposes,  had  become  a  part 
of  the  line,  they  were  witliin  the  policy. 
Fitchburg  Railroad  v.  Charlestown  Mutual 
Fire  Ins.  Co.,  7  Gray,  64. 

4.  On  goods  in  brick  building  situate  on 
Main  street,  known  as  D.  &  Co.'s  car  factory. 
Held,  it  included  goods  in  a  building,  a  wing 
of  D.  &  Co.'s  car  factory,  although  the  open- 
ing from  the  main  building  into  the  wing  w:i9 
less  than  three  feet  square  and  usually  closed 
by  an  iron  door,  provided  the  wing  was  used 
for  manufacturing  cars,  aild  was  known  as  a 
part  of  the  factory.  Blake  v.  Exchange  Mut. 
Ins.  Co.,  12  Gray,  263. 

5.  "  On  goods  ccmtained  in  the  third  story 
of  building,  eighteen  and  nineteen  Harvara 
Place,  Boston.  To  be  voia,  ii  said  property 
shall  be  removed  without  necessity."  They 
were  removed  into  other  rooms  in  the  same 
story.  Held,  no  defense  to  the  action.  WeU 
V.  Old  Colony  Ins.  Co.,  9  Allen,  316. 

6.  "  On  stock  of  dry  goods  and  other  raer- 
chandise,  contained  iu  the  frame  building, 
known  as  Hunt  building,  situate  on  Main 
street,  as  per  plan  filed."  The  plan  filed  ex- 
hibited a  building  divided  into  three  stores. 
Insured  then  occupied  the  west  store,  the 
others  being  occupied  by  other  persons.  Sub- 
sequentlj'  the  partitions  on  the  main  floor 
were  removed  between  the  west  and  middle 
store,  and  doors  were  made  opening  into  tlie 
east  store.  At  the  time  of  the  fire  insured  had 
goods  in  the  whole  of  the  main  floor.  Held, 
the  words  of  the  policy  did  not  restrict  in- 
sured to  a  particular  part  of  the  building. 
Reference  to  the  [ilan  must  be  regarded  as 
identifying  the  building.  Hence  insured  was 
entitled  to  recover  for  all  the  goods.  Fair  v. 
Manhattan  Ins.  Co.,  113  Mass.,  330. 

7.  On  property,  situated  in  the  rear  of  83 
and  84  Eddy  street.  Held,  it  covered  all  prop- 
erty of  the  kind  described,  wherever  it  might 
Ijc  on  the  premises,  and  was  not  limited  to 
property  in  the  furnace  building  mentioned  iu 
a  preceding  application,  to  which  this  appli- 


1001 


POLICY  (OF  THE). 


1002 


Wliat  places  are  witliin  the  description. 


cation  referred.  Eddy  Street  Foundry  v.  Farm- 
ers Mutual  Fire  Ins.  Co.,  5  R.  I.,  42G. 

8.  "  Oa  machinery,  consisting  of  curds, 
n;,u!cs,  i)iclvers,  shafting  and  belling,  and  fi.\- 
tiires  used  for  manufacturing  carpet  yarn,  on 
the  first  story  of  a  four  stor}-  and  basement 
building,  situate,"  etc.  The  pickers  were  not 
in  the  first  story  of  the  buildiug  when  the  pol- 
icy was  issued,  nor  when  they  were  burned, 
but  were  in  the  picker  house,  a  one  story  ex- 
tension. Jlcid,  the  primary  object  of  the  pol- 
icy was  to  insure  the  properly  described.  Its 
precise  location  was  a  subordinate  matter, 
which  the  parties  might  regard  and  treat  as  of 
less  importance;  that  though  the  picker  house 
was  only  one  story,  it  was  still  a  part  of  the 
building.  Meiidoiccraft  v.  Stii/idard  Ins.  Co., 
CI  Penn.  St.,  91. 

!).  On  cargo,  <in  canal  boat  Ben.  Franklin, 
against  perils  of  the  seas,  rivers,  fires,  jettisons, 
enemies,  pirates,  restraints,  etc.,  at  and  from 
Cincinnati  via  canal  to  Covington,  Indiana. 
Held,  the  words  "  seas"  and  "  rivers  "  included 
the  perils  of  navigation  on  the  canal.  Protec- 
tion, Ins.  Co.  V.  Wilson,  (i  Ohio  St.,  553. 

10.  $300  on  his  granary  and  his  wagon 
house,  $300  on  his  grain  therein,  or  in  stack. 
When  the  policy  was  issued,  he  owned  and 
occupied  a  farm  in  the  town  of  Chester,  sec- 
tions 17,  19  and  20,  being  an  entire  tract  of  380 
acres.  A  few  months  later  he  purchased  an 
additional  twenty  acres  in  section  17,  but  not 
adjoiniug  his  other  land,  upon  which  he  raised 
and  stacked  wheat,  which  was  subsequently 
burned  on  that  twenty  acres.  Held,  a  loss 
within-  the  policy.  Sawyer  v.  Dodge  County 
Mut.  Ins.  Co.,  87  Wis.,  503. 

1 1.  Policy  on  two  houses.  Held,  it  included 
back  buildings  on  the  same  lot,  although  sep- 
arated from  the  main  buildings.  ^Yorkman  v. 
Louisiana  Ins.  Co.,  2  La.  (O.  S.),  507. 

12.  On  household  furniture  in  dwelling 
house.  Held,  it  covered  furniture  stored  in 
the  garret.  Clark  v.  Fireman's  Ins.  Co.,  18  La. 
(O.  S.),  431. 

13.  The  property  was  described  asfollo%vs: 
"On  his  dwelling  house,  .|400;  grain  in  the 
slack  or  crib,  .$000;  hay  in  stack,  $320;  seven 
horses,  $750 ;  cattle,  $375,  situated  in  section 
22,  town  99,  range  7,  west.  All  increase  of 
risk  was  prohibited.  While  insured  was  haul- 
ing his  grain  to  market  he  slopped  al  a  hotel 
for  the  night,  and  i)Ut  his  team  in  the  hotel 
barn,  which  was  consumed  by  tire  during  the 


night,  and  one  of  the  horses  burned.  The 
danger  of  fire  was  greater  in  the  hotel  barn 
than  it  was  on  the  farm.  Held,  the  contract 
did  not  limit  the  use  of  the  property  to  seclicjn 
22 ;  that  the  language  was  intended  to  describe 
the  location,  and  not  to  limit  the  use  of  the 
horses  to  the  section  of  land  therein  mentioned, 
and  that  to  restrict  the  use  of  the  horses  to  the 
.section  named,  was  not  within  the  intention 
of  the  parlies,  and  the  insurer  was  therefore 
liable  for  the  loss.  Peterson  v.  Mississippi 
Valley  Ins.  Co.,  24  Iowa,  404. 

14.  When  the  policy  covers  live  stork,  the 
insurer  will  be  liable  for  a  horse  killed  at  a 
place  not  upon  the  premises  specified,  if  it  was 
being  used  in  the  ordinary  course  of  business, 
and  the  fact  that  the  horse  was  bought  after 
the  policy  was  issued  is  immaterial.  Mills 
t.  Farmers  Ins.  Co.,  37  Iowa,  400. 

i  5.  "  From  London  to  any  ports  and  places 
beyond  the  Cape  of  Goou  Hope  and  back  to 
London."  She  arrived  at  Canton,  where  her 
sails,  yards,  tackle,  rigging,  and  other  furni- 
ture, were  by  the  captain's  order  taken  out  and 
put  into  a  store  house  on  a  sand  bank  or  small 
island,  to  be  repaired  and  kept  dry.  It  was 
the  custom  for  all  European  ships,  except 
Dutch  (which  had  for  some  years  been 
denied  the  privilege),  to  have  done  as  was 
done  with  this  ship's  sails,  yards,  tackle,  etc. 
A  loss  by  fire  happened  on  tlic  island  to  the 
property  deposited.  Held,  it  was  a  loss  with- 
in the  meaning  and  intent  of  the  contract. 
Pelly  V.  Royal  Exchange  Ass.  Co.,  1  Bun-., 
341. 

16.  On  ship  one  month  in  Portsmouth 
harbor,  securely  moored.  She  was  afterwards 
removed  to  Beech^iiead,  and  her  bottom 
cleaned.  She  was  put  into  dock  at  Mark's 
wharf  and  safely  moored,  where  she  was  acci- 
dentally consumed  by  fire.  Held,  a.  loss  with- 
in the  policy.    v.  Westmore,  6  Esp.,  109. 

17.  On  goods  to  Jamaica.  They  were  des- 
lined  to  Plantain  Garden,  River  Bay,  in 
Jamaica.  The  Bay  was  not  safe  for  vessels  of 
her  draught;  and  it  was  usual  for  such  to  dis- 
charge their  cargoes  into  shallops,  which  was 
done,  and  a  part  of  which  was  lost.  Held,  the 
policy  covered  the  goods  till  the}'  were  land- 
ed. The  insurer  is  presumed  to  know  the 
usual  course  of  the  voyage.  If  he  does  not 
know  it,  he  should  inquire.  Stewart  v.  Bell, 
5  B.  &  A.,  238. 

18.  On  goods,  specie,  and  effects,  from  Lou- 

501 


1003 


rOLICY  (OF  THE). 


1004 


\ATiat  places  are  not  within  the  description. 


don  to  Madras  and  China  with  liberty  to  touch, 
stay  and  iradc  at  auy  ports  until  she  shall  ar- 
rive at  her  last  loading  port  in  the  East  Indies 
or  China.  /Mrf,  under  the  usage  of  the  East 
India  or  China  trade  the  policy  covered  an 
intermediate  voyage  from  Madras  to  Bengal. 
Gregory  v.  Christie,  3  Dong.,  419;  Preduii  o. 
Greenwood,  4  id.,  28. 

19.  On  cargo  from  the  Clyde  to  St.  Kitts. 
The  master  received  information  that  the 
island  was  in  the  possession  of  the  enemy,  and 
that  by  the  terms  of  capitulation  the  property 
of  insured  was  not  liable  to  seizure,  but  that 
as  to  the  property  on  board,  as  well  as  the  ves- 
sel, they  would  on  arrival  be  subject  to  imme- 
diate seizure.  He  put  the  cargo  in  warehouse 
at  Antigua,  intending  to  send  them  to  St.  Kitts, 
■where  it  was  consumed  by  fire.  Held,  the  loss 
was  within  the  policj'.  Durdop  e.  Allen,  Fac- 
ulty Dec,  1781  to  178T,  p.  371. 

VII.  What  places  are  not  wituin  the 

DESCRIPTION. 

1.  Policy  to  H.  &  S.  Application  made  a 
part  of  the  policy.  It  stated  that  the  property 
to  be  insured  was  in  the  building  in  the  rear 
of  83  Eddy  street,  used  as  a  furnace  house. 
The  property  insured  was  destroyed  in  a  .store- 
house, which  could  not  be  properly  described 
as  being  in  the  rear  of  83  Eddy  street,  but  as  in 
Uie  rear  of  83  and  84  of  that  street.  Held,  the 
application  was  a  part  of  the  contract,  and  the 
insured  could  not  recover,  because  the  prop- 
erty insured  was  not  destroyed  at  the  place 
described  in  the  application.  Eddy  Street 
Foundry  v.  Camden  Stock  &  Mut.  Ins.  Co.,  1 
Cliff.,  300. 

2.  On  all  shipments  made  to  them  at  and 
from  any  ports  and  places,  to  and  from  St. 
Louis,  on  good  steamboats,  canal  boats,  and 
Bteam  and  sail  vessels,  and  also  by  railroad,  to 
be  reported  to  the  company  for  indorsement 
on  the  policy,  as  soon  as  known,  also  to  cover 
all  shipments  made  by  the  insured,  or  to  their 
address  at  St.  Louis  from  the  upper  Missis- 
sippi, Illinois  or  Missouri  rivers.  Held,  St. 
Louis  was  one  of  the  termini  of  all  risks  em- 
braced; it  did  not  include  property  shipped 
in  the  name  of  other  parties  from  a  place  on 
the  Mississippi  river  to  Cairo,  although  the 
persons  to  whom  the  policy  was  issued  were 
interested  in  tliat  shipment;  if  the  shipment  to 
Cairo  was  insured,  the  rights  of  the  insured  in 

503 


respect  to  it  must  arise  upon  a  modification  of 
the  written  instrument,  by  a  subsequent  valid 
parol  agreement,  which  would  be  a  new  coc- 
tract,  resting  in  parol,  and  which  might  refer 
for  part  of  its  terms  to  another  contract  in 
writing.  Hening  v.  United  States  Ins.  Co.,  3 
Dil.  Cir.  Ct.,  36. 

3.  On  goods,  "  in  the  store  part."  They 
were  removed  into  the  second  and  third  sto- 
ries, which  was  not  the  store  part.  Held,  in- 
surer was  not  liable.  Buynton  v.  Clinton  and 
Essex  Mut.  Ins.  Co.,  16  Barb.,  254. 

4.  On  merchandise  in  a  new  frame  barn, 
wagon  and  wareroom,  situate  on  the  corner 
of  Tom  and  Sugar  alley,  front  on  Tom  alley, 
53x30  feet,  back  part  on  Sugar  alley,  30x20 
feet.  Insured  took  down  a  portion  of  the  barn 
and  erected  a  brick  extension,  33x111  feet, 
reaching  through  the  lot  to  Tom  alley,  cover- 
ing 80  X  33  feet  of  the  ground  upon  which  the 
barn  had  stood.  There  was  an  additional 
premium  settled  for  carpenter's  risk,  and  a 
premium  note  given,  at  the  foot  of  which 
were  the  words,  "Additional  risk  in  extend- 
ing to  store  room."  Held,  no  evidence  of  con- 
sent to  demolish  any  part  of  the  frame  build- 
ing  insured,  nor  of  any  agreement  to  insure 
goods  in  the  extension  of  the  store  room,  nor 
in  the  new  building,  hence,  insured  could  not 
recover  for  goods  lost  in  the  new  brick  build- 
ing nor  in  the  extension  of  the  store  room. 
Lycoming  County  Ins.  Co.  v.  Updegraf,  40 
Penn.  St.,  311. 

5.  Provided  all  the  property  hereby  insured 
is  on  premises  owned  or  occupied  bj'  the  in- 
sured, it  matters  not  whether  the  property  is 
in  motion  on  the  road,  at  rest,  or  in  buildings." 
At  the  date  of  the  policy,  insured  used  a  por- 
tion of  a  wharf  in  Providence,  the  rails,  etc., 
being  the  property  of  the  persons  who  then 
occupied  the  same,  and  for  the  use  of  which 
insured  paid  the  owners,  as  other  persons  had 
done,  and  were  doing.  After  the  making  of 
the  policy,  insured  leased  a  portion  of  the 
wharf  and  purchased  the  rails,  coal  bins,  der- 
ricks, and  other  property  on  said  wharf,  and 
used  them  in  the  transaction  of  their  business. 
Held,  the  policy  did  not  cover  a  loss  which 
occurred  upon  premises  not  used  or  occupied 
by  the  insured  at  the  time  the  policy  was 
made.  Providence  and  Worcester  R.  R.  t. 
Tonkers  Ins.  Co.,  10  R.  I.,  74. 

6.  $3,350  on  two  Murphy  &  Allison  pas- 
senger cars,  say   $1,135   ou  each,  one  being 


1005 


POLICY  (OF  l-IIE). 


l«OG 


What  pixjperty  is  wdthin  the  description. 


used  as  a  baggage  aod  passenger  car,  con- 
tained in  car  house  marked  No.  1 ;  and  $3,0U0 
ou  locomotive  engine  J.  II.  Nicholson,  con- 
tained in  engine  house  marked  No.  2.  While 
on  a  regular  Irij)  on  the  road  of  insured,  one 
•of  the  cars  was  entirely  destroyed  and  the  en- 
gine greatly  damaged.  Held,  insurers  were 
not  liable  tor  a  loss  occurring  upon  the  road. 
Aimapolis  liailroad  v.  Baltimore  Fire  Ins.  Co., 
33  Md.,  37 

7.  On  chair  lumber  contained  in  the  two 
story  frame  building  occupied  by  the  insured 
as  a  chair  manufactory,  situated  on  the  north 
side  of  Superior  street.  Held,  it  did  not  in- 
clude chair  lumber  in  the  engine  house, 
though  connected  by  a  platform  with  the 
building  described.  Liebenatein  v.  ^trw,  Iiu. 
Co.,  45  111.,  303. 

8.  On  ship  at  and  from  St.  Vincent,  Barba- 
<los,  and  all  or  any  of  the  West  India  islands, 
to  her  port  or  ports  of  discharge  aud  loading 
in  (he  United  Kingdom,  during  her  stay  there, 
and  thence  back  to  Barbados,  and  all  or  any 
of  the  West  India  colonies,  until  she  shall 
liave  arrived  at  her  final  port  as  aforesaid. 
She  took  an  assorted  cargo,  part  of  which  was 
■50  tons  of  coal  and  15,000  common  bricks,  at 
Liverpool,  both  of  wliich  were  between  a  sev- 
enteenth and  an  eighteenth  value  of  the  whole 
cargo,  and  in  weight  about  80  tons,  her  bur- 
then being  200  tons.  All  of  the  cargo,  except 
tlie  coal  and  bricks,  was  discharged;  330 
empty  puncheons  were  put  on  board,  and  she 
■was  ready  to  sail  for  Berbice,  when  the  hurri- 
cane of  August  11,  1831,  destroyed  her.  Held, 
the  insurers  were  discharged,  for  as  soon  as 
the  substantial  purpose  of  the  voyage,  that  is 
the  delivery  of  the  cargo,  was  completed,  the 
■voyage  was  ended.  Moore  v.  Taylor,  1  A.  &  E., 
25;  3  L.  J.  (N.  8.),  K.  B.,  132;  3  N.  &  M.,  40G. 

9.  On  oil  mill,  occupied  for  crushing  lin- 
seed and  grinding  dyewood,  £1,000;  on  fixed 
machinery  and  millwright  works,  including 
all  the  standing  and  growing  gear  therein, 
£1,000;  one  engine  house  adjoining  the  mill, 
£200;  one  steam  engine  therein,  £300;  one 
logwood  warehouse  in  which  chopping  dye- 
wood  is  performed,  £200 ;  one  warehouse  on 
the  other  side  of  the  mill,  £300.  Held,  ma- 
•chinerj'  and  gear  in  the  logwood  house  was 
■not  insured,  and  evidence  was  not  admissible 
to  show  the  intention  of  the  parties  to  insure 
machinery  and  gear  in  it.  Ilare  v.  Barstow, 
*  Jur.,  828. 


10.  Ou  ship  and  freight  to  her  port  or  ports 
of  discharge  in  the  West  Indies,  and  one 
guinea  additional  if  she  shall  proceed  to 
Jamaica.  She  proceeded  to  Barbados,  dis- 
charged part  of  cargo,  and  sailed  for  Jlorant 
Bay,  Jamaica.  She  arrived  aud  was  moored 
seven  days,  when  she  was  wrecked  in  a  hurri- 
cane. The  balance  of  the  cargo  might  have 
been  sold  at  Barbados,  but  the  master  would 
not  remain  tliere  long  enough  to  do  so.  Held, 
Barbados  was  her  port  of  discharge;  hence 
the  insurers  were  released,  ffamilton  e.  Craw- 
ford, Faculty  Dec,  1781  to  1787,  p.  451. 

VIII.    "What  peopekty  is  within  the 

DESCEIPTION. 

1.  On  blacksmith  and  carriage  maker's 
stock,  manufactured  and  in  process  of  manu- 
facture. Held,  unmanufactured  or  raw  stock 
of  the  kind  mentioned  was  within  the  policy. 
Spratley  v.  Hartford  Ins.  Co.,  1  Dil.  Cir.  Ct., 
393. 

2.  On  a  stock  of  ship  timber,  including 
planks,  futtocks,  knees,  locust  standards, 
staves,  blocks,  falls,  clamps,  screws,  augers 
and  tools  contained  in  the  yard  and  buildings 
therein,  bounded  by  Sixth  and  Seventh  streets, 
and  Lewis  street  and  the  East  river.  Held, 
that  locust  capstans,  partly  prepared,  were 
within  the  policy.  Webb  v.  National  Fire 
Ins.  Co.,  2  Sandf ,  497. 

3.  On  fixtures  and  gas  metres  belonging  to 
and  rented  by  the  gas  company,  placed  or  to 
be  placed  in  the -buildings,  stores  or  dwellings 
of  subscribers  for  seven  years.  Held,  it  was 
not  limited  to  the  property  placed  at  the  time 
the  policy  was  made,  but  included  all  that 
were  placed  after  its  issue;  and  insurers  were 
liable  for  the  whole  not  exceeding  the  amount 
insured.  New  York  Gas  Light  Co.  v.  Mechan- 
ics Fire  Ins.  Co.,  2  Hall,  108. 

4.  $1,000  on  his  stock  in  trade  as  a  baker, 
and  on  household  furniture  contained  in  a. 
frame  dwelling  and  bake  house,  ffeld,  the 
tools  and  implements  necessary  for  carrying 
on  the  business  of  a  baker  were  covered  by  the 
policy.  Moadinger  v.  Mechanics  Fire  Ins.  Co  , 
2  Hall,  490- 

5.  Upon  certain  articles  valued,  from  the 
United  States  to  Europe,  to  be  disposed  of  for 
the  purpose  of  procuring  a  return  cargo,  and 
at  and  from  thence  to  a  port  of  discharge  in 
tlie  United  States.    Stipulated;    "  The  risk  is 

503 


1007 


POLICY  (OF  THE). 


1008 


What  property  is  within  the  description. 


to  attach  to  tlie  proceeds  of  the  articles  men- 
tioned in  this  policy  in  the  return  cargo," 
Cargo  was  discharged;  the  markets  being 
dull,  it  was  left  on  consignment  for  sale,  and 
a  return  cargo  was  taken  on  credit  before  the 
outward  cargo  was  sold.  Held,  the  insurers 
were  liable,  it  being  made  to  appear  that  the 
return  cargo  was  intended  as  a  substitute  for 
the  outward  cargo,  aud  might  fairly  be  con- 
sidered as  proceeds  of  the  same.  Haicti  v. 
Gray,  13  Mass.,  71. 

6.  $12,500,  namely:  $12,000  on  their  stock 
of  watches,  watch  trimmings,  etc.,  contained 
in  their  store,  and  $.500  on  furniture  and  fix- 
tures. Held,  the  word  "  stock  "  included  the 
general  stock,  aud  was  not  limited  to  watches, 
watch  trimmings  and  materials.  Crosby  v. 
Franklin  Ins.  Co.,  5  Gray,  504. 

7.  The  application  asked  whether  any  ex- 
plosive or  highly  inflammable  matter  was 
kept  in  or  near  the  premises.  To  which  in- 
sured replied:  "J^^ot  to  my  knowledge."  The 
application  was  for  insurance  "  On  household 
furniture,  being  my  stock  in  trade,  mostlj" 
chamber  furniture  in  sets."  Policy  was  writ- 
ten "  On  stock  in  trade,  being  mostly  chamber 
furniture  in  sets,  and  other  articles  usually 
kept  by  furniture  dealers,  based  on  an  appli- 
cation, etc."  lusured  kept  as  much  varnish 
on  the  premises  as  was  usually  kept  by  furni- 
ture dealers.  Held,  the  contract  covered  the 
furniture  of  a  furniture  dealer,  and  such  other 
articles  as  were  proved  to  be  usually  kept 
by  furniture  dealers,  and  necessary  to  the 
pursuit  of  the  business  of  insured;  it  covered 
varnish  and  oil,  if  they  were  usually  kejit  bj' 
furniture  dealers,  and  to  the  extent  they  were 
usual  ly  kept.  Haley  v.  Doi-ckester  Mutual  Fire 
Ins.  Co.   12  Gray,  545. 

8.  "  On  engine  and  machinery  contained  in 
a  building  on  A  street,  for  the  manufacture  of 
tin  ware."  Insured  had  600  dies  to  give  form 
to  various  utensils  manufactured.  A  single 
pair  only  could  be  used  at  a  time,  the  others 
were  kept  on  shelves  and  not  fitted  to  any  par- 
ticular presses.  Held,  they  were  covered  by 
the  policy.  Seavey  n.  Central  Mutual  Fire 
Ins.  Co.,  Ill  Mass.,  540. 

9.  A  policy  by  a  mutual  insurance  company 
upon  stock  in  trade,  for  a  term  of  five  years. 
Held,  it  covered  successive  losses  upon  the 
stock  in  trade  during  the  term,  to  the  amount 
insured  (in  the  aggregate),  but  no  more.  Crom- 
lie  V.  Portsmouth  Fire  Ins.  Co.,  36  N.  H.,  389. 

504 


10.  On  store  and  goods.  Insured  sold  the 
goods  aud  let  the  store  to  the  purchaser.  Sub- 
sequently canceled  the  lease  and  took  tho 
goods  back.  They  were  burned  within  the 
term  insured.  Held,  the  policy  covered  any 
goods  the  property  of  the  plaintiff  tliat  were 
in  the  store  at  the  time  of  the  fire,  and  it  was 
immaterial  when  the  goods  were  purchased, 
whether  before  or  after  the  policy  was  effected 
Lane  «.  Maine  Mutual  Fire  Ins.  Co.,  12  ile.,  44. 

11.  Plaintiffs  loaned  defendants  $17,000  on 
respondentia,  but  no  bond  was  executed,  be- 
cause it  was  uncertain  whether  the  shipment 
would  be  goods  or  specie.  It  was  agreed  that 
if  specie  should  be  shipped,  bills  of  lading 
should  be  taken  for  $17,000,  but  if  goods  for 
$20,000,  in  which  latter  case  the  lenders 
should  only  be  liable  to  average  and  entitled 
to  salvage,  as  if  it  had  been  a  specie  shipment. 
Tlie  vessel  sailed  with  seven  hundred  pieces 
f)f  goods,  valued  at  $20,000;  she  was  stranded 
and  lost  and  forty-five  of  the  seven  hundred 
pieces  were  totally  lost;  balance  saved  in  a 
damaged  condition.  Held,  insurers  were  lia- 
ble for  goods  totally  lost  and  nothing  more. 
Delaware  Ins.  Co.  v.  Archer,  3  Rawle,  216. 

12.  On  starch  factory,  including  machinery 
and  fixtures.  Held,  it  included  all  fixtures 
necessary  in  the  manufacture  of  starch.  Pe- 
oria Marine  and  Fire  Ins.  Co.  v.  Zeicis,  13 
111.,  553. 

1 3.  Insured  was  engaged  in  the  manufac- 
ture of  chairs.  The  policj'  described  the  sub- 
ject insured  as  "  chair  lumber  and  such  other 
stock  as  is  usually  used  in  a  chair  manufacto- 
ry, contained  in  their  chair  factory  situated 
on  Superior  street,  between  Kingsbury  and 
Roberts  streets."  The  premises  comprised  a 
main  building  and  an  engine  house  ten  feet  ia 
the  rear  of  the  main  building;  both  were  co.'i- 
uected"  by  a  platfoi-m  eight  feet  wide  and  by 
belting  passing  from  the  engine  house  to  the 
main  building.  There  was  also  a  shed  about 
fifty  feet  distant.  The  second  story  of  the  en- 
gine house  was  used  as  a  drying  room  for 
chair  stuff  partially  worked.  The  maia 
building  was  occupied  with  machinery  and 
workmen.  Held,  b(Jth  buildings  were  neces- 
sary to  constitute  the  factory;  for  factory  does 
not  necessarily  mean  one  building  or  edifice, 
but  may  apply  to 'several,  where  they  are  used 
in  connection  with  one  another  for  a  common 
purpose  and  are  within  the  same  inclosurc; 

i  the  chair  lumber  in  either  building  was  with- 


1009 


POLICY  (OF  THE). 


]010 


What  property  is  not  within  the  description. 


in  the  terms  of  the  contract.  Liebensteiii  v. 
Baltic  Fire  Ins.  Co.,  45  111.,  301;  Same  v.  Me- 
tropolitan Ins.  Co.,  id.,  305. 

14.  On  articles  used  in  packing  liogs,  cattle 
etc.  Held,  coal  upon  the  premises,  to  he  used 
in  geiieralin;;  steam  for  the  purpose  of  pack- 
ing, was  included.  Hume  Ins.  Co.  t.  Favorite, 
46  III ,  2G3 ;  Phmiix  Ins.  Co.  v.  Favorite,  49  111., 
259. 

l.'j.  On  sliip  tackle,  ordinance,  ammunition, 
artillery,  and  furnilure  of  the  ship.  Held,  it 
included  pmvisious  for  the  use  of  the  crew. 
Brouyh  v.  M'hilmore,  4  Term,  200. 

IX.    "WlI.iT    PROPERTY    IS    NOT    ■WITHIN 
THE   DESCRIPTION. 

1.  Upon  merchandise  from  New  York  for 
Batavin,  and  other  ports  in  the  island  of  Java. 
"  Upon  the  goods  out  and  the  proceeds  of  the 
goods  home."  ITeld,  the  policy  did  hot  cover 
the  identical  out  cargo  on  the  return  passage. 
Dow  ■0.  Whetten,  8  Wend.,  IGO. 

2.  "Ou  cargo  from  New  Y^ork  to  Batavia, 
and  on  the  proceeds  thereof  home."  The 
same  goods  were  talien  on  the  return  voyage 
and  lost.  Held,  they  were  not  covered  by  the 
policy.  Dow  V.  Hope  Ins.  Co.,  1  Hall  (N.  Y.), 
106. 

3.  On  jewelers  stock  in  trade.  Blankets 
were  purchased  witli  consent  of  the  insurer  to 
protect  the  store  from  a  fire  burning  in  an  ad- 
jacent building.  Held,  not  a  loss  within  the 
policy.    Welles  ■».  Boston  Ins.  Co.,  6  Pick.,  182. 

4.  "On  stock  of  clothing  manufiicturcd 
and  in  process  of  manufacture."  Stipulated: 
"  Not  liable  for  loss  on  property  owned  by  any 
other  party,  unless  tlic  interest  of  sucli  jiiirty 
be  stated  on  this  polic}'."  Held,  it  did  not 
cover  cloth  taken  by  insured  to  be  manufac- 
tured under  a  written  agreement,  though  in- 
sured was  liable  for  the  risk  of  fire,  nor  did  it 
cover  the  work  of  tlie  insured  thereon. 
Getchell  v.  ^tna  Ins.  Co.,  14  Allen,  325. 

6.  "  $3,000  on  all  the  wood  and  logs  cut  and 
piled  along  the  line  of  their  railroad.  No  loss 
to  exceed  $1,000  at  auy  one  fire."  R.  was  the 
owner  of  two  hundred  cords  of  wood  and  a 
quantity  of  hemlock  logs  cut  from  and  lying 
in  piles  on  land  adjoining  the  plaintiffs'  rail- 
road in  the  town  of  Rindge.  The  land  was 
not  owned  or  occupied  by  plaintiffs.  The 
piles  v.aried  from  one  to  si.K  cords  e.ach,  and 
from  about  two  to  eight  rods  from  the  railroad. 


This  wood  was  consumed  by  fire  kindled  by 
sparks  from  tlie  railroati  company's  loconio. 
lives.  At  and  after  the  date  of  the  policy,  and 
up  to  tlie  time  of  the  fire,  plaiutitts  owned 
wood  piled  at  other  points  on  the  line  of  their 
road,  some  of  which  was  in  sheds  at  their  sta- 
tions; but  they  never  owned  any  wood  on  or 
near  the  land  mentioned.  Held,  tliere  wa.s 
nothing  on  the  face  of  the  policy  to  indicate 
that  it  was  intended  to  cover  anything  but  tlie 
plaintilfs  own  propeity ;  prima  facie,  they  were 
insured  as  owners  simply.  Admitting  that 
the  plaintilfs  had  au  insurable  interest  in  the 
property  of  others  exposed  to  danger  caused 
by  tire  escaping  from  their  locomotives,  this 
was  a  special  and  contingent  interest.  Wheu 
the  insured  is  the  owner  of  properly  such  a* 
is  described  in  this  contract,  the  court  must 
assume,  in  the  absence  of  any  indication  to 
the  contrary,  that  the  party  was  insured  as  the- 
owner  of  that  propcrt}-.  If  any  thing  more 
was  intended  it  should  have  been  expressed  in 
appropriate  language;  hence  the  policy  should 
be  limited  to  that  which  naturally  and  obvi- 
ously comes  within  its  terms.  Monddnock 
Railroad  Co.  v.  Manufacturers  Ins.  Co.,  113 
Mass.,  77. 

6.  On  unfinished  house.  Held,  it  did  not 
cover  timbers  lying  in  an  adjoining  building 
to  be  used  in  its  construction.  Ellmaker  v. 
Franklin.  Fire  Ins.  Co.,  5  Penn.  St.,  183;  6  W. 
&  S.,  439. 

7.  On  jewelry  and  clothing,  being  stock  in 
trade.  Stipulated:  "Goods  held  in  trust  or 
on  commission  are  to  be  declared  and  insured 
as  such.  Goods  on  storage  must  be  separately 
and  specifically  insured."  Held,  goods  in 
pawn  were  lield  in  trust,  and  therefore  not 
within  the  policy.  Held,  also,  the  contract 
was  limited  to  jewelry  and  clothing,  and  did 
not  include  musical  or  surgical  instrumeuls, 
guns,  pistols  or  books.  Bafel  o.  Nashcille  Ma- 
rine and  Fire  Ins.  Co.,  7  La.  An.,  244. 

8.  On  English,  American  and  West  Indian 
goods.  Held,  if  tea  or  nutmegs  were  neitlier 
English,  American  nor  West  Indian  goods, 
they  were  not  within  the  protection  of  the 
the  policy.  Huckins  v.  People's  Mutual  Fire 
Ins.  Co.,  31  N.  H.,  238. 

9.  On  a  vessel  at  Baltimore,  against  loss  by 
fire.  She  was  in  course  of  construction.  Held, 
it  did  not  cover  spars,  blocks,  cordage,  and 
other  articles  necessary  and  proper  for  her 
building,  fitting  and  equipping,  unless  tliera 

505 


1011 


POLICY  (OF.  THE). 


1012 


What  causes  of  loss  are  within. 


•was  evidence  of  a  usage  at  the  port  of  Balti- 
more showing  that  insurers  of  vessels  regarded 
such  spars,  etc.,  as  part  of  the  vessel,  and  un- 
<lerstood  that  they  were  covered  bj'  the  policy, 
though  in  warehouse;  that  proof  of  a  usage 
to  that  effect  in  the  city  of  New  York  was  not 
competent  evidence.  Mason  v.  Franklin  Fire 
Jm.  Co.,  12  G.  &  J.,  408. 

10.  Insured,  commission  merchants,  en- 
gaged in  selling  goods  consigned,  obtained 
insurance  against  loss  by  fire  on  certain  goods. 
Stipulated:  "Not  to  cover  goods  held  in  trust 
or  on  commission,  unless  so  declared."  Eeld, 
insurer's  liability  was  limited  to  the  goods 
which  belonged  to  insured.  Baltimore  Fire 
Ins.  Co.  V.  Lone!/,  20  Md.,  20. 

II.'"  On  grain  and  other  merchandise,  haz- 
ardous and  not  hazardous,  contained  in  each 
of  their  two  warehouses,"  etc.  Insured  were 
grain  merchants,  receiving  and  storing  grain. 
Held,  a  platform  scale,  bedded  in  the  floor  of 
•one  of  the  warehouses,  a  beam  scale,  a  corn 
sheller  and  belting,  which  things  had  been 
dispensed  with  in  the  business,  and  had  been 
offered  for  sale,  and  tools,  implements  or 
other  articles  necessary  or  convenient  in  the 
business,  used  as  occasion  might  require,  were 
not  included  in  the  policy.  '-Merchandise" 
means  all  those  things  wliich  mercliants  sell, 
and  does  not  include  every  species  of  inani- 
mate movable  property.  The  policy  did  not 
cover  articles  of  personal  property  not  in- 
tended foi-  sale  by  the  owner.  Kent  v.  Liver- 
pool and  London  Ins.  Co.,  26  Ind.,  29-1. 

1  2.  On  stock  of  wearing  apparel  and  house- 
liold  furniture.  Held,  it  did  not  cover  linen 
sheets  and  shirts  smuggled  and  kept  for  clan- 
destine sale.  Clary  v.  Protection  Ins.  Co.,  1 
Wright,  228;  Watcfioi-n  v.  Langford,  3  Camp., 
4-'2. 

13.  On  freight  from  San  Domingo  to  Liver- 
pool. Part  of  the  outward  cargo  was  bartered 
for  lift}--five  bales  of  cotton  and  taken  on,  but 
much  outward  cargo  was  yet  on  board  wlien 
she  was  lost.  Held,  the  insurer  was  liable  for 
the  freiglit  of  the  fiftj-flve  bales  of  cotton, 
and  nothing  more.  Forbes  v.  Cowie,  1  Camp., 
520. 

14.  On  stock  in  trade,  consisting  of  corn, 
seed,  hay,  straw,  fixtures  and  utensils  in  busi- 
ness.»  iTeW,  hops  and  matting  were  not  in- 
cluded, although  it  was  proved  that  they  were 
part  of  the  stock  in  trade  of  the  business  of 
•corn  dealer  and  seedsman,  in  which  trade  iu- 

506 


sured  was  engaged.    Joel  v.  Harvey,  5  W.  R., 

488. 

X.  "VThat  causes  of  loss  aue  within. 

1.  Perils  of  the  sea.  "On  cattle,  against 
perils  of  the  lakes,  seas,  rivers,  canals,  rail- 
roads, fires,  jettisons  and  all  other  perils  or 
misfortunes  that  have  or  shall  come  to  the 
hurt,  detriment  or  damage  of  the  said  prop- 
erly, or  any  part  thereof,  including  the  usual 
risk  of  lighterage  at  Ontonagon."  Insured 
had  forty  cattle  on  board ;  the  insufficiency  of 
water  on  the  bar  prevented  the  vessel  from 
going  to  the  dock.  The  cattle  were  put  upon 
a  lighter,  in  the  usual  way  of  landing  in  such 
cases,  a  chain  running  fore  and  aft,  to  which 
they  were  tied.  While  the  lighter  was  pro- 
ceeding the  cattle  became  violent,  broke  the 
chain,  and  twenty-seven  of  them  were  thrown 
into  the  water  and  drowned.  Held,  a  loss  by 
perils  (if  the  seas  (citing  Tlie  Eeeside  2 
Sumn.,  567;  Garrison  r.  Memphis  Ins.  Co.,  19 
How.,  312;  Potter  v.  SuS'olk  Ins.  Co.,  2  Sumn., 
197;  Garrigues  i;.  Coxes,  1  Binn.,  592;.  An- 
thony  V.  uStna  Ins.  Co.,  1  Abb.  Cir.  C,  343. 

2.  —  She  took  a  cargo  of  molasses  at  Ha- 
vana, and  sailed  for  a  northern  port  in  the 
United  States,  but  encountered  a  cross  sea  in 
the  Gulf  Stream,  caused  by  the  meeting  of  the 
trade  wind  with  the  current  of  the  Gulf,  com- 
menced leaking  and  was  compelled  to  put 
into  Key  West,  where  it  was  ascertained  she 
would  have  been  worth  after  repairs  less  than 
the  cost  of  repairs.  Held,  it  was  no  defense 
to  the  action,  to  say  that  heavj-  seas  weie  or- 
dinarily encountered  in  the  Gulf  Stream,  for 
heavy  cross  seas  are  not  the  ordinary  peril  of 
the  sea;  that  the  jury  were  to  determine  from 
all  the  evidence,  whether  the  loss  was  or  not 
caused  by  perils  of  the  sea.  Bullard  v.  Soger 
Williams  Ins.  Co.,  1  Curtis,  148. 

3.  Term  policy.  She  was  seaworthy  at  the 
commencement  of  the  risk,  in  the  harbor  of 
Newport,  to  take  a  cargo  of  iron  for  New 
York.  She  hauled  alongside  of  the  wharf, 
commenced  to  discharge  ballast  and  to 
take  in  iron.  She  was  capable  to  take  400 
tons,  but  when  she  had  about  290  tons  it  was 
found  that  she  made  fourteen  inches  of  water 
per  hour.  Cargo  was  discharged  and  the 
ends  of  her  sheathing  were  found  started,  the 
false  keel  very  much  chaffed,  the  scarf  hove 
out,  the  butts  very  open,  seams  very  much 


1013 


POLICY  (OF  THE). 


1014 


What  causes  of  loss  are  withii 


Etrained,  and  in  some  places  the  oakum  Iiad 
worked  out.  The  harbor  was  what  is  called  a 
dry  harbor,  the  tide  rising  and  I'alliug  about 
thirty  feet,  tlie  bottom  consisted  of  a  soil  mud 
fceveral  feet  in  thickness  upon  sliingles.  She 
was  taking  in  cargo  and  pulling  out  ballast 
from  July  9th  to  the  ITtli.  Held,  a  loss  by 
perils  of  the  sea,  because  the  injury  might 
have  been  occasicmed  by  striking  upon  some 
Lard  substance  overlaying  tlie  dock,  or  from 
some  malposition ;  and  because  there  was  no 
evidence  tliat  it  was  the  result  of  wear  and 
tear  (citing  Fletcher  v.  Ingles,  2  B.  &  A.,  315; 
Kingston  v.  JIarshall,  8  Bing.,  4o8).  Potter  v. 
(iuffulk  Im.  Co.,  2  Sumn.,  197.  The  evidence 
in  this  case  did  not  seem  to  indicate  tliat  the 
loss  was  attributable  to  any  inherent  weak- 
ness in  the  vessel.  —  [Ed. 

4.  Pestilence.  Ship  was  driven  into  a 
port  of  necessity.  A  pestilential  disoi'der 
broke  out  while  she  was  in  port,  wliich  ren- 
dered it  impossibe  for  her  to  pursue  the 
voyage.  Held,  a  loss  within  the  policy.  Wil- 
iiavu  V.  Smith,  2  Caines,  1. 

5.  War  risks.  When  the  policy  is  general 
and  there  is  a  warranty,  it  includes  war  risks 
of  all  kinds  and  of  all  countries.  Barnewall 
«.  Church,  1  Caines,  217. 

(>.  All  risks.  Where  the  policy  contains  a 
written  clause  "  against  all  risks,"  it  protects 
against  evei'y  loss,  except  such  as  are  caused 
by  the  fraudulent  acts  of  the  insured.  Goix 
t.  Knox,  1  Johns.  C,  337.  And  the  written 
words,  if  there  is  anj-  reasonable  doubt  upon 
the  sense  or  meaning  of  tlio  whole,  are  to 
have  a  greater  efl'ect  than  tliose  printed.  Ibid. 
■  7.  —  "On  horses,  from  Liverpool  to  New 
York,  all  risks,  including  death  from  any 
cause  whatever."  She  encountered  a  gale  and 
lieavy  sea,  during  wliicli  one  of  the  horses 
was  thrown  down,  bruised,  refused  to  eat,  and 
died.  Pout  mortem  examination  proved  that 
his  death  was  caused  by  violent  bruises  in  the 
"breast.  Held,  insurer  was  liable.  Coit  v. 
Smtth,  3  Johns.  C,  16. 

S.  Coiuniissions.  E.xpenses  were  incurred 
by  the  master,  in  the  defense  of  cargo,  for  the 
repayment  of  wliich  he  pledged  tlie  ship  and 
cargo;  and  the  insured,  to  get  possession  of  lii-; 
property,  paid  his  proportion  of  the  expenses, 
including  commissions.  Held,  if  the  master 
acted  in  good  faith,  and  the  charges  were  rea- 
sonable and  necessary,  the  insurer  was  liable. 
iFoidaine  v.  Columbian  Ins.  Co.,  9  Johns.,  30. 


9-  — "Warranted  free  from  loss,  if  not  per- 
mitted entry  in  consequence  of  having  ne- 
groes  on  board."  She  came  to  anclior  off 
Moro  Castle,  where  all  vessels  stop  to  be  vis- 
ited. And  before  permission  could  be  had  to 
land  them,  she  was  lost  in  a  hurricane.  Held, 
tiie  loss  was  within  the  policy.  Dickey  v. 
United  Ins.  Co.,  11  Johns.,  358. 

10.  Blowing  up  buildings.  On  earthen- 
ware in  crates.  A  conflagration  was  raging, 
and  the  municipal  authorities,  for  the  purpose 
of  staying  it,  blew  up  the  building  with  gun- 
powder. The  goods  were  consumed.  Held, 
a  loss  within  the  policy.  City  Fire  Ins.  Co. 
V.  Corlies,  21  Wend.,  367. 

11.  Deliverance  from  danger.     "On  the 
ship  Sebastopol,  while  being  safely  launched 
at  St.  Luce,   near  Quebec,  beginning  the  ad- 
venture at  and  from,  as  aforesaid,  and  so  shall 
continue  and  endure,  till  the  said  vessel  shall 
be  safely  arrived,  at  as  aforesaid,  and  until 
she  be  moored    twenty-four  hours  in  good 
safety,  against  perils  of  the  seas,  men-of-war, 
fires,  etc.,  and  all  other  sea  perils  losses  and 
misfortunes,  except  those   arising   from    the 
negligence,  fraud,  ignorance,  or  misconduct  of 
the  master."      She  was  started  on  the  ways, 
moved  down  about    two-thirds  the  distance 
September  26th ;  she  stopped,  was  in  a  very 
critical  and    dangerous    position,  her  stern 
being    in   the  water    she  was    in   imminent 
danger  of  being    hogged.       Great  exertions 
were  made  in  blocking  and   putting  stanch- 
ions under  lier,  making  new  ways  and  using 
all  the  means  in  their  power  to  prevent  injury. 
She  was  finally  floated  in  safety.    Held,  insur- 
ers were  Ihible  for  the  actual  expenses  neces- 
sarily incurred  in  preserving  and  delivering 
her  from  the  danger.      Frichette  v.  State  Mu- 
tual Fire  and  Marine  Ins.  Co.,  3  Bos.,  190. 

12.  ('asiialtics  of  war.  Permission  was 
granted  to  the  person  insured  to  go  south  of 
36'  of  north  latitude,  and  reside  there,  but 
stipulated:  "The  policy  shall  not  insure 
against  death  from  anj'  of  the  casualties  or 
consequences  of  war  or  rebellion,  or  from  bel- 
ligerent forces."  While  engaged  as  superin- 
tendent,  in  charge  of  mechanics  and  laborers 
constructing  a  bridge  on  a  railroad,  under  the 
direction  of  the  military  authorities  of  the  U. 
S.,  about  thirty  miles  in  the  rear  of  the  Union 
army,  a  party  of  four  men,  not  in  uniform, 
shot  and  killed  the  person  insured,  and  robbed 
the  men  who  were  at  work  with  him.    Held, 

507 


1015 


POLICY  (OF  THE). 


1016 


What  causes  of  loss  are  within. 


the  death  wa.s  not  witliin  the  exception.  Welts 
o.  Connecticut  Mutual  Life  Ins.  Co.,  -18  N.  Y.,  34. 

13.  On  a  Sidmouth  license  from  Boston  to 
Alexandrhi.  valued  at  $2,000.  Stipulated :  "The, 
insurance  is  to  be  against  its  (license)  loss,  not 
only  by  capture  by  the  Brilisli  or  American.s, 
or  other  power,  but  against  its  being  destroyed 
by  the  ordinary  perils  of  the  sea,  fire,  or  oth- 
erwise." She  was  boarded  by  a  British  ship 
of  war;  the  commanding  officer  indorsed  the 
license  in  such  a  manner  as  to  render  it  use- 
less for  any  other  vessel,  and  proof  was  made 
that  it  woukl  not  then  sell  for  anything  in  the 
market.  Held,  a  loss  witliin  the  policy.  Per- 
kins «.  ifew  England  Marine  Ins.  Co.,  12 
Mass.,  215. 

14.  Sacrifice  made  or  expenses  incurred  to 
save  property  from  fire  are  to  be  contributed 
for,  but  the  property  to  contribute  is  limited 
to  the  building  and  the  property  therein.  It 
cannot  be  extended  to  the  property  of  the 
neighborhood.  Welles  v.  Boston  Ins.  Co.,  6 
Pick.,  182. 

15.  — Insurer  of  ship  is  liable  for  loss  of 
boat  from  stern  davits  at  sea,  unless  it  is 
proved  that  it  was  improperly  carried.  Hall 
V.  Ocean  Ins.  Co.,  21  Pick.,  472. 

16.  Instruction.  Stipulated:  "  This  pol- 
icy is  not  to  cover  any  loss  or  damage  by  fire 
which  may  originate  in  the  theatre  proper." 
A  flue  in  a  side  brick  wall,  used  as  a  smoke 
flue  from  the  furnace  of  a  steam  boiler,  heated 
the  bricks  of  the  wall  and  caused  the  wood 
work  of  the  theatre  to  ignite.  Held,  not  within 
the  exception.  Sohier  v.  Norwich  Fire  Ins. 
Co.,  11  Allen,  336. 

17.  Rats.  Aleak,  occasioned  by  the  gnaw- 
ing of  rats  is  a  peril  within  the  policj-.  Gar- 
Ttgues  V    Coxe,  1  Binn.,  592. 

1 8.  Captured  by  confederates.  On  steam- 
boat, taking  risli  of  "  enemies,  pirates  and  as- 
sailing thieves,  and  all  such  losses  which  shall 
come  to  the  damage  of  said  steamer,  according 
to  the  true  intent  and  meaning  of  the  policy." 
She  was  captured  by  an  armed  force  acting 
under  the  authority  of  the  Confederate  States. 
Held,  a  loss  within  the  policy.  Monongahela 
Ins.  Co.  V.  Chester,  43  Peun.  St.,  491. 

19.  Capture.  "  The  undersigned  do  insure 
L.  F.  &  Co.  $2,003  on  mahogany,  from  San 
Domingo  to  St.  Thomas;  touching  the  risks  I 
am  willing  to  bear,  they  are  the  same  as  con- 
tained in  all  regular  policies  of  insurance." 
She  was  captiired  and  condemned.    Held,  it 

508 


included  capture  at  sea,  arrests,  restraints  and 
detainments,  of  all  kings,  princes  and  people, 
and  that  loss  by  capture  was  a  risk  assumed. 
Levy  V.  Merrill,  4  Me.,  180. 
-  20.  Construction.  "  On  potatoes,  against 
perils  of  the  sea,  and  all  other  misfortunes," 
etc.,  "  not  liable  for  any  partial  loss  on  articles 
esteemed  perishable  in  their  own  nature  un- 
less it  amounts  to  seven  per  cent,  on  the  ag- 
gregate value  of  the  article,  and  happen  by 
stranding."  The  potatoes  were  lost  by  periU 
of  the  sea,  but  not  by  stranding.  Held,  the  loss 
was  within  the  policy.  Williams  v.  Cole,  10 
Me.,  207. 

21.  Perils  of  the  sea.  She  sailed  from 
Liverpool  and  arrived  at  Charleston  with  a 
full  cargo,  where  she  changed  masters;  the 
mate,  under  the  directions  of  the  new  master, 
hauled  her  into  the  slip.  She  was  then  tight 
and  was  haule'd  up  as  far  as  she  could  go  at 
high  water.  When  the  tide  fell  she  lay 
aground  abaft  midships  to  the  bow,  but  with 
plenty  of  water,  abaft  midships  to  the  stern, 
and  so  continued  at  every  ebb  of  the  tide.  Be- 
fore half  the  cargo  was  out  she  commenced 
leaking.  Some  repairs  were  made,  but  the 
leak  could  not  be  found,  and  she  sailed 
with  a  cargo  of  cvtton  for  Liverpool,  at  which 
place  she  lay  afloat  in  a  good  dock  for  forty 
days;  sailed  thence,  in  February,  with  coal,  to 
Havana ;  thence  to  Greenock,  where  she  was 
taken  out,  and  found  hogged.  She  went 
thence  to  New  York ;  but  never  touched  the 
bottom  from  the  time  she  left  Charleston. 
There  was  evidence  that  she  seemed  to  iiave 
rested  against  old  logs  which  had  worked  out 
of  the  slip  at  Charleston:  for  her  copper  was 
wrinkled  diagonally,  indicating  that  she  had 
rested  on  some  hard  substance.  Held,\i%h<i 
took  the  ground  in  a  malposition  at  Charles, 
ton,  if  was  a  peril  of  the  sea,  for  which  insur- 
ers  were  liable,  and  it  would  be  no  defense  to 
the  action,  if  the  injury  was  caused  by  the 
carelessness  of  the  master.  Hagar  v.  .N^eio 
England  Mutual  Marine  Ins.  Co.,  59  Me.,  460. 

22.  Contraband.  Application  for  insur- 
ance against  all  risks  for  account  of  whom  it 
may  concern  $8,000  on  ship  Budget,  valued  at 
$10,000  from  London  or  Antwerp  to  one  or 
two  ports  on  the  Spainish  Main,  at  and  from 
thence  to  a  port  in  the  United  States.  The 
risk  was  accepted  for  $5,000  at  an  agreed 
premium.  Insured  wrote  the  following  day 
to  insurers:    "Although  our  advices  give  us 


1017 


POLICY  (OF  THE). 


1018 


What  causes  of  loss  are  within. 


no  reason  to  believe  there  will  be  anj-  articles 
contraband  of  war  on  board  the  Sliij)  Budget, 
slill  as  we  wish  to  be  covered  from  all  pos- 
sible risk,  we  request  your  reconsideration 
of  the  within  application,  including  articles 
contraband  of  war."  To  which  defendants 
replied ;  "  As  yesterday,  including  articles  of 
war,  $3,000  on  the  vessel;  $2,000  on  the 
freight,"  accepted  by  the  plaintilfs.  IIeld,\\\e 
order  was  to  be  regarded  as  incorporated  in 
the  policy,  and  i(,  in  effect,  declared  that  the 
Budget  n«ay  be  belligerent  property;  if  she  is, 
we  require  protection  against  all  perils  inci- 
dent to  her  in  that  character,  or  she  may  be,  in 
point  of  fact,  neutral ;  in  that  event,  we  ask  an 
indemnity  against  every  casualty,  not  explic- 
itly excepted,  which  may  befall  her  as  such. 
It  neither  asserts  her  to  be  one  nor  tlie  other 
character,  but  provides  an  exemption  from 
loss  in  behalf  of  the  insured,  let  her  condition 
in  that  respect  be  what  it  may.  Hence,  the 
pnliary  covered  neutral  and  belligerent  risks. 
Maryland  Ins.  Co.  v.  Bathurst,  5  G.  &  J.,  159. 

23.  Cusitody  of  the  hiw.  She  was  libeled 
and  taken  into  the  custody  of  the  U.  S.  mar- 
shal, carried  across  the  river  from  New  Or- 
leans, and  there  kept  in  charge  of  the  mar- 
shal's deputy  and  another  person.  She  had 
neither  captain  nor  crew  on  board.  Ueld,  it 
did  not  affect  the  policy  unless  there  was  evi- 
dence of  increase  of  risk,  of  which  there  was 
none.  Bell  v.  Western  Marine  and  Fire  Ins. 
Co.,  5  Rob.  (La.),  423 ;  Bell  v.  Firemen's  Ins. 
Co.,  id.,  44(i, 

24.  Sinking  to  prevent  seizure.  War- 
ranted free  from  los.s  or  damage  which  may 
arise  in  consequence  of  a  seizure  or  detention 
for  or  on  account  of  any  illicit  or  prohibited 
trade.  The  subject  insured  was  bullion.  She 
sustained  sea  damage  and  was  compelled  to 
put  into  Tampico.  A  portion  of  the  bulliou 
was  sunk  in  shallow  water  to  prevent  seizure 
of  it,  and  with  an  intention  to  recover  it  again. 
Held,  it  was  the  duty  of  the  master  to  labor  for 
the  safety  and  recovery  of  the  cargo  in  the  in- 
terest of  the  underwriters,  at  whose  risk  it 
was.  There  was  no  evidence  to  show  that 
throwing  the  silver  overboard  was  imputable 
to  insured;  hence  there  was  no  defense  made 
out  under  (he  warranty.  Kohn.  v.  New  Orleans 
Ins.  Co.,  13  La.  (O,  S.),  348. 

25.  On  shives.  All  risks  taken.  The  slaves 
mutinied  on  the  voyage  and  escaped.  Held, 
the  insurer  was  liable  because  the  risk  of  ma 


tiny  and  insurrection  was  not  excepted.  Me- 
Cargo  v.  Merchants  Ins.  Co.,  10  Rob.  (La), 334; 
Lockelt  V.  Merchants  Ins.  Co.,  id.,  339. 

26.  Of  the  sea.  She  was  an  old  vessel, 
but  insurers  knew  her  age.  She  was  greatly 
strained  in  getting  ofT  a  bar,  and  after  she  had 
been  at  sea  some  days,  she  sprung  a  leak, 
which  increased  so  rapidly  that  It  became 
necessary  to  make  a  port  of  distress,  where 
she  was  surveyed,  condemned,  and  sold  as  uu- 
worthy  repairs.  Held,  a  loss  by  perils  of  the 
sea.  Phillips  i>.  St.  Louis  Perpetual  Ins.  Co., 
11  La.  An.,  4.59. 

27.  On  the  life  of  a  slave.  She  was  em- 
ployed in  a  tobacco  warehouse,  and  insured 
as  a  laborer  in  it.  She  fell  into  the  water  and 
was  drowped  while  passing  from  the  steamer 
Emperor  to  the  shore,  on  her  way  to  woik  \i\>- 
on  a  sugar  plantation.  The  defendant  averred 
it  was  an  occupation  more  dangerous  thau 
that  insured.  Held,  the  intention  to  employ 
her  on  a  sugar  plantation  was  not  the  cause  of 
death.  Summers  c.  United  States  Ins.  aii/i 
Trust  Co.,  13  La.  An.,  504. 

28.  Welter  to  extinj^uisk  fire.  The  upper 
story  of  the  house  caught  fire,  and  in  attempt- 
ing to  extinguish  it  by  throwing  water  upou 
it,  the  goods  insured  were  damaged.  Held,  in- 
surer was  liable  for  the  damage.  Oeisek  v. 
Cresccht  Mat.  Ins.  Co.,  19  La.  An.,  297. 

29.  All  other  perils.  On  sugar,  New  Or- 
leans to  Cincinnati,  against  perils  of  the  riv- 
ers, fires,  rovers,  assailing  thieves,  and  all 
other  perils,  losses,  and  misfortunes,  that  have 
or  shall  come  to  the  hurt,  detriment  or  dam- 
age  of  the  said  goods  or  merchandise,  or  any 
part  thereof,  by  reason  of  the  dangers  of  the 
river.  A  mob  of  citizens  fired  a  cannon  across 
her  bow  when  she  was  passing  Helena,  Arkan- 
sas, and  compelled  her  to  land;  they  took  pos- 
session of  vessel  and  cargo,  by  which  the 
sugar  was  totally  lost.  Held,  the  last  words 
of  the  general  clause  did  not  limit  the  contract 
to  the  risks  previously  enumerated,  namely, 
"  perils  of  the  rivers,"  for  that  would  make 
the  contract  read  "  against  the  perils  of  the 
rivers  and  all  other  perils  of  the  river."  The 
taking  was  a  peril  included  in  the  general 
words  found  at  the  close  of  the  peril  cl.-iuse, 
for  which  the  insurers  were  liable.  Babbitt -o. 
Sun  Milt.  Ins.  Co.,  23  La.  An.,  3t4. 

.10.  Barratry  (except  embezzlement  or 
theft)  of  the  master,  was  among  the  risks  .is- 
suuied.     The   master    aud   mariuers  fraudu- 

500 


1019 


POLICY  (OF  THE). 


1020 


AVliat  causes  of  loss  are  within. 


Iciitly  stranded  hor  near  Key  West.  She  was 
carried  into  Key  West,  where  a  large  portion 
of  the  cargo  was  condemned  for  salvage ;  and 
on  her  arrival  in  New  York,  the  port  of  desti- 
nation, the  cargo  owners  libeled  her  for  non- 
deliverj-  of  tlie  cargo  sold  at  Kej'  West.  Slie 
was  condemned  and  sold  to  satisfy  the  libel- 
lant's  demand.  Held,  the  condemnation  and 
sale  of  the  vessel  was  the  legal  consequence  of 
the  barratrous  conduct  of  the  master;  for  if 
there  had  been  no  barratry',  there  would  have 
been  no  foundation  for  the  action  in  which  the 
vessel  was  condemned;  and,  the  rule  is,  that 
all  the  consequences  which  flow  naturally 
from  the  peril  insured  against,  or  which  are 
incident  thereto,  are  properly  attributable  to 
the  peril  itself  (citing  Magoun  v.  New  Eng- 
land Ins.  Co.,  1  Story,  104).  Pike  v.  Merchants 
Mut.  Ins.  Co.,  26  La.  An.,  392.  ^ 

31.  '-On  the  entire  of  tlie  steamboat  Belle 
Creole,  including  her  machinery,  furniture, 
etc."  Held,  it  covered  costs  of  repairing  ma- 
chinery, and  the  expense  of  towing  her  to  the 
nearest  port  for  repairs;  but  it  did  not  cover 
■wages  of  crew  and  expense  of  subsistence  dur- 
ing the  dehi}'.  Perry  v.  Ohio  Ins.  Co.,  5  Ohio, 
50-5;  Gazzam  v.  Cincinnati  Ins.  Co.,  6  id.,  71; 
Webb  V.  Protection  Ins.  Co.,  id.,  456. 

32.  Perils  of  the  sea.  On  cargo  on  board 
a  flatboat,  Lawrenceburg  to  New  Orleans. 
She  met  a  steamboat  at  the  foot  of  Longberry 
bar,  and  in  passing  each  other  a  heavy  swell 
was  caused  by  the  opposing  force  of  each 
boat.  When  the  midship  of  the  boat  reached 
the  top  of  a  heavy  swell,  there  was  a  noise 
like  that  of  a  violent  breaking,  and  soon  after 
she  commenced  leaking  rapidly  at  the  splice 
of  the  gunwales,  which  caused  damage  to 
the  cargo.  Held,  a  loss  by  perils  of  the 
sea.  ^Vashington  Ins.  Co.  v.  Peed,  20  Ohio, 
199. 

33.  Escape  of  steam.  On  mules  against 
perils  of  the  river,  etc.  They  were  injured  b}' 
an  escape  of  steam  in  the  boat  upon  which 
they  were  being  transported.  Held,  an  escape 
of  steam  without  the  fault  of  the  officers  of 
tlie  steamboat,  whereby  some  of  the  mules, 
prudent]}-  stationed  on  board,  were  injured,  is 
a  peril  of  the  river.  Union  Ins.  Co.  v.  Oroom, 
4  Bush,  289. 

34.  On  negroes  and  horses.  Stipulated: 
"  Onlj'  insured  against  the  dangers  incident 
to  n.avigation,  drowning,  blowing  Up,"  etc. 
One  of  the  negroes  accidentallj'  fell  overboard 

510 


and  -was  drowned,  without  the  happening  of 
any  disaster  to  the  boat  or  any  unusual  oc. 
currence.  Held,  a  loss  within  the  policy. 
Moore  v.  Perpetual  Ins.  Co.,  16  >[o.,  9S. 

35.  On  live  .stock  in  transit  from  Decatur 
to  Vicksburg.  They  were  unloaded  at  Carlo 
from  the  cars  upon  a  platform  three  or  four 
feet  high,  from  which  they  were  driven  dowa 
an  inclined  plane  to  the  boat,  one  of  them,  a 
mule,jumpedoffand  received  internal  injuries 
from  which  it  died  in  an  hour.  Held,  the  loss 
was  within  the  policy,  .j^tna  Ins.  Co.  v. 
Stivers,  47  111.,  86. 

36.  Violationof  law  of  nations.  Shipwaa 
captured  and  condemned,  on  the  ground  that 
she  was  destined  for  a  British  port;  that  she 
had  cargo  suitable  for  exchange  with  the 
British,  and  intended  for  them.  Held,  the 
capture  was  a  violation  of  the  law  of  nations, 
and,  therefore,  no  defense  to  the  action.  Marsh 
X.  Muir,  1  Brev.,  134. 

37.  Perils  of  the  sea.  A  merchant  ship 
was  taken  in  tow  by  a  British  ship  of  war 
and  exposed  to  a  violent  sea,  which  caused 
damage  to  cargo.  Held,  a  loss  by  perils  of  tho 
sea,  and  it  seems  that  it  might  have  been 
alleged  a  loss  by  capture  and  detention.  Huge- 
dorn  V.  Whitmore,  1  Starkie,  157. 

38.  — Time  policy.  She  was  ordered  into 
a  dry  harbor.  When  the  tide  went  out  she 
took  the  ground  and  sustained  damage.  Held, 
a  loss  by  perils  of  the  sea.  Fletcher  v.  Inglis, 
2  B  &  A.,  315. 

39. — Vessel  was  wrecked,  part  of  the  goods 
lost  and  part  put  on  shore,  and  these  were  de- 
stroyed by  the  inhabitants  of  the  coast.  Held, 
an  absolute  total  loss  by  perils  of  the  sea,  for 
which  no  abandonment  was  necessary.  Bon- 
drett  V.  Hentigg,  Holt  N.  P.,  149. 

40.  All  risks.  "  On  cargo  against  perils 
of  the  seas,  men  of  war,  enemies,  pirates, 
rovers,  jettisons  and  of  all  other  perils,  losses 
or  misfortunes  that  had  or  should  come,"  etc. 
She  was  attacked  and  the  master  threw  a 
quantity  of  dollars  overboard  to  prevent  them 
getting  into  the  enemy's  hands;  she  was  im- 
mediatelj-  captured;  was  Spanish  propert}-; 
but  the  insurers  knew  of  that  fact  when  they 
subscribed  the  policy.  Held,  the  loss  was 
within  jettison,  enemies,  or  all  other  losses  or 
misfortunes.  Butler  v.  Wildman,  3  B.  &  A. 
398. 

4 1 .  Transhipment.  "  On  ship  and  cargo  at 
and  from,  etc.,  during  her  stay  and  trade,  eta. 


1021 


POLICY  (OF  THE). 


1023 


What  causes  of  loss  are  witliin. 


■until  safe  arrival  at  last  port  of  discharge." 
She  sustained  damage;  (he  goods  were  tran- 
shipped; and,  in  the  course  of  the  voyage,  the 
second  vessel  was  captured.  Held,  insurers 
were  liable  for  an  average  loss,  which  oc- 
curred after  they  were  transhipped.  Planta- 
mourv.  Staples,  3  Doug.,  1:  1  Term,  611,  n. 

42.  Perils  of  the  sea.  On  animals  war- 
ranted  free  from  mortality  and  jettison.  In 
consequence  of  the  violent  pitching  of  the 
vessel  some  of  them  died  and  others  were  so 
much  bruised  and  lacerated  that  tliey  died 
also.  Seld,  the  word  mortality,  as  used  in 
policy,  did  not  exempt  the  insurer  from  the 
loss,  because  the  animals  had  not  come  to 
their  death  from  any  natural  cause,  but  in 
consequence  of  a  peril  of  tlie  sea.  Lawrence  v. 
Aberdein,  5  B.  &  A.,  107 ;  Oahayv.  Lloyd,  3  B.  & 
C,  793;  3  L,  J.  K.  B.,  IIG;  5  D.  &  R.,  G41. 

43.  Blowing  np  .ship.  Ship  was  chased 
by  a  French  privateer,  which  gained  upon  her 
rapidly;  and,  to  prevent  capture,  her  guns 
■were  discharged  down  her  hatchways,  which 
set  fire  to  her.  Held,  a  loss  within  the  policy. 
Oordon  v.  Remington,  1  Camp.,  133. 

44.  Spontaneous,  combustion.  While  the 
ship  was  l3'ing  near  Tnrbay,  a  fire  broke  out 
in  the  hold,  which  consumed  the  greater  part 
of  the  cargo,  but  its  origin  was  not  discovered. 
Held,  the  insurers  were  liable.  Boyd  v.  Dubois, 
3  Camp.,  133. 

4.5.  Perils  of  the  sea.  In  moving  a  ship 
from  one  part  of  the  harbor  to  another,  it 
became  necessary  to  send  two  of  the  crew  on 
shore  to  cast  off  one  line  and  to  make  fast 
another.  These  men  were  impressed,  carried 
off,  and  not  allowed  to  cast  off  the  rope,  and 
in  consequence  she  drifted  ashore  and  was 
lost.  Jleld,  a  loss  by  perils  of  the  sea.  Hodg- 
son V.  Malcoln,  5  B  &  P.,  336. 

4(5.  Mutiny.  On  negroes.  Stipulated:  "Not 
to  be  liable  for  mortality  bj'  natural  death, 
nor  to  pay  for  mortality  by  mutiny,  unless  it 
amounts  to  ten  per  cent.,  to  be  computed 
upon  first  cost  of  vessel  outfit  and  cargo, 
valuing  the  negroes  at  £35  per  head."  Before 
she  sailed  an  insurrection  was  attempted,  the 
■women  seized  the  master  and  attempted  to 
throw  him  overboard,  but  he  was  rescued  by 
the  crew;  some  of  the  men  and  women  threw 
themselves  down  the  hatchway  and  were  much 
bruised,  many  of  whom  afterwards  died  from 
the  bruises  and  from  abstinence.  Tliere  was 
another    insurrection,   when    the  crew  were 


forced  to  fire  upon  the  negroes  and  attacked 
them  with  weapons.  Some  of  them  took  to  the 
sides  of  the  ship  and  hung  on  by  chains  and 
ropes,  some  were  killed  and  others  recovered, 
but  many  died  in  consequence  of  wounds  and 
from  chagrin  and  disappointment.  Held,  those 
who  were  killed  or  died  in  consequence  of 
bruises  and  wounds  were  within  the  policy; 
that  as  to  the  other  causes  of  death  the  insurers 
were  not  liable.  Jones  v.  Schmoll,  1  Term, 
130,  n. 

47.  Transhipment.  The  ship  was  cast 
away,  but  a  large  i)art  of  the  cargo  saved  and 
forwarded  in  the  ship  Pere  de  Famille,  and 
sold  for  the  interest  of  all  parties,  proceeds 
reinvested  in  other  cargo  and  reladcn.  Ii> 
the  course  of  the  voyage  she  was  coudemneci 
as  unfit  to  proceed,  and  they  were  transhipped 
again  to  the  Louisa,  which  was  captured. 
Held,  the  insurers  were  liable  for  the  loss. 
Plantumour  v.  Staples,  1  Term,  Oil,  n.;  3 
Doug.,  1. 

48.  "  On  ship  and  stores  at  and  from,"  etn. 
An  embargo  -n-as  laid  while  she  was  in  port, 
and  such  part  of  the  stores  ,as  were  perisliable 
were  sold,  and  the  ship  abandoned  to  insurers^ 
Held,  a  loss  within  the  policy.  Hotch  v.  Edie, 
6  Term,  413. 

49.  All  risks.  Policy  on  ship  against  the 
perils  of  the  seas,  and  all  other  perils,  losses, 
and  misfortunes.  Mistaking  her  for  an  ene^ 
my's  ship,  a  British  ship  of  war  fired  into 
.and  sunk  her.  Held,  insured  was  entitled  to 
recover.  Cullen  v.  Sutler,  5  Mau.  &  Sel.,  461 ; 
4  Camp,  280;  1  Stark.,  110. 

50.  Perils  of  the  sea.  Ship  laden  with 
hides  and  tobacco.  In  very  heavy  weather 
she  shipped  large  quantities  of  sea  water.  At 
port  of  destination  the  hides  were  found  in  a 
state  of  putrefaction,  which  had  caused  the 
tobacco  to  contract  a  bad  flavor,  a  great  dam. 
age  to  it.  Held,  the  damage  to  the  tobacco 
was  a  los.s  by  perils  of  the  sea.  Montoya  v. 
London  Ass.  Co.,  6  E.\chr.,  4.51 ;  20  L  J.  E.\-., 
254. 

51.  —  On  ship,  dated  July  2, 1860.  She  was 
then  on  a  voyage  from  Calcutta.  July  11th, 
she  encountered  a  heavy  storm,  and  was 
severely  strained.  She  put  into  Rio  July  30th. 
leaking  badly.  She  was  hove  down,  and  it 
was  found  that  the  copper  sheathing  below  the 
water  line  was  damaged.  In  order  to  gel  at 
arid  stop  the  leak,  the  sheathing  was  removed 
and   replaced.     She  had   not  struck   on   the 

511 


1023 


POLICY  (OF  THE). 


1024 


What  causes  of  loss  are  not  within. 


ground,  against  a  rock,  nor  any  other  thing. 
Jleld,  a  hiss  by  perils  of  the  sea.  Harrison  v. 
Unicerml  Mitrine  Ins.  Co.,  3  F.  &  F.,  100. 

52.  —  Wliile  ship  was  h)ading,  the  increased 
weiglit  of  cargo  carried  the  discharge  pipe 
below  the  surface  of  the  water,  which  passed 
down  the  pipe  uuder  the  valve,  through  the 
cocks,  uegligeutlj'  left  open,  and  flowed  into 
the  hold,  injuring  the  plaintiff's  goods.  Held, 
s.  loss  by  perils  of  the  sea.  Davidson  v.  Bur- 
nand,  4  L.  R.  C.  P.,  117;  38  L.  J.  C.  P.,  73;  17 
W.  R.,  121 ;  19  L.  T.  (N.  S.),  783. 

53.  All  risks.  On  vessel.  The  peril  clause 
concluded  as  follows:  "And  on  all  other  per- 
ils, losses  and  misfortunes  that  have  or  shall 
come  to  the  hurt,  detriment,  or  damage  of  the 
said  vessel."  She  arrived  at  St.  Johns,  and 
moored  alongside  the  wharf,  where  she  dis- 
charged her  cargo,  was  removed  for  another  ves- 
sel to  take  her  place  to  discharge,  and  she  was 
made  fast  to  the  other.  When  the  tide  ebbed, 
lier  fastenings  gave  way,  she  fell  over  and  was 
injured.  Held,  a  loss  within  the  policy.  Na- 
pier V.  Wood,  i  C.  C.  S.,  19. 

54.  Falling  walls.  "  On  tenement  and 
room  communicating."  A  house  near  by  took 
fire;  one  of  the  walls  was  left  standing  in  a 
tottering  condition,  and  it  fell  three  days  after 
the  fire,  damaging  the  premises  insured.  Held, 
insurers  were  liable  for  the  damage.  Johnson 
V.  West  of  Scotland  Ins.  Co.,  7  C.  C.  S.,  52. 

55.  Fire  heat.  The  defendants  pleaded  it 
was  stipulated  in  the  policy  that  the  defend- 
ants would  not  be  liable  for  any  loss  or  dam- 
age to  still,  coppers  or  such  like,  occasioned 
by  the  ordinary  fire  heat  under  the  same,  nor 
fur  the  loss  to  spirits  or. such  like  therein  at 
the  time  of  such  loss  or  damage;  and  that  the 
stock  in  trade  mentioned  was,  at  the  time  of 
the  happening  of  the  fire  mentioned,  spirits 
and  such  like  in  a  still,  and  that  the  loss  com- 
plained of  was  occasioned  by  the  ordinary 
fire  heat  under  the  said  still.  Held,  insurers 
■were  exempt  from  liability  from  the  conse- 
quences of  fire  heat  used  in  the  process  of  dis- 
tillation; but  they  were  liable  for  all  loss 
caused  by  other  accidental  fire.  Jameson  v. 
Royal  Ins.  Co.,  7  Irish  R.  Law,  126. 

56.  Goods  stolen.  Stipulated:  "In  case  of 
a  removal  of  goods  to  escape  conflagration, 
this  com|)any  will  contribute  ratably  with  the 
insured  and  other  companies  interested,  to  the 
loss  and  expenses  attending  such  act  of  salvage. 
Held,  injuries  to  tJie  goods  caused  by  wet,  or 

512 


in  any  manner  from  exposure  during  confu- 
sion, and  before  they  could  be  taken  to  a  plac« 
of  safety,  as  well  as  goods  stolen  in  the  con. 
fusion  at  the  fire,  were  covered  by  the  policy. 
Thompson  v.  Montreallm.  Co.,  6  U.  C.  Q.  B.,  319. 
57.  Spontaneous  combustion.  On  coal. 
Held,  it  covered  coal  deposited  after  the  policy 
was  issued,  and  a  loss  caused  b}'  spontaneous 
combustion.  British  American  Ins.  Co.  o. 
Joseph,  9  L.  C,  448. 

XI.  What  causes  of  loss  aee  not 

WITHIN. 

1.  Worms.  The  court  instructed  the  jury 
that  if  in  the  Pacific  Ocean  worms  ordinarily 
assail  and  enter  the  bottoms  of  vessels,  then 
the  loss  of  a  vessel  caused  by  worms  would 
not  be  a  loss  within  the  policy.  Held,  no 
error,  for  the  insurers  assume  losses  from  ex- 
traordinary  occurrences,  only  such  as  stress  of 
weather,  winds,  waves,  tempests,  rocks,  etc.; 
these  are  understood  to  be  perils  of  the  sea, 
but  not  the  ordinary  perils  encountered  by 
every  vessel  in  all  seas.  Hazard  v.  New  Eng. 
land  Marine  Ins.  Co.,  8  Pet.,  557 ;  1  Sumn.,  318- 

2.  On  specie.  Against  perils  of  the  sea. 
Held,  a  loss  by  embezzlement  was  not  within 
the  terms  of  the  policy.  Hicks  v.  Fitzsimmons, 
1  Wash.  C.  C,  279. 

3.  Ordinary  wear  and  tear.  From  a  port 
on  the  Brazil  coast  to  Canton,  with  liberty  to 
touch  or  stop  at  Pegu  Islands,  or  any  other 
islands,  ports  or  places  the  master  may  think 
proper.  She  stopped  at  the  Pegu  Islands, 
went  to  Norfolk  Islands,  the  only  place  she 
could  obtain  refreshments  of  which  she  stood 
in  need  ;  thence  to  Fannings  Island,  where  she 
remained  three  months  for  repairs;  but  sub- 
sequently, needing  other  repau's,  she  went  to 
Guan ;  not  being  able  to  repair  there,  she  went 
to  Manilla,  was  surveyed,  condemned  as  un- 
worthy of  repairs,  and  sold  by  order  of  court. 
Held,  if  the  injury  resulted  from  ordinary 
we.ar  and  tear,  insurers  were  not  liable;  but 
if  it  happened  in  consequence  of  the  violence 
of  the  winds  or  waves,  or  running  on  the 
rocks,  then  they  were  liable.  Coles  v.  Marine 
Ins.  Co.,  3  Wash.  C.  C,  159. 

4.  On  cargo.  New  York  to  New  Orleans. 
She  put  into  Havana  for  water.  The  govern- 
ment wimld  not  allow  her  to  take  any  until 
her  cargo  was  landed  and  put  into  the  custom 
house  stores;    the  m;isler  sold  it  there;    bu' 


1025 


POLICY  (OF  THE). 


1026 


What  causes  of  loss  are  not  withiii. 


tlicre  was  not  satisfactory  evklencc  that  she 
was  proffibitfd  from  taking  it  again.  Held, 
the  insured  could  not  recover.  Wood  v.  Pleas- 
ants, 3  Wash.  C.  C,  201. 

5.  Fear  of  Diiiiffer.  On  an  .Vmerican  ship, 
at  ancl  from  New  Yorli  to  Barcelona  and  Salon, 
valued  at  $5,500.  Warranted:  "American 
property ;  in  case  of  capture  or  detention,  not 
to  abandon  in  less  than  six  months  after  ad- 
vice thereof  at  this  office,  or  until  after  con- 
demnation. If,  turned  away  I'm'  attempting  a 
hlocUaded  port,  to  proceed  to  a  port  not  block- 
aded; not  liable  for  seizure  or  detention  at 
jjorl  of  destination  in  consequence  of  having 
touched,  by  choice  or  force,  at  a  British  port." 
She  was  boarded  off  St.  Michaels  by  a  British 
cruiser,  and  warned  not  to  enter  any  of  the 
ports  of  France,  Holland,  Spain,  Portugal, 
Italy,  Denmark,  or  any  port  from  which  the 
British  flag  was  excluded.  She  put  into  Gib- 
raltar for  advice,  being  informed  that  the 
Algerines  and  the  United  States  were  at  war. 
She  remained  at  Gibraltar  about  ten  days, 
when  she  obtained  permission  from  the  gov- 
ernment there  to  proceed  to  Barcelona,  on  tak- 
iug  a  certificate  showing  that  she  had  touched 
there.  As  she  was  getting  under  weigh,  intel- 
ligence was  received  of  the  French  and  Span- 
ish decrees,  which  would  have  given  a  right 
of  capture  and  condemnation  to  French  and 
Spanish  cruisers.  In  consequence  of  this, 
ghe  broke  up  the  voyage  and  returned  to  New 
York.  Held,  the  fear  of  misfortune  was  not 
the  misfortune  itself;  otherwise,  all  distinc. 
tiou  between  imagiuaiy  or  apprehended  dan- 
ger, present  and  palpable,  would  cease.  Craig 
«.  United  Ins.  Co.,  6  Johns.,  226. 

6.  —  The  fear  of  loss  is  not  the  loss  itself,  and 
is  no  justifiable  cause  for  abandonment.  Nor 
was  the  apprehension  of  seizure  and  confisca- 
tion, if  any  such  apprehension  existed,  suffi- 
cient to  create  a  loss  of  the  voyage,  there  be- 
ing  no  evidence  that  the  port  of  destination 
was  blockaded,  or  neutral  trade  with  it  inter- 
dicted.   Corp  V.  United  Ins.  Co.,  8  Johns.,  278. 

7.  Retardation.  On  passage  monej',  at  and 
from  New  York  to  San  Francisco.  She  received 
j)assage  money,  $88,500,  for  ])assengers  to  be 
taken  at  Panama.  She  sailed  via  Cape  Horn, 
encountered  heavy  weather,  was  obliged  to 
put  into  St.  Thomas  for  repairs,  March  14th, 
and  was  not  expected  at  Panama  until  June. 
Prior  to  the  disaster,  she  was  expected  to  be 
at  Panama  in  April.    The  passengers  arrived 

33 


at  Panama  April  13lh  and  14th,  and  were  told 
hj'  the  agent  she  would  not  reach  there  untill 
July.  She  did  not  in  fact  arrive  till  near  the 
end  of  August.  The  passengers  were  for- 
warded fiom  Panama.  Held,  insurers  were 
not  liable,  for  they  did  not  contract  that  the 
vessel  should  deliver  her  passengers  within 
any  given  time.  Howard  v.  Astor  Mut.  Ins. 
Co.,  5  Bos.,  38. 

8.  Contingent  expenses.  The  ship  owner 
must  provide  tneans  to  meet  contingent  ex- 
penses at  each  port  of  destination.  If  he  does 
not,  and  a  loss  results  to  the  cargo  from  bis 
failurct  the  ship  owner  is  liable  for  it,  and  not 
the  insurer  of  cargo,  the  loss  not  being  within 
the  general  terms  of  the  policy.  Moses  v.  Sun 
Mut.  Ins.  Co.,  1  Duer,  159. 

9.  Sale  of  Cargo.  On  cargo.  She  was 
driven  into  a  port  of  distress,  where  the  master 
sold  it.  Held,  not  an  act  of  barratry,  because 
the  master  acted  in  good  faith ;  the  cause  for 
selling  was  not  its  damaged  condition,  but  to 
obtain  money  to  repair  the  vessel;  hence  the 
loss  by  the  sale  was  not  insurer's  loss.  Such- 
man  v.  Merchants  Louisville  Ins.  Co.,  5  Duer, 
342. 

10.  On  vessel  and  cargo.  From  Marble- 
head  to  one  or  more  ports  in  the  West  Indies, 
for  the  purpose  of  selling  outward  cargo  and 
purchasing  one  for  return,  and  at  and  from 
thence  to  Marblehead.  Held,  it  did  not  in- 
clude loss  of  the  proceeds  of  outward  cargo, 
caused  by  fire  at  the  foreign  port ;  nor  damage 
to  ship  by  worms  and  climate,  during  an  em- 
bargo; nor  extraordinary  expenditures  for 
provisions,  whether  consumed  by  seamen  or 
sentinels  put  onboard  during  embargo;  nor 
possible  earnings  of  the  ship  prevented  by 
the  embargo.  Martin  v.  Salem  Marine  Ins. 
Co.,  2  Mass.,  420. 

11.  On  freight.  Ship  was  captured  by  a 
British  cruiser,  carried  to  England,  and  liber- 
ated. In  the  meantime  the  French  decrees 
rendered  it  very  hazardous  for  her  to  proceed 
to  port  of  destination.  By  an  order  in  chan- 
cery, cargo  was  delivered  to  an  agent  of  the 
owners.  Ship  owner  sought  but  failed  to  re- 
cover  freight  in  an  action  instituted  for  that 
purpose.  Held,  the  loss  arose  from  an  appre- 
hension of  peril,  hence  the  insurer  was  not 
liable.  Tucker  v.  United  Marine  and  Fire 
Ins.  Co.,  12  Mass.,  388. 

12.  Fraud.  The  insured,  an  American,  w.-w 
the  real  owner  of  the  ship   insured,  but  a 

513 


1027 


POLICY  (OF  THE). 


102S 


What  causes  of  loss  are  not  within. 


Spaniard  was  the  ostensible  owner.  She  pro- 
ceeded on  the  voyage  insured,  was  captured 
by  a  British  vessel  of  war,  carried  to  Halifax, 
and  libeled  as  prize.  While  she  was  in  pos- 
session of  the  captors,  insured  abandoned; 
afterwards,  in  pursuance  of  claim  made  by 
the  master,  she  was  restored  on  the  payment 
of  expenses,  $453.40.  After  the  restoration 
the  ostensible  owner  and  master  put  on  board 
a  cargo  and  proceeded  to  the  West  Indies 
without  consent,  sanction,  or  authority  of  any 
one  else.  Held,  as  the  detention  was  tempo- 
rar}',  insured  was  not  entitled  to  a  total  loss  on 
that  ground.  Held,  also,  that  the  ostensible 
owner  was  not  the  agent  of  insurers,  but  of 
the  insured;  that  the  loss  occurred  by  reason 
of  the  fraud  of  the  ostensible  owner,  one 
whom  the  insured  trusted,  and  the  insurer  was 
not  liable.     Smith  v.  Touro,  14  Mass.,  112. 

13.  Illicit  Trade.  On  goods,  the  produce 
of  the  United  States,  on  board  an  American 
vessel,  at  and  from  Boston  to  St.  Pierre  Mique- 
lon,  at  and  from  thence  to  Boston,  with  liberty 
to  proceed  to  St.  Johns,  Newfoundland. 
Part  of  the  goods  were  sold  at  St.  Pierre,  and 
she  proceeded  with  the  otlier  part  for  St. 
Johns;  but  that  voyage  was  prohibited.  She 
was  seized  and  condemned,  because  the  cargo 
had  not  been  brought  directly  from  the  United 
States.  Held,  that  as  the  terms  of  the  policy 
were  general,  and  the  insurer  did  not  know 
that  the  voyage  was  illicit,  the  loss  was  not 
within  the  policy.  Archibald  ii.  Mercantile 
Ins.  Co.,  3  Pick.,  70. 

14.  Insurer  of  ship  not  liable  for  a  hauser 
stowed  in  a  boat  on  deck,  which  is  lost  over- 
board. Brookes  i.  Oriental  Ins.  Co.,  7  Pick., 
2.59. 

15.  The  cargo  had  been  transhipped,  the 
vessel  condemned  and  sold,  and  all  attempts  to 
prosecute  the  voyage  in  the  original  ship 
abandoned.  She  was  afterwards  '  totally 
wrecked  at  the  port  of  distress.  Held,  if  in- 
surers were  discharged  by  the  improper 
breaking  up  of  the  voyage  and  sale  of  the 
vessel,  the  subsequent  total  loss  did  not  re- 
vive their  lost  riglits.  Paddock  ■B.  Commercial 
In.i.  Co..  2  Allen,  "J3. 

16.  Fear  of  danger.  On  goods,  "with 
libert}-.  in  case  of  being  turned  off  on  account 
of  blockade,  to  proceed  to  a  neighboring 
port."  She  was  captured  and  restored,  but 
hearing  of  the  French  and  Dutch  decrees,  in 
fear  of  which  she  was  prevented  from  pro- 

514 


cecding  to  the  port  of  destination,  and  there- 
fore put  into  London  and  discharged  cargo. 
Held,  there  was  no  loss  of  voyage,  and  th.it 
the  insurers  were  discharged.  Ferguson,  v. 
Phmiix  Ins.  Co.,  5  Binn.,  544. 

1  7.  Ice  jam.  Against  loss  by  fire  or  storm. 
Held,  tlie  word  storm  must  be  taken  as  refer- 
ring to  the  action  of  the  elements:  that  araiii 
accompanied  by  a  warm  south  wind,  which 
melted  and  carried  off  the  snow  and  caused  a 
jam  of  ice  in  the  river,  which  took  away  a 
part  of  the  mill  insured,  was  not  a  loss  wilhia 
the  policy.  Stover  v.  Insurance  Co.,  3  Phila., 
38. 

18.  Sale  of  cargo.  On  cargo  from  Carde- 
nas to  Portland.  She  sailed  January-  Stli, 
struck  on  a  reef  same  day,  in  consequence  of 
which  she  was  obliged  to  put  into  Havana  for 
repairs,  and  the  master  was  compelled,  for 
lack  of  money,  to  sell  part  of  the  cargo,  but 
on  the  voyage  home  she  became  a  total  loss. 
Held,  the  loss  by  sale  of  a  part  of  the  cargo 
was  not  a  loss  by  a  peril  of  the  sea,  for  the 
grounding  was  not  the  proximate  cause  of  the 
loss.  The  repairs  made  were  such  as  the  shijv 
owner,  a  common  carrier,  was  bound  to  make, 
though  the  damage  was  caused  by  a  peril  in- 
sured against,  the  sale  of  the  cargo  was  caused 
by  the  want  of  funds  or  credit  in  port  (citing 
General  Mut.  Ins.  Co.  v.  Sherwood,  14  How., 
351).  Dt/er  v.  Piscataqua  Fire  and  Marina 
Ins.  Co.,  53  Me.,  118. 

19.  Failure  to  forward  cargo.  Stipulated: 
"  In  case  of  damage  or  loss,  it  shall  be  ascer- 
tained by  a  separation  and  sale  of  that  portion 
of  the  contents  of  the  packages  so  damaged, 
as  far  as  practicable."  Held,  if  it  was  practi- 
cable to  have  separated  and  sold  the  cargo 
damaged,  and  to  have  forwarded  to  point  of 
destination  that  which  was  not  damaged,  in- 
surers were  entitled  to  require  insured  to  show 
that  was  done;  that  insurers  were  not  liable 
for  any  damages  which  might  have  been 
avoided  by  forwarding  the  undamaged  cargo. 
Franklin  Ins.  Co.  v.  Cobb,  2  Cin.  Sup.  Ct,  87. 

20.  Decayed  and  rotten.  The  insurer  is  not 
bound  to  make  good  the  decayed  and  rotten 
parts  of  a  vessel,  unless  the  accident  which 
happens  within  the  peril  insured  against  is 
of  such  a  nature  as  will  not  admit  of  repairs 
being  placed  on  her,  so  that  the  deca3ed  and 
rotten  parts  shall  be  used  as  formerly.  Hyda 
r>.  Louisiana  State  Ins.  Co.,  14  Martin  (La.),  410. 

21.  Mutiny.    "  On  26  negroes,  at  |;800  each 


1029 


POLICY  (OF  THE). 


1030 


What  causes  o£  loss  are  not  withui. 


warranted  free  from  elopement,  insurrection 
and  natural  death."  Her  cargo  consisted  of 
135  slaves,  besides  tob.acco.  The  slaves  muti- 
nied, subdued  officers  and  crew,  and  became 
complete  masters  of  the  vessel.  Nineteen  of 
Ihera  took  charge  of,  and  compelled  the  mate 
and  crew  to  navigate  her  to  the  port  of  Nas- 
sau,  N.  P.,  where  they  arrived  November  9th, 
and  were  subsequently  put  on  shore  and  liber- 
ated. Held,  a  ship  or  vessel  on  the  high  seas, 
engaged  on  a  lawful  voyage,  is  under  the  ex- 
clusive jurisdiction  of  the  state  to  which  her 
flag  belongs,  as  muqh  so  as  if  she  constituted  a 
part  of  the  territory ;  and,  if  forced  by  stress  of 
weather,  or  other  unavoidable  cause,  into  the 
port  of  a  friendly  power,  she  is  entitled  to  the 
same  rights  that  she  had  upon  the  high  seas: 
and  ship  and  her  cargo,  and  the  persons  on 
board  and  all  their  personal  properly  and  rela- 
tions, as  established  bj'  the  laws  of  the  slate  to 
which  they  belong,  are  protected  and  defended 
by  the  law  of  nations;  that  the  local  laws  of 
the  port  into  which  she  is  forced  do  not  super- 
sede the  laws  of  the  state  to  which  she  be- 
longs,  in  respect  to  the  duties,  rights  and  obli- 
gations of  those  on  board.  Held,  aluo,  the  in- 
surrection of  the  slaves  was  the  cause  of 
breaking  up  the  voyage,  and  prevented  that 
part  of  the  cargo  which  consisted  of  slaves, 
from  reaching  the  port  of  New  Orleans,  for 
which  the  insurers  were  not  responsible.  Mc- 
Cargo  v.  New  Orleans  Ins.  Co.,  10  Hob.  (La.), 
203;  Andrews  v.  Ocean  Ins.  Co.,  id.,  333;  Lock- 
tit  X).  Firemen's  Ins.  Co.,  id.,  'd'd'i;  Ilitgan  v. 
Ocean  Ins.  Co.,  id.,  333 ;  Johnson  «.  Ocean  Ins. 
Co.,  id.,  334;  McCargo  v.  Merchants  Ins.  Co., 
id.,  349. 

22.  Explosion.  Damage  produced  by  the 
explosion  of  steam  boilers,  used  in  manufac- 
turing sugar,  is  not  within  a  policy  on  sugar. 
Millaudonv.  New  Orleiins Ins.  Co., 4  La.  An.,  15. 

23.  Passuj;e  money.  The  policy  covered 
passiige  money.  She  was  driven  .by  stress  of 
weather  into  Key  West,  and  there  libeled,  on 
the  ground  that  she  was  unseaworthy  when 
the  voyage  commenced.  The  court  decreed 
repayment  of  the  passage  monej'.  Held,  the 
lo-ss  of  the  p;issage  money  was  not  a  peril 
within  the  policy.  Marks  v.  Nashville  Marine 
and  Fire  Ins.  Co.,  6  La.  An.,  126. 

24.  Extra  duty.  Against  certain  perils 
named,  "And  all  unavoidable  perils,  losses 
and  misfortunes."  She  was  captured  and  de- 
tained.    While  so  detained  an  extraordinary 


duly  was  laid  on  the  cargo,  at  the  port  of  desti- 
nation. Held,  not  within  the  policy.  DePeau 
V.  Russel,  1  Brev.,  441. 

2.5.  AVorms.  Ship  was  condemned  as  irre. 
parable.  Cause,  damage  by  worms.  Held, 
not  a  loss  by  perils  of  the  sea.  Rohl  v.  Parr, 
1  Esp.,  444. 

26.  Bilj^ing.  She  was  hove  down  on  the 
beach,  within  the  tideway,  to  be  repaired,  and 
was  bilged  and  otherwise  damaged.  Held,  not 
a  loss  by  perils  of  the  sea.  Thompson  v.  Wliit. 
more,  3  Taunt.,  227. 

27.  Fire  heat.  "  Against  all  damage  by  Sre 
on  stock  and  utensils,  in  their  regular  built 
sugar  house."  Damage  to  sugar  in  the  pans, 
in  process  of  manufacture,  was  caused  by  the 
accidental  increase  of  heat  from  the  fires  usu- 
ally employed  in  refining.  Held,  not  a  lo.ss 
within  the  policy.  Aiistin  v.  Srewe,  GT&uut., 
430;  2  Marsh.,  130;  4  Camp.,  360;  Holt  N.  P., 
126. 

28.  Sats.  Ship  touched  at  Antigua,  and  was 
there  detained  for  a  long  time  by  the  sickness 
of  the  crew,  and  while  there  rats  ate  holes  in 
her  transoms  and  other  parts  of  her  bottom,  in 
consequence  of  which  she  was  found  unfit  to 
I>r(jceed,  and  was  condemned  and  sold.  Held, 
insurers  were  not  liable.  Hunter  v.  Potts,  4 
Camp..  203. 

29.  Against  perils  of  the  sea,  and  all  other 
perils,  losses,  and  misfortunes.  Ship  was  put 
into  a  graving  dock  near  the  wharf,  to  be  re- 
paired, and  there,  by  the  violence  of  the  wind, 
thrown  over  and  damaged.  Held,  not  a  loss 
by  perils  of  the  sea;  but  it  was  within  the  gen. 
eral  term,  "  all  other  perils,  etc."  Phillips  v. 
Barber,  5  B.  &  A.,  101. 

30.  Negroes  thrown  overboard.  On  slavej. 
B}-  mistake  she  got  to  the  leeward  of  Jamaica, 
and  fell  short  of  water.  Some  of  Ihe  negroes 
died,  and  one  hundred  and  fifty  were  thrown 
overboard.  A  verdict  was  given  for  the  plaint- 
ifls.  Held,  the  case  did  not  show  any  neces- 
sity for  throwing  the  negroes  overboard.  &reg- 
son  V.  Oilhert,  3  Doug.,  233. 

31.  Sale  of  cargo.  On  cargo.  Ship  w.as 
disabled  by  perils  of  the  sea,  and  prevented 
from  pursuing  her  voyage,  being  obliged  to 
put  in  for  repairs.  The  master  was  unable  to 
l)rocure  money  to  defray  expenses,  except  by 
sale  of  a  part  of  the  cargo,  which  was  done. 
Held,  the  insurer  on  cargo  was  not  liable,  for 
the  loss  was  not  by  a  peril  of  the  sea,  but  be- 
cause of  the  inability  of  the  master  to  procure 

515 


1031 


POLICY  (OF  THE). 


1032 


What  causes  of  loss  are  not  within. 


money  lo  repair  the  ship.  Sarquy  v.  Hobson, 
3  B.  &  C,  7 ;  12  Moore,  474 ;  4  Bing.,  131 ;  3  D. 
&  K,  193. 

32.  Broken  steam  pipe.  Damage  was 
caused  to  cargo  by  the  escape  of  water  through 
a  broken  steam  pipe,  which  had  beeucraclicd 
by  frost.  Held,  not  a  loss  by  perils  of  the  sea. 
Siordet  c.  Hall,  4  Bing.,  606. 

33.  Embargo.  I.,  a  resident  citizen  of  the 
United  States,  shipped  wheat  and  peas  in  an 
American  ship,  and  consigned  them  to  C.  & 
C,  at  Liverpool,  Eritisli  merchants,  one  a  res- 
ident in  England,  the  other  in  the  United 
States ;  and  lo  protect  themselves  for  large 
advances  made  upon  tlie  goods,  they  insured 
them  in  Euglaud  for  the  benefit  of  the  shipper. 
The  United  States  laid  an  embargo  on  all  ves- 
sels in  her  ports,  and  the  ship  was  detained 
in  consequence.  An  abandonment  was  made. 
Held,  the  action  could  not  be  maintained 
against  the  British  insurers,  if  the  act  which 
was  the  foundation  of  the  claim  was  the  act 
of  the  insured,  or  he  was  party  to  it;  that  the 
insured  must  be  considered  as  a  party  to  the 
act  of  the  government  of  the  United  States,  for 
he  was  an  American  citizen.  That  the  con- 
signees could  not  be  permitted  to  euforce  the 
policy  and  apply  tlie  recovery  to  protect  their 
iuterest,  because  the  policy  was  made  for  the 
benefit  of  the  consignor,  who  could  not  eu- 
force it  for  his  own  benefit.  Conway  v.  Gray, 
10  East,  536. 

34.  Sale  of  cargo.  On  goods.  Ship  put 
iuto  a  port  of  distress  for  repairs;  and  in  order 
to  defray  expenses,  having  no  other  means, 
tlie  master  sold  a  part  of  the  cargo.  Held,  not 
a  loss  by  perils  of  the  sea,  for  it  was  a  loss  by 
sale  of  the  goods.  Powell  v.  Gudgeon,  5  Mau. 
&  Sel.,  431. 

35.  Embargo.  She  was  insured  from  Hull 
to  St.  Petersburg,  and  sailed  with  convoy  to 
the  Sound.  Under  an  apprehensioa  of  hostili- 
ties, she  was  detained  by  a  king's  ship  in  tlie 
Baltic  for  eleven  days;  proceeded  thence  to 
rendezvous  for  convoy,  where  she  waited 
seven  days;  siiiled  with  convoy  until  notice 
that  an  embargo  was  laid  at  Si.  P'etersburg 
on  British  ships,  when  she  was  ordered  to  re- 
turn to  rendezvous.  She  returned  to  Hull. 
Held,  the  laying  of  a  hostile  embargo  ou  the 
<lestined  port  made  the  further  prosecution  of 
the  adventure  impracticable,  which  was  not  a 
loss  within  the  policy.  Forster  v.  Christie.  11 
East,  205. 

516 


36.  Detention.  Ship  was  forced  to  put  into 
Vigo,  and  there  process  was  issued  upon  whicli 
the  cargo  was  detained  because  it  did  not  cor- 
respond with  the  original  manifest.  A  part 
of  it  was  sold  by  decree  of  court,  and  the  bal- 
ance released,  with  which  she  departed.  Held, 
the  process  being  against  the  cargo  could  not 
detain  the  ship,  hence  for  the  detention  of 
the  ship  and  the  e.xpenscs  incurred,  her  in- 
surer  was  not  liable.  Bradford  v.  Levy,  R.  & 
M.,331;  2C.  &P.,  137. 

37.  Sale  of  cargo.  "  Against  takings  at  sea, 
arrests,  restraints  and  detainments  of  all  kings, 
princes,  and  people  of  what  nation,  condition 
nr  quality  soever."  She  was  forced  by  stress 
of  weather  iuto  Ellj'  Harbor,  Ireland,  while 
there  was  great  scarcity  of  corn  there,  and 
the  people  came  on  board  in  a  very  violent 
manner,  took  possession  of  her,  weighed  an- 
chor; she  was  driven  on  a  reef  and  stranded, 
where  the  master  was  compelled  by  the  peo- 
ple to  sell  the  cargo  at  about  three-fourths  the 
invoice  cost.  Held,  the  insurers  were  not  lia- 
ble for  the  loss  sustained  in  consequence  of 
the  sale.    Ne»bitt  «.  Lushington,  4  Term,  783. 

38.  Retardation.  Slaves  were  insured 
against  perils  of  the  sea.  She  was  delayed  by 
bad  weather  to  such  an  extent  that  many  of 
the  slaves  died  for  want  of  sufficient  food. 
Held,  not  a  loss  within  the  policy.  Tatham  v. 
Hodgson,  6  Term,  636. 

39.  Wear  and  tear.  Ship  arrived  at  Sun- 
derland, the  port  of  destination,  went  up  the 
river  abreast  of  Laing's  ship  j-ard,  but  had  to 
wait  four  or  five  daj-s  before  she  could  get  in 
to  discharge,  and  was  moored  head  and  stern. 
She  floated  when  the  tide  came  in,  and  was 
aground,  but  not  dry  at  low  water.  The  I)each 
was  hard,  shingly  and  steep.  When  she  took 
the  ground  she  listed  towards  the  beach  about 
two  planks,  and  at  the  ebb  of  the  first  tide  a 
creaking  noise  was  heard  as  she  took  the 
ground,  wliich  was  continued  for  three  days  at 
the  ebb  and  flow  of  the  tide  while  discharging. 
She  made  more  water  than  usual,  and  became 
hogged  after  she  took  the  ground.  Some  »f 
the  tree  nails  started,  and  some  planks  left  the 
tree  nails.  Held,  not  a  loss  by  perils  of  tlig 
sea,  but  mere  wear  and  tear,  ifagnus  v.  Bul- 
temcr,  21  L.  J.,  C.  P.,  119;  11  C.  B.,  876;  16 
Jur.,  480. 

40.  Construction.  Fire  policj-  "  On  steam- 
ship and  tackle,  lying  in  the  Victoria  docks, 
with  liberty  to  go  into  dry  dock  and  light  the 


1033 


POLICY  (OF  THE). 


103i 


What  damages  are  covered. 


boiler  fires,  once  or  twice  durina;  Uic  ciineney 
of  lliis  policy."  UeUl,  the  [Xilicy  attached 
only  while  she  was  in  the  Victoria  docks,  or 
in  a  dry  dock,  or  wliile  she  was  going  to  or 
leturning  from  a  dry  dock;  thai  insurers  were 
not  liable  for  a  loss  by  fire  while  she  was 
moored  in  the  river  where  she  had  then  re- 
mained ten  days  for  the  purpose  of  repairing 
her  patldle  wheels.  Pearson  v.  Commercial 
Union  Au.  Co.,  15  C.  B.  (N.  S.),  304;  s.  c,  10 
Jur.  (N.  S.),  517;  33  L  J.  C.  P.,  85;  I'J  W.  R, 
251;  9  L.  T.  (N.  S.),  442;  afTirmed,  8  L.  R.  C. 
P.,  548;  s.  c,  43  L.  J.  C.  P.,  1G4;  23  W.  R, 
100;  29  L.  T.  (N.  S.),  279. 

41.  Expenses  of  suit.  One  of  the  perils  as- 
sumed, was  loss  which  insured  might  be  com- 
pelled to  pay  as  damages  to  another  vessel 
caused  by  accident  or  negligence.  Insured 
was  sued  for  collision  with  another  vessel. 
He  defended  and  obtained  judgment,  but  in- 
curred exjjenses  in  defending  it.  Hdd,  insur- 
ers were  not  liable.  Xenos  v.  Fox,  4  L.  R.  C. 
P.,  065;  affirming  8.  c,  3  id.,  G30;  38  L.  J.  C. 
P.,  351 ;  17  \V.  R.,  893 ;  16  id.,  1053. 

42.  Retui'dation.  On  butchers'  meat 
against  perils  of  the  sea,  and  all  other  perils, 
losses,  misfortunes,  etc.,  from  Hamburg. 
November  3,  1800,  she  encountered  heavy 
weather,  and  w.is  obliged  to  put  into  Cu.xhiv- 
ven  on  the  5th.  She  put  to  sea  on  the  Olli,  and 
was  obliged  to  put  back  again.  She  sailed  on 
the  8th  and  encountered  very  severe  we.ather  the 
whole  voyage.  On  the  10th,  owing  to  the 
delay  caused  solely  by  perils  of  the  sea,  the 
meat  became  putrid,  and  was  necessarily 
thrown  overboard.  Held,  not  a  loss  within 
the  policy  (citing  Tatham  c.  Hodgson,  6  Term, 
65G).  Taylor  v.  Dunbar,  4  L.  R.  C.  P.,  206 ;  38 
L.J.  C.  P.,  178;  17  W.  R.,382. 

43.  Worms.  She  sailed  from  England  to 
Oporto,  thence  to  Newfoundland,  where  she 
was  hove  down,  keel  taken  out  and  bottom  put 
in  perfect  repair.  She  sailed  January  4th,  and 
arrived  at  Deinarara  February  14lh,  and  took 
a  cargo  for  Liverpool.  This  policy  was  made 
February  24th,  on  freight.  She  sailed  April 
15th  to  join  convoy,  but  took  the  ground  in 
passing  the  bar  and  was  got  off;  but  the  master 
and  some  of  the  crew  were  taken  sick,  and  he 
was  obliged  to  put  back.  He  got  the  neces- 
sary number  of  men  after  some  delay,  got 
over  the  bar  May  21st,  and  then  proceeiied  to 
join  convoy  at  Surinam.  The  admiral  or- 
dered   her     into     Martiniciue,    because     she 


sprung  a  leak  and  the  crew  could  not  keep 
her  free.  She  arrived  at  Martinique  with  five 
feet  of  water  in  her  hold.  Her  stern  post  and 
part  of  her  bottom  were  so  much  eaten  by 
worms  that  sjie  was  then  wholly  unseaworlhy. 
Held,  insurers  were  not  liable  for  the  loss,  be- 
cause it  was  caused  by  worms.  Lovell  v.  Mc. 
31  Ulan,  Faculty  Dec,  1808  to  1810,  p.  341. 

XII.   WuAT  DAilAGES  AEE  COVERED. 

1.  Wages  and  provisions,  from  time  vessel 
is  obliged  to  bear  away  to  a  port  of  necessity, 
in  consequence  of  injuries  received,  are  recov- 
erable under  a  policy  on  the  ship.  Hemhaw 
V.  marine  Ins.  Co.,  2  Gaines,  274. 

2.  -Temporary  repairs.  The  insurer  is  li;i- 
ble  for  temporary  repairs  made  by  the  master, 
in  good  faith,  in  a  foreign  port,  also  for  per- 
manent  repairs  made  at  home  at  the  end  of 
the  voyage.  Brookes  v.  Oriental  Ins.  Co.,  7 
Pick.,  259. 

3.  Strain.  If  the  ship  receives  a  strain, 
which  alters  her  shape  so  that  she  cannot  be 
repaired  perfectly  without  rebuilding,  and  her 
value  is  thereby  diminished,  the  depreciation 
should  be  added  to  the  expense  of  repairs, 
which  have  been  made  to  render  her  sea- 
worthy. Hagar  v.  New  England  Mutual  Ma- 
rine Ins.  Co  ,  59  Me.,  460. 

4.  On  Steamboat.  Stipulated:  "Insured 
shall  use  every  practical  effort  for  the  safety 
and  recovery  of  the  steamboat,  and  if  recov- 
ered,  cause  the  same  to  be  forthwith  repaired; 
and  in  case  of  neglect  or  refusal  on  the  part 
of  the  insured,  his  agents  or  assigns,  to  adopt 
prompt  or  efficient  measures  for  the  safeguard 
and  recovery  thereof,  then  insurers  are  hereby 
authorized  to  interfere,  etc.,  and  to  cause  the 
same  to  be  repaired,  to  the  charges  of  which, 
insurer  will  contribute  in  proportion  as  the 
sum  herein  insured  bears  to  the  agreed  value." 
She  grounded  in  a  situation  peculiarly  liable 
to  loss,  if  certain  perils  assailed  her.  Insured 
incurred  certain  expenses  to  rescue  her  from 
the  danger.  Held,  insurer  was  liiible  if  the 
expenses  were  fairly  and  bona  fide  incurred  for 
rescuing  her,  notwithstanding  the  danger  of 
total  loss  was  not  imminent.  Dix  e.  Union 
Ins.  Co.,  23  Mo.,  57. 

5.  Repairs.  Stipulated :  "  Insurers  shall 
not  be  liable  for  expenses  or  damage  in  haul- 
ing out  for  repairs,  nor  for  any  loss  except  in 
case  of  general  average,  unless  the  neoessarjt 

517 


1035 


POLICY  (OF  THE). 


1036 


What  damages  are  not  covered. 


repairs,  caused  wholly  by  the  disaster,  shall 
amount  to  ten  per  cent,  on  $20,000,  the  agreed 
value."  The  repairs  amounted  to  fl.O.w.OO. 
For  docking  the  boat,  $246,  and  $230  for  the 
use  of  the  dock.  Held,  the  expense  of  dock- 
age and  docking  must  be  considered  a  part  of 
the  repairs,  because  in  making  it,  it  was  neces- 
sary to  dock  her.  Snnpp  v.  Merchants  and 
Mamifacturers  Ins.  Co.,  8  Ohio  St.,  458. 

6.  —  Insurer  gave  notice  of  an  intention  to 
repair  the  buildings,  but  after  a  delay  of  four 
weeks,  refused  absolutely  to  repair  or  paj'  any 
part  of  the  claim.  Within  that  time  they 
■were  exposed  to  the  weather,  which  increased 
the  damages  $400.  Ileld,  insurer  was  bound 
to  pay  what  it  would  have  cost  to  make  the  re- 
pairs, at  the  time  they  were  made,  including 
the  damages  sustained  by  exposure.  Ameri- 
can Central  Ins.  Co.,  v.  McLanathan,  11  Kan., 
533. 

7.  —  Particulars  of  the  dis;ister  were  trans- 
mitted to  the  owner,  who  made  them  known 
to  the  insurers,  and  expressed  his  desire  to 
abandon,  but  they  told  him- to  repair  the  ves- 
sel and  paj'  the  tradesmen's  bills.  He  refused 
to  advance  any  money,  but  consented  to  the  re- 
pairs. A  large  sum  of  money  was  taken  up 
by  the  master  on  bottomry.  She  arrived.  In- 
surers  refused  to  take  up  the  bottomry  bond, 
and  she  was  sold  to  satisfy  it,  which  amounted 
to  £678.  She  brought  but  £630.  Held,  insurers 
■were  liable  for  all  the  loss  which  had  accrued 
to  the  insured,  in  consequence  of  that  refusal, 
to  the  whole  amount  of  the  sum  insured.  Da 
Costa  V.  Newnham,  2  Term,  407. 

8.  "  Ou  pa.ssage  money,  against  all  costs, 
charges  and  liabilities  to  which  the  ow-jier  or 
charterer  might  be  subject  under  sees.  46,  47, 
48.  49,  50  and  51  of  the  Passenger  Act,  1852; 
15  and  16  Vict.,  eh.  44."  She  was  lost  on  the 
voyage,  the  iiassengers  were  saved  at  a  Brit- 
isli  colony,  where  they  ■were  obliged  to  remain 
for  sis  weeks,  and  were  then  forwarded  to 
their  place  of  destination.  Held,  insured  was 
entitled  to  recover  all  the  expenses  incurred. 
Oibson  V.  Bradford,  4  El.  &  Bl.,  586 ;  s.  c,  1 
Jur.  (N.  S.),  520;  24  L.  J.  Q.  B.,  159. 

9.  Collision.  Stipulated:  "In  case  said 
ship  shall  come  into  collision  with  anj'  other 
vessel,  and  the  insured  shall  in  consequence 
thereof  become  liable  to  paj',  and  shall  pay, 
any  sums  not  exceeding  the  value  of  said  ship 
and  her  freight,  b3'  and  in  pursuance  of  the 
judgment  of  any  court  at  law  or  equity,  or  by 

518 


and  in  pursuance  of  any  award  made  on  any 
reference  entered  into  by  insured  with  insur- 
ers' previous  concurrence,  we  shall  and  will 
severally  bear  and  pay  such  portion  of  three 
fourth  parts  of  the  sums  so  paid  as  aforesdid, 
as  our  respective  subscriptions  hereto  bear  to 
the  value  of  said  ship  and  her  freight."  She 
came  in  collision  with  another  vessel.  Five 
of  the  passengers  of  the  other  vessel  were 
killed  and  tive  others  severely  wounded.  In- 
sured was  compelled  to  pay  £944  15s.  5d.,  as 
damages  for  the  loss  of  life  and  personal  inju- 
ries. Held,  a  loss  within  the  policy.  Coey  v. 
Smith,  22  C.  C.  S.,  955 ;  32  Scot.  Jur.,  403. 

XIII.  What  damages  are  not  cov- 

EKED. 

1.  When  general  average  expenses  are 

incurred  for  ship,  freight  and  cargo  owned  by 
one  person,  and  the  ship  alone  is  insured,  the 
insured  on  ship  cannot,  in  the  first  instance, 
require  the  whole  expense  of  his  insurer. 
Jumel  V.  Marine  Ins.  Co.,  7  Johns.,  412.  Nor 
is  his  insurer  liable  for  marine  interest  upon" 
a  bottomry  bond  made  by  the  master  for 
money  to  purchase  the  ship  from  her  captors, 
unless  the  insurer  affirms  the  master's  pur- 
chase.     Ibid. 

2.  Cargo  used  for  passengers.  Ou  cargo. 
It  became  necessarj'  during  the  voyage,  to  use 
a  part  of  it  to  supply  the  passengers  and  crew 
with  provisions.  Held,  under  the  general 
terms  of  the  policy,  the  insurers  of  cargo  were 
not  liable  for  the  loss.  Moses  v.  Sun  Mut.  Ins. 
Co.,  1  Duer,  159. 

3.  Time  policy  on  brig  and  cargo.  She 
was  totally  lost  in  a  hurricane,  at  the  Isle  of 
France,  but  the  cargo  (sugar)  had  been  dis- 
charged, and  was  saved.  The  claim  was  for  a 
total  loss  of  the  ship,  and  for  expenses  in- 
curred in  hiring  another  vessel  to  carrj-  the 
cargo  to  Amsterdam,  the  port  of  destination; 
also  for  extra  wages  paid  by  direction  of  the 
United  States  consul  at  the  Isle  of  France,  to 
those  seamen,  a  part  of  the  crew,  who  were 
discharged  at  that  place;  for  the  board  of  the 
master;  for  commissions  on  disbursements, 
and  for  ten  bales  of  cotton  sold  there,  because 
the  vessel  hired  to  carry  the  cargo  to  port  of 
destination  was  not  large  enough  to  take 
them.  Held,  insurers  were  not  liable  for  tlie 
extra  expense  incurred  for  the  cargo;  that  the 
money  paid  to  the  dischiuged  seamen  was  not 


1037 


POLICY  (OF  THE). 


1038 


When  it  tenninates. 


a  charge  in  general  average;  if  chargeable  at 
all,  must  bo  against  freight;  that  the  loss 
sustained  by  the  ten  bales  of  cotton  must  be 
iilso  disallowed,  because  no  necessity  for  llie 
sale  appeared;  that  the  board  of  the  master 
^vas  a  proper  charge,  but  no  comuiissious  on 
disbursements.  DuOge  v.  Union  Marine  Ins. 
Co.,  17  Mass.,  471. 

4.  — The  port  of  destination  was  blockaded, 
and  insured  accepted  the  cargo  at  an  interme- 
diate port,  paying  full  freight  to  the  ship  own- 
er. It  was  transported  thence  by  lighters  to 
the  point  of  destination.  Held,  the  insurer 
■was  not  liable  for  the  expense  of  transporta- 
tion nor  for  the  premium  paid  to  insure  it  for 
the  balance  of  the  voyage.  Low  -c.  Davy,  5 
Binn.,  595;  s.  c,  2  S.  &  R.,  553. 

5.  Commissions  for  advancing  money  to 
make  repairs  in  a  home  port  are  not  a  charge 
jigainst  insurer,  and  the  port  at  which  the  pol- 
icy is  executed  is  prima  facie  the  home  port. 
M'ehb  V.  Protection  Ins.  Co.,  C  Ohio,  45G. 

6.  Term  policy  to  expire  December  1,  1S32. 
Siie  struck  a  sunken  wreck  in  tlie  river  be- 
tween ten  and  eleven  o'clock,  December  1, 
1833.  She  landed  between  one  and  two 
o'clock  P.  JI.,  that  day,  and  sank  (being  the 
result  of  the  injury),  between  two  and  four 
o'clock  in  the  morning  of  December  2d. 
Held,  a  partial  loss  only  within  the  term  in- 
sured ;  that  if  a  ship  receives  her  death  wound 
before  the  policy  expires,  and  it  results  in  a 
total  loss  after  the  policy  expires,  the  insurer 
is  liable  for  a  partial  loss  onl3'.  Howell  v.  Pro- 
tection Ins.  Co.,  7  Ohio,  pt.  1,  284.' 

7.  Reinstate  or  rebuild.  Insurer  elected 
to  reinstate  or  rebuild  the  premises.  Held, 
insured  must  lose  the  use  of  them  while  they 
■were  being  rebuilt,  for  that  was  not  a  charge 
against  tne  insurer,  because  neither  rent  nor 
iise  of  the  premises  was  insured,  nothing  but 
the  buildings.  Leonarda  v.  Phcenix  Ass.  Co., 
2  Rob.  (La.),  131. 

8.  The  expense  for  seamen's  wages  and 
provisions  during  an  embargo  are  not  covered 
by  a  policy  on  the  ship.  Robertson  v.  Ewer, 
1  Term,  127. 

9.  Frsmd.  A  British  ship  was  captured  by 
a  French  privateer  and  carried  into  Bergen, 
Norwaj',  and  sentence  of  condemnation  ren- 
dered by  the  French  consul  at  that  place. 
She  was  sold,  and  purchased  by  the  British 
consul,  who  acted  as  agent  of  the  insured; 
but  the  captor  had  entered  into  contract  with 


the  owner  in  consideration  of  a  sum  of  mon- 
ey to  give  him  the  ship  again.  Held,  the 
money  paid  by  the  insured  to  regain  posses- 
sion of  the  ship  was  illegally  paid,  and  con- 
stituted  no  charge  against  the  insurer.  Ham- 
lock  V.  liockicood,  8  Term,  208. 

10.    The  iwlicy    attached    May    1,   1835, 
while  she  was  on  a  voyage  between  England 
and  Calcutta,  where  she  arrived  June  5th,  and 
delivered  her  cargo  in  good  condition.    Un- 
derwriters'  agents  surveyed  her  and  found  her 
in  good  condition.     She  sailed  thence  with  a 
cargo  for  London,  July  11,  1835,  but  going 
down   the   river,  collided   with  the    steamer 
which  had  her  in  tow,  carrying  away  her  jib- 
boom;    she  proceeded  on   her    voyage,    but 
commenced  leaking  July  18th,  at  that  part  of 
the  ship  which  had  been  struck  by  the  tow 
boat;  the  34th  she  returned  to  Calcutta,  where 
she  was  surveyed,  her    bottom   stripped,   re- 
sheathed  and  recoppered,  at  a  cost  of  £3,400. 
She  sailed  again  August  23d,  and  in  a  few 
days  commenced  to  leak  as  badly  as  before; 
she  returned  again  to  Calcutta  September  0th. 
The  lower  stiake  of  wales  were  taken  out  on 
both  sides,  and  it  was  then  discovered  that  a 
number  of  the  principal   timbers   were   in  a 
state  of  decay;  further  stripping  then   took 
place,  her  whole  frame  was  exposed  and  the 
surveyors  reported  her   repairs    would    cost 
more  than  she  would   be  worth,  and  under 
their  advice  she  was  condemned  and  sold  as  a 
wreck  for  £2,500.    Insured  claimed   a  total 
loss,  on  the  gnmnd  that  she  was  a  sound  ship 
before  collision  with  the  tow  boat;  that  she 
was  unnecessarily  pulled  to  pieces  \>y  the  sur- 
veyors on  her  last  return  to  Calcutta,  at  which 
time  she  might  have  been  fully  repaired  but 
for  the  misconduct  of  the  surveyors  and  ship, 
builders  who  had  undertaken  to  rejjair  her. 
Held,  the  insured  were  entitled  to  recover  for 
a  partial  loss  only;  that  the  expenses  which 
would  have  been  incurred  to  repair  her,  but 
which  were  not  in  fact  incurred,  because  the 
owner  thought  it  better  to  sell  her  as  a  wreck, 
were  not  within  the  loss;  that  as  to  any  dam- 
age  caused  by  the  negligent  or  unskillful  con- 
duct of  the  shipbuilders   employed  to  repair 
her,  they  were  not  within  the  policy.    Stewart 
n.  Steele,  11  L.  J.  C.  P.,  155;  5  Scott  N.  R.,  927. 

XIV.  When  it  terminates. 

1.  Oa  ship  from  Charleston  to  Port  Repub- 

519 


10?jO 


POLICY  (OF  THE). 


1040 


When  it  terminates. 


Hcan,  or  one  other  port  in  the  Bite  of  Leogane. 
She  was  seized  by  a  French  privateer,  carried 
into  Mole  St.  Nicholas,  where  the  cargo  was 
taken  by  the  French  commandant  for  the  use 
of  the  garrison,  who  afterwards  promised  to 
pay  lor  it  in  coffee,  after  which  she  was  un- 
laden. Expecting  to  receive  payment,  she  re- 
mained there  nearly  three  weeks,  when  she 
sailed  for  Cape  Francois,  with  an  order  on 
that  place  for  the  coffee.  She  was  seized  by 
the  British  squadron  blockading  Cape  Fran- 
cois, and  condemned  as  prize.  Cape  Francois 
was  not  in  the  route  to  Port  Republican,  nor 
to  any  port  in  the  Bite  of  Leogane,  nor  in  the 
return  route  from  Mole  St.  Nicholas  to  the 
United  States.  An  abandonment  was  offered 
and  refused.  Held,  ])rior  to  the  abandonment 
she  had  been  restored  to  the  master,  and  the 
nonrestoration  of  the  cargo  did  not  affect  in- 
surers of  vessel,  for  they  insured  her  ability  to 
perform  the  voyage,  not  that  she  should  per- 
form it;  that  the  voyage  to  Port  Republican 
(the  voyage  insured)  terminated  at  Mole  St. 
Nicholas,  and  the  voyage  to  Cape  Francois 
was  a  new  voyage,  undertaken,  no*  for  the 
hcnefit  of  insurers  of  the  vessel,  but  for  the 
benefit  of  the  owners  and  insurers  of  cargo; 
therefore,  insurers  of  vessel  were  discharged. 
Alexander  v.  Baltimore  Inn.  Co.,  4  Cranch,  370. 

2.  On  goods  until  safely  landed  at  Leghorn. 
She  arrived  at  Leghorn,  and  according  to  the 
usages  of  that  place,  was  obliged  to  perform  a 
quarantine  of  thirty  days  before  the  cargo 
could  be  admitted  to  the  city;  and,  according 
to  same  usage,  it  was  conveyed  in  public  light- 
ers to  the  Lazaretto,  and  put  in  custody  of  the 
government  officers ;  while  it  was  there  a  body 
of  French  troops  took  possession  of  the  city, 
seized  the  Lazaretto,  sequestered  the  goods, 
and  refused  to  deliver  them  till  a  ransom 
amounting  to  fifty-three  per  cent,  was  paid, 
which  the  owners  were  compelled  to  pay  to 
take  possession.  Held,  when  they  were  lauded 
at  the  Lazaretto  the  insurers  were  discharged. 
Grade  v.  Marine  Ins.  Co.,  8  Cranch,  75. 

3.  "  On  property  on  board  vessel  or  vessels, 
at  and  from  any  port  in  the  United  States  to 
any  port  in  the  United  States,  as  per  indorse- 
ment, with  liberty  to  stop  at  any  intermediate 
port  or  places."  Indorsed :  "  Liberty  to  stop 
at  Norfolk  or  other  ports  for  trade  bj'  adding 
one-eighth  per  cent,  for  each.  This  policy 
attaches  as  follows:  Sclioouer  Potomac,  Nor- 
folk  to  Salem  or  Boston."      She   arrived   at 

520 


Salem.  Held,  the  risk  terminated  there,  and 
a  former  custom  between  the  sime  parties,  to 
put  into  Salem  and  then  proceed  to  Boston, 
and  afterwards  to  settle  with  the  insurers  by 
paying  an  additional  premium,  could  not 
affect  their  rights  under  this  contract.  Dodge 
t.  Esuex  Ins.  Co.,  12  Gray,  65. 

4.  "On  cargo,  to  continue  until  landed." 
She  arrived  at  port  of  destination.  The  con- 
signees were  notified  of  her  arrival,  and  that 
she  was  about  to  discharge.  Some  of  the 
goods  insured,  in  tierces  and  barrels,  were  put 
up<m  the  wharf,  and  a  fire  occurred  by  which 
they  were  consumed.  Held,  insurers  were  not 
liable.  Mansur  v.  New  England  Mutual  Ma~ 
rine  Ins.  Co.,  12  Gray,  520. 

6.  On  ship,  one  year  from  November  23, 
1859.  Stipulated:  "If,  on  a  passage  -at  the 
end  of  the  term,  the  risk  to  continue  at  a  pro 
rata  premium  until  her  arrival  at  port  of  des- 
tiuatitm.  To  continue  during  the  voyage 
aforesaid  on  the  vessel  until  she  shall  be  ar- 
rived and  moored  at  anchor  tw-e.nty-four  hours 
in  safety,  and  on  the  property  until  landed." 
At  the  end  of  the  year  she  was  on  a  passage 
from  Liverpool  for  Woosung.  She  arrived  at 
the  mouth  of  the  Shanghai  river,  within  the 
port  of  Woosung,  December  25, 1860;  received 
orders  to  discharge  at  Woosung,  but  to  re- 
main there  until  orders  were  given  in  writing. 
She  remained  there  till  January  6th  following, 
when  she  was  destroyed  by  fire.  Held,  the 
risk  terminated  at  the  end  of  twenty-four 
hours  after  her  arrival  at  Woosung.  Wales  v. 
China  Mnt.  Ins.  Co.,  8  Allen,  380. 

6.  On  ship;  a  privateer,  "lost  or  not  lost, 
fnjm  Jamaica  to  any  ports  or  places  whatso- 
ever at  sea  or  shore,  a  cruising  from  port  to 
ports  and  places,  for  and  during  the  space  of 
four  calendar  months,  beginning  from  and 
immediately  following  June  14,  1744,  free  of 
average,  valued  at  £1,000."  She  was  safe  at 
Jamaica  on  that  day,  and  sailed  on  the  cruise 
duly  commissioned.  September  23,  1744,  tlie 
crew  mutinied  and  carried  her  towards  Ja- 
maica, but  before  arrival  there,  seized  the 
ship's  boat,  firearms  and  cutlasses,  carried 
them  oft' and  deserted  her,  bj' which  the  cruise 
was  prevented  and  lost.  She  arrived  at  Ja- 
maica September  29th,  and  was  there  in  good 
saf'et}'  at  the  end  of  four  months.  In  conse- 
quence  of  the  mutiny  and  desertion,  she  was 
prevented  from  pursuing  the  cruise.  Held,  it 
was  an  insurance,  not  on  the  voyage,  but  oa 


10-il 


POLICY  (OF  THE). 


1042 


When  it  tenninates. 


the  ship;  that  the  ship  was  in  proper  safety  at 
tlie  end  of  the  term,  and  tlierefore  the  insured 
could  not  recover.  Pole  v.  Fitzgerald,  Willes, 
641 ;  afTirmcd,  4  Bro.  C.  P.,  439. 

7.  "  At  and  from  Havana  to  New  Orleans, 
until  she  be  moored  twenty-four  hours  in 
good  safely,"  barratry  of  the  master  and 
mariners  included.  The  master  smuggled  a 
lots  of  goods,  which  made  her  liable  to  confis- 
cation; but  she  was  not  seized  until  after  she 
had  been  moored  more  than  twenty-four 
hours;  the  smuggling  had  been  discovered 
almost  immediately  on  her  arrival  in  port. 
Held,  insui'ers  were  released,  for  the  remote 
cause  of  the  loss  was  the  barratry  of  the 
master,  hut  it  produced  no  effect  resulting  in 
a  loss,  until  after  she  had  been  moored  twenty- 
four  hours  (citing  Lockyer  v.  Ofliey,  1  Term, 

'  2.52).    Mariatigue  v.  Lousiana  Ins.  Co.,  8  La. 
(O.  S.),  G.5. 

8.  On  143  hogsheads  of  sugar  from  New 
Orleans  to  Louisville,  in  the  steamer  Belfast. 
She  took  but  26  hogsheads  on  the  first  trip, 
and  on  the  second  she  took  the  balance.  The 
boat  and  cargo  were  lost ;  no  indorsement  was 
made  on  the  policy  as  to  the  last  voyage. 
Held,  insurers  were  not  liable;  that  parol  evi- 
dence was  not  admissible  to  show  that  the 
policy  was  extended  to  the  second  voyage  or 
trip,  because  the  charter  and  by-laws  of  the 
corporation  required  all  contracts  to  be  in 
writing  and  signed  by  the  president.  Court- 
nay  V.  Mississippi  Marine  and  Fire  Ins.  Co., 
12  La.  (O.  S.),  233. 

9.  On  goods  from  China  to  all  or  any  ports 
or  places  in  the  East  Indies,  Persia  or  else- 
where beyond  the  Cape  of  Good  Hope,  until 
the  ship's  safe  arrival  in  London,  l)eginning 
the  adventure  upon  the  said  goods  from  the 
loading  thereof  on  lioard  said  ship  at 
China.  She  sailed  from  China  with  a  cargo 
of  tea,  some  of  which  was  the  property  <jf 
the  insured,  sprung  a  leak  and  put  into  Bom- 
bay. The  goods  were  forwarded  by  another 
vessel  and  insured  for  that  voyage  by  another 
policy.  Slie  was  repaired  and  sailed  for  Can- 
ton with  a  cargo  of  cotton  for  insured,  upon 
which  voyage  she  was  captured.  Held,  the 
policy  included  the  goods  put  on  board  at 
China  and  not  elsewhere,  on  the  voyage  from 
China  for  London.  Orant  v.  He  La  Cour,  1 
Taunt.,  463 ;  Grant  v.  Paxton,  id.,  467. 

10.  On  goods  to  Archangel,  "until  they 
shall  be  there  discharged  and  safely  landed." 


They  were  discharged  under  the  inspection  of 
government  officers,  warehoused  by  them,  and 
afterwards  condemned.  Held,  the  insurers 
were  discharged.  Brown  v.  Carstairs,  3  Camp., 
161. 

It.  At  and  from  Liverpool  to  Jlarlinique, 
and  all  or  any  of  the  windward  and  leeward 
islands,  with  liberty  to  touch  at  any  ports  or 
places  whatsoever,  to  take  on  board  or  laud 
goods,  stores,  etc."  She  arrived  at  Martinique 
and  discharged  all  outward  cargo,  except  a 
small  quantity  of  lime  and  bricks,  with  which 
she  sailed  for  Antigua,  and  arrived  there  safe- 
ly, but  was  lost  in  a  hurricane  while  s!ie  lay 
there,  eight  days  after.  Held,  the  insurer* 
were  discharged.    Inglisv.  F((«.r,3  Camp.,437. 

12.  '-On  cargo  to  the  East  Indies  until  ar- 
rived at  the  last  place  of  discharge  on  the 
outward  voyage."  She  discharged  at  Bengal, 
and  took  saltpetre  for  ballast,  but  sailed  on  aa 
intermediate  voyage  to  JIadras.  Held,  whea 
the  cargo  was  discharged,  the  outward  voyage 
terminated.  Riclmrdson  v.  London  Ass.  Co., 
4  Camp.,  94. 

1  .S.  On  cargo  and  freight,  at  and  from  Liv. 
erpool  to  Montevideo  and  Buenos  Ayres,  if 
open,  or  to  ship's  final  port  of  discharge  in 
the  river  Platte,  with  libcrtj'  to  wait  two 
months  at  Montevideo,  if  needful.  She  ar- 
rived there  August  2d,  but  was  prevented  by 
a  blockading  fleet  from  passing  to  Buenos 
Ayres.  She  waited  till  the  block.ade  was 
taken  off,  October  4th,  and  sailed  for  Buenos 
Ayres.  Held,  the  policy  ceased  when  she  was 
two  months  at  Montevideo.  Doyle  v.  Powell, 
4  B.  &  Ad.,  267;  1  N.  &  M.,  678. 

14.  Beginning  the  adventure  upon  the  said 
ship  at  and  following  her  departure  from 
Canon  Water,  and  until  she  shall  arrive  in 
safety  in  the  port  and  harbor  of  Montrose, 
during  her  stay  there,  and  from  thence  until 
.she  shall  arrive  in  safetj'  in  any  port  or  liar- 
bor  of  the  Frith  of  Forth.  Slie  was  driven 
by  stress  of  weather  into  Anstruther;  within 
the  Frith  of  Forth,  and  proceeded  to  Higgins 
Nook,  where  master  and  crew  went  ashore  on 
Sunday,  in  the  afternoon,  and  did  not  return 
till  Thursday  following,  when  she  was  found 
under  water.  Held,  the  risk  was  at  an  end 
when  she  arrived  at  Anstruther.  Melhill  v. 
Stewart.  3  F.  D.,  2.54. 

13.  From  London  to  port  or  ports  in  tlie 
river  Platte,  until  her  arrival  at  her  l.ist  port 
of  discharge.     The  master  intended  to  dis. 

521 


1043 


POLICY  (OF  THE). 


1044 


Wlien  it  does  not  terminate. 


charge  at  Bueuos  Ayres.  After  he  passed 
Maklenoda,  lie  heard  that  Buenos  Ayres  was 
in  the  hands  of  the  enemy,  and  therefore  he 
put  into  Mt/utevideo,  intending  to  discharge 
there ;  but  after  taking  out  a  part  he  found  the 
market  was  not  favorable,  and  formed  the  in- 
leutiou  to  proceed  with  the  balance  to  Buenos 
Ayres,  if  tliat  should  be  practicable.  She  was 
lost  at  Montevideo  by  perils  of  tlie  sea  while 
<lischarging  some  of  the  cargo.  Held,  Monte- 
video was  her  last  port  of  discharge;  that  the 
risk  had  terminated,  and  the  insurers  were 
not  liable  for  the  loss.  Brown  v.  Vigne,  12 
East,  283. 

1  6.  She  arrived  in  safetj-  at  her  moorings, 
September  1st,  and  there  remained  till  the  37th, 
■when  she  was  seized  for  smuggling.  It  ap- 
peared the  master  had  committed  barratry  by 
smuggling  on  his  own  account.  Held,  the  in- 
surers were  released  ■when  the  vessel  was 
moored  twenty-four  hours.  Lockyer  t.  Offley, 
1  Term,  252. 

1 7.  "At  and  from  London  to  Calcutta,  and  for 
thirty  daj-s  after  arrival,  until  she  hath  moored 
at  anchor  twenty-four  hours  in  good  safety." 
She  sustained  damage  at  sea,  an'd  was  kept 
atloat  by  constant  pumping;  arrived  at  Cal- 
cutta and  safely  moored  October  28,  1866. 
Wliile  her  cargo  was  being  unloaded,  it  was 
necessary  to  continue  the  work  at  the  pumps. 
It  was  all  discharged  November  8th,  and  she 
was  taken  from  her  moorings  to  a  dry  dock 
for  survey  and  repairs  November  12th,  where 
she  was  destroyed  by  fire  Becember5th,  while 
the  repairs  were  being  made.  Held,  insurers 
were  discharged.  Lidgett  v.  Secretaii,  5  L.  K. 
O.  P.,  190;  39  L.  J.  C.  P.,  196;  18  W.  R,  692; 
22  L.  T.  (N.  S.),  272.  But  upon  a  subsequent 
trial  it  was  held,  that  insured  were  entitled  to 
recover  the  diminished  value  of  the  vessel, 
caused  by  the  sea  peril;  and  in  ascertaining- 
that  sum,  the  expenses  which  would  have 
been  incurred  to  put  the  vessel  in  a  proper 
state  of  repair  must  be  taken  into  account,  but 
the  court  refused  to  decide  whether  or  not  a 
deduction  of  one-third  new  for  old  should  be 
made  from  the  required  repairs,  it  having 
been  made  to  appear  that  she  was  an  iron  ves- 
sel. 6  L.  U.  C.  P.,  616;  40  L.  J.  C.  P.,  2.57  ;  24 
L.  T.  (N.  S.),  943 ;  19  W.  R.,  1088. 

18.  "At  and  from  Liverpool  to  Quebec, 
'.hence  to  her  discharging  port  in  the  United 
Kingdom,  and  until  she  shall  be  moored  at 
anchor  twontj-four    hours   in   good   safety." 


She  arrived  in  the  Mersey  September  4th,  and 
anchored  at  the  Bell  Buoy.  Next  morning 
she  was  towed  up  abreast  of  Wallasey  Pool, 
but  her  great  draft  prevented  entrance.  She 
was  anchored  outside  the  pool.  The  master 
went  to  Liverpool,  reported  the  vessel,  and 
engaged  lumpers  to  discharge  the  cargo,  and 
to  carry  it  into  the  pool.  The  crew  were  dis- 
charged as  usual  on  the  ship's  arrival.  The 
deck  cargo  was  taken  off,  and  a  large  portion 
under  deck  was  discharged  through  the  stern 
port.  She  fell  over  September  14th,  and  sus- 
tained damage.  Held,  she  had  been  moored 
in  safety  for  more  than  twent}--fbur  hours  at 
her  port  of  discharge,  Whitwell  v.  Harrison, 
2  Exchr.,  127;  18  L^J.  Ex.,  465. 

19.  From  Pomaron  to  Newcastle-on-Tyne, 
and  for  fifteen  days  there  after  her  arrival. 
She  arrived  at  Newcastle,  discharged  cargo; 
and  was  chartered  to  carry  a  cargo  of  coals  to 
Gibraltar.  She  took  in  a  small  part  as  stiffen- 
ing, and  was  moved  to  a  loading  place  within 
the  port  to  complete  loading.  Within  fifteen 
days  of  her  arrival  at  Newcastle  she  was  dam- 
aged in  a  gale.  Held,  the  substantial  purpose 
of  the  policy  being  accomplished  by  the  ter- 
mination of  the  voyage  insured,  the  policy 
had  ceased  to  have  any  effect  when  this  loss 
occurred.  Gambles  i).  Oeean  Marine  Ins.  Co., 
1  Ex.  D.,  8. 

20.  On  goods  to  London,  and  until  safely 
landed  there.  Insured  sent  his  lighter  along- 
side, they  were  put  into  it,  and  damaged  before 
put  ashore.  Held,  they  were  in  possession  of 
the  insured,  and  insurers  were  released.  Spar- 
row V.  Caruthers,  2  Strange,  1236. 

XV.  When  it  does  kot  teeminate. 

].■  Ship  insured  for  a  whaling  voyage,  risk 
to  continue  "until  she  be  arrived  and  moored 
at  anchor  twenty-four  hours  in  safety."  Shal- 
low water  prevented  her  from  reaching  the 
wharf  to  which  she  was  destined.  She  came 
to  anchor  and  commenced  lightening  to  ena- 
ble her  to  reach  it,  and  was  there  destroyed  by 
fire.  Held,  the  policy  was  in  force.  Meigs  v. 
Mutual  Ins.  Co.,  2  Cush.,  439. 

2.  When  insurance  is  made  to  a  port  or 
ports  of  discharge,  the  voyage  terminates  at 
the  port  where  the  cargo  is  substantially  dis- 
charged. Upton  V.  Salem  Commercial  Ins.  Co., 
8  Jlet.,  605. 


1045 


POLICY  (OF  THE). 


104G 


When  it  does  not  terminate. 


H.  On  goods  to  Sotii  la  Marina.  The  town 
is  distant  twenty  leagues  from  the  roadstead. 
All  vessels  come  lo  anchor  outside  the  bar 
and  send  their  cargo  up  in  launches.  Held, 
the  insurers  wen;  liable  luUil  the  goods  arrived 
at  Sota  la  Marina.  Osacar  v.  Louinana  State 
Jns.  Co.,  17  Martin  (La.),  386. 

4.  From  Sisal  to  Havana.  She  arrived  at 
Havana  and  was  ordered  to  anchor  close  un- 
der the  Moro  Castle,  because  a  frigate  was 
about  entering  the  harbor.  The  ue.\t  day, 
■while  attempting  to  cross  the  harbor  and 
j-each  the  usual  place  of  discharge  she  struck 
on  a  shoal  and  received  damage.  Held,  a  loss 
within  the  policy.  Zacharie  v.  Orleans  Ins. 
Co.,  17  Martin  (La.),  (i37. 

5.  She  was  insured  for  a  period  of  three 
months;  but  she  grounded  before  tlie  policy 
expired,  and  the  greater  portion  of  the  expense 
was  made  for  the  purpose  of  getting  her  off 
subsequent  to  expiration  of  the  policy.  Held, 
it  was  not  material  whether  the  work  was 
done  during  the  continuance  of  the  policy  or 
afterwards,  the  expenditure  actually  made  was 
only  evidence  of  the  damage  sustained ;  it 
was  necessary  to  place  the  boat  in  her  proper 
t'lement  that  she  might  be  valuable,  and  what- 
ever outlay  was  necessary  for  that  purpose 

and  to  repair  the  injury,  was  a  loss  within  the 
policy.  Firemen's  Ins.  Co.  v.  Powell,  13  B. 
3Ion.,  311. 

.  6.  "  On  cargo,  beginning  the  adventure  upon 
said  property  from  and  inimediatclj'  after  the 
loading  thereof,  aud  so  shall  continue  and  en- 
dure  until  the  arrival,  etc.,  at  the  port  of  desti- 
nation, and  with  reasonable  lime  allowed  to 
discharge  the  cargo."  She  arrived  at  St.  Louis 
on  the  morning  of  May  17lh;  122  bales  were 
put  out  on  the  levee,  and  tlie  remainder  left  on 
board.  A  lire  occurred  at  night  which  de- 
stroyed all  tliat  was  in  tlie  boat  and  on  the 
levee.  The  consignees  had  notice  of  the  ar- 
a-ival,  and  one  of  tliem  came  down  to  the  levee 
when  the  cargo  was  being  landed.  Held,  a 
landing  of  a  part  of  the  cargo  insured  did  not 
f.voneratc  the  insurer  from  the  loss,  for  the 
xarrier  could  not  split  up  the  liabilities  of  in- 
surer or  the  rights  of  insured;  the  duty  of  the 
carrier  was  to  land  the  properly  sat'ely  within 
a  reasonable  time,  and  that  was  not  done  by 
landing  a  part  only ;  it  was  not  enough  that 
the  goods  be  carried  to  the  place  of  delivery, 
but  the  carrier  must  deliver  them ;  and  no 
delivery   is  made  until   the  carrier  has  dis- 


charged himself  of  the  custody  of  the  goods, 
in  his  character  as  common  carrier.  Fletch- 
er V.  St.  L(/uts  Marine  Ins.  Co.,  18  Mo., 
193. 

7.  Policy  to  the  southern  whale  fishery 
during  her  stay,  and  fishing  there  (hence  to 
London.  She  was  stranded  in  Western  Cove 
on  the  coast  of  Kew  Holland.  All  lier  stores 
and  provisions,  and  1,230  seal  skins,  were  dam- 
aged by  sea  water  and  landed.  Slie  was  re- 
paired to  proceed  on  her  voyage,  and  817  of 
the  damaged  skins  were  sent  home  in  another 
vessel ;  if  any  of  the  damaged  skins  had  been 
stowed  witli  sound  skins,  tliey  would  have  in- 
fected and  damaged  the  latter,  and  therefore 
they  could  not  safely  have  been  kcjit  on  board. 
On  arrival  home  tliey  produced  double  the 
amount  of  freight.  She  was  afterwards  totally 
lost.  Held,  sending  home  a  part  of  what  the 
ship  had  taken,  was  not  a  termination  of  the 
voyage.  Phillips  v.  Champion,  C  Taunt.,  3; 
s.  c,  1  Marsh.,  402. 

8.  She  was  insured  to  port  or  ports  of  dis- 
charge on  the  coast  of  Labrador.  None  of  the 
cargo  was  taken  out  except  such  as  was  needed 
for  immediate  use.  The  crew  was  employed  in 
fishing  for  two  months  after  her  arrival  there. 
The  custom  was  proved,  that  vessels  in  the 
Labrador  aud  Newfoundland  trade  keep 
their  cargoes  on  board  for  several  months. 
Held,  the  insurers  were  liable.  Noble  v.  Ken- 
noway,  2  Doug.,  510. 

9.  On  goods  from  St.  Petersburg  to  Lou- 
don, "Until  thej'  shall  be  discharged  and 
safely  landed."  She  arrived  in  the  Thames, 
and  insured  paid  a  public  lighterman  to  land 
them.  It  was  tlie  constant  practice  for  per- 
sons  in  the  Russian  trade  to  do  so.  There 
was  a  loss  while  the  goods  were  in  the  lighter 
Held,  they  were  not  safely  landed  when  the 
loss  occurred,  and  that  the  insuiers  were 
liable  for  it.  Hurry  v.  Iloyal  Exchange 
Ass.  Co.,  3  B.  &  P.,  430;  3  Esp.,  289;  s 
c,  3  B.  &  P.,  308;  Rucker  v.  London  As.i. 
Co.,  2  B.  &  P.,  432. 

10.  Before  the  policy  expired  the  ship 
was  stranded,  got  oil"  and  carried  into  harbor, 
where  she  was  examined  aud  sold  for  account 
of  whom  it  might  concern ;  but  no  abandon- 
ment was  made.  Jleld,  the  proximate  cause 
of  the  loss,  the  stranding,  having  taken  place 
during  the  term  insured,  the  insurers  were 
liable  for  a  partial  loss.  Knight  v.  Faith,  15  Q. 
B.,649;  19L.J.(N.S.),Q  B.,509;  14Jur.,  1114. 

623 


1047 


PORT  OF  DISCHARGE. 


1048 


What  is. 


XVI.  When  it  ceases  and  kevives. 

1.  Insured  made  repairs  on  the  property 
insured;  the  policy  prohibited  any  act  which 
should  increase  the  hazard.  Held,  the  policy 
was  suspended,  while  the  repairs  were  pro- 
„iessing,  and  wiieu  they  ceased  the  company's 
liability  recommenced.  Insurance  Co.  of 
Jforth  America  v.  McDowell,  50  111.,  120. 

2.  The  premises  had  been  used  during  the 
term  insured  for  a  purpose  more  hazardous 
than  was  permitted  by  the  contract;  but  the 
policy  provided  that:  " Thenceforth  so  long 
as  the  buildings  sh;ill  be  appropriated  or  used 
for  any  of  the  purposes  aforesaid,  these  prem- 
ises shall  cease  and  be  of  no  effect,"  Held, 
the  policy  was  not  void  to  all  intents  and  pur- 
poses by  such  prohibited  use  or  occupation, 
but  it  was  to  have  no  force  or  efiect  during 
the  time  they  were  used  for  a  purpose  pro- 
hibited. United  States  Fire  and  Marine  Ins. 
Co.  V.  Kimherhj,  34  Md.,  324. 

3.  The  premises  were  partly  used  as  a  bath 
and  ice  house.  Subsequently  insured  con- 
verted them  into  an  oyster  saloon,  putting  in 
stoves  for  heating.  The  policy  was  issued 
upon  an  application  which  stated  they  were 
used  as  a  mineral  water  factory  and  bath 
house.  Held,  though  the  change  of  occupancy 
increased  the  risk,  the  plaintifi''s  right  to  re- 
cover would  not  be  defeated,  unless  that  con- 
tinued up  to  the  time  the  fire  occurred,  because 
the  charter  provided :  "  The  policy  shall  cease 
so  long  as  the  same  shall  be  so  appropriated, 
applied  or  used."  Cumberland  Valley  Mutual 
Protection  Co.  ».  Schell,  29  Penn.  St.,  31. 

4.  Policy  on  stock  in  trade,  consisting  of 
diy  goods.  Use  of  the  premises  for  carrying 
on  or  exercising  any  business,  hazardous  or 
extra  hazardous,  was  forbidden.  Held,  the 
terra  "  premises  "  referred  to  the  store,  and  not 
to  the  goods  in  it;  that  the  restriction  does 
not  extend  to  the  keeping  of  a  single  article 
denominated  hazardous  or  extra  hazardous, 
which  was  a  part  of  the  dry  goods  stock  in 
trade;  that  if  cotton  in  bales,  an  article  pro- 
hibited, had  been  kept  in  the  store  within  the 
period  covered  by  the  policy,  that  would  not 
be  an  absolute  forfeiture;  that  the  policy 
would  be  suspended  and  of  no  efiect,  so  long 
only  as  the  article  remained  in  the  store. 
Moore  ».  Protection  Ins.  Co.,  29  Me.,  97. 

5.  Stipulated :  "  So  long  as  the  same  shall 
be  appropriated,  ajujlied  or  used  for  certain 

524 


purposes  prohibited,  these  presents  shall 
cease  and  be  of  no  force  or  effect."  Held, 
whenever  a  prohibited  use  was  discontinued, 
the  policy  revived.  To  give  the  language 
any  other  construction  would  be  taking  away 
all  meaning  from  the  words  "so  long." 
Lounshury  v.  Protection  Ins.  Co..  8  Conn..  459. 
G.  On  steamboat,  from  April  4,  18G3,  to 
April  4,  180.3.  Stipulated:  "With  permission 
to  navigate  the  Mississippi  and  Ohio  rivers 
and  their  tribut.aries,  usually  navigated  by 
boats  of  her  class,  the  Missouri,  Arkansas, 
White,  Red,  and  Yazoo  rivers  excepted."  She 
left  St.  Louis  for  Leavenworth  on  the  Mis- 
souri May  24,  1863,  and  returned  June  1, 1863, 
in  complete  safety.  Slie  was  afterwards  lost. 
Held,  a  time  policy  is  not  subject  to  deviation, 
for  it  insures  no  specific  voyage;  the  exception 
as  to  certain  rivers  named  did  not  amount  to  a 
prohibition  or  warranty,  but  only  suspended 
the  liability  of  insurers  when  she  was  in  the 
excepted  waters;  if  it  had  been  the  intention 
that  the  entering  of  any  of  the  excepted 
waters  should  defeat  the  policy,  that  should 
have  been  clearly  expressed ;  and  as  it  was  not, 
the  construction  must  be  against  the  insurer. 
Oreenleaf  v.  St.  Louis  Ins.  Co.,  37  Mo.,  35. 


PORT  OP  DISCHARGE. 

(See  In  Pobt.) 

I.  What  is. 

II.  NOT. 

III.  NOT   EVIDENCE   OP. 

I.    WH.4.T  IS. 

1.  Warranted  "Free  from  capture  or  seiz. 
ure  in  the  ship's  port  or  ports  of  discharge." 
She  arrived  in  the  outward  road  of  Pillau,  a 
bar  harbor,  where  large  ships  of  her  size  were 
obliged  to  discharge  part  cargo  into  lighters, 
to  enable  them  to  cross  the  bar.  She  anchored 
two  miles  further  out  than  ships  usually  lie 
for  that  purpose.  The  master  went  ashore  to 
report  her  and  to  obtain  permission  to  dis- 
charge.  He  was  accompanied  on  his  return 
by  Prussian  soldiers  and  a  pilot,  who  took  pos- 
session of  her,  discharged  part  of  her  cargo 
into  lighters,  and  carried  her  into  the  harbor. 


1049 


PORT  OF  DISCHARGE. 


10.")0 


What  is  not. 


where  the  whole  was  confiscated.  Held,  a 
siiizufe  iu  the  ship's  port  of  dischurjie.  Diil- 
gkish  V.  Brooke,  15  Kast,  29.5. 

2.  Warranted  "Free  of  capture  or  seizure 
iu  her  port  or  ports  of  discharge."  She  ar- 
rived iu  the  river  Jade,  and  the  supercargo 
proceeded  to  Varrel  for  instructions  as  to 
where  tlie  goods  might  most  safely  l)e  lauded. 
She  lay  off  and  on  for  him  and  was  seized. 
Jleld,  a  seizure  iu  port.  Jarman  v.  Coape,  13 
East,  394;  s.  c,  2  Camp.,  G13. 

3.  On  freight  from  New  York  to  a  port  of 
discharge  iu  Australia.  Slie  arrived  at  Gee- 
long,  iu  the  bay  of  Port  Philip,  discharged 
that  part  of  the  cargo  destined  foi-  that  place; 
l)roceeded  theuce  to  Hobsou's  Bay,  twenty 
Hve  miles  from  Geeloug,  but  within  tlie  bay 
of  Port  Pliilip,  au  anchorage  ground  iu  the 
port  of  Melljourne,  to  which  the  rest  of  the 
cargo  was  destiued,  where  ship  and  cargo 
were  destroyed  by  fire.  Held,  before  the  de- 
fendant could  be  bound  by  a  usage  to  treat  the 
bay  of  Port  Phillip  as  a  single  port  of  dis- 
charge, takiug  Geelong,  Hobsou's  Bay  and 
Melbourne  as  merely  separate  landing  places 
withiu  it,  the  usage  must  appear  to  have  been 
uniform,  settled  and  well  understood  at  the 
lime  the  contract  was  made.  Fay  v.  Alliance 
Ins.  Co.,  IG  Gray,  455. 

4.  Warranted  free  from  capture  aud  seizure 
in  the  port  of  discharge.  She  was  destined 
for  lUigenwald,  and  arrived  withiu  two  miles 
and  a  half  of  the  harbor,  east  anchor  and  sig- 
naled a  pilot.  A  pilot  boat  came  out,  but 
brought  persons  who  seized  her,  and  she  was 
subsequently  condemned.  Held,  a  seizure 
within  the  port  of  discharge.  Oom  v.  Taylor, 
3  Camp.,  204 ;  Maydew  v.  Scott,  id.,  205. 

II.  What  is  not. 

1.  "From  New  London  to  Wilmington, 
N.  C,  thence  to  one  or  two  ports  iu  England 
or  Ireland,  with  liberty  to  go  to  Lisbon  and  to 
touch  and  trade  a  St.  Ubes,  and  back  to  her 
port  of  discharge  in  the  United  States."  She 
sailed  on  the  voyage,  went  to  Wilmington, 
theuce  to  Ireland,  thence  to  St.  Ubes,  where  she 
took  a  cargo  of  salt  aud  cleared  for  New  York, 
at  which  place  she  arrived  iu  the  evening  of 
June  21st.  The  supercargo  posted  a  letter 
that  evening  to  owners  at  Hartford,  advising 
them  of  the  arrival,  aud  asking  iustructious. 


He  received  directions  tlie  25lh  to  proceed 
immediately  with  ship  and  cargo  to  Mid- 
dletown.  Conn.  It  would  have  been  neces- 
sary  to  lighten  her  at  the  mouth  of  the  Con- 
necticut, therefore,  about  three  thousand 
bushels  of  salt  were  taken  out  and  put  inli. 
lighters  at  New  York.  She  sailed  with  th.- 
first  fair  wind  on  the  30th,  having  first  taken 
a  pilot.  In  going  through  Hell  Gate  she  was 
thrown  upon  the  rocks,  and  so  badly  damaged 
that  the  whole  cargo  was  wasiied  out  and  lost, 
and  while  in  that  condition  she  was  abandon- 
ed  to  insurers.  Held,  New  York  was  not  her 
port  of  discharge ;  that  the  delay  at  New  York 
was  not  unreasonable;  that  putting  the  salt 
into  lighters  was  not  a  breaking  of  bulk  iu 
New  York;  hence,  insurers  were  liable  fur  the 
hiss.  Kiiuj  V.  Middletown  Ins.  Co.,  1  Conn., 
184;  Same  V.  Hartford  Ins.  Co.,  id.,  333;  Saga 
v.  Middletown  Ins.  Co.,  id.,  239. 

2.  On  hay  laden  upon  flatboats,  from  Law- 
renceburg  to  New  Orleans.  Stipulated:  "It 
shall  bo  lawful  to  touch  at  intermediate  points, 
with  the  privilege  of  coasting  and  transacting 
any  lawful  business  connected  with  the  voy. 
age."  They  reached  Frecport,  three  miles 
above  New  Orleans,  June  24,  1840,  at  which 
place  all  hands,  except  two,  were  paid  off  and 
discharged.  It  was  tiie  custom  to  stop  aud 
exhibit  hay  at  Freeport,  remain  there  for  some 
time  in  order  to  effect  sales,  and  then  drop 
down  to  New  Orleans  and  deliver  it.  Boats 
were  prohibited  from  keeping  their  cargoes  of 
hay  in  New  Orleans  longer  than  four  days, 
but  were  compelled  after  that  time  to  sell  it. 
On  the  evening  of  July  3d,  a  violent  storm  oc- 
curred, which  destroyed  boats  and  cargo. 
Held,  Freeport  was  not  the  termination  of  the 
voyage,  hence  the  loss  was  within  the  policy. 
Grant  V.  Lexington  Irts.  Co.,  5  Ind.,  23. 

3.  "  Warranted  free  from  capture  or  seizure 
in  the  ship's  port  or  ports  of  discharge."  She 
came  to  anchor  in  the  open  sea,  off  the  south 
point  of  the  island  of  Poehl,  about  seven  Eng- 
lish miles  from  Wismar,  the  port  of  des- 
tination. Soldiers  put  out  to  her  in  a  boat, 
who  took  ciunmand,  and  brought  her  to  an- 
chor in  the  roads,  liut  not  in  the  harbor;  part 
of  her  cargo  was  discharged  into  lighters,  all 
of  which,  together  with  the  vessel,  was  carried 
into  port  and  confiscated.  Held,  it  was  not 
capture  in  the  ship's  port  of  discharge.  3{el- 
lish  V  Staniforth,  3  Taunt.,  499;  Lery  r. 
Vaiighan,  4  id.,  387;  Eeyser  v.  Scott,  id  ,  GCO; 

5'25 


1051 


PRELIMINARY  PROOFS -PREMIUM  NOTES. 


1052- 


What  is  a  defense. 


JReyner  v.  Pearson,  id.,  662 ;  Levin  v.  Newnham, 
id.,  732 ;  Eeynerv.  Hall,  id.,  725. 

4.  Action  upon  two  policies,  from  London 
to  Kiugsburg,  or  any  otber  port  in  tlie  Baltic, 
•■  free  from  seizure  in  port  of  discbarge."  She 
was  in  the  open  roads  off  Pillau,  where  she 
was  taken  by  a  Prussian  military  force  and 
condemned,  on  the  ground  that  she  came  from 
England.  Held,  when  captured,  she  was  not 
in  her  port  of  discharge.  Anthony  v.  Moline,  5 
Taunt.,  711 ;  Scluuikoneg  v.  Andrews,  5  Taunt., 
716. 

III.  "What  is  not  evidence  of. 

The  master  discharged  the  seamen  at  New 
York,  and  employed  others.  Held,  this  was 
not  evidence  tending  to  prove  that  New  York 
was  her  port  of  discharge.  King  v.  Hartford 
Ins.  Co.,  1  Conn.,  333. 


PRELIMINARY  PROOFS. 

(See  Pkoofs  of  Loss.) 


PREMIUM  NOTES. 

I.  Wh.^t  is  a  defense. 

II.  NO  DEFENSE. 

III.  Of  pleading. 

I.  What  is  a  defense. 

1.  Where  the  premium  note  is  surrendered 
in  good  faith,  the  receiver  of  an  insolvent  in- 
surance company  cannot  subsequently  com- 
pel the  maker  to  contribute  to  losses  outstand- 
ing and  contested  at  the  time  of  the  surrender. 
Hyde  v.  Lynde,  4  N.  Y.,  387.  Also,  when  an 
adjustment  is  made,  and  the  policy  and  notes 
surrendered,  it  is  binding  and  cannot  be  im- 
peached, except  for  fraud  or  mistake.    Ibid. 

2.  If  the  policy  is  void  ab  initio,  tlie  pre- 
mium notes  given  for  it  will  be  void,  because 
there  was  no  consideration  for  them.  Frost  «. 
Saratoga  Mat.  Ins  Co.,  5  Denio,  154. 

3.  Verdict  and  judgment  was  for  insurer, 
on  the  ground  that  the  vessel  was  unseawor- 
thy.    Held,  the  present  action  would  furnish 

S26 


a  defense  against  a  note  given  for  the  pre- 
mium; and  if  judgment  should  be  recovered 
upon  the  note  and  satisfied,  the  insured  could, 
in  an  action  for  money  had  and  received,  re- 
cover back  the  money  paid.  Penniman  v. 
Tucker,  11  Mass.,  66. 

4.  An  act  of  the  legislature  provided  that  it 
should  take  efl'ect  when  accepted  bj'  the  mem- 
bers of  said  corporations  (meaning  the  mem- 
bers of  the  several  mutual  fire  insurance  com- 
panies). Held,  a  member  who  did  not  ex- 
pressly assent  to  it  is  not  bound  by  it.  Ham- 
ilton 3Iut.  Ins.  Co.  V.  Hobart,  2  Gray,  543.  And 
where  the  corporation  seeks  to  recover  assess- 
ments on  a  deposit  note  against  a  member,  it 
must  prove  not  only  the  making  of  the  assess- 
ments, but  that  they  were  made  pursuant  to 
the  act  of  incorporation  and  by-laws.  Atlantic 
Mut.  Ins.  Co.  V  Fitzpatrick,  2  id.,  279. 

5.  The  charter  of  a  life  insurance  company 
made  all  the  persons  insured  members  of  the 
companj';  and  a  bj-law,  in  pursuance  of  the 
charter,  permitted  the  company,  when  the 
premium  exceeded  fifty  dollars,  to  take  a 
member's  note  for  three-fourths  of  it,  payable 
in  twelve  mouths,  subject  to  assessments  if 
required.  Held,  although  the  note  was  abso- 
lute on  its  face,  it  was  a  security  for  losses 
upon  assessments  regularly  made  for  that  pur- 
pose, and  before  a  recovery  could  be  had,  it 
must  appear  that  assessments  were  regularly 
made  in  conformity  with  the  charter.  Mutual 
Benefit  Life  Ins.  Co.  t.  Jarvis,  22  Conn.,  148. 

6.  Suit  upon  a  premium  note.  Plea:  "The 
defendant  sold  and  conveyed  the  property 
July  12,  1843,  and  he  paid  all  assessments  up 
to  that  date."  Held,  good,  notwithstanding  a 
provision  in  the  charter  requiring  the  policy 
to  be  surrendered.  Indiana  Mut.  Ins.  Co.  v. 
Connor,  5  Ind.,  170. 

7.  Suit  by  a  mutual  company  on  premium 
notes.  Held,  if  the  notes  were  given  for  pre- 
miums on  policies  issued  by  the  ccmipany  in- 
suring real  estate,  to  which  insured  never  had 
any  title  whatever,  the  policy  was  void,  and 
the  premium  notes  were  without  considera- 
tion.   Bersch  v.  Sinniseippi  Ins.  Co..  28  Ind.,  64. 

8.  Suit  upon  premium  note.  The  maker 
answered  that  the  agent  of  insurer  proposed, 
for  the  sum  named,  to  insure  his  house  against 
loss  by  fire,  and  agreed  to  deliver  a  policy  not 
subject  to  any  further  assessments  for  premi- 
ums; that  the  agent  delivered  one  and  falsely 
represented  that  it  conformed  to  the   agree- 


1053 


PREMIUM  NOTES. 


105* 


What  is  no  defense. 


iiient,  but  upon  examination  it  professed  to 
make  tlie  insured  liable  for  assessments;  that 
tlio  maker  of  the  note  was  illiterate,  and  could 
read  and  write  with  great  ditliculty,  as  the 
agent  well  knew;  that  he  was  wholly  ignor- 
ant of  any  liability  for  assessments  until  de- 
mand was  made.  And  he  odercd  to  surrender 
the  policy  for  it  to  be  canceled.  //sM,  a  suffi- 
cient defense  to  the  action.  Keller  v.  Equit- 
able Ina.  Co.,  28  Ind.,  170. 

9.  Action  on  a  premium  note  executed  to 
a  mutual  fire  insurance  company.  Held, 
representations  made  by  the  company's  agent 
as  to  when  assessments  would  be  made  can- 
not be  heard  as  a  defense  to  a  suit  on  the  note. 
(Boland  v.  Whitman,  33  Ind.,  64.)  But  if  the 
agent,  by  authority  of  the  directors  represented 
that  the  company  was  solvent  and  able  to  pay 
losses,  and  in  consequence  of  such  representa- 
tions, insured  contracted  and  executed  such 
premium  note,  tlic  maker  may  defend  the 
action,  if  the  representations  were  false. 
Whitman  v.  Meiatncr,  34  Ind.,  487. 

10.  The  report  of  the  receiver  showed  the 
amount  of  premium  note;  but  it  did  not  show 
that  the  claims  for  losses  had  been  adjusted,  or 
that  they  were  justly  due  to  the  parties  who 
claimed;  nor  did  it  show  that  the  receiver,  or 
that  the  court  appoinling  him,  had  passed  up- 
pon  the  claims.  Held,  the  action  could  not  be 
maintained.     Manlote  v.  Burger,  38  Ind.,  31 1. 

11.  The  premium  note  was  made  payable 
in  such  portions  and  at  such  times  as  the  di- 
rectors of  said  company  may,  agreeably  to  the 
charter  and  by-laws,  require.  Held,  before  a 
recovery  could  be  had  it  must  appear  that 
payment  was  required  by  the  board  of  direct- 
ors, and  that  losses  and  expenses  had  been  in- 
curred.    Warner  v.  Beem,  86  Iowa,  38.j. 

12.  The  premium  note  executed  by  a  policy 
holder  to  a  mntnal  insurance  company,  prom- 
ised to  pay  the  sum  therein  named,  in  such 
portions,  and  at  such  time  or  times  as  the 
directors  may,  agreeably  to  their  cliartcr  and 
by-l.iws,  require.  Held,  plaintiff  must  allege 
and  prove  that  losses  and  expenses  had  oc- 
curred. American  Ins.  Co.  v.  Schmidt  19  Iowa 
503. 

II.  "What  is  no  defense. 

1.  The  charier  of  the  company  (mutual)  au- 
thorized the  making  of  policies  for  a  specified 
premium,  to  be  paid  in  cash.    The  insured 


gave  a  note  for  the  premium.  Held,  the  com- 
pany  was  not  prohibited  from  extending  the 
time  for  the  payment  of  cash  premiums;  tlie 
note  was  a  mere  regulation  extending  the  pay- 
ment of  tlie  premium  fur  the  accommodation 
of  the  insured,  and  the  company  had  Die  right 
to  recover  upon  it.     Cary  v.  Nar/el,  2  IJiss.,  244. 

2.  The  charter  of  this  mutual  company 
authorized,  for  the  better  security  of  dealers, 
acceptance  of  premium  notes  in  advance  from 
persons  intending  to  take  policies,  and  to 
negotiate  them  in  the  course  of  business,  aud 
to  pay  the  makers  a  compensation,  not  exceed- 
ing five  per  cent,  per  annum  on  so  mucli  of 
the  notes  as  should  exceed  the  premiums  that 
might  be  actually  earned.  Held,  such  note* 
were  valid  for  their  face,  although  the  pre- 
miums actually  earned  were  less  than  the  note. 
And  it  seems  they  are  valid  by  force  of  the 
statute;  therefore,  a  partial  failure  of  consideni- 
tion  could  not  be  set  up,  but  if  a  consideration 
were  necessary,  the  agreement  entered  into  by 
all  the  makers,  the  advantages  contemplated, 
and  the  per  centum  to  be  paid  them,  constitute 
a  good  and  suiBcient  consideration.  Veraif- 
mes  V.  Merchants  Mvt.  Ins.  Co.,  1  N.  Y.,  371. 

3.  Action  upon  note.  Held,  as  a  security 
note,  it  is  valid  for  its  face,  though  made  pay- 
able to  the  order  of  the  maker  and  not  in- 
dorsed  by  him;  also,  if  the  note  was  given  by 
the  maker  to  enable  him  to  vote  at  an  election 
of  trustees,  and  with  intent  or  expectation  on 
his  part  that  it  would  appear  as  one  of  the  a.s- 
sets  of  the  company  in  the  annual  statement, 
and  would  stand  there  for  the  protection  of 
dealers,  and  that  it  did  so  appear  with  the 
maker's  approbation,  or  with  his  knowledge 
without  objection,  he  had  no  right  to  with- 
draw it.    Bromoer  v.  Hill,  1  Sandf ,  629. 

4.  Action  upon  note  given  in  pursuance  of 
company's  charter  for  the  security  of  dealers. 
Held,  the  compiiny's  insolvency  is  inadmis- 
sible, and  no  defense  to  the  action ;  nor  is  it 
of  any  consequence  that  the  note  is  a  renewal 
note,  and  past  due.  How  v.  Allen,  1  Sandf, 
171,  n. 

5.  Actiou  on  a  premium  note.  Held,  the 
declaration  of  the  president  of  the  company 
and  of  the  agent,  tending  to  impair  the  valid- 
ity of  the  note,  were  not  admissible.  Hack- 
ney V.  Allcffheni/  County  Mat.  Ina.  Co.,  4  Pcnn. 
St.,  18.');  Bromoer  v.  Appleby,  1  Sandf,  158. 

6.  Members  of  a  mutual  insurance  com- 
pany sued  upon  their  premium  notes.    Held,. 

527 


Iu55 


PREMIUM  NOTES. 


1056 


What  is  no  defense. 


tliey  were  estopped  to  deny  the  organization 
of  the  corporation;  nor  coukl  they  be  lieard 
to  say  that  the  notes  were  given  in  advance 
without  any  insurance  for  them.  Brouwer  v. 
Appleby,  1  Sandf.,  158. 

7.  Tlic  malier  of  a  security  note  is  estopped 
to  deny  tlie  organization  of  the  company. 
Brouicer  v.  Sill,  1  Saudi'.,  G29. 

8.  A  note  made  to  mutual  insurance  com- 
pany for  the  security  of  dealers,  the  company 
being  authorized  by  its  charter  to  negotiate  it 
in  the  course  of  business.  Held,  a  transfer  of 
it  b}'  the  president  was  valid,  because  lie  was 
authorized  by  the  bj'-Iaws  to  make  contracts 
and  transact  the  ordinary  business  of  the 
company.    Aspiuwall  v.  Meyer,  2  Sandf ,  180. 

9.  Premium  notes  made  and  delivered  in 
pursuance  of  an  agreement  between  the  mak- 
ers and  the  company,  recited:  "  It  was  expe- 
dient to  increase  the  subscription  notes  to  the 
company;"  and  they  undertook  to  give  such 
notes  for  the  sums  set  opposite  their  respective 
uames  for  the  protection  of  persons  to  be  in- 
sured, and  to  encourage  others  to  do  their 
business  with  the  company,  and  which  were 
to  be  in  advance  for  premiums  on  policies  to 
be  taken  thereafter.  Held,  the  notes  were 
Valid  for  their  face  in  the  hands  of  the  receiv- 
er, and  it  was  no  defense  to  them  to  show  that 
the  makers  took  no  policies.  Brown  B.  Crooke, 
4  N.  Y.,  51. 

10.  A  deposit  note  recited  that  the  policy 
had  been  received.  Held,  prima  facie  evi- 
dence that  a  policy  had  been  issued,  and  in  a 
suit  upon  the  note  for  an  assessment  made,  the 
insured  was  not  allowed  to  show  that  he  had 
110  insurable  interest  in  the  property  insured. 
Neio  England  Mutual  Fire  Ins.  Co.  ».  Belknap, 
8  Cush.,  140. 

11.  Assessment  upon  a  premiuni  note  made 
at,  a  regular  moutlily  meetiug  of  the  president 
and  directors,  pursuant  to  bj'-laws;  but  no  no- 
tice was  given  to  directors  that  the  subject  of 
laying  such  assessment  would  be  considered 
at  that  meeting.  Held,  the  company  was  not 
obliged  to  show  affirmatively  that  the  direct- 
,ors  were  previously  notified  tliat  an  assess- 
ment would  be  laid  at  that  meeting;  their 
duties  being  marked  out  by  the  charter  and 
liy-laws,  no  special  notice  was  necessary  *o 
them.  They  were  presumed  to  know,  and  to 
come  prepared  to  act.  Buy  State  Mutual  Fire 
Ins.  Co.  V.  Sawyer,  13  Cush.,  64. 

12.  Deposit  note  made  subject  to  the  by- 
538 


laws  of  the  company.  Held,  it  was  part  of  the 
absolute  funds  of  the  corporal  ion,  and  subject 
to  pay  losses  and  expenses  which  accrued  be- 
fore the  maker  became  a  member  of  the  cor- 
poration. Long  Pond  Mutual  Fire  Ins.  Co.  v. 
Houghton,  6  Gray,  77. 

13.  The  defendant  neglected  to  pay  an  as- 
sessment. The  charter  provided  tliat  the  fail- 
ure should  render  the  whole  of  the  note  due 
and  payable.  Held,  the  action  could  be  main- 
tained for  the  whole  note;  and  it  was  unneces- 
sary to  declare  specially.  Jones  v.  Sisson,  0 
Gray,  288. 

14.  Fraudulent  representations  by  the  offi- 
cers of  an  insurance  company,  concerning  its 
solvencj'  and  the  paj-ment  of  capital  stock, 
are  no  defense  to  a  suit  brought  upon  a  pre- 
mium note,  unless  the  representations  were 
held  out  at  the  time  the  note  was  made,  for  the 
purpose  of  obtaining  it.  Fogg  v.  Pew,  10  Gray, 
409. 

1,5.  Action  on  a  premium  note.  Defense: 
Insurers  were  insolvent  before  the  expiration 
of  the  policy.  Held,  no  defense  to  the  action. 
Sterling  v.  Mercantile  Mut.  Ins.  Co.,  32  Penn. 
St.,  75. 

16.  Insured  gave  his  premium  note,  paya- 
ble in  such  portions  and  at  such  times  as  the 
insurer  might,  agreeably  to  the  act  of  incorpo- 
ration, require.  The  act  provided,  in  case  in- 
sured failed  to  pay  an  assessment,  the  whole 
note  might  be  collected  and  paid  into  the 
hands  of  the  treasurer,  and  retained  to  meet 
losses  till  the  expiration  of  the  policy.  In- 
sured took  a  policy  for  six  years.  The  subject 
insured  was  destroyed  by  fire  within  the  second 
year,  and  the  amount  insured  paid.  Held,  in- 
sured was  liable  to  pay  all  lawful  assessments 
on  the  note  for  six  years,  as  though  the  property 
had  not  been  destroyed.  New  Hampshire  Mu- 
tual Fire  Ins.  Co.  v.  Band,  34  N.  H.,  438.  And 
the  insurer  was  not  bound  to  make  good  any 
damages  which  occurred  within  the  term 
mentioned  in  the  policy,  exceeding  the  sum 
I  iniited  in  it.  Ibid.  Nor  was  it  proper  to  show  a 
jiractice  of  the  company  to  surrender  the  pre- 
mium notes  upon  payment  of  its  policy.  Ibid. 

17.  Policy  and  premium  note  for  it  are  in- 
dependent contracts,  and  a  vote  by  the  com. 
pany,  that  if  assessments  are  not  punctually 
paid,  the  policy  to  which  they  have  reference 
shall  be  suspended,  is  invalid,  and  is  no  de- 
fense to  an  action  brought  upon  the  premium 
note  unless  it  appeared  that  the  maker  of  the 


1057 


PRESERVATION  OF  PROPERTY. 


liir.S 


Of  the  clause  "  to  sue,  labor  and  travel  for.' 


note  assented.    New  England  Mutual  Fire  Ins. 
Co.  V.  Butler,  34  Me.,  431. 

18.  The  dcfeadaiits  gave  Ihe  company  an 
advance  note,  subject  to  assessments  at  an 
equal  per  cent,  witli  all  other  advance  notes. 
Held,  the  assessment  was  to  be  made  on  all 
the  advance  notes  which  remained  uncanceled, 
and  the  makers  were  liable  for  the  face  of  the 
note,  if  required  to  pay  the  debts  of  the  com- 
l)any.  Maine  Mutual  Marine  Ins.  Co.  v.  Swan- 
ton,  49  Me.,  448. 

19.  A  sale  or  mortgage  of  properly  insured 
by  the  Indiana  Mutual  Fire  Ins.  Co.  destroyed 
the  company's  lien,  and  avoided  the  policy; 
but  the  insured  was  personally  liable  upon 
the  premium  note  until  the  policy  was  actu- 
ally surrendered  and  payment  made  for  all 
assessments  for  losses  sustained  before  the 
surrender.  Indiana  Mutual  Fire  Ins.  Co.  v! 
Coquillard,  2  Ind.,  045. 

20.  Promissory  note  given  for  premium. 
Insured  sought  to  avoid  it  hy  showing  a  fail- 
ure of  consideration,  founded  upon  the  fact 
that  the  company  was  insolvent  when  the 
note  wa^  made  and  delivered.  Held,  the 
maker  of  the  note  could  not  retain  the  bene- 
lils  of  the  policy,  and  refuse  to  pay  the  premi- 
um; if  he  deemed  the  policy  worthless  he 
ought  to  have  surrendered  it;  having  failed  to 
t!o  so,  he  must  be  held  to  have  elected  to  retain 
it  for  its  value,  and  he  was,  therefore,  bound 
to  pay  the  premium.  Gru^'  v.  Simons,  58  111., 
440. 

21.  A  member  of  a  mutual  company,  sued 
for  an  assessment  upon  his  deposit  note,  can- 
not defend  on  the  ground  that  he  and  his  asso- 
ciate corporators  have  not  complied  with  the 
provisions  of  their  charter.  Trumbull  County 
Mutual  Fire  Ins.  Co.  v.  Uorner,  17  Ohio,  407. 

22.  The  mere  fact  that  the  company  was  in- 
solvent when  the  policy  was  made  does  not 
authorize  insured  to  repudiate  it  as  a  contract 
and  refuse  to  pay  the  premium  (citing  Bidault 
«!.  Wales,  19  JIo.,  36).  Clark  v.  Middleton,  19 
Mo..  53. 

2.1.  Tlie  insurer  issued  to  defendant  a  life 
policy  for  $5,000,  for  the  term  of  seven  years, 
annual  premium  of  $103.70,  to  be  paid  March 
14lh  in  each  year.  Tlie  defendant  paid  sev- 
eral premiums,  and  on  March  14,  1855,  gave 
liis  promissory  note  to  insurer  for  $245.03, 
wjiich  included  the  premium  for  the  ensuing 
year,  and  balances  due  in  prior  years.  In- 
Burer  became  insolvent,  went  into  liquidation 
34 


and  notified  defendant  lliat  he  would  be  no 
longer  bound  under  the  policy.  After  all 
del)ts  were  discharged,  tlie  insurer's  assignee 
brought  suit  to  recover  the  amount  of  the 
note.  Held,  no  recovery  could  be  had  on  it. 
Bostick  v.  Maxey,  5  Sneed,  173. 

III.  Of  plezU)ing. 

1.  The  complaint  alleged  the  organization 
of  the  company,  the  giving  of  the  note  for  a 
policy,  assessments  on  the  note,  notice  and  de. 
mand  for  their  payment,  legal  proceedings  by 
which  the  franchises  of  the  company  were  de- 
clared forfeited  for  insolvency,  and  the  ap- 
pointment of  a  receiver.  Held,  a  good  com- 
plaint. Boland  v.  Whitman,  33  Ind.,  64; 
Whitman  v.  Ball,  34  id.,  422 ;  Same  r>.  Amnions, 
id.,  423;  Manlove  v.  Scarce,  id.,  423. 

2.  In  an  action  by  a  receiver  for  assess, 
ments,  all  the  facts  necessary  to  show  a  liabil- 
ity  on  the  premium  notes  must  be  stated  in  tho 
cotnplaint.    Manlove  v.  Burger,  38  Ind.,  2U. 


PRESERVATION  OF  PROPERTY. 

Of  the  clause  "to  sue,  labor  and 
travel  foe." 

1.  "Warranted  neutral  propertj'."  Stipu- 
lated: "  In  case  of  loss  or  misfortune,  it  shall 
be  lawful  for  the  insured,  etc.,  to  sue  for  labor 
and  travel  about  the  defense,  safeguard  and  re- 
covery of  the  property."  Ileld,  insured  was 
not  bound  to  defend  the  property  against  an 
attempt  to  condemn  it;  that  they  might  aban- 
don  on  receiving  notice  of  the  capture;  and 
that  the  abandonment,  if  lawlul,  made  the 
master  the  agent  of  the  insurer.  Gardere  v. 
Columbian  Ins.  Co.,  7  Johns.,  514. 

2.  In  case  of  any  loss  or  damage,  either  party 
"shall  sue,  labor  and  travel  for,  in  and  about 
the  safeguard  and  recovery  of  the  goods,  or 
any  part  thereof,  to  the  damages  whereof,  tho 
insurers  will  contribute  according  to  the  sum 
insured,  warranted  free  from  average  nuless 
general."  The  cargo  was  hides,  a  portion  of 
■which  were  submerged,  and  a  part  of  those 
submerged  were  rescued  by  the  insured  at  an 
expense  of  ffi.OOO.  Ifeld,  the  two  clauses  must 
be  read  together;  that  the  former  was  in 
tended  to  apply  only  to  losses  or  injuries  for 

529 


1059 


PRESUMPTIONS. 


lOOO 


"What  will  be  presumed. 


■which  the  insurers  would  have  been  liable; 
that  insurers  would  not  have  been  liable  for 
the  loss  of  all  the  hides  in  the  lighter;  lience, 
thej'  were  not  liable  for  expenses  incurred  in 
saving  any  part  of  them.  Biays  v.  Chesapeake 
Ins.  Co.,  1  Cranch,  415. 

3.  That  clause  in  the  policj-,  which  gives 
the  right  to  the  insurer  and  insured  to  act  in 
recovering,  saving  and  preserving  the  property 
insured,  applies  only  to  its  relief  from  present 
peril  and  temporary  care ;  it  gives  no  right  to 
the  insurer  to  take  possession  of  the  vessel  and 
make  permanent  repairs.  Gloucester  Ins.  Co. 
V.  Younger,  2  Curtis,  333. 

4.  Stipulated:  "In  case  of  loss  or  mis- 
fortune, tlie  insured  shall  have  the  right  to 
labor  in  and  about  the  defense  and  recovery 
of  the  property,  to  the  charges  whereof,  tlie  in- 
surers will  contribute  in  proportion  as  tlie 
sum  insured  is  to  the  whole  sum  at  risk." 
Held,  insurers  were  liable  for  a  proportion  of 
any  reasonable  expenses  incurred  in  preserving 
tlie  subject  insured  from  the  operations  of  any 
of  the  perils  insured  against.  Cory  v.  Boylston 
Ins.  Co.,  107  Mass.,  14.0. 

5.  Stipulated :  "  It  shall  be  lawful  for  the 
insured,  their  factors,  servants,  agents,  etc.,  to 
labor  and  travel  for,  in  and  about  the  defense, 
safeguard  and  recovery  of  said  goods,  without 
prejudice  to  this  insurance."  Held,  this  stip- 
Illation  imposed  no  additional  duties  upon  the 
insured,  but  gave  insurers  the  right,  after  the 
disaster,  to  repair  the  boat  or  vessel,  if  the  in- 
sured failed  to  recover  and  repair.  Cincinnati 
Ins.  Co.  V.  May,  20  Ohio,  211. 

6.  Stipulated:  "In  case  of  loss  or  misfor- 
tune, it  shall  be  the  duty  of  the  parties  insured, 
their  agents,  etc.,  to  use  all  reasonable  and 
proper  means  for  the  security,  preservation, 
relief  and  recovery  of  the  property  insured." 
Held,  net  a  warranty  to  be  observed  strictly; 
that  the  jury  were  not  to  determine  whether 
the  best  plan  was  adopted  to  save  the  property, 
or  whether  all  was  done  that  might  possibly 
have  been  done,  but  whether  reasonable  and 
proper  means  were  used,  such  as  a  competent 
owner,  uninsured,  would  have  been  expected  to 
use,  under  tlie  circumstances.  Franklin  Ins. 
Go.  V.  Cobb,  3  Cin.  Sup.  Ct.,  87. 

7.  Warranted  free  from  average  unless  it 
should  amount  to  ten  per  cent.  There  was  a 
partial  loss  amounting  to  $163,  and  the  further 
sum  of  $118.99  expenses  incurred  for  the 
safety  of  the  goods.    By  the  terms  of  the  pol- 

530 


icy,  it  was  made  the  dutj-  of  insured  to  labor 
and  travel  for  the  safety  and  recovery  of  the 
goods,  the  expenses  to  be  borne  by  the  insurer, 
in  proportion  as  the  sum  insured  bears  to  the 
whole  sum  at  risk.  Held,  tliat  plaintiffs  were 
entitled  to  recover  the  charges  for  saving  this 
goods,  $118.99 ;  that  as  to  the  $163,  no  recovery 
cculd  be  had,  as  it  was  less  than  ten  per  cent, 
of  the  value.  Schultz  v.  Ohio  Ins.  Go.,  1  B. 
Mon.,  336.  The  insurer  was  discharged  from 
extra  freight  paid  for  transhipping  the  goods. 
Ibid. 

8.  Several  policies  on  a  steamboat,  one  of 
them  stipulated :  "  Insurer  might  interpose  and 
recover  said  boat,  and  cause  her  to  be  repaired 
in  case  the  insured  sliall  not  adopt  prompt 
measures  to  recover  and  repair  her."  Held, 
the  provision  in  this  policy  did  not  enure  to 
the  benefit  of  the  other  insurers.  Fulton  Ins. 
Co.  V.  Goodman,  33  Ala.,  108. 


PRESUMPTIONS.     , 

I.  What  will  be  presumed 

II.  NOT  BE  PRESUMED. 

I.  What  will  be  peesujied. 

1.  A  corporation  can  only  act  in  the  man- 
ner prescribed  by  the  act  of  incorporation;  so 
when  its  agents  do  not  proceed  according  to 
the  act,  the  informality  is  itself  conducive  to 
the  opinion  that  the  agents  were  manifesting 
terms  upon  which  they  were  willing  to  bind 
the  company,  and  not  that  they  were  making 
a  contract  obligatory  upon  both  parties.  Head 
V.  Providence  Ins.  Co..  2  Cranch,  127. 

2.  It  must  be  presumed  that  the  decrees  of 
every  civilized  motion  in  relation  to  the  dispo- 
sition or  sale  of  property  are  in  writing.  Wood 
V.  Pleasants,  3  Wash.  C.  C,  201. 

3.  If  a  ship  has  not  taken  her  captain  on 
board,  it  is  a  presumption  that  she  has  not 
commenced  her  voyage,  though  all  her  papers 
are  in.    Dennis  v.  Ludlow,  3  Caines,  111. 

4.  No  time  is  fixed  by  law  after  which  a 
missing  vessel  shall  be  presumed  lost.  The 
rule  ought  to  be,  if  she  does  not  arrive  within 
the  usual  limits  of  the  voyage,  she  shall  be 
presumed  lost;  but  to  determine  the  usual 
limits,  neither  the   longest  nor  the  shortest 


Jddl 


PRESUMPTIONS  — PRIMA  FACIE  CASE. 


lOOi 


What  will  not  be  presumed  —  What  is. 


period  of  lime  should  be  adopted.    Bromn  v. 
Neilson,  1  Cuines,  52.j. 

5.  If  tlie  proof  shows  that  words  used  in  a 
contract  are  subject  to  a  particular  meaning 
among  merchants  dealing  in  the  article  to 
which  they  refer,  the  law  will  presume  that 
the  parties  intended  that  meaning.  Astor  v. 
Union  Ins.  Co.,  7  Cow.,  203.  And  tlie  parties 
are  presumed  to  know  the  meaning,  and  are 
bound  by  it.    Ibid. 

6.  In  the  summer  of  1865,  deceased  com- 
menced working  on  a  steamboat,  permission 
being  granted  by  insurer  for  one  year  from  July 
Gtli,  for  a  consideration  of  !flO  e.xtra  premium. 
In  October,  1800,  the  company's  agent  acknowl- 
edged receipt  of  |35,  and  required  $3.30  addi- 
tional premium  to  renew  the  policy  until 
August  31,  1867.  While  deceased  was  sick 
September  6,  1807,  the  agent  wrote  in  reply  to 
inquiries,  "  Please  send  a  draft  for  the  cash  due 
on  your  policy  August  31st,  137.7.3;  cash  for 
permit,  $10;  total,  $47.73."-  Held,  if  anything 
was  due  for  the  permit  for  the  previous  year, 
the  agent  would  have  made  demand  for  tlie 
amount.  After  the  general  agent  had  visited 
the  plaintiff,  and  was  in  possession  of  all  the 
facts,  and  had  communicated  with  the  presi- 
dent of  the  company,  he  wrote  that  the  ground 
for  rejecting  the  .  lo.ss  was  the  nonpayment  of 
premium  due  August  31,  1807.  Therefore  the 
iury  were  warranted  in  concluding  that  the 
permission  to  be  employed  on  the  steamboat 
was  properly  renewed  (111.  S.  C).  Home  Life 
Ins.  Co.  V.  Pierce,  5  Ins.  L.  J.,  200. 

7.  Insured  is  not  obliged  to  inform  insurer 
of  any  fact  pertaining  to  the  port  of  destina- 
tion; for  both  parties  are  presumed  to  know 
all  about  the  trade  in  whicli  the  vessel  is  en- 
gaged. Nelson  v.  Louisiana  Ins.  Co.,  17  Mar- 
tin (La.),  289. 

8.  The  evidence  was  taken  by  commission, 
and  written  in  English,  but  it  appeared  the 
witness  did  not  understand  the  English  Ian- 
guage.  Held,  the  court  will  presume  that  the 
commissioners  understood  the  language  of  the 
■witness.  City  Fire  Ins.  Go.  v.  Carmgi,  41  Ga., 
600. 

9.  Intelligence  in  Lloyd's  Printed  Lists  was 
presumed  to  be  within  the  knowledge  of  the 
insurer.    Friere  v.  Woodhoiise,  Holt  N.  P.,  573. 

10.  She  had  liberty  to  proceed  to  any  port 
or  ports  in  the  Baltic  or  Gulf  of  Finland,  si)me 
of  which  were  enemy's  jiorts,  and  rjthers  neu- 
tral.    Held,  the  court  would  presume,  until  the 


contrary  appeared,  that  she  intended  to  go  to 
a  neutral  port.  MuUer  v.  Thompsfn,  2  Camp., 
010. 

II.  What  will  xot  be  presumed. 

1.  The  seaworthiness  of  the  vessel  at  the 
commencement  of  the  voyage,  raises  no  pre- 
sumption that  subsequent  repairs  made  during 
the  voyage  were  caused  by  extraordinary 
peril.  Donnell  v.  Columbian  Ins.  Co.,  2  Sumn., 
306. 

2.  The  fact  tliat  the  insurance  is  made  upon 
freight  and  cargo,  after  knowledge  of  a  second 
.storm,  does  not  preclude  the  jury  from  find- 
ing that  the  ship  was  lost  in  the  first  storm. 
Brown  v.  Neilion,  1  Caines,  525. 

3.  Information  of  the  loss  of  a  vessel  ar- 
rived  early  in  the  morning,  and  a  policy  was 
effected  at  noon  at  the  same  place.  Held,  not 
evidence  that  insured  knew  of  the  loss  before 
making  the  insurance.  Livingston  v.  Dela- 
jield,  3  Caines,  40. 

4.  Action  on  a  policy :  "  $2,000  on  one-fourtU 
of  the  brig  Hesperus  for  one  year  from  Janu- 
ary 13,  1855,  at  noon."  She  sailed  January  4, 
1850,  for  the  Lobos  Islands,  a  voyage  of  thirty 
or  forty  days,  and  was  never  afterwards  heard 
of.  On  the  20th  of  the  same,  the  insured 
obtained  from  the  defendants  another  policy 
for  $1,000  for  one  year,  commencing  January 
13th  at  noon.  She  had  been  lost  for  a  time 
snfliciently  long  to  raise  the  presumption  of 
loss  prior  to  the  commencement  of  the  action. 
Held,  the  common  law  has  not  fixed  any  time 
within  which  a  missing  vessel  is  to  be  pre- 
sumed  lost ;  that  the  question  of  when  a  pre- 
sumption of  loss  arises  is  one  of  fact  for  a 
jury,  to  be  determined  by  an  examination  of  all 
the  facts  and  circumstances  of  the  given  case, 
the  precise  time  of  the  loss  is  a  matter  of  fact 
for  the  jury  to  determine.  Clifford  v.  Thomtm- 
ton  Mut.  Ins.  Co.,  50  Me.,  197. 


PRIMA  FACIE  CASE, 
I.  What  is. 

II.  NOT. 

I.  What  is. 

1.  The  person  whose  life  was  insured  died 
before  the  policy  was  delivered.    Had  a  pol 

531 


10(J3 


PHBIA  FACIE  CASE. 


10C4 


What  is  not. 


icy  been  issued,  it  would  liave  contained  tlie 
following  conditions:  "  If  any  representation 
made  by  the  insured  in  the  application  for  the 
})olicy  shail  prove  untrue,  the  policy  shall  be 
void,  payment  of  the  loss  shall  be  made  with- 
in ninety  days  after  notice  of  death  and  due 
proof  of  the  just  claim  of  the  insured."  In- 
sured offered  evidence  to  prove  the  contract 
and  tiie  death  of  her  husband,  and  that  she 
had  filled  up  in  the  presence  of  the  agent,  and 
delivered  to  him,  certain  blank  forms  fur- 
nished by  the  companj-,  such  as  were  always 
used  in  makingproof  of  death,  that  ihey  were 
received  by  the  agent  without  objections.  Held, 
a  prima,  facie  case,  al'hough  no  evidence  was 
given  of  the  contents  of  the  papers.  Life 
Ins.  Co.  v.  Francisco,  17  Wall.,  612. 

2.  The  plaintiff  produced  the  policy,  gave 
evidence  of  the  loss,  the  delivery  of  the  pre- 
liminary proof  and  the  value  of  the  property 
destroyed.  Jleld,  a  prima  facie  case.  Geib  v. 
IrUtTiiational  Iiie.  Co.,  1  Dil.  Cir.  Ct.,  443. 

3.  Ship  insured  from  Kautucket  to  the 
Brazil  Banks.  One  of  the  survej-ors  testified 
that  with  three  others  he  surveyed  her  at  Rio 
Janeiro,  and  condemned  her  as  not  worth 
repairing.  Insurer  defended  on  the  ground 
that  she  was  unseaworthy,  and  moved  for 
a  nonsuit  because  insured  had  not  pro- 
duced the  survey  nor  given  any  excuse  for  not 
producing  it.  Held,  the  motion  must  be  over- 
ruled and  the  plaintiff  have  judgment.  Mit- 
chell V.  New  England  Marine  Ins.  Co.,  6  Pick., 
117. 

4.  Where  the  owner  of  ihe  goods  shows 
that  lie  purchased  them  nearly  eleven  months 
before  they  were  shipped,  the  want  of  evidence 
showing  where  they  were  in  the  interim  does 
not  do  away  with  the  prima  facie  evidence  of 
ownership.  Flemming  v.  Marine  Ins.  Co.,  4 
Whart.,  Oy. 

5.  The  jury  found  specially  that  she  was  in- 
sured tor  a  period  of  six  mouths;  that  her  re- 
pairs cost  $1,3SG.G0,  and  that  she  was  sea- 
worthy when  the  policy  attached;  that  the 
expense  incurred  for  repairs  was  made  neces- 
sary by  perils  of  the  sea.  Held,  the  in- 
sured were  entitled  to  recover.  Wa'Jer  v. 
Louisiana  Ins.  Co.,  9  Martin  (La.),  276. 

6.  If  the  vessel  is  proven  seaworthy  though 
there  are  suggestions  and  proof  of  fraud,  in- 
sured is  not  bound  to  establish  the  particular 
cause  of  the  loss,  but  he  may  show  a  possible 
cause.    Marcy  v.  Sun  Ins.  Co.,  14  La.  An.,  2G2. 

333 


7.  She  was  not  heard  of  afler  sailing 
Held,  insured  must  prove  that  when  she  left 
port,  she  was  bound  on  the  voyage  insured; 
but  the  convoy  bond,  executed  at  tlie  custom 
house,  was  prima  facie  evidence  that  she 
sailed  on  the  voyage  insured.  Cohen  v.  Uink- 
ley,  3  Camp.,  51 ;  1  Taunt.,  249. 

8.  On  ship  from  Xorth  Carolina  to  London, 
warranted  against  captures  and  seizures.  She 
was  never  heard  of  after  she  sailed.  Held, 
there  w^s  no  presumption  that  she  was  cap- 
tured.    Green  t.  Brown,  3  Strange,  1199. 

9.  AVarranted  to  carry  a  French  license. 
Proof  that  when  she  sailed  from  Danlzic  the 
captain  received  from  his  owners  a  docu- 
ment which  purported  to  be  a  French  license 
is  not  sufficient,  without  proof  that  he  re- 
ceived it  from  a  person  authorized  to  give  it ; 
but  it  appeared  the  French  government  had 
possession  of  her  papers  and  afterwards  re- 
turned them,  and  was  permitted  to  proceed. 
Held,  prima  facie  evidence  thnt  the  document 
was  genuine.  Ecerth  v.  Tunno,  1  Stark.,  508; 
s.  c,  1  B.  &  A.,  143. 

II.  What  is  not. 

1.  Upon  an  open  policy  the  insured  must 
prove  his  interest  and  the  value  of  his  proper- 
ty, or  he  cannot  recover.  Beale  v.  Peitit,  1 
Wash.  C.  C,  341. 

2.  "  Warranted  orders  shall  be  given  that 
the  ship  shall  not  cruise."  Held,  necessary 
for  the  insured  to  prove  that  the  master  was 
in  express  terms  directed  not  to  cruise;  and, 
there  being  no  proof  to  that  effect,  the  insurer 
was  released.    Ogden  v.  Ash,  1  Dall.,  163. 

3.  The  insured  must  prove  damage  done  or 
occasioned  to  the  cargo  insured,  upon  the 
voj'age  insured,  by  some  peril  against  which 
the  policy  was  to  protect  him;  the  policj'  pro- 
tects against  extraordinary  perils  only.  It  is 
not  sufficient  that  the  goods  appear  to  have 
been  in  a  damaged  state  when  landed.  Flem- 
ming v.  Marine  Ins.  Co.,  4  Whart.,  59. 

4.  If  the  goods  are  found  upon  landing  to 
liave  been  damaged  by  sea  water,  that  is  not 
prima  facie  evidence  that  the  damage  was  by 
a  peril  of  the  sea.  Fleming  v.  Marine  Inn. 
Co.,  3  W.  &  S.,  144. 

5.  Evidence  that  she  was  seaworthy  wherf 
she  sailed,  that  the  working  of  the  rudder 
tends  to  loosen  vessels  at  the  stern,  that 
another   vessel   on   the   same  voyage   which 


-0G5 


PRINCIPAL  AND  AGENT 


lOOG 


Wlien  the  principal  is  bound. 


arrived  about  three  days  prior  had  strong 
northerly  winds  all  the  way  out,  docs  not  au- 
thorize the  court  to  submit  to  the  jury  the 
question  whether  the  goods  were  damaged  by 
perils  of  the  sea.  Flemming  v.  Ins.  Co.,  13 
Penn.  St.,  391. 

6.  Evidence  showing  that  590  bags  of 
coflee  were  damaged  without  giving  any  data 
by  which  to  determine  the  amount  of  dam- 
age  is  not  sufficient  to  base  aa  instruction  to 
the  jnry  directing  them  to  allow  for  tlie  loss. 
Merchants  Mut.  Ins.  Co.  a.  Wihon,  3  Md.,  217. 


PRINCIPAL  AND  AGENT. 

(See  Estoppel;  iNcujrERASCEs;  Master  of  Ship.) 

I.  When  the  pRrNCip.\i,  is  bottnd. 

(a)  Of  the  nets  and  knowledge  of  the 

agent. 

(b)  Of  the  acts  of  the  agenVs  clerk, 

hroker  or  soli  r  it  or. 
II.  When  the  principal  is  not  bound. 

(a)  Of  the  acts  and  knowledge  of  the 

agent. 

(b)  Of  the  acts  of  the  agent's  clerk, 

broker  or  solicitor. 

III.  Op  r.\tipic.\tion  and  affirmance. 

IV.  Of  revocation. 

V.  Of  the  agent's  liability. 
VI.  Agents  op  ships. 
VII.  Generally. 

I.  When  peincipal  is  hound. 

(a)  Of  the  acts  and  hnowledge  of  the 
agent. 

1.  The  company's  agent  filled  up  the  appli- 
cation and  inserted  in  it  matter  not  authorized 
by  the  applicant.  Held,  tlie  agent  acted  for 
the  company  and  not  for  the  insured.  Insur- 
ance Co.  v.'wilkinson,  13  Wall.,  232;  s.  c,  3 
Dil.  Cir.  Ct.,  570. 

2.  If  the  defendants  held  out  their  president 
BS  autliorizcd  to  make  oral  contracts  for  insur- 
ance,  no  secret  limitation  of  his  authority  can 
aifcct  third  persons  dealing  with  him  in  good 
faith,  without  notice  of  such  limitation,  for  the 
supposed  limitation  would  be  inconsistent 
with  the  authority;  its  cticct  would  be  tliat 


though  the  president  was  authorized  to  make 
oral  promises  to  effect  insurance,  the  company 
were  at  liberty  to  execute  those  promises  or  to 
refuse  to  do  so  at  their  option.  Commercial 
Mutual  Marine  Ins.  Co.  v.  Union  Mut.  Ins. 
Co.,  19  How.,  318:  3  Curtis,  524. 

.'J.  The  company's  agent  was  quite  faniiliap 
with  the  properly,  and  oflered  to  Insure  $1,000 
for  a  term  of  three  years  for  a  premium  of 
$13.50,  which  money  was  paid  to  him.  In- 
sured  called  for  the  policy  frequently,  but 
failed  to  get  it,  and  soon  after  he  left  the  state. 
The  property-  was  burned  by  an  accidental 
lire  before  any  policy  was  delivered,  and  be. 
fore  the  agent  remitted  tlie  money  to  the  com. 
pany.  It  appeared  that  the  agent  had  never 
reported  the  risk  to  the  company,  but  liad  con- 
verted  the  premium  to  his  own  use.  Prompt 
notice  of  the  loss  was  given  to  the  agent,  who 
said  he  was  satistied  that  the  loss  was  all 
right,  and  promised  payment  of  the  claim  on 
different  occasions  between  the  autumns  of 
1864  and  186G.  In  1866  the  agent  notitied  in- 
sured that  the  company  would  not  pay  the 
claim.  Ileld,  the  agent  had  authority  to  waive 
proofs  of  loss;  his  acts  and  assurances  in  re- 
gard to  the  payment  of  the  loss  were  also  suffi- 
cient  to  waive  the  clause  which  required  suits 
to  be  brought  within  one  year  after  the  loss; 
and  the  claim  could  be  enforced  without  the 
delivery  of  a  policy,  hence  the  complainant 
was  entitled  to  recover  the  amount  insured 
with  interest  and  costs  of  suit.  Ide  v.  Phcenix 
Ins.  Co.,  3  Biss.,  333. 

4.  The  company  supplied  the  agent  with 
blank  policies  signed  by  the  company's  offi- 
cers.  He  was  authorized  to  fill  them  up  and 
to  deliver  them  without  first  consulting  the 
company.  He  filled  up  and  delivered  one  for 
$4,000,  upon  the  property  in  question,  insur- 
ing  It  for  si.\  months;  renewed  it  in  writing 
for  si.x  months  longer,  but  beyond  that  tliere 
was  no  further  written  renewal.  The  insured 
claimed  an  agreement  resting  between  the 
agent  and  himself,  that  the  agent  would  keep 
the  property  constantly  insured  by  renewing 
the  policy  every  si.K  months,  and  draw  for  the 
premium.  Ileld,  the  powers  of  an  Insurance 
agent  are  presumed  to  be  coe.xtenslve  with  tho 
business  entrusted  to  his  care;  and  his  pre- 
sumed powers  were  not  to  be  narrowed  by 
limitations  not  communicated  to  the  person 
dealing  with  lilm  (citing  Insurance  Co.  v. 
Wilkinson,  13  W.ill.,  222);  that  If  the  agent 


1067 


PRINCIPAL  AND  AGENT. 


1068 


When  piincipal  is  bound. 


■was  eiupoweretl  to  solicit  insurance,  receive 
premiums,  issue  and  deliver  policies,  tlien  as 
to  third  persons  dealiiig  witli  him  in  good 
faith,  the  company  would  be  bound  by  his 
parol  as  well  as  by  his  written  contracts  for 
insurance,  unless  notice  of  restrictions  on  his 
power  were  brought  home  to  the  persons  deal- 
ing with  him;  that  he  had  authority  to  malie 
the  contract  alleged,  and  it  was  binding  upon 
the  company  if  he  made  it.  Bauhie  v.  ^tna 
Ins.  Co.,  2  Dil.  Cir.  Ct.,  156;  I'uylor  v.  Oerma^ 
nia  Ins.  Co.,  id.,  283. 

5.  Whatever  is  said  and  done  by  tlie  agent, 
is  the  act  of  the  principal.  Clark  v.  Manuf. 
Ins.  Co.,  2  W.  &  M.,  472;  s.  c,  8  How.,  235. 

6.  Stipulated:  "If  the  property  offered  for 
insurance  is  within  the  district  of  a  surveyor 
of  the  company,  he  will  examine  and  re- 
port thereon,  unless  the  party  applying  shall 
elect  to  make  his  own  survey,  in  which  case 
such  survey  shall  be  made  according  to  the 
printed  form  of  instructions  issued  from  the 
ofSce  of  the  company;  and  tha  party  furnish- 
ing such  survey  shall  be  responsible  for  the 
accuracy  thereof"  Held,  when  the  com- 
liany's  agent  examined  the  risk  and  reported 
on  it,  insured  was  relieved  from  the  responsi- 
bility of  making  his  own  survey,  and  was  not 
responsible  for  the  accuracy  of  a  survey 
made  by  the  company's  agent,  though  signed 
by  insured.  Both  e.  City  Ins.  Co.,  6  McLean, 
324. 

■  7.  Defendant's  agent  received  the  premium 
and  delivered  the  renewal  receipt  after  the  poli- 
cy had  lapsed.  The  agent  had  no  power  to  waive 
express  conditions.  Held,  it  was  competent 
for  tlie  defendant  to  waive  forfeitures  and  give 
renewed  effect  to  the  contract;  and  the  deliv- 
ery of  the  receipt  duly  executed  by  the  com- 
pany had  that  effect  (citing  Buckbee  v.  United 
States  Ins.  Co.,  18  Barb.,  541 ;  Sheldon  v.  Con- 
necticut Mutual  Life  Ins.  Co.,  25  Conn.,  207. 
Jacobs  V.  National  Life  Ins.  Co.,  1  Mac  A., 
632. 

S.  Secretary  of  insurer  gave  assent  to  as- 
sign the  policy.  Held,  his  authority  must  be 
presumed  in  the  absence  of  proof  to  the  con- 
trary. Conover  v.  Mutual  Ins.  Co.,  1  N.  Y., 
290;  s.  c.  How.  App.  Cas.,  604;  3  Denio,  254. 
9.  The  company  had  its  principal  office  in 
the  city  of  New  York,  and  permitted  R.,  a 
resident  of  Savannah,  to  receive  and  remit 
premiums  to  them.  Held,  permission  to  do 
80  was  equivalent  to  authority.  I'eikins  v.  I 
534 


Washington  Ins.  Co.,  4  Cow.,  645 ;  6  Johns. 
Ch.,  485. 

10.  B.  was  authorized  by  his  principal  to 
take  risks  at  Tro^-  only,  but  he  took  one  at 
Utica,  upon  which  there  was  a  loss  before  the 
policy  was  delivered.  B.'s  principal  had  fur- 
nished him  with  policies  signed  in  blank, 
ready  to  be  delivered  to  any  one  who  might 
wish  to  contract  afier  the  name  of  the  insured, 
subject  insured,  extent  of  the  risk  and  date  of 
transaction  should  be  inserted.  Held,  although 
B.  must  answer  to  his  principal  for  departing 
from  private  instructions,  still  the  principal 
would  be  bound,  if  insured,  acting  in  good  ftiith, 
and  judging  from  the  acts  of  B.  and  the  acts  of 
his  principal,  had  the  right  to  suppose  that  B. 
had  authority  to  take  the  risk;  that  furnish- 
ing B.  with  policies,  signed  in  blank  ready  to 
be  delivered  to  any  one  who  might  wish  to 
contract,  authorized  insured  to  suppose  that 
B.  had  authority  to  take  the  risk.  Lighibody 
V.  North  America  Ins.  Co.,  23  Wend.,  18. 

11.  D.  was  appointed  to  take  applications, 
and  to  receive  jiremiums.  Insured  stated 
verbally  to  him  the  facts  necessary-  to  be  in- 
serted  in  the  application,  and  among  other 
things,  told  him  the  premises  were  incum- 
bered by  mortgage.  An  application  was  then 
signed  in  blank  and  given  to  D.,  who  prom- 
ised  to  insert  the  necessarj'  answers.  In  fill- 
ing it  up  D.  stated  that  the  property  was  not 
incumbered.  Held,  that  D.,  in  filling  up  the 
blank  application  signed  by  insured,  acted 
within  the  scope  of  his  authority;  that  in 
doing  so  he  was  not  the  agent  of  the  insured; 
hence  insurers  w-ere  estopped  to  show  that  tlie 
application  was  Untrue.  Boicley  o.  Empire 
Ins.  Co.,  36  N.  Y.,  550;  s.  c,  42'*  N.  Y.  (3 
Keyes),  557 ;  4  Abb.  Dec,  131. 

12.  B.  was  agent  to  make  contracts  of  in- 
surance upon  a  printed  policy,  which  stipu- 
lated that  no  insurance  should  be  binding  till 
the  actual  payment  of  the  premium.  Held, 
he  had  authority  to  waive  the  payment  of  the 
premium.  Goit  v.  National  Protection  Im. 
Co.,  25  Barb.,  189. 

13.  S.  &  S.  were  defendant's  local  agents  at 
Elmira.  They,  with  other  persons  acting  for 
other  companies,  examined  the  premises 
where  the  loss  occurred,  and  they  all  con- 
curred that  the  loss  was  total,  and  that  it 
would  be  paid  in  full.  Held,  the  acts  and 
admissions  of  S.  &  S.,  though  not  general 
agents,  would  bind  the  defendants,  if  S.  &  S. 


JOOD 


PRINCIPAL  AND  AGENT. 


1070 


When  pmicipal  is  bound. 


were  in-  the  exercise  of  an  apparent  autliority, 
and  the  insured  was  ignorant  of  anj'  restric- 
tion or  qualification  as  to  tlieir  agency  (citing 
Insurance  Co.  v.  Willtinson,  13  Wall.,  323). 
JJliHh  V.  Westchester  Fire  Ins.  Co.,  2  N.  Y.  S.  C, 

14.  The  agent  was  furnished  with  blank 
policies  signed  by  the  president  and  secretary 
to  be  filled  up  and  delivered  to  persons  who 
might  wish  to  contract.  He  had  the  riglit  to 
renew  policies,  to  fi.'i:  the  premiums  aud  to 
receive  and  remit  them  to  the  company.  Held, 
In;  liad  authority  to  make  a  parol  agreement 
to  insure  and  to  waive  the  payment  of  the 
]>remiura,  notwithstanding  the  printed  condi- 
tions of  the  policies  stipulated  that  the  risk 
should  not  commence  till  payment  of  pre- 
mium. JIoichkiKS  V.  Oennania  Fire  Ins.  Co., 
5  Ilnn.  (N.  Y.),  90. 

1.5.  Defendant's  secretary  attended  a  meet- 
ing of  the  representatives  of  all  the  insurers 
of  the  same  stock,  at  wliich  time  a  committee 
was  appointed  to  settle  the  loss,  wlio  appointed 
appraisers.  Held,  binding  upon  the  defend- 
ant. DeOrool  v.  Fulton  Fire  Ins.  Co.,  4  Rob. 
(N.  Y.),  504. 

16.  Insurer  furnished  G.  &  C.  with  policies 
signed  in  blank,  for  them  to  write  in  the  con- 
sideration, amount  insured,  and  ail  other  mat- 
ters  pertaining  to  the  contract.  G.  &  C.  issued 
a  policy  upon  certain  buildings  in  course  of 
•construction,  but  insured  refused  to  receive  it 
or  to  pay  the  premium,  on  the  ground  that  the 
printed  stipulations  prevented  its  operation, 
wliile  the  buildings  were  being  constructed. 
G.  &  C.  made  an  indorsement  assuming  the 
risk  while  tlie  buildings  were  being  con- 
Btrudted,notwitlistanding  the  stipulations  men- 
tioned. Insurers  had  not  any  notice  of  the  in- 
dorsement until  after  tlie  loss  occurred.  Be- 
fore the  buildings  wore  completed  they  were 
consumed  b}'  fire.  Held,  insured  had  the  right 
to  assume  that  G.  &  C.  were  authorized  to 
make  the  indorsement,  therefore  insurers 
■were  liable  for  the  loss.  Oloueester  Manu- 
facturing Co.  V.  Howard  Fire  Ins.  Co.,  5  Graj', 
497. 

17.  Defendant's  agent  had  authority  to 
<;ffect  insurance,  and  for  that  purpose  to  sur- 
■vcy  risks,  ti.x  the  rate  of  premium  and  issue 
policies  of  insurance,  signed  by  the  president; 
policies  were  furnished  him  signed  in  blank. 
The  agent  made  a  preliminary  contract  to  in- 
isurc,  and  before  any  policy  was  issued  a  loss 


occurred.    Held,  he  had  authority  to  make  it. 
Sanborn  v.  Fireman's  Ins.  Co.,  10  Gray,  448. 

18.  Directors  issued  instructions  to  agents: 
"  Distilleries  are  not  insurable."  The  agent 
issued  a  policy  upon  a  distillery,  and  received 
a  premium  note  as  the  consideration.  Held, 
the  policy  was  valid,  and  a  good  considera- 
tion for  the  note.  Citizens  Mutual  Fire  Ins. 
Co.  V.  Sortioell,S  AUeo,  217. 

19.  The  contract  prohibited  other  insur- 
ance,  unless  permitted  l)y  indorsement  signed 
by  the  secretary,  in  pursuance  of  an  order 
passed  by  the  bo>ird  of  directors.  Permission 
was  given,  and  indorsed  by  an  agent,  who  did 
not  subscribe  himself  secretary;  but  evidence 
was  given  to  show  that  tlie  company  recog- 
nized such  permission,  given  by  the  same 
agent  to  other  persons.  Held,  the  agent  was 
secretary  for  that  purpose.  Peck  v.  New  Lon- 
don Mut.  Ins.  Co.,  22  Conn.,  ,584. 

20.  Insurers  insisted  that  the  agent  who 
filled  out  the  application  was  their  agent  only 
for  certain  delinite  purposes.  There  was  n.» 
written  evidence  as  to  the  e.^tent  of  his  author- 
ity. Held,  the  extent  of  the  agent's  authority 
was  one  of  fact,  for  the  jury  to  determine 
from  all  the  facts  and  circumstances  of  the 
case.  Hough  v.  City  Fire  Ins.  Co..  29  Conn.,  10. 

21.  The  by-laws  required  the  president  to 
adjust  and  pay  all  losses.  Held,  authority  to 
transfer  and  dispose  of  the  funds  of  the  com- 
pany for  that  purpose,  including  negotiable 
paper,  would  be  presumed,  because  the  impo- 
sition of  a  dut3-  implies  authority  necessary 
for  its  performance.  Baker  v.  Cotter,  45  Me., 
23G ;  Cabot  v.  Given,  id.,  144. 

22.  Charter  required  all  risks  to  be  divided 
into  four  separate  classes,  and  the  by-laws  di- 
rected what  kinds  of  property  should  be  in- 
cluded in  the  several  classes.  The  policy  was 
issued  as  for  a  risk  in  the  third  class;  but  it 
was  properly  a  risk  within  the  fourth  class. 
The  company's  agents  had  full  knowledge  of 
all  the  facts.  Held,  that  however  irregular  the 
action  of  the  directors  was,  and  though  in  vi- 
olation of  the  rules  and  by  laws  of  the  com- 
pany, still  it  was  within  the  scope  of  their  au- 
thority, and  the  company  must  be  held  liable. 
Union  Mutual  Fire  Ins.  Co.  v.  Keyser,  32  N. 
II.,  313. 

23.  For  the  terra  of  one  year,  and  for  the 
full  end  and  term  of  any  future  lime  or  timea 
(or  wliich  a  premium  shall  be  paid  and  in- 
dorsed, or  otherwise  acknowledged  in  writing 

535 


1071 


PRINCIPAL  AND  AGENT 


1072 


When  principal  is  bound. 


by  the  secretary  or  other  authorized  ofHcer. 
It  was  renewed  from  year  to  year  for  about  six 
years,  when  the  company  directed  the  agent 
wlio  renewed  it,  to  cancel  it,  of  which  he  no. 
tified  insured;  but  he  did  not  pay  or  offer  to 
insured  the  return  premium.  Before  that  was 
done  the  loss  occurred.  Ileld,  the  authority  of 
the  agent  did  not  depend  on  that  which  was 
actually  delegated  to  him  by  the  compauy,  but 
on  th.at  which  the  pUiintitt'  had  a  right  to  be- 
lieve was  given  him;  that  the  principal  was 
bound  to  dissent  from  the  act  of  his  agent  in 
renewing  the  policy,  within  a  reasonable  time 
after  the  fact  of  renewal  was  communicated, 
and  if  that  was  not  done  the  company  could 
not  subsequently  repudiate  liis  acts.  Franklin 
Fire  Ins.  Co.  v.  Masfey,  33  Penn.  St.,  221. 

24.  B.  was  authorized  to  make  contracts  for 
his  principals,  who  furnished  him  with  blank 
policies,  to  be  delivered  after  the  necessary 
matter  should  be  written  into  them,  and  by 
him  countersigned.  Held,  the  jury  were  au- 
thorized in  finding  that  he  had  authority  to 
waive  particulars  of  the  loss.  Imperial  Fire 
Ins.  Co.  V.  Murray,  73  Penn.  St.,  13. 

25.  Stipulated:  "To  be  void  if  assigned 
without  written  consent  of  the  secretary."  It 
was  assigned  and  consented  to  by  an  agent 
whose  custom  it  was  to  give  such  consent,  and 
to  report  monthly,  upon  blanks  furnished  by 
the  company  for  that  purpose,  and  this  assign- 
ment was  immediately  reported.  Held,  insur- 
ers could  not  reject  the  claim  on  the  ground 
that  the  agent  had  not  authority  to  consent, 
if  it  appeared  that  he  was  in  the  habit  of 
doing  so,  and  insurers  had  ratified  his  acts. 
Farmers  Mut.  Ins.  Co.  v.  Taylor,  73  Penn.  St., 
342. 

26.  S.  was  insurer's  agent  fm-  receiving  and 
transmitting  applications  for  insurance.  Held, 
if  he  by  mistake  sent  an  application  to  his 
principals  which  was  erroneous,  and  not  au- 
thorized by  insured,  he  committed  an  error  in 
the  performance  of  a  duty  for  which  insurers 
had  employed  him  solely  as  their  agent,  and 
they  must  bear  the  consequences  of  his  mis- 
take or  carelessness  (citing  Wing  v.  Ilarvey,  5 
I)e  G.,  M.  &  G.,  265).  Wilson  v.  Comoay  Fire 
Ins.  Co.,  4  R.  I.,  141. 

27.  Insurers  executed  a  receipt  and  deliv- 
ered it  to  their  agent  S.,  who  delivered  it  to 
insured,  who  gave  his  promissory  note  for  tlie 
premium.  Held,  a  limitation  of  the  authority 
of  S.  could  not  affect  the  plaintiff,  unless  no- 

538 


tice  of  it  were  brought  home  to  him.    Jfowrjf 
V.  Home  Life  Ins.  Co.,  9  R.  I.,  340. 

28.  The  agent  was  authorized  to  receivo 
applications  to  examine  the  premises  to  be  in- 
sured, determine  the  character  of  tlie  risk, 
agree  upon  the  amount  to  bo  insured  and  the 
premium,  and  to  receive  such  portion  of  it  as 
was  to  be  paid  in  hand,  and  to  take  the  obli- 
gation of  the  party  insured,  with  such  security 
as  he  might  approve  for  any  future  liability. 
Held,  the  principal  was  bound  to  affirm  his 
acts,  and  could  not  refuse  to  ratify  the  con. 
tract  except  for  fraud  or  mistake,  and  this, 
notwithstanding  the  agent  testified  that  he  h.ad 
no  authority  to  bind  his  principal,  and  the 
written  application  was  subject  to  the  princi. 
pal's  approval.  Palm  v.  Medina  County  Mutual 
Fire  Ins.  Co.,  20  Ohio,  529. 

29.  G.'s  principals  supplied  him  with  in- 
surance  certificates  signed  in  blank,  in  which 
he  was  to  write  the  consideration,  the  subject 
matter,  and  term  of  insurance,  to  receive  the 
premium,  and  to  deliver  them  to  applicants. 
Conditioned :  "  Or  should  the  risk  not  bo  ac- 
cepted, and  the  above  sum  of  money  refunded 
to  applicant,  then  this  receipt  is  void  and  of 
no  effect."  G.  filled  into  one  of  them  the  sub- 
ject of  this  contract,  and  delivered  it  with  the 
foregoing  condition  erased.  Held,  unless  in- 
sured procured  G.  to  strike  out  the  condition, 
it  was  an  absolute  contract.  For  insurers  held 
out  G.  as  having  apparent  authority  to  deliver 
the  paper,  with  or  without  the  condition ; 
that  delivering  it  with  the  condition  erased 
was  not  notice  that  G.  exceeded  his  authority, 
because  insured  had  no  means  of  knowing 
whether  the  erasure  was  made  before  or  af- 
ter the  principal  executed  it.  Dayton  Ins. 
Co.  V.  Kelly,  24  Ohio  St.,  345. 

30.  The  insurer's  agent  received  an  addi- 
tional premium,  for  permission  to  remove  tlie 
building  to  another  localitj-,  and  gave  consent 
in  writing  to  remove  it  to  the  place  named 
The  eompan)'  received  the  money  and  thei> 
denied  that  the  agent  had  any  authority  to 
make  the  agreement.  Ueld,  the  insurer  was- 
bound  by  the  act  of  the  agent.  New  England 
Fire  and  Marine  Ins.  Co.  v.  Schettler.  38  111., 
160. 

31.  Insured  went  to  the  insurer's  place  of 
business  for  the  purpose  of  adjusting  his- 
claim;  the  secretary  and  general  agent  deter- 
mined the  amount  to  be  paid  in  the  presence 
of  insurer's  president,  and  with  his  silent  ac- 


1073 


PRINCIPAL  AND  AGENT. 


1074 


When  principal  is  bound. 


quiescence,  agreed  to  pay  a  stipulated  amount 
of  money  in  ninety  days  from  that  date. 
Held,  tbe  agreement  was  binding,  notwith- 
standing the  company's  charier,  read  in  evi- 
donee,  provided,  "  The  affairs  of  the  company 
ahall  be  managed  by  a  board  of  directors,  who 
■aiay  appoint  an  e.veculive  commillee  who  may 
exercise  all  the  powers  of  the  company  when 
the  board  is  not  in  session,  unless  forbidden 
by  its  by-laws."  Farmen  and  Mercluinta  Ins. 
Co.i>.  CTwsnui,  50  111.,  111. 

32.  The  agent  was  authorized  to  take  risks 
in  Nebraska  City ;  he  took  one  in  Cass  county, 
some  distance  from  the  city.  He  had  autlior- 
ily  to  make  contracts  for  insurance  and  to  is- 
sue policies.  Held,  the  company  could  not  be 
permitted  to  say  that  the  agent  acted  beyond 
the  scope  of  this  authority,  unless  insured 
was  informed  of  and  knew  the  precise  extent 
of  the  authority  conferred,  ^tiia  Ins.  Co.  v. 
Muguire,  51  111.,  342. 

33.  Insurer's  agents  were  asked  to  consent 
to  a  convej-ance  of  the  property  insured,  and 
they  agreed  that  the  contract  should  be  good 
until  the  policy  could  be  brought  from  St. 
Louis,  and  the  proper  indorsement  made. 
Held,  the  company  was  bound  by  the  agents' 
promise,  and  the  fact  that  insurer  was  a  mutual 
company  was  immaterial.  Illinois  Fire  Ins. 
Co.  V.  Stanton,  57  111.,  354. 

34.  Stipulated:  "Agents  are  prohibited 
from  altering  or  discharging  contracts,  or 
waiving  forfeitures."  Held,  the  words  of  the 
policy  were  not  conclusive  on  the  parlies,  be- 
cause it  was  within  the  power  of  the  com- 
panj',  acting  through  its  agents,  to  change  or 
dispense  with  the  p.ayments  provided  for  in 
the  policy,  and  to  adopt  a  mode  and  time  of 
payment  entirely  different.  In  such  cases  the 
question  is,  not  what  power  the  agent  had,  but 
what  power  did  the  company  hold  him  out  to 
the  public  as  possessing.  Eclectic  Life  Ins. 
Co.  V.  Fahrcnkrug,  68  111.,  463. 

3.5.  The  defendant's  agent  accepted  a  risk 
of  $5,500  in  a  certain  warehouse.  The  insurer 
offered  to  prove  that  the  agent  Iiad  authority 
to  t.ake  risks  to  a  limited  sura  in  the  ware- 
house; and  that  before  this  risk  was  accepted, 
that  limit  had  been  reached.  Held,  inadmis- 
sible unless  insurer  would  undertake  to  prove 
that  insured  had  notice  of  the  limitation;  for 
the  insurer  could  not  be  permitted  to  shield 
itself  behind  the  act  of  its  agent  (111.  S.  C). 
Hartford  Ins.  Co.  v.  Farrish  5  Ins.  L.  J.,  46. 


36.  K.  wrote  letters  and  signed  receipts  as 
general  agent.  Held,  his  declarations  to  the 
plaintiff,  after  her  husband's  death,  .that  he 
had  no  doubt  the  company  would  pay  the 
claim,  were  .admissible,  notwithstanding  he 
h'ul  no  authority  to  adjust  losses  (111.  S.  C). 
Home  Life  Ins.  Cu.  s.  Pierce.  5  Ins.  L.  J.,  290. 

37.  Clerk  in  insurers'  office  made  a  ma. 
tcrial  alteration  in  the  policy.  Insurers 
proved  he  had  no  authority  to  make  or  alter 
contracts  for  them;  but  it  was  also  proved 
that  he  made  the  same  alteration  in  insurers' 
records.  Held,  an  effectual  notice  to  insurers. 
Washington  Fire  Ins.  Co.  v.  Davison,  30  Md., 
91. 

38.  Action  on  a  bill  of  exchange,  drawn  in 
the  name  of  defendant  by  its  general  agent, 
in  favor  of  O.,  in  payment  of  a  loss  which  he 
had  sustained  by  fire,  on  property  insured  by 
defendant.  Evidence  was  given  to  prove  that 
the  agent  had  drawn  similar  bills  in  like 
cases,  and  they  had  been  paid  by  the  com- 
pany. Held,  a  recognition  by  the  principal 
of  an  agency  in  similar  instances  was  evi- 
dence of  the  authority  of  the  agent  (citing 
Stothard  v.  Aul,  7  Mo.,  318).  Fayles  v.  Na- 
tional Ins.  Co.,  49  Mo.,  380. 

39.  Certain  plats  were  delivered  to  the  de- 
fendant's agent.  Held,  a  delivery  to  the  de- 
fendant. Moore  v.  Atlantic  Mat.  Ins.  Co.,  5ft 
Mo.,  343. 

40.  Where  persons  deal  with  an  officer  of  a 
corporation  who  assumes  authority  to  act  in 
the  premises,  and  no  want  of  authority  or  ir- 
regularity is  brought  to  the  knowledge  of  the 
party  dealing  with  the  corporation,  and  noth- 
ing occurs  by  which  the  party  dealing  could 
have  reason  to  suppose  that  the  officer  is 
not  authorized,  the  corporation  is  bound,  al- 
though the  agent  exceeded  his  powers  (cit- 
ing  Merchants  Bank  v.  State  Bank,  10 
Wall.,  644).  Lungstrass  v.  German  Ins.  Co., 
57  Mo.,  107. 

41.  The  limited  authority  of  an  agent  can- 
not affect  the  rights  of  third  persons,  if  the 
acts  of  the  principal,  or  the  acts  of  the  agent 
permitted  by  the  principal,  were  such  as  to  in- 
duce a  belief  that  he  had  general  or  unlimited 
powers.  Keenan  v.  Missouri  State  Ins.  Co., 
12  Iowa,  126.  And  if  a  special  agent  has 
notice  of  a  fact  which  ought  to  be  made 
known  to  his  principal,  it  is  his  duty  to  give 
notice  of  it  —  his  failure  to  do  so  cannot 
prejudice  the  rights  of  third  persons;  but  tlu» 

537 


1075 


PRINCIPAL  AND  AGENT. 


107G 


When  pilncipal  is  bound. 


agent  is  not  bound  to  notice  mere  rumors  and 
general  conversation,  tliough  thcj'  relate  to 
the  fact.    Ibid. 

42.  If  the  agent  has  authority  to  cancel 
policies  for  increase  of  risk,  he  has  authority 
to  determine  whether  the  risk  is  increased ; 
and  this  involves  the  necessity  of  examination 
during  the  term  insured,  and  constant  watch- 
fulness to  protect  the  interest  of  his  princi- 
pals. It  follows,  he  is  clo  hcd  with  power  to 
despense  with  conditions,  and  waive  the  effects 
of  the  breaches  thereof,  for  if  he  can  put  an 
«nd  to  the  contract  on  account  of  increase  of 
risk  and  a  consequent  forfeiture,  he  can  waive 
the  forfeiture  (citing  Peoria  Marine  and  Fire 
Ins.  Co.  V.  Hall,  13  Mich.,  202;  Warner  ts. 
Peoria  Marine  and  Fire  Ins.  Co.,  14  Wis.,  318; 
Kew  England  Fire  and  Marine  Ins.  Co.  v. 
Schettier,  38  111.,  106).  Viele  v.  Germania  Ins. 
Co.,  20  Iowa,  9. 

43.  Insured  sustained  a  loss,  and  insurer's 
agent,  who  had  issued  the  policy,  accepted  the 
order  of  the  insured  in  favor  of  another  per- 
son, "Payable  out  of  any  moneys  to  become 
<lue  to  the  insured  when  the  loss  shall  be  ad- 
.iusled."  He  had  authorit}'  to  assent  to  assign- 
ments and  transfers.  A  circular  issued  by  the 
insurer's  agent  stated  that  losses  under  poli- 
cies issued  at  his  agenc}-  would  be  paid 
through  him,  and  another  circular  stated  that 
losses  would  he  paid  in  bankable  funds.  Held, 
proper  evidence  for  a  jury,  from  which  they 
could  infer  that  the  agent  had  authority  to  ac- 
cept the  order.  Miller  v.  Plimiix  Ins.  Co.,  27 
Iowa,  203. 

44.  P.  &  S.,  copartners,  conducted  an  agency 
business.  P.  was  authorized  to  countersign 
policies  for  defendant.  S.  testified  that  he  had 
seen  the  officers  of  the  company,  talked  with 
them  about  the  business  of  the  tirm  ;  that  the}- 
kuew  he  was  with  P.,  and  that  he  had  written 
business  letters  to  the  company.  Held,  suffi- 
cient to  let  in  proof  that  S.  told  insured  he 
need  not  give  notice  of  the  loss;  and  sufficient 
also  to  let  in  proof  that  a  certificate  of  the 
justice  nearest  to  the  loss  was  waived.  Kew- 
man  v.  Springjield  Fire  and  Marine  Ins.  Co., 
17  Miim.,  123. 

45.  One  of  the  powers  conferred  upon  the 
corporation  was  to  borrow  money  and  issue 
their  bonds  therefor;  this  was  an  instrument 
without  seal.  Held,  the  authorized  agents  of 
the  corporation  could  bind  it  by  simple  or 
sealed  instruments  (citing  Bank  of  Columbia 

538 


V.  Patterson,  7  Cranch,  299).    McCtdlougk  e. 
Talladega  Inn.  Co.,  40  Ala ,  376. 

46.  Stipulated:  "If  the  first  annual  pre- 
mium  shall  have  been  fully  paid,  and  default 
shall  be  made  in  the  p.ayment  of  any  premiums 
thereafter  to  become  due,  then  such  default 
shall  not  work  a  forfeiture  of  the  policy;  but 
if  it  be  surrendered  within  thirty  days  after 
such  default,  this  company  will  issue  a  paid 
policy  for  the  amount  which  could  be  bought 
by  the  net  value  of  this  policy  (the  value  to  be 
determined  on  the  basis  and  assumptions  con- 
tained in  section  29  of  an  act  of  Missouri  for 
the  regulation  of  life  assurance,  approved 
March  10,  1869),  considered  as  a  gross  single 
premium,  according  to  the  single  premium 
rates  of  this  company."  The  premiums  were 
payable  semi-annually,  on  the  first  of  June 
and  December.  The  policy  was  dated  June 
1,  1870.  The  second  semi-annual  premium 
was  paid  after  it  was  due,  being  more  than 
thirtj-  days  from  December  1st,  to  S.,  who  was 
acting  for  P.,  defendant's  local  agent  at  Mo- 
bile. The  third  semi-annual  premium  falling 
due  June  1,  1871,  was  not  paid  until  October 
9th,  when  S.  received  the  monej'  from  iusured, 
who  was  then  sick  in  bed,  carried  it  to  the 
office  of  P.  and  delivered  it  to  K.,  who  had 
charge  of  the  office  and  of  defenadnt's  pre- 
mium receipts.  K.  accepted  the  money  and 
delivered  the  proper  receipt  to  S.  He  died 
four  days  after.  Nothing  was  said  about  his 
sickness  at  the  time  the  premium  receipt  was 
delivered.  Defendant  refused  to  allow  P.  to 
make  any  accounting  for  the  premium,  di- 
rected him  to  return  it,  and  rejected  the  claim. 
The  policy  had  this  printed  indorsement: 
"  Notice  to  policy  holders.  Agents  are  not 
authorized  to  make,  alter  or  discharge  con- 
tracts, waive  forfeitures,  or  bind  the  company 
in  any  way,  their  duties  being  simpl}'  the  re- 
ception and  transmission  of  applications  for 
policies,  and  premiums,  under  the  rules  and 
instructions  laid  down  in  their  letters  of  ap- 
pointment."  Held,  if  the  principal  permits  his 
agent  to  exceed  authority  previously  defined 
and  limited,  he  is  bound  by  any  departure 
from  it  which  third  persons  may,  from  the 
agent's  conduct,  reasonably  attribute  to  his 
authority  (citing  Golding  r.  Merchant,  43  Ala., 
705).  If  P.  accepted  the  premium  aud  sanc- 
tioned the  delivery  of  the  receipt  when  in- 
formed of  the  facts,  and  the  defendant's  con- 
duct had  been  such  as  authorized  insured  to 


lo; 


PglNCIPAL  AND  AGENT. 


1078 


When  pi-incipal  is  boimd. 


believe,  when  he  mack  the  payment,  that  tlie 
agent  had  autliority  to  waive  tlie  default,  llien 
the  principal  \yas  bound.  The  health  of  in- 
sured at  lliat  lime  could  have  no  effect  further 
than  evidence  teniling  to  show  whether  there 
was  or  was  not  a  waiver  of  payment.  Mound 
City  Life  Iiw.  Co.  v.  Uuth,  49  Ala.,  529. 

47.  Insurers  had  an  agent  at  Savannah  au- 
thorized to  take  and  revoke  risks.  Ilehl,  ho 
liad  authority  to  consent  to  other  prior  or  sub- 
siHjuent  insurance,  and  it  was  immaterial 
wlielher  his  consent  was  in  writing  or  parol. 
Carrugi  v.  Atlantic  Fire  Ins.  Co.,  40  Ga.,  13.5. 

48.  An  agent  authorized  by  power  of  attor- 
ney to  underwrite  ships  for  his  principal  under 
the  terms,  restrictions,  and  regulations  of  a 
bociety  name.  The  agent  agreed  on  behalf  of 
his  principal  to  insure  a  ship  for  a  term  uieu- 
tiuned.  Siie  was  lost  before  the  policy  was 
executed,  and  with  knowledge  of  the  loss  the 
agent  executed  the  polic}'.  Jleld,  he  had  the 
light  to  execute  it.  Mead  v.  Davidson,  3  A.  & 
E.,  303;  4  L.  J.  (N.  S.)  K.  B.,  193;  4  N.  &  M., 
701. 

49.  Policj'  uponalife  was  assigned,  of  which 
notice  was  given  to  a  person  who  acted  as  the 
compau}''s  agent  in  transmitting  premiums  and 
instructions  for  policies,  and  who  settled  losses 
for  the  company,  and  received  agency  fees 
therefor.  It  was  proved  that  the  company  had 
authorized  him  to  receive  notices  of  assign- 
ment, and  had  agreed  that  notice  to  him  sliould 
be  as  valid  as  notice  to  them  at  their  office. 
lie  received  notice  of  the  assigument,  not  as 
tlie  agent  of  the  company-,  but  in  liis  capacity 
as  attorney  for  the  assignee.  Held,  where  two 
capacities  are  united  in  one  person,  a  notice 
received  in  either  is  an  effectual  notice  in  both. 
■Gale  c.  Lewis,  9  Q.  B,  730;  IG  L.  J.  Q.  B., 
119. 

50.  A.  was  authorized  to  sign  policies  for 
B.  Held,  he  was  authorized  to  adjust  losses. 
Frazer  v.  Oalloway,  Faculty  Dec,  1808  to  1810, 
p.  298. 

51.  It  was  proven  that  the  person  who 
signed  the  policy  had  been  in  the  constant 
habit  of  signing  policies  by  the  name  of  the 
defendant.  Held,  sufficient  to  show  that  the 
defendant  held  him  out  to  the  world  as  prop- 
erly authorized.  Neal  v.  Frving,  1  Esp.,  61 ; 
Hichardson  v.  Anderson,  1  Camp.,  43  n.; 
Jlaurjhton  v.  Eubank,  4  id.,  88. 

52.  The  policy  was  subscribed  by  B.,  de. 
fcndant's  agent,  who  afterwards  agreed  to  refer 


the  claim  to  arbitrators,  and  they  made  their 
award.  Held,  sufficient  f.)  render  the  award 
binding  on  the  defendant.  Ooodton  v.  Brooke, 
4  Camp.,  1C3.  ' 

53.  Proof  that  the  agent  had  signed  similar 
memorandums  on  many  other  iiolicies.  and  his 
habit  was  to  do  so  and  advise  the  company. 
Held,  sufficient  proof  of  his  authority  to  sign 
that  in  question;  tliat  the  jiapers  contain- 
ing his  signatures  need  not  be  produced. 
Brockelhank  v.  Sugrue,  5  C.  &  P.,  21 ;  1  Moo.  & 
R.,  103;  1  B.  &  Ad.,  81;  8  L.  J.  K.  B.,  371. 

(b)  Of  the  adu  of  the  agenfs  clerk, 
Tjroker  or  soLicitcr, 

54.  Time  policy  on  ship,  to  expire  October 
5th.  An  agent  agreed  that  it  should  be  ex- 
tended  till  she  arrived  at  the  point  of  destina- 
tion. She  was  wrecked  on  the  7th.  Prior  to 
the  former  date  he  was  notified  that  his  author- 
ity had  been  revoked,  but  the  committee,  to 
whom  the  matter  of  his  agency  had  been  re- 
ferred, had  made  arrangements  with  him  by 
which  lie  was  to  receive  applications  fur  in- 
surance and  reinsurance,  to  be  submitted  to 
the  office  for  approval,  and  that  he  should 
made  the  applications  binding  until  the  in- 
sured should  have  notice  that  they  were  dis- 
approved. Held,  he  had  authority  to  extend 
the  policy,  and  that  the  insurer  was  liable  for 
the  loss.  Leels  v.  Mechanics  Ins.  Co.,  8  N.  Y., 
351. 

55.  T.  effected  the  insurance,  and  received 
a  commission  from  another  agent  of  the  com- 
pany for  doing  it.  Held,  T.  was  an  agent  of 
the  company.  Meadowcraft  v.  Standard  Ins. 
Co.,  61  Penn.  St.,  91." 

56.  Stipulated:  "If  other  insurance  shall 
be  made  on  the  properly  not  notified  to  this 
corporation,  this  policy  shall  be  void."  A  sub- 
sequent insurance  was  made,  of  which  P.,  an 
agent  of  the  insurer  who  had  effected  the  pol- 
icy, had  notice.  His  appointment  was  in 
writing  to  act  as  surveyor,  and  to  take  appli- 
cations for  insurance.  He  was  never  held  out 
to  possess  any  power  not  included  in  the  ap- 
pointment. Held,  a  prior  insurance  notified 
to  the  agent  at  the  time  tlie  policj'  was  effected 
was  within  tlie  scope  of  his  authority;  but  ho 
was  not  an  agent  to  receive  notice  of  subse- 
quent insurance.  Keversing  s.  c,  16  Barb., 
511  (WuiGHT  and  Mitcheli-,  JJ.,  dissenting). 
Wilson  V.  Gciiessee  Mut.  Ins.  Co.,  14  N.  Y.,  418. 


1079 


PRINCIPAL  AND  AuENT. 


1080 


Wlien  principal  is  bound. 


57.  Policy  for  one  year;  the  name  of  W. 
was  indorsed  upon  it  as  agent  for  the  com- 
pau}'.  Conditioned:  "  No  insurance,  whetlier 
original  or  continued,  shall  be  binding  until 
actual  payment  of  the  premium."  The  son 
of  W.  had  acted  as  his  clerk  and  assistant  for 
some  years,  and  it  was  his  custom,  acting  in 
behalf  of  his  father,  to  procure  policies  and 
renewal  certificates  from  this  company,  and 
to  deliver  them  without  receiving  the  premi- 
um from  the  persons  insured.  He  delivered 
a  certificate  renewing  this  jiolicy  for  one  year, 
■without  e.xacting  payment  of  the  premium; 
and  a  loss  occurred  before  it  was  paid.  IIcUl, 
the  maxim,  delegatus  non  potest  delegare,  did 
not  apply.  Story  on  Agency,  §  14.  That  an 
insurance  agent  can  authorize  his  clerk  to 
contract  risks,  deliver  policies,  collect  premi- 
ums, take  payment  of  premiums  in  cash  or 
securities,  and  to  give  credit  for  premiums. 
The  act  of  the  clerk  in  such  cases  is  the  act  of 
the  agent,  and  binds  the  company  as  effectu- 
ally as  if  it  were  done  by  the  agent  in  person. 
Held,  also,  delivering  the  renewal  certificate 
to  the  agent's  clerk  clothed  him  with  apparent 
authority  to  deliver  it  to  the  insured  without 
exacting  paj'ment  of  premium,  and  his  deliv- 
ery, without  exacting  pa3'ment  of  premium, 
waived  the  condition  mentioned.  Bodine  v. 
Hxehange  Fire  Ins.  Co.,  51  N.  T.,  117. 

58.  Stipulated:  "  If  any  agent  of  this  com- 
pany, in  the  transaction  of  their  business,  shall 
assume  to  violate  these  conditions,  such  viola- 
tion shall  be  construed  to  be  the  act  of  the  in- 
sured, and  shall  render  void  this  policy."  Held, 
as  to  all  preliminary  negotiations,  the  agent, 
who  solicited  the  insurance  and  wrote  out  the 
application,  was  the  agent  of  the  insurers,  and 
not  of  the  insured.  Columbia  Ins.  Co.  v. 
Cooper,  50  Penn.  St.,  331. 

59.  Insurer's  agent  filled  up  the  application 
and  insured  signed  it.  The  agent  told  insured, 
that  by  the  rules  of  the  company  the  doings  of 
the  agent  were  not  binding  upon  the  company 
as  to  rates.  Insured,  therefore,  paid  $12  more 
than  enough  for  the  premium ;  the  agent  said, 
that  the  payment  of  premium  was  necessary 
to  make  the  insurance  take  eflect;  and  upon 
this  application  a  policy  was  issued;  it  also 
appeared  that  the  officers  of  the  company  had 
told  the  agent  that  he  must  consider  himself 
the  agent  of  the  insured  rather  than  of  the 
company.  Held,  a  caution  of  that  kind  could 
not  be  regarded  as  changing  the  company's 

540 


agent  into  an  agent  for  the  insured.    Belet  v. 
Hartford  Mat.  Itu<.  Co.,  25  Conn.,  51. 

60.  The  agent  was  authorized  to  procure 
applications  for  insurance;'  the  company 
supplied  him  with  printed  blanks  containing 
interogatories  to  be  answered  by  the  applicant. 
Held,  the  agent  had  authority  to  agree  with 
the  applicant  as  to  the  terms  which  should  be 
used  to  express  the  facts  intended  to  be  staled 
in  the  answers.  Malleable  Iron  Worlis  v.  Phmnis 
Ins.  Co.,  25  Conn.,  465. 

61.  Stipulated:  "Any  person  other  than 
the  insured,  who  may  have  procured  this  in- 
surance to  have  been  taken  by  this  company, 
shall  be  deemed  to  be  the  agent  of  the  insured 
named  in  this  policy,  and  not  of  this  com- 
pany under  .any  circumstances  w^hatever." 
H.,  an  insurance  agent,  made  application  to 
the  general  agent  of  the  insurer  for  a  policy 
which  was  sent  to  H.  f(jr  him  to  deliver  to 
insured  and  to  collect  the  premium.  Held, 
the  words  of  the  stipulation  had  "  no  magic 
power  residing  in  them  capable  to  transmute 
the  real  into  the  unreal,  nor  had  they  power 
to  make  the  agent  of  the  company  the  agent 
of  the  insured."  Commercial  Ins.  Co.  v.  Ives, 
56  111.,  403. 

62.  J.,  insurer's  resident  agent  at  Chicago, 
was  officially  designated  "  manager,"  and 
had  in  his  employ  a  clerk  and  a  bookkeejier. 
J.  authorized  S.  to  solicit  applications  for 
policies,  to  deliver  them  and  to  collect  the 
premiums.  For  such  services  S.  was  to  receive 
forty  per  cent,  on  the  first  year's  premium. 
S.  received  an  application  —  serai-annual  pre 
raiums,  $25.49.  He  took  the  policy  to  insured 
and  received  the  first  serai-annual  premium. 
About  two  months  thereafter,  S.  suggested  to 
insured  the  propriety  of  paying  the  second 
semi-annual  premium  before  it  was  due,  to 
which  insured  responded  by  making  pa3-- 
ment,  taking  the  receipt  of  S.  for  the  whole 
year's  premium.  A  few  days  thereafler  she 
scut  the  receipt  to  the  office  of  J.  and  asked 
to  have  the  second  semi-annual  payment  re- 
funded because  it  was  not  due.  A  person, 
engaged  at  a  desk  in  the  office,  examined  the 
receipt  and  stated,  that  J.  was  at  Detroit,  that 
application  must  be  made  to  him  on  his 
return.  A  second  request  to  refund  the  money 
w'as  made  at  the  office,  when  the  clerk  in- 
formed the  applicant  that  J.  had  not  returned, 
that  the  money  could  not  be  refunded  because 
insured  had  elected  to  make  the  payment  be- 


1081 


PRINCIPAL  AND  AGENT. 


1082 


When  priiicii^al  is  bouml. 


fore  it  was  due.  Held,  J.  had  tlie  right  to 
authorize  S.  to  contract  for  risks,  to  deliver 
policies  and  to  collect  premiums;  that  the  act 
of  S.  ill  such  cases  was  I  he  act  of  J.,  and  hound 
the  company  as  effectually  as  if  it  were  doue 
by  J.  in  person.  The  maxim,  delegatus  non po- 
test delegare  docs  not  apply  in  such  a  case  (cit- 
ing Bodine  v.  Exchange  Ins.  Co.,  51  N.  Y.,  123;. 
Hence,  the  paj-ment  to  S.  was  a  valid  pay- 
ment to  the  company.  Eclectic  Life  Ins.  Co. 
V.  Fuhreiikrug,  68  111.,  4G3. 

6i5.  Stipulated:  "Not  valid  until  counter- 
signed by  J.  A.  Corby."  Defendants  sup- 
plied Corby  with  policies  executed  in  blank 
for  him  to  write  in  the  subject  matter,  the 
amount  of  premium  and  to  deliver  them  to 
persons  elleeting  insurance  with  the  com- 
pany. The  policy  was  filled  up  by  B.  and 
countersigned  "  J.  A.  Corby  by  B."  Evidence 
was  given  tending  to  prove  that  Corby  and  B. 
occupied  the  same  (jffice,  that  B.  had  authority 
to  solicit  insurance  for  Corby,  to  till  up  pol- 
icies and  to  countersign  them  for  him;  that 
he  filled  up  this,  countersigned,  and  delivered 
it  to  the  plaintiff,  as  he  had  done  in  many 
other  instances;  that  the  plaintiff  paid  a  part 
of  the  premium,  .|20,  to  B.,  and  subsequently 
tlje  balance  of  it,  $10,  to  Cori<y,  who  examined 
the  policy  and  returned  it  to  the  jilaintiff. 
Corby  wiis  examined  as  a  witness,  and  denied 
that  any  of  the  premium  was  ever  paid  to 
him,  that  he  ever  delivered  the  policy  to  the 
plaintiff,  that  he  ever  gave  authority  to  B.  to 
ci)untersign  policies  for  him,  or  that  he  ever 
reported  this  policy  to  the  company.  The 
court  refused  to  admit  the  execution  of  the 
policy  and  compelled  the  plaintiff  to  take  a 
nonsuit.  Ueld,  error,  for  there  was  evidence 
upon  which  thejury  would  have  been  justified 
in  finding  execution  luid  delivery  of  the 
policy.  Grady  v.  American  Central  Ins.  Co., 
«0  Mo ,  llfi. 

64.  A.  was  authorized  to  receive  applica- 
tions, issue  policies,  and  receive  premiums, 
lie  delivered  a  policy  to  insured,  which,  by  its 
printed  terms,  prohibited  other  insurance. 
Subsequently  it  was  returned  to  him,  and  he, 
beinff  asked  to  give  permission  to  make  other 
insurance,  wrote  upon  it,  "Oilier  insurance 
permitted  without  notice  until  required." 
Held,  the  permission  was  within  the  scope  of 
his  authority.  Warner  v.  Peoria  Marine  and 
Fire  Ins.  Co.,  U  Wis.,  318. 

65.  P.  &  S.,  copartners,  doing  busiiiess    i3 


insurance  agents.  Insurers  supplied  theiu 
with  blank  policies,  to  be  filled  up  and  deliv- 
ered  in  pursuance  of  any  contract  or  contracts 
made  with  the  applicant,  but  not  to  be  valid 
until  countersigned  by  P.  Held,  P.  alone 
might  be  authorized  to  countersign,  and  yet  P. 
&  S.  be  insurers'  agents  in  other  respects;  if 
S.  had  possession  of  the  policy,  filled  it  up  in 
accordance  with  the  terms  of  the  bargain,  and 
P.  countersigned  it,  and  then  insured  got  ii  from 
the  firm  of  P.  &  S.,  there  was  evidence  tending 
to  show  that  P.  &  S.  were  authorized  to  act  for 
insurers  in  the  business.  Newman  v.  Spring- 
field Fire  and  Marine  Ins.  Co.,  17  Minn.,  123. 

66.  A.  &  B.  were  copartners  as  insurance 
agents,  and  joint  agents  of  some  companies ; 
but  A.  was  sole  agent  of  others,  and  B.  was  sole 
agent  of  others.  In  the  absence  of  A.,  a  pol- 
icy of  insurance  was  issued  by  B.  for  one  of 
the  companies  of  which  A.  was  sole  agent;  it 
was  conditioned  "Not  valid  until  counter- 
signed by  an  authorized  agent."  But  B. 
countersigned  it  by  the  firm  of  A.  &  B.,  and 
the  risk  was  reported  to  the  general  agent  at 
Erie,  who  held  it  under  advisement  and  then 
ordered  the  agent  to  cancel  it.  The  reinsured 
had  not  any  notice  that  the  general  agent  was 
dissatisfied  with  the  risk,  nor  was  any  offer 
made  to  refund  the  premium  until  long  after 
the  property  was  consumed.  Held,  it  was  not 
necessary  to  determine  whether  A.  could  au- 
thorize B.  to  act  in  his  stead  as  agent  for  the 
company,  because  when  A.  returned,  he  was 
informed  as  to  what  B.  had  done,  and  uo 
steps  were  taken  to  undo  it ;  nor  was  any  of- 
fer made  to  return  the  premium  and  cancel 
the  contract.  That  the  general  agent  waa 
advised  of  the  absence  of  A.  at  the  time  the 
policy  was  issued,  and  he  did  not  repudiate 
the  act  of  B.  That  these  facts  ratified  the  act 
of  B.  who  countersigned  the  policy,  and  thcre- 
fors  the  reinsurer  was  liable  (citing  .^tna  Ins. 
Co.  V.  Maguire,  51  111.,  342;  Insurance  Co.  v 
Webster,  6  Wall.,  129).  United  Life  Ins  Co.  v. 
Insurance  Co.  of  North  America,  42  Ind.,  588. 

67.  C.  was  appointed  agent  to  contract  in- 
surances for  the  defendants  on  first  class  lives, 
not  exceeding £2,000  on  each.  Ilis  acceptance 
of  all  risks  to  be  signified  by  a  memorandum 
signed  by  him  and  N.,  the  company's  medical 
ofticer.  Policies  to  be  issued  by  principals 
upon  receipt  of  the  memorandum.  E.  &  W. 
acted  as  subagents  for  C.  They  signed  tlie 
mcmoriiul'im,  and  the  medical  officer  affixed 

541 


10S3 


PRINCIPAL  AND  AGENT. 


108+ 


When  the  ijrincipal  is  not  bound. 


his  signature,  and  E.  &  W.  granted  a  receipt 
for  tlie  annual  premium  in  the  name  of  C, 
"  by  E.  &  W."  Held,  the  contract  was  entered 
into  by  C,  notwithstanding  the  papers  were 
.signed  by  E.  &  W.  Affirmed  by  the  Lord 
Justices,  July  9,  1859.  liossiter  v.  Trafdlgar 
Life  Ass.  Ass'ii,  27  Beav.,  STT. 


II.  When  the  peincipal  is  not  bound. 

(a)  Of  the  acts  and  hnowledge  of  the 
agent. 

1.  The  charter  provided:  "  Every  contract, 
bargain  and  other  agreement  shall  be  in  writ- 
ing or  print,  under  the  corporate  seal,  and 
signed  by  the  president,  or  in  his  absence  or 
inability  to  serve,  by  the  vice-president  or  oth- 
er officers,  etc.,  and  duly  attested  by  the  secre- 
tary or  other  officers,"  etc.  The  plaintiff,  a 
broker,  applied  for  insurance  on  a  boat  for  a 
definite  amount,  was  informed  that  it  would 
be  taken ;  but  the  company  sent  to  the  broker 
its  own  policy  for  a  part  of  the  .sum,  and  the 
policies  of  three  other  companies  for  the  bal- 
ance. The  broker  hesitated  about  taking 
them,  but  the  secretary,  in  a  letter  to  him, 
■wrote,  "  In  handing  the  policies  to  the  jilaint- 
iff,  you  can  saj'  that  if  the  boat  is  not  insured 
in  offices  satisfactory  to  him,  "we  will  have 
them  canceled;  but  though  they  are  not 
reinsurances,  yet  in  case  of  loss  we  feel  our- 
selves bound  for  a  satisfactory  adjustment. 
We  deem  the  companies  good,  and  if  any  par- 
ties can  settle  with  them  we  can."  One  of  the 
substituted  companies  became  insolvent,  and 
a  special  action  on  the  case  was  brought 
against  this  company.  Held,  the  defendant's 
secretary  had  no  general  authority  to  guaran- 
ty the  solvency  of  the  substituted  companies; 
and  if  he  had,  there  was  no  such  guaranty 
proven ;  that  the  letter  undertook  only  to  have 
a  satisfactory  determination  of  the  amount  of 
the  loss  and  its  apportionment  between  the  in- 
surers. Constant  v.  Insurance  Co.,  3  Wall.  Jr., 
313. 

2.  Stipulated:  "The  interest  of  insured  in 
this  policy  is  not  assignable,  unless  by  con- 
sent of  this  corporation,  given  in  writing;  and 
in  case  of  any  transfer  of  the  interest  of  the 
insured,  by  sale  or  otherwise,  without  such 
consent,  the  policy  shall  cease.  Upon  the 
back  of  the  jiolicy  two  blank  assignments 

543 


were  printed,  concluding  as  follows:  "Sub- 
ject,  nevertheless,  to  the   conditions  therein 

contained. .secretary."    These  were 

filled  up,  the  first  to  N.  H.  W.,  and  the  second 
by  him  to  the  plaintiflf.  The  word  "  secre- 
tary "  in  each  was  erased,  and  they  were 
signed  "  H.  A.  Brewster,  agent."  Held,  Brew- 
ster's assent  as  agent  did  not  bind  tlie  insur- 
ers.  Stringham  v.  St.  Nicholas  Ins.  Co.,  42  N. 
Y.  (3  Keyes),  280;  s.  c,  4  Abb.  Dec,  315;  37 
How.  Pr.,  365. 

3.  A.  &  B.  were  agents  for  countersigning 
policies  on  risks  accepted  by  the  company 
Held,  the  court  erred  in  charging  the  jury  that 
A.  &  B.  had  authority  to  waive  preliminary 
proofs  of  loss,  there  being  no  evidence  in  the 
case  tending  to  show  that  the  defendants  ever 
recognized  or  had  knowledge  that  A.  and  B. 
had  waived  proofs  of  loss  on  prior  occasions. 
Authority  to  receive  proposals  for  insurance, 
countersign  and  deliver  policies,  confers  no 
power  to  adjust  losses  or  waive  the  prelimin- 
ary jiroofs  required  by  the  terms  of  the  con- 
tract. N.  Y.  Ct.  of  App.  Bush  V.  Westchester 
Fire  Ins.  Co.,  5  Ins.  L.  J.,  207;  s.  c,  2  N.  Y. 
S.  C,  629. 

4.  W.,  the  general  agent  of  defendant  in 
New  York  cit3-,  was  furnished  with  blank 
policies,  signed  by  the  president  and  secre- 
tary, to  take  eflect  when  countersigned  Ijy 
him.  He  appointed  subagents,  of  whom 
plaintiff  was  one,  gave  them  authority  to 
make  contracts  binding  upon  the  company, 
from  date  of  application  until  referred  to  and 
rejected  by  him.  The  pUuntitf,  a  forwarding 
and  commission  merchant  at  Albanj-,  held  in 
store  for  sale,  as  factor,  a  quantity  of  flour. 
He  wrote  to  W.  in  New  York  for  insurance, 
$4,000 :  the  letter  did  not  reach  W.  until  after  the 
property  had  been  destroyed  by  fire.  After  W. 
knew  of  the  loss  he  filled  up  a  policy  and  sent 
it  to  the  ])laintiS'.  Held,  though  the  sub- 
agent's  appointment  was  authorized  or  ratified 
by  the  company,  he  had  no  authority  to  make 
a  contract  in  his  own  favor.  Bently  v.  Colum- 
bia Ins.  Co.,  17  N.  Y.,  421;  s.  c,  19  Barb.,  595. 

5.  V.  was  authorized  to  receive  applications 
for  insurance  and  to  forward  them  to  defend- 
ants. He  inserted  the  items  of  property  which 
plaintifl'  desired  to  insure,  and  they  affixed 
their  signatures  to  it,  with  the  understanding 
that  V.  should  write  in  the  necessary  answers 
to  the  iuteriogatories.  He  made  no  inquiries^ 
about     incumbrances,    but    inserted    in    it: 


1085 


PRINCIPAL  AND  AGENT. 


1080; 


When  the  principal  is  not  bound. 


"  Tlicre  is  no  incumbnince  except  the  P. 
mortgage."  There  were  other  incuinbranccs. 
Jleld,  the  phuntiff  made  V.  their  agent  to  fill 
up  the  application,  and  they  must  suffer  for 
liis  misrepresentations.  Smith  v.  Empire  Ins. 
Co.,  25  Barb.,  497. 

6.  The  defendant's  general  agent  took  from 
insured  a  note  for  the  premium,  delivered  the 
policy,  and  agreed  to  employ  him  as  medical 
examiner,  and  to  credit  his  fees  against  the 
note.  Held,  the  transaction  was  not  one  which 
would  come  under  the  general  powers  and 
duties  of  the  general  agent;  that  as  the  princi- 
pal had  not  ratified  the  act,  the  note  and  policy 
were  both  void.  Anchor  Life  Tns.  Co.  v.  Pease, 
44  How.  Pr.,  385. 

7.  The  by-laws  of  the  company  provided: 
"  No  policy  shall  be  delivered  until  after  the 
payment  of  the  premium."  The  directors 
voted :  "  Policies  shall  be  considered  canceled 
if  premium  is  not  paid  within  sixty  days  from 
date  of  policy."  Held,  the  pn'sident  of  the 
company  had  no  authority  to  waive  payment 
of  premium,  and  his  assurance  that  "  the  pol- 
icy shall  be  kept  good  for  the  benefit  of  the 
mortgagee,"  to  whom  the  policy  was  made 
payable  in  case  of  loss,  was  immaterial.  Bax- 
ter V.  Chelsea  Mutual  Fire  Ins.  Co.,  1  Allen, 
194. 

8.  The  Mechanics,  the  Union,  and  the  Quin- 
cy  (defendant),  insured  tlie  premises.  The 
two  first  agreed  to  submit  the  question  of  dam- 
ages to  arbitrators.  The  defendant  had  an 
agent  at  the  place  where  the  loss  ocfinred, 
who  acquiesced  in  the  appointment,  of  arbi-. 
trators.  He  was  a  director  in  the  defendant 
company,  being  an  agent  for  about  twenty 
companies  in  Boston.  One  of  his  signs,  ex- 
hibited at  his  oHice,  declared  him  the  agent 
of  the  defendant.  He  had  been,  years  before, 
one  of  the  committee  to  adjust  defendant's 
losses,  had  adjusted,  and  had  been  also  one  of 
the  executive  committee  of  the  defendant  com- 
pany. There  was  evidence  tending  to  show 
that  he  adjusted  losses  for  the  defendant  at 
Boston.  Held,  his  adoption  of  a  referee  pre- 
viously selected  by  other  parties,  was  not 
within  the  scope  of  his  agency,  and  did  not 
bind  the  defendants.  Turner  v.  Quiney  Mut. 
Ins.  Co.,  109  Mass.,  568. 

9.  The  agent  had  authority  to  receive  appli- 
cations for  policies  on  lives,  transmit  them  to 
the  home  oftice,  receive,  countersign  and  de- 
liver policies,  and  collect  the  premiums.  Held, 


his  principal  was  not  chargeable  if  the  agent 
inserted  in  the -application  untrue  and  fraudu- 
lent matters,  notwithstanding  insured  afflxcJ 
the  signature  without  reading  what  the  agent 
liad  written.  R}/an  v.  World  Mutual  Life  Ins. 
Co.,  41  Conn.,  1G8. 

10.  Tlie  application  was  written  by  the  sur- 
veyor of  a  mutual  insurance  company,  who 
omitted  to  set  forth  the  buildings  tliat  were 
within  ten  rods  of  those  insured,  contrary  to 
an  express  condition.  Act  of  incorporation 
made  the  insured  a  member  of  the  corpora- 
tion. Held,  the  surveyor  was  the  agent  of  the- 
insured,  and  the  policy  void.  Susquehanna 
Ins.  Co.  V.  Perrine,  7  W.  &  S.,  3 18. 

1 1.  Tlie  master  gave  a  promissory  note  for 
the  premium,  signed:  "Forsteamer  Glasgow, 
owners,  G.  W.  Johnson,  captain."  Held,  the 
master  could  not  bind  the  owners  by  such  a 
note,  unless  there  w.as  a  custom  upon  which 
the  right  could  be  founded;  tliat  the  custom 
must  be  clear  and  distinct,  not  contradicted; 
that  all  doubt  must  be  wholly  eliminated  from 
it;  that  as  the  evidence  could  not  bear  this 
test,  a  finding  in  favor  of  the  plaintiff  must  he 
set  aside.  Adams  v.  Pittsburg  Ins.  Co.,  7(i 
Penn.  St.,  411. 

12.  The  agent's  authority  was  limited  to  re- 
ceiving and  transmitting  written  applications, 
upon  which  the  directors  were  to  decide 
whether  they  would  enter  into  contract  with 
the  apiilicant,  and  upon  what  terms,  of  which 
the  applicant  had  notice.  Held,  a  policy  is- 
sued upon  an  application  taken  by  the  agent, 
and  transmitted  to  the  directors,  could  not  be 
affected  by  facts  not  stated  in  the  application, 
though  known  by  the  agent,  because  he  w.^s  not 
asent  for  the  purpose  of  receiving  such  notice. 
Wilson  V.  CoMcay  Fire  Ins.  C'o.,  4  R.  I.,  241. 

1.3.  Cox  was  agent  for  insurer,  to  solicit  ai>- 
plicatious  for  insurance,  and  to  countersign 
policies.  He  viewed  the  store  of  insured,  and 
represented  that  he  was  ready  to  obtain  insur- 
ance upon  it.  About  four  weeks  after,  insured 
wrote  Cox,  requesting  him  to  obtain  insur- 
ance on  his  store  and  goods,  in  a  stock  insur- 
ance company;  and  he  procured  a  policy  iu 
ccnnpliance  with  the  wishes  of  insured.  Cox 
signed  the  name  of  insured  to  an  application 
for  the  policy,  and  in  answer  to  an  interroga- 
tory therein  propounded,  stated  that  there  was 
no  mortgase  upon  the  premises.  Tliere  was 
an  outstanding  mortgage  on  the  land  amount- 
ing to  .tiOO.     Held,  the  plaintiff  could  not  re- 

543 


1087 


PRINCIPAL  AND  AGENT. 


1088 


When  the  principal  is  not  bound. 


cover.    Richardson  v.  Maine  Ins.  Co.,  46  Me., 
S94. 

14.  B.,  a  broker,  applied  in  behalf  of  A.,  to 
the  Phoenix  Co.,  for  insurance  upon  steamer, 
and  indorsed  her  age  and  rate  as  A  No.  1,  on 
the  application.  An  agent  of  H.,  the  plaint, 
iff,  called  upon  the  brolier  for  the  purpose  of 
obtaining  insurance  in  behalf  of  him.  B. 
told  him  that  negotiations  were  pending  in 
New  York  for  insurance ;  that  he  would  let 
liim  know  as  soon  as  he  heard  about  it,  and 
B.  then  used  the  same  .application  to  these  in- 
surers f  )r  a  policj'  upon  the  interest  of  plaint- 
iS;  but  no  representations  were  made  to  B.  b}' 
plaintiff's  agent.  Sdd,  the  representations 
made  by  B.,  to  a  different  companj-,  could  not 
affect  the  rights  of  plaintiff,  there  bing  no 
evidence  in  the  case  that  plaintiff  or  his  agent 
adopted  them.  Harmony  Fire  and  Marine 
Ins.  Co.,  V.  nazlelmrst,  30  Md.,  380. 

15.  The  complainant  had  notice  that  the 
agent  had  not  authority  to  make  a  binding 
•contract  to  insure.  Held,  any  contract  made 
by  the  agent  was  not  obligatory  upon  the 
principal,  because  the  complainant  knew  the 
agent  had  not  authority  to  make  it.  Winne- 
sheik  Ins.  Co.  v.  Hvhgrafe,  53  III.,  516. 

16.  The  knowledge  that  the  agent  acquires 
by  rumor,  or  by  information  in  his  individual 
capacity,  and  not  as  agent,  is  not  notice  to  his 
principal  (citing  Fult(m  Bank  v.  New  York 
and  Sharon  Canal  Co.,  4  Paige,  127).  Keenan 
t).  Duhuque  Mutual  Fire  Ins  Co.,  13  Iowa,  375. 

17.  Insurer's  agent  knew  of  an  assignment 
of  the  policy,  but  made  no  objection  to  it. 
He  was  not  asked  to  consent,  and  no  evidence 
was  given  to  -,how  that  he  had  any  power  to 
waive  the  express  condition  of  the  policy  on 
that  subject.  Held,  it  was  error  for  the  court 
to  instruct,  that  if  the  agent  knew  of  the  as- 
signment .and  did  not  object  thereto,  his 
knowledge  and  failure  to  object  would  pre- 
vent the  transfer  from  avoiding  the  policy. 
Ayres  1).  Hartford  Fire  Ins.  Co.,  17  Iowa,  176. 

18.  The  defendant  authorized  A.  to  under- 
write policies  on  marine  risks,  not  exceeding 
£100  by  any  one  vessel.  He  underwrote  a 
policy  for  £150.  It  was  well  known  in  almost 
all,  if  not  in  all  cases,  an  agent  authorized  to 
do  this  kind  of  business  in  Liverpool,  was 
limited  to  a  particular  sum,  but  what  sum  was 
generally  unknown.  Held,  the  whole  contract 
was  void,  as  against  the  defendant.  Baincs  v. 
Swing,  1  L.  R.  Ex.,  320;  4  H.  &  C,  511 ;  35  L. 


J.  Ex.,  194;  14  W.  R.,  782;  14  L.  T.  (N.  S.), 
733. 

19.  The  plaintiff  paid  the  premium  to  de- 
fendant's  agent,  who  took  the  proposal  and 
promised  to  deliver  a  policy.  He  never  sent 
the  premium  to  his  principals,  and  fraudu- 
lently  appropriated  the  money  to  his  own  use. 
There  was  no  evidence  that  he  had  any  author- 
ity either  to  grant  or  agree  to  grant  policies. 
Held,  no  contract.  Lircford  v.  Provincial 
Horse  and  Cattle  Ins.  Co.,  34  Beav.,  291;  10 
Jur.  (N.  S.),  1066;  11  L.  T.  (N.  S.),  330. 

20.  The  company's  agents  were  given  di- 
rections  not  to  take  a  greater  risk  than  £3,000 
at  any  one  place.  They  took  a  risk  on  a 
building  for  £750,  of  which  the  company  w;is 
notified,  and  some  time  thereafter  they  had 
goods  of  their  own  in  the  same  building,  and 
accepted  a  risk  for  themselves  to  the  amount 
of  £3,000,  of  which  they  gave  due  notice  to 
the  company.  After  the  loss  occurred,  the 
company  refused  to  pay  more  than  £3,000  on 
the  whole  loss;  £750  to  the  owner  of  building 
and  £2,250  to  the  agents,  which  was  received 
without  prejudice;  and  this  bill  was  brought 
to  compel  paj-ment  of  the  balance  of  the 
claim.  Held,  it  must  be  dismissed,  for  it  was 
the  agents  duty  to  have  called  the  attention  of 
the  company  to  the  former  risk  when  they 
gave  notice  of  the  last,  because  they  had  ex. 
ceeded  their  instructions.  Tucker  «.  Proain- 
cial  Ins.  Co.,  7  Grant's  Ch.,  123. 

(b)  Of  the  acts  of  the  agetifs  clerk, 
hroker  or  solicitor. 

21.  On  cargo,  damages  to  be  ascertained 
by  a  separation  and  sale  of  goods  damaged. 
Insurers  designated  an  auctioneer  to  sell  them. 
Insured  sent  them  to  him,  and  he  sold  them 
for  account  of  insurers,  without  paying  over 
the  proceeds  to  either  party.  Held,  the  ap- 
pointment was  the  joint  act  of  both  parties, 
hence  the  defendants  were  not  responsible  for 
the  loss  caused  by  auctioneer's  failure  to  pay 
ovcrthe  proceeds,  unless  the  defendants  took 
the  goods  and  had  them  sold  as  their  own. 
Jellinghaiis  v.  New  York  Ins.  Co.,  4  Sandf,  18; 
s.  c,  8  Bos.,  281 ;  6  Duer,  1. 

22.  Tlie  policy  stated  that  the  insured 
would  be  bound  by  the  application;  that  for 
the  purpose  of  making  it  the  survej-or  would 
be  deemed  the  agent  of  insured  as  well  as  of 
the  company.    Held,  the    surveyor  was   the 


1U89 


I'HLNCli'AL  AND  AGENT. 


1090 


Wlien  the  principal  is  not  bound. 


agent  of  botli,  and  tlie  application  was  the 
act  of  the  insured.  Sextan  v.  Montgomery 
County  Mat.  Ins.  Co.,  9  Barb.,  191. 

23.  Stipulated:  "Every  insurance  ajront, 
broker  or  other  person  forwarding  applica- 
tions or  receiving  premiums,  is  the  agent  of 
the  applicant  and  not  of  the  company.  .Held, 
by  the  terms  of  the  contract  tlie  person  wlio 
made  the  application  was  not  the  agent  of  in- 
surer, and  his  knowledge  was  not  the  knowl- 
edge of  the  insurer.  Abbott  v.  Shntcmiit  Mu- 
tual Fire  ro.i.  C»..  3  Allen,  213. 

24.  Stipulii^ted:  "The  company  shall  not 
be  bound  by  any  act  done  or  statement,  made 
to  or  by  any  agent  or  others,  uot  contained  in 
this  application.  Every  insurance  agent, 
broker  or  other  person  forwarding  applica- 
tions or  receiving  premiums  is  the  agent  of 
the  applicant  and  not  of  the  company."  Hekl, 
representations,  whether  fraudulent  or  other- 
wise made  by  the  company's  agent,  were  not 
admissible  in  evidence  against  the  company. 
Hhdwmut  Mut.  Ins.  Co.  v.  ,Steven.i,  9  Allen,  332. 

2i».  The  agent  was  authorized  to  make  sur- 
veys and  take  and  transmit  applications  for 
insurance,  servo  notices  and  collect  assess- 
ments. A  policy,  issued  through  him,  pro- 
hibited insurance  exceeding  two-thirds  of 
the  value  of  the  subject  insured.  Held, 
notice  to  Iiini  that  insurance  had  been 
made  exceeding  tliat  limit  was  not  notice  to 
the  company.  Mitchell  v.  Lycoming  Mut.  Ins. 
Co.,31  Penn.  St.,  403. 

2t>.  L.,  an  insurance  broker,  in  the  habit  of 
picking  up  risks  for  any  company  that  would 
accept  them,  solicited  plaintiff  to  take  a  poh 
icy  upon  his  stock  in  the  defendant  company. 
The  company's  local  agent  accepted  the  risk 
and  delivered  the  policy  to  L.,  who  delivered 
it  to  plaintiff,  collected  the  premium  and  re- 
tained his  usual  commission.  Held,  L.  was 
the  agent  of  the  plaintiff  and  not  of  the  com- 
pany. Lycoming  Ins.  Co.  v.  Rubin,  (S.  C.  111.), 
8  Chi.  Leg.  News,  150. 

27.  Application  for  a  policy  upon  the  life 
of  plaintitrs  husband.  Stipulated:  "  Not  to 
be  binding,  until  all  premium  or  premiums, 
as  slated  therein,  which  shall  be  due  or  over- 
due, shall  be  received  bj'  said  company,  or  by 
some  person  authorized  to  receive  the  same,  du- 
ring the  lifetime  of  the  party  herein  insured." 
<».  received  the  policy  to  deliver  and  collect  the 
premium.  He  called  upon  the  person  whose 
life  was  insured,  for  the  premium,  who  said  he 
35 


was  not  able  to  pay  it.  G.  received  a  note 
of  another  person  for  a  part  of  the  premium, 
and  agreed  with  insured  that  the  balance 
should  be  paid  at  some  filture  time.  Held, 
before  insurers  could  be  bound  by  the  act  of 
G.,  evidence  must  be  given  tending  to  show 
that  6.  had  been  allowed  by  insurers,  at  hia 
option,  to  substitute  his  own  personal  liability 
to  the  company  for  the  money  which  he  was 
to  collect  as  premiums;  that  insurers'  reliance 
ui)Ou  G.,  to  account  iailhf'ully  for  all  moneys 
collected,  was  not  evidence  tending  to  show 
that  insurers  trusted  either  his  judgment  or 
his  responsibility.  Continental  LifeIn».Co. 
V.  Willets,  24  Mich.,  268.  Nor  did  evidence 
that  G.  had  paid  to  his  principals  premium3 
he  had  not  collected,  tend  to  show  that  he  had 
authority  to  discharge  other  premiums  with- 
out actual  payment.    Ibid. 

28.  Insured  sought  to  charge  insurers  with 
notice  thai  certain  goods,  prohibited  by  the 
printed  terms  of  the  policy,  were  part  of  the 
property  insured.  One  of  two  persons  who 
were  doing  business  as  insurance  brokers 
asked  permission  of  insured  to  eflect  addi- 
tional insurance  for  them.  He  visited  the  of- 
fice of  insurer  and  described  the  property  as 
a  steam  barrel  factory.  Insurer's  secretary 
told  him  to  send  a  form  or  copy  of  a  policy, 
such  as  was  required,  and  the  company  would 
make  one.  Ileld,  the  evidence  was  not  suffi- 
cient to  show  that  the  person  who  procured 
the  policy  was  the  agent  of  the  insurers. 
McFarland  v.  Peabudy  Ins.  Go.,  6  W.  Va.,  425. 

29.  Stipulated:  "If  the  insured  has  not  a 
title  unincumbered,  it  shall  be  stated  on  the 
application."  The  premises  insured  were  sub- 
ject to  a  mortgage  not  mentioned  in  the  appli- 
cation; and  the  plaintift'  sought  to  avoid  the 
effect  of  that  omission  by  proving  that  defend- 
ant's agent  had  notice  of  the  incumbrance; 
that  he  tilled  up  the  application,  and  that  the 
insured  was  ignorant  of  the  condition.  Held, 
the  evidence  could  not  be  heard  for  that  pur- 
pose, because  the  policy  declared  that  all  per- 
sons who  take  applications  for  policies  shall 
be  deemed  the  agent  of  the  applicant  and  not 
of  the  company,  so  far  as  relates  to  the  mak- 
ing of  the  application.  Johnstone  v.  Niagara 
Hist.  Mut.  Ins.  Co.,  13  U.  C.  C.  P.,  331. 

III.  Of  ratification  and  affirxianck. 

1.  Insurance   upon   a  vessel   by  one,    part 

64.''i 


1091 


PRINCIPAL  AND  AGENT. 


1093 


Ratification  and  affinnance  —  Revocation —  Agent's  liability. 


owner  for  himself  and  other  owners  without 
their  previous  authority.  Held,  tliey  might 
ratify  his  act  after  the  loss  of  the  vessel;  and 
bringing  a  suit  In' their  name  on  the  policy  is 
a  ratification.  Finney  s.  FairJiaveii  Ins.  Co., 
5  Met.,  192. 

2.  P.,  professing  to  act  for  the  plaintiffs, 
solicited  the  defendant  to  make  insurance  in 
that  company.  He  forwarded  the  application 
and  a  policy  was  sent  to  the  defendant,  with 
the  name  of  P.  indorsed  on  it  as  agent.  Sub- 
sequently P.  executed  a  bond  to  the  company 
for  the  due  performance  of  his  duties.  Held, 
the  defendant's  acts  ratified  and  confirmed  the 
act  of  P.  in  ol)taining  the  application. 
Fitrmers  Mut.  Ins.  Co.  n.  Marshall,  29  Vt.,  23. 

3.  The  authority  of  an  agent  is  exclusively 
personal.  But  the  principal  and  his  agent 
may  ratify  the  acts  of  aa  unauthorized  person ; 
and  the  principal  is  bound  by  the  ratification 
made  by  his  agent,  if  the  agent  had  authority 
to  do  the  thing  which  he  ratified  or  adopted 
(citing  Story  on  Agency,  §§  239,  244,  249). 
Mound  City  Life  Ins.  Co.  v.  Huth,  49  Ala.,  529. 

IV.  Of  eeyocation. 

1.  S.  became  the  agent  of  the  Connecticut 
Mutual  Life  Ins.  Co.  in  October,  1849,  by  ac- 
ceptance of  a  circular  which  stated,  "The 
usual  compensation  of  agents,  so  far  as  we 
know,  is  ten  per  cent,  commission  on  the  pre- 
miums, with  one  dollar  for  each  policy,  and 
five  per  cent,  on  the  premiums  on  the  renewal 
of  policies."  A  second  circular  stated,  "  For 
your  services  as  above  you  will  be  allowed  a 
commission  of  ten  per  cent,  on  the  first  pre- 
miums, cash  and  notes,  and  five  per  cent,  on 
all  subsequent  renewals  so  long  as  you  con- 
tinue the  agent  of  the  company."  Held,  evi- 
dence of  a  custom  on  the  part  of  insurance 
companies  to  pay  five  per  cent,  on  the  renewal 
premiums  upon  policies  procured  by  persons 
whose  agencies  had  been  revoked  was  in.ad- 
missible,  because  the  last  circular  was  substi- 
tuted in  place  of  the  first;  that  it  amounted  to 
an  express  contract,  and  limited  the  agency  to 
the  pleasure  of  the  company;  thai  the  com- 
[laiiy  had  the  right  to  terminate  the  agencj', 
and  therefore  to  terminate  the  right  of  the 
agent  to  commission  on  renewal  premiums. 
Stagg  v.  Insurance  Co.,  10  Wall.,  5S9. 

2.  H.  was  authorized  by  insured  to  apply  to 
insurer  for  permission  to  make  additions  to 

64G 


the  building.  Held,  he  had  no  authority  to 
agree  to  rescind  the  contract  of  insurance. 
Van  Valkenburgh  v.  Lenox  Fire  Ins.  Co.,  51  N. 
Y.,  465. 

3.  The  rules  of  the  insurance  company  pro- 
vided that  agents  should  receive  a  commission 
of  five  per  cent,  on  each  renewal  collected  and 
transmitted  bj'  them.  The  plaintifTs  appoint- 
ment was  revoked,  and  he  claimed  the  right 
to  recover  commissions  for  premiums  on  re- 
newals collected  by  his  successor  upon  poli- 
cies  procured  before  revocation  of  the  agency. 
Held,  he  was  not  entitled  to  recover.  Spauld- 
ing  v.  New  York  Life  Ins.  Co.,  61  Me.,  329. 

4.  The  broker  procured  insurance  for  his 
principal,  and  was  debited  with  the  premium, 
for  which  he  signed  a  debit  note.  The  policy 
was  sent  to  the  broker's  oflSce,  and  refused  by 
his  clerks,  who  directed  it  to  be  canceled.  It 
was  accordingly  returned  to  insurers  and  by 
them  indorsed,  "  Canceled ;"  but  the  clerks  dis- 
covered their  mistake,  and  subsequent!}-  ap- 
plied  to  have  it  reinstated,  which  was  refused 
because  the  ship  was  then  aground.  Held,  the 
broker's  authority  to  procure  the  contract  of 
insurance  gave  him  no  right  to  have  it  re- 
scinded. Xenos  V.  WickMm,  3  L.  R.  Eng.  & 
Jr.  App.,  296;  14  C.  B.  (N.  S.),  861;  16  L.  T. 
(N.  S.),  800;  16  W.  R.,  38;  36  L.  J.  C.  P.,  313; 
reversing  s.  c,  13  C.  B.  (N.  S.),  381;  14  id., 
433;  9  Jur.  (N.  S.),  471;  10  id.,  339;  11  W. 
R.,  1067;  33  L.  J.  C.  P.,  13. 

V.  Of  the  agent's  liability. 

1.  A  ship  destined  to  a  port,  suspected  to  be 
then  blockaded,  was  directed  to  call  at  a  par- 
ticular  place  for  orders  from  a  correspondent 
who  resided  at  the  port  of  destination,  to 
whom  she  was  unqualifiedly  addressed.  He 
ordered  her  to  that  port.  She  was  taken  and 
cimdemned  for  a  breach  of  the  blockade. 
Held,  he  was  not  liable  if  he  acted  in  good 
faith.     Liotard  v.  Graces,  3  Caines,  226. 

2.  On  Goods.  Insured  employed  an  agent 
to  settle  for  a  total  loss,  which  he  promised  to 
do,  or  to  return  the  policy  uncanceled ;  but  con- 
trary  to  this  promise,  either  through  mistake 
or  negligence,  the  agent  settled  as  for  an  aver- 
age  loss  of  twenty  per  cent.  Held,  the  agent 
became  responsible  for  tlie  whole  amount 
which  ought  to  have  been  received  under  the 
policy.    Rundle  v.  Moore,  3  Johns.  C,  36. 

3.  G.,  about  to  depart  from  New  York  on  a 


1093 


PRINCIPAL  AND  AGENT. 


1094 


Agenis'  liability  —  Agents  of  ships. 


voyage  to  tlie  East  Indies,  gave  an  order  for 
insurance  on  his  life  to  the  amount  of  £3,000 
sterling,  ■which  was  accepted  hy  the  insurance 
company  at  the  instance  of  the  asjent  of  M., 
who  undertools  to  complete  tlie  business.  Tlie 
premium  was  paid  for  one  year,  and  tlie  policy 
insured  the  life  of  G.  for  ten  years;  but  ^I., 
afterwards,  without  the  knowledge  or  consent 
of  G.,  alleged  a  mistake,  and  procured  insur- 
ers to  cancel  the  policy,  and  to  execute  an- 
other for  £4.iO,  the  difference  of  premium  be- 
ing  refunded.  Held,  on  the  death  of  G.,  M., 
by  procuring  a  valid  and  existing  contract  to 
be  canceled,  substituted  himself  as  insurer  of 
G.'s  life,  and  was  answerable  to  the  represen- 
tatives of  G.  for  the  amount  insured  by  the 
origin.al  policy,  less  the  premium.  Oray  v. 
Murray,  3  Johns.  Ch.,  167. 

4.  If  the  broker  who  procured  the  insur- 
ance  is  warned  by  liis  principal  not  to  pay  the 
premium,  and  he  disregards  the  warning,  he 
cannot  recover  it  of  the  insured.  Slujemaker 
V.  Smith,  3  Binn.,  239. 

.5.  The  company  was  unincorporated;  but 
the  policy  was  signed  by  "  J.  Jackson,  presi- 
dent ;  S.  Chandler,  assistant  secretary."  Busi- 
ness cards  were  issued,  giving  tlie  name  of  the 
company  and  a  list  of  the  directors;  but  no 
stock  bad  been  subscribed  or  paid  in.  The 
defendants  were  directors  Selected  in  New- 
Jersey.  Held,  if  an  agent  contracts  as  agent, 
and  there  is  not  a  legally  responsible  principal 
to  whom  resort  may  be  had,  the  law  jiresumes 
that  the  agent  contracted  on  bis  personal  re- 
sponsibility, and  intended  to  bind  himself; 
for  in  no  other  way  would  the  contract  have 
any  validity  (citing  Story  on  Agency,  sec.  280, 
281,  282;  2  Kent's  Com.,  630;  Dunlap's  Paley 
on  -Agency,  374;  Kellner  v.  Baxter,  L.  R.  Q.  C. 
P.,  174;  Furnwall  v.  Coombes,  5  M.  &  G.,  736; 
Bay  V.  Cook,  23  N.  J.,  343).  Held,  also,  when 
9  joint  stock  company  is  in  the  preliminary 
stages  of  formation,  before  an  act  of  incorpo- 
ration is  procured,  and  where  there  is  a  pre- 
liminary board  of  directors,  those  who  have 
consented  to  become  directors,  or  have  know- 
ingly  allowed  themselves  to  be  held  out  as 
directors,  are  responsible  as  principals  or 
p.artners  for  all  contracts,  express  or  implied, 
■within  the  scope  of  the  business  of  the  direc- 
tion (citing  Fox  v.  Clifton,  9  Bing.,  115;  Mad- 
dock  V.  Marshall,  16  Com.  B.  (N.  S.),  387;  S. 
C.  in  Exch.,  17  id.,  838;  Collingwood  v.  Berke- 
ly,  15  id.,  145;  Bell  v.  Francis,  9  C.  &  P.,  66;  ' 


CoUyer  on  Partnership,  sec.  1086).    Booth  v. 
Woiiderly,  36  N.  J.,  250. 

6.  The  plaiutifl"  requested  the  defendant  to 
procure  insurance  on  a  cargo  of  corn,  but  no 
other  directions  were  given.  Private  under- 
writers did  uot  have  in  their  policies  exemp- 
tionsas  to  grain  ;  but  the  Royal  Exchange  Ass. 
Co.'s  policy  stipulated:  "  Free  from  average  on 
corn  unless  general,  unless  otherwise  specially 
agreed."  The  defendant  procured  insurance 
of  this  company.  There  was  a  partial  loss, 
which  was  exempted  under  the  policy.  Held, 
there  was  no  cause  of  aclicm  against  the  de- 
fendant.    Comber  v.  Anderson,  1  Camp.,  523. 

7.  The  debtor  of  a  testator  h.ad  his  life  in- 
sured  for  £3,500  to  secure  the  debt  in  part, 
which  amounted  to  £4,000.  The  executor 
procured  a  further  insurance  of  £2,.500  on  the 
debtor's  life,  because  he  ascertained  that  the 
debtor  was  unatile  to  pay  the  debt  or  the 
premiums  when  they  became  due;  and,  after 
p.iying  the  premiums  on  this  second  policy 
for  several  years,  he  allowed  it  to  lapse,  be. 
cause  the  assets  of  the  testator  were  insuf- 
ficient to  pay  debts  and  legacies.  Held,  the 
executor  was  liable  for  the  sum  insured,  less 
the  premiums  paid  by  him;  forhavingeffected 
the  policy  he  m.ade  himself  a  trustee  of  it  for 
the  benefit  of  the  estate,  and  had  no  right  to 
allow  it  to  lapse  without  the  consent  of  the 
cesiuis  que  trust,  or  the  sanction  of  the  court. 
Garner  v.  Moore,  24  L.  J.  Ch.,  687;  3  Drew, 
277. 

8.  Plaintiffs  intrusted  defendants  with  a 
quantity  of  flour  to  be  sold  at  Toronto,  or  to 
be  sent  to  Quebec  for  sale,  and  directed  them 
in  the  event  of  its  being  sent  fo  Quebec,  to 
have  it  insured.  It  was  shipped  for  Quebec, 
and  insured  in  the  British  American  Insur- 
ance Company;  but  the  policies  of  thiit  com- 
pany excepted  losses  caused  by  the  want  of 
ordinary  care  and  skill  of  the  master  and 
crew;  and  it  defended  successfully  .against  the 
suit  of  the  insured.  This  action  was  brought 
against  the  defendants,  resting  their  liability 
upon  a  want  of  care  and  skill  in  taking  a  pol- 
icy with  such  exceptions  in  it.  Held,  no  cause 
of  action.  Silvertfiorne  v.  Gillespie,  9  U.  C.  Q. 
B.,  414. 

VI.  Agents  of  ships. 

1.  The  defendants  were  owners  of  the 
schooner  S.N.Smith.  S.  owned  one-fourth; 
the    other    three.fourths     were    owned     by 

547 


1005 


PRINCirAL  AND  AGENT. 


1096 


Generally. 


six  otlicT  defendants,  each  oue-eiglith.  The 
])Iaiutiffs  were  sliippiug  and  commission 
merchants,  and  acted  as  agents  of  the  schooner, 
having  been  ajipoiuted  by  S.  a  former  master. 
In  February,  18J5,  the  plaintiffs  insured  her 
for  $3,500  to  take  the  place  of  a  policy  by  the 
Keliance  Insurance  Company,  which  had 
failed,  which  last  policy  was  then  canceled; 
and  this  action  was  brought  against  the  de- 
fendants as  joint  owners  to  recover  a  balance 
due  for  advances  made  by  them  in  effecting 
insurances.  Held,  they  could  not  recover  un- 
less the  proof  was  clear  that  the  several  owners 
gave  express  authority  to  make  the  insurance ; 
that  the  authority  conferred  upcm  the  plaint- 
tiffs  to  act  as  ship's  husband,  was  not  sufficient. 
McOready  v.  WoodhuU,  34  Bai'b.,  80. 

2.  One  tenant  in  common,  of  a  vessel,  has  no 
right,  b}'  virtue  of  such  relation,  to  cause  in- 
surance to  be  made  for  his  cotenant  "  on 
property  on  board  the  vessel."  Foster  v. 
United  States  Ins.  Co.,  11  Pick.,  85.  Nor  has 
the  master  tliat  right.    Ibid. 

3.  A  power  given  to  act  as  husband  of  a 
ship  gives  no  right  to  insure  it,  unless  there 
is  a  general  direction  from  all  the  part  owners 
or  a  particular  direction  from  each.  French  v. 
Backhouse,  5  Burr.,  2727. 

4.  One  part  owner  of  a  ship  has  no  implied 
authority  to  order  insurance  to  be  made  for 
account  of  otlier  part  owners;  but  if  they  are 
carrying  on  business  together  in  partnership, 
and  the  insurance  was  ordered  in  the  ijarlner- 
ship  name,  they  are  all  liable  for  the  prem- 
ium.   Hooper  -v.  Lushy,  4  Camp.,  66. 

5.  Action  to  recover  premiums  for  policies 
made  in  the  name  of  owners.  Held,  one  part 
owner  cannot,  without  express  authority,  bind 
another  part  owner  for  insurances  made  in  re- 
si)ect  of  the  interests  of  the  latter.  Bell  v. 
Humphries,  2  Stark.,  345. 

YII.  Generally. 

1.  Master's  authority.  It  is  within  the 
scope  of  the  master's  authority  to  appoint  an 
agent  to  defend  the  captured  property;  such 
an  agent  becomes  the  agent  of  insurer  after 
abandonment,  and  the  insurer  must  look  to 
him  for  money  received  on  account  of  the 
property.     Miller  e.  DePeyster,  2  Gaines,  301. 

2.  One  cannot  act  for  both  parties.  The 
.Etna  insured  $5,000  on  a  woolen  manufactory. 
Tlie  National  reinsured  the  ^tna  $3,000,  S 

548 


being  secretary  and  director  of  the  National 
(plaintiffs;,  whose  principal  office  was  at 
Cherry  Valley.  He  was  also  agent  for  the 
New  York  Central  (defendants)  at  the  same 
place,  and  he  determined  to  reinsure  the 
National.  He  wrote  defendants,  "  I  had  oc- 
casion to  use  one  of  your  policies  yesterday, 
but  owing  to  their  being  mislaid  while  my 
office  was  being  repaired,  I  was  unable  to  find 
them.  If  you  will  send  me  some  I  think  I 
can  give  you  quite  a  number  of  risks  oa 
property  where  our  own  company  have  risks, 
and  on  reinsurance."  The  defendants  sent 
him  twenty  blank  policies  signed  by  the  pres- 
ident and  secretary,  to  be  valid  when  lie 
should  countersign  them  and  write  in  tlie 
subject  matter  of  the  contract.  Tliey  were 
received  on  the  afternoon  of  the  loth  of  June, 
when  he  filled  up  one  of  them,  reinsuring  the 
National  the  whole  amount  of  the  risk,  ante- 
dating the  policy  so  as  to  give  it  ten  months 
to  run.  No  premium  had  been  remitted,  nor 
any  notice  of  the  making  of  the  policy  sent  to 
defendants  at  the  time  of  the  loss.  Held,  S. 
could  not  act  for  both  parties,  unless  the 
defendants  had  notice  that  he  was  secretary 
of  the  plaintiff.  New  York  Central  Ins.  Go.  v. 
National  Protection  Ins.  Co.,  14  N.  Y.,  85;  s.  c, 
20  Bai-b.,  468. 

3.  General  agent.  A  person  was  ap- 
pointed  the  agent  of  an  insurance  company, 
empowered  to  solicit  risks,  take  applications 
for  insurance,  and  to  receive  premiums  and 
premium  notes  therefor.  Held,  he  was  a  gen- 
eral agent  for  the  transaction  of  such  business 
(citing  Dunlap's  Paley  on  Agency,  199,  200). 
Decendorf  V.  Beardsley,  23  Barb.,  656. 

4.  The  authority  of  an  agent  must  be  de. 
termined  by  nature  of  his  business,  and  the 
apparent  scope  of  his  employment  therein. 
Private  instructions  cannot  be  received  in  evi- 
dence for  the  purpose  of  narrowing  the  agent's 
apparent  authority,  unless  there  is  something 
in  the  nature  of  the  business  or  the  circum- 
stances  of  the  case  to  indicate  that  he  is  act- 
ing  under  special  instructions  or  limited  pow- 
ers. Markey  v.  Mutual  Benefit  Life  Ins.  Co , 
103  Mass.,  78. 

5.  Evidence  of  agency.  An  agent,  a  Brit- 
ish subject,  was  authorized  in  time  of  war  to 
procure  insurance,  which  he  did  with  his  usu- 
al  broker  in  his  own  name;  but  he  stated  the 
property  is  "  neutral."  Held,  representing  the 
pri^perty  as  neutial  was  evidence  to  the  broker 


1097 


PRIVATE  INSTRUCTIONS  —  PROFITS. 


1098 


Must  be  insured  as  such —  When  insurers  are  not  liable  for  loss  of. 


that  he  acted  as  an  agent  and  not  on  his  own 
account.     Mnanss  v.  Ileaderson,  1  East,  33.j. 

G.  —  The  debtor  subscribed  a  dechiralion 
which  was  made  the  basis  of  a  policy  upon 
hia  life  in  favor  of  his  creditor.  Held,  he 
was  tne  agent  of  tlie  insured.  Forbes  v.  Ed- 
inburg  Life  An.  Co.,  10  S.  &  D.,  451 ;  4  Scot. 
lur.,  385. 


PRIVATE  INSTRUCTIONS. 

(See  Pkincipal  and  Agent.) 


PROFITS. 

I.  Must  be  iNstniED  as  such. 
II.  When  insurers  are  not  liable  fok 

LOSS  OF. 
III.  LIABLE  FOR  LOSS  OF. 

I.  Must  be  insured  as  such. 

Profits,  however  certain,  must  be  insured 
eo  nomine.  Niblo  v.  North  American  Fire  Ins. 
Co.,  1  Sandf.,  551. 

II.  When  insurers  are  not  liable 

FOR  LOSS  OF. 

1.  On  profits  on  cargo  (v.alued).  Held,  an 
abandonment  was  necessary;  that  it  must  be 
timely,  so  that  the  insurer  may  elect  whether 
he  will  pay  the  loss  of  profits  or  ll\e  price  of 
the  goods  and  take  them.  If  the  insured  take 
the  goods  and  sell  them,  he  cannot  recover  of 
his  insurer  for  a  loss  of  profits.  Tom  v.  Smith, 
3  Caines,  245. 

2.  "  On  profits  valued  at  $12,000,  no  other 
proof  of  interest  to  be  required  but  the  policy ; 
and  if  the  goods  do  not  arrive,  the  insured 
shall  recover  for  a  total  loss;  warranted  free 
from  average  without  benefit  of  salvage."  She 
proceeded  to  the  out  port,  failed  to  procure 
cargo,  and  returned  to  tlie  home  port.  Held, 
its  meaning  was,  if  tlie  ship  do  not  arrive  in 
consequence  of  any  peril  mentioned,  the  in- 
sured sliall  recover  williout  proof  of  goods 
on  hoard;  that  her  safe  arrival  jjreeluded  any 


recovery  <m  tlie  jiolicy,  or  a  return  of  premium. 
Juhcl  V.  Church,  2  Jolins.  C,  333. 

3.  On  supposed  profits,  Canton  to  Philadel- 
phia.  "Warranted  free  from  average  and 
without  salvage,  valued  |20,000."  At  a  port 
of  necessity  part  of  the  cargo  was  thrown  into 
the  sea  iu  consequence  of  damage,  and  some 
of  it  in  a  perishable  state  was  sold  for  the  ben. 
efit  of  all  concerned,  and  the  proceeds  invested 
there  in  other  goods,  with  whieli  she  arrived 
at  Philadelphia.  There  was  a  loss  of  more 
than  fifty  per  cent,  of  the  whole  cargo,  and  do 
profits  were  realized.  Held,  the  interruption 
of  the  voyage  was  not  a  loss  of  it;  that  "  free 
from  average"  in  a  policy  upon  profits  must 
receive  the  same  c<mstruction  as  in  a  policy 
upon  goods,  therefore  the  insured  could  not 
recover.     Wain  v.  Thompson,  9  S.  &  R.,  115. 

4.  "  On  profits  valued  at  the  sum  insured, 
and  in  case  of  Joss,  no  other  proof  of  interest 
to  be  required,  but  the  policy."  She  was  dis- 
patched from  Liverpool  to  the  coast  of  Africa 
with  a  cargo,  with  which  she  was  to  purcliase 
slaves,  take  them  to  the  West  Indies,  and  sell 
them  in  the  usual  manner.  She  arrived  at  St. 
Vincents,  and  this  policy  was  made  to  cover 
from  that  place  to  her  port  of  discharge.  She 
was  lost  at  the  Bahamas,  together  with  a  num- 
ber of  the  slaves.  The  remainder  of  them 
were  carried  to  Havana  and  sold,  but  their 
proceeds  gave  no  profit  on  the  whole  adven- 
ture. There  was  no  proof  that  there  would 
have  been  a  profit  had  all  the  slaves  been  got 
to  market.  Held,  a  judgment  of  nonsuit 
should  be  entered.  Hodgson  v.  Glover,  6  East, 
816. 

5.  "  On  profits  on  rice."  Insured  had  pur- 
chased 0,000  hags,  to  arrive  by  sliip  from 
Madras.  1,300  bags  were  on  board  w'hen  tlie 
voyage  was  abandoned  in  consequence  of  sea 
peril.  Held,  the  policy  attached  only  to  the 
1,200  bags  on  board,  and  that  the  recovery  was 
limited  to  the  loss  of  profits  on  those.  Mc- 
Siciney  «.  lioyal  Exchange  Ass.  Co.,  14  Q.  C, 
634;  19  L.  J.  Q.  B.,  223;  overruling  18  L.  J. 
Q.  B.,  193. 

6.  A.  bought  palm  oil  of  B.,  to  arrive  per 
ship  .J.  D.,  and  insured  :  "  On  profits  on  palm 
oil  per  ship  J.  D."  She  was  lost,  but  the 
cargo,  after  much  delay,  was  brought  home 
by  another  vessel,  and  resold  by  B.  Held, 
insurers  were  not  liable  (citing  Royal  Ex- 
change Ass.  Co.  V.  McSwiney,  4  Q.  B.,  634). 
Chope   V.  Reynolds,  5  C.   B.   (N.   S.),  642;  s. 

549 


1099 


PROHIBITED  WATERS. 


1100 


Miscellaneous. 


c,  5  .Jur.  (K  S.),  822;  28  L.  J.  C.  P.,  194;  7  W. 
R.,  208. 

III.  When  insurers  are  liable  for 

LOSS   OF. 

1.  On  profits,  $5,000,  on  cargo  valued  at 
$20,000.  Tlie  cargo  was  destroj'eJ  by  fire  at 
tue  port  of  destination  before  it  was  landed, 
but  no  evidence  was  given  tending  to  show 
that  a  sale  of  the  cargo  would  have  yielded  a 
profit  to  the  insured.  Held,  it  was  not  neces- 
sary to  prove  that  the  insured  would  have 
realized  a  profit  from  the  sale  of  the  goods. 
Patapsco  Ins.  Co.  v.  Coulter,  3  Pet.,  222 ;  J/«m- 
ford  V.  Haiku,  1  Johns.,  43-1;  Abbott  v.  Sebor, 
3  Johns.  C,  39 ;  Fosdick  v.  Norwich  Ins.  Co.,  3 
Day,  108. 

2.  "  On  the  profits  of  goods  laden,"  etc. 
She  was  captured,  carried  into  London  and 
libeled.  Five-eighths  of  the  goods  were  re- 
stored to  the  insured,  and  an  abandonment 
made  as  to  the  polic}'  on  profits,  and  claim  for 
a  total  loss.  Held,  entitled  to  recover  a  partial 
loss  of  three-eighths  on  the  profits.  Loomia  v. 
Shaw,  2  Johns.  C,  36. 

3.  "  On  profits  on  goods."  Held,  valid, 
but  insured  must  have  an  interest  in  the 
goods  from  which  the  profits  are  to  come. 
Abbott  V.  Sebor,  3  Johns.  C,  39. 

4.  On  profits.  Held,  insured  could  abandon, 
foi-  insurer  on  profits  ought  to  have  foreseen 
that  there  might  be  a  policy  on  the  cargo, 
which,  in  case  of  disaster  might  compel  aban- 
donment.   Mumford  v.  Hallett,i  Johns.,  433. 

5.  A  person  interested  to  the  extent  of  one- 
half  of  certain  goods,  insured  "  profits  "  valued. 
The  goods  were  discharged  at  a  port  of  dis- 
tress in  a  damaged  condition.  Held,  if  there 
would  have  been  a  profit,  he  was  entitled  to 
recover  for  a  total  loss,  notwithstanding  a 
small  salvage  was  saved.  French  ».  Hope 
Ins.  Co.,  It)  Pick.,  397. 

6.  Insurance  upon  the  profits  of  a  cargo  is 
valid.    Barclay  v.  Cousins,  2  East,  544. 

7.  On  imaginary  profits.  She  was  totally 
lost  oli'  Scilly ;  all  the  cargo,  except  one  barrel, 
was  carried  to  port  of  destination  in  another 
ship  at  expense  of  insurers.  Held,  the  mean- 
ing of  the  policy  was  that  the  ship  ajid  cargo 
should  arrive  at  the  point  of  destination. 
Henrickson  v.  Margctson,  note  to  Barclay  v. 
Cousins,  2  East.  544. 

8.  On  profits  from  Riga  to  Hull.     Loss  by 
550 


capture.  The  profits  weald  have  been  £1,000. 
Held,  insured  was  entitled  to  recover.  Ej/re  v. 
Olover,  16  East,  218;  3  Camp.,  276. 


PROniBITED  WATERS. 

1.  On  freight  for  one  year  from  June  20, 
1802,  warranted  not  to  use  the  river  Mia 
higher  than  the  anchorage  below  Kimpai 
Pass.  She  sailed  from  the  river  Lian  Ho,  and 
entered  the  river  Min  above  Kimpai  Pass 
(having  received  injury  prior  to  that  time), 
was  there  surveyed,  dismantled  and  sold  as 
unworthy  of  repairs.  Held,  the  freight  was 
not  lost  until  she  was  in  prohibited  waters, 
where  the  policy,  by  its  terms,  ceased  to  be  in 
force.  Beams  v.  Columbian  Ins.  Co.,  48  Barb., 
445. 

2.  On  schooner,  one  year,  warranted  not  to 
use  ports  or  places  in  Texas,  except  Galves- 
ton, nor  foreign  ports  or  places  in  the  Gulf  of 
Mexico.  For  an  additional  premium  permis- 
sion was  given  to  make  one  voyage  from  New 
Orleans  to  Vera  Cruz.  She  sailed  thence  to 
Coatzacoalcos,  in  the  Gulf  of  Mexico,  thence 
to  Boston,  and  thence  to  Appalachicola,  where 
she  belonged,  and  was  there  lost  in  a  gale. 
Held,  going  from  Vera  Cruz  to  Coatzacoalcos 
released  the  insurers,  for  from  that  time  the 
policy  ceased.  Day  v.  Orient  Mat.  Ins.  Co.,  1 
Daly,  13. 

3.  Stipulated:  "Not  to  use  foreign  ports 
and  places  in  the  Gulf  of  Mexico.  She 
cleared  for  Frontera,  and  sailed  for  it  on  the 
following  day.  She  went  ashore  on  the  co.ast 
of  Cuba,  700  miles  from  the  prohibited  port. 
Held,  clearing  for  it  and  sailing  for  it  was  not 
using  it;  insurers  were  therefore  liable  fortho 
loss.  Wheeler  v.  New  York  Mat.  Ins.  Co.,  3  J. 
&  Sp.  (N.  Y.),  247. 

4.  On  ship,  for  one  j-ear  from  February  26, 
1807.  "  Prohibited  from  the  river  and  Gulf  of 
St.  Lawrence,  Northumberland  Straits,  Capo 
Breton  and  Black  Sea,  between  October  1st 
and  May  1st."  In  March,  1S67,  she  was  in  a 
port  of  Cape  Breton,  but  returned  to  New 
York  in  safety.  December  24th  she  sajled 
from  St.  Johns,  Newfounul.and,  for  Sydney, 
C.  B.,  was  blown  out  into  the  middle  of  the 
Atlantic  Ocean,  and  there  lost,  January  10, 
1868.     Held,  the    warranty   was    violated    in 


1101 


PROOFS  OF  LOSS. 


1102 


Miscellaneous. 


March,  1807,  and  from  that  time  the  policy 
was  void.  Odiorne  t>.  New  Enylaiid  Mutual 
Murine  Inn.  Co.,  101  Mass.,  551. 

5.  On  schooner,  for  a  terra;  Imt  prohibited 
from  the  river  and  Gulf  of  St.  Lawrence,  bo- 
tweeu  September  1st  and  May  1st.  She  sailed 
m  December,  loaded  with  coal,  from  St. 
Johns,  Newfoundland,  to  Pictou,  Nova  Scotia, 
and  was  lost  on  llie  homeward  voj-age.  Held, 
slie  was  in  tlie  Gulf  of  St.  Lawrence  within 
?he  prohibited  time,  which  released  insurer. 
Cohb  V.  Lime  Rock  Fire  and  Marine  Ins.  Co., 
58  Me.,  826. 

6.  Term  policy  on  steamboat,  "With  pcr- 
suission  to  navigate  the  Ohio  and  Mississippi 
rivers,  below  Cairo.  Warranted  to  be  run 
■ind  navigated  upon  the  aforesaid  privileged 
waters,  as  is  usual  for  boats  of  her  class,  in 
llie  usual  prosecution  of  business."  Stipu- 
lated: "The  policy  shall  be  suspended  while 
she  shall  be  making  repairs  at  any  place  w-ith- 
out  those  waters."  She  made  a  voyage  to 
White  River  and  returned  to  the  Mississippi, 
and  subsequently,  within  the  term  insured, 
was  consumed  by  an  accidental  fire.  Held,  the 
permission  to  navigate  the  Mississippi  and 
Ohio  below  Cairo  prohibited  her  from  going 
into  waters  other  than  those  permitted;  hence 
insurers  were  discharged.  The  court  refuses 
to  follow  Greenleaf  v.  St.  Louis  Ins.  Co.,  37 
Mo.,  25,  and  says:  "This  case  is  not  like 
Palmer  v.  Warren  Ins.  Co.,  1  Story  C.  C,  360; 
Yeatou  o.  Fry,  5  Cranch,  335  "  (citing  Odiorne 
«.  New  England  Mutual  Marine  Ins.  Co.,  101 
Mass.,  551).  Wilkins  v.  Tobacco  Ins.  Co.,  2 
Cin.  Sup.  Ct.,  204. 

7.  Time  policy.  "Commencing  at  noon, 
December  15,  1800,  and  ending  at  noon,  De- 
•cember  15,  1867,  beginning  the  adventure  at 
and  from  Montreal,  to  trade  between  the 
IsUind  of  Newfoundland,  Nova  Scotia,  West 
India  Islands,  Cuba,  safe  ports  in  the  United 

-States,  Quebec  and  Montreal,  and  to  and  from 
ports  in  the  Lower  Provinces.  Not  allowed 
to  enter  the  Gulf  of  St.  Lawrence  before  April 
2oth,  nor  to  be  in  said  Gulf  after  November 
15th,  nor  to  proceed  to  Newfoundland  after 
December  1st,  or  before  March  15th,  w-ilhout 
payment  of  additional  premium  and  leave  ob- 
tained ;  war  risk  and  sealing  voyages  excepted. 
Valued  at  $7,000.  Insured  f  >r  .$5,000."  She 
left  Montreal,  November  16,  1807,  for  St. 
Johns,  Newfoundland,  and  was  lost  between 
that  date  and  Decemljer  1st,  ofl"  the  Island  of 


Anticosti,  in  the  Gulf  of  St.  Lawrence.  Ileld, 
whether  proceed hig  from  Montreal  or  from 
any  other  ports,  she  was  not  to  be  in  the  Gulf 
of  St.  Lawrence  after  November  15th,  nor  to 
proceed  to  Newfoundland  from  any  port  after 
December  1st.  Provincial  Ins.  Co.  of  Canada 
V.  Leduc,  22  W.  K.,  929 ;  31  L.  T.  (N.  &.),  42 ; 
43  L.  J.  P.  C,  49. 

8.  One  of  llie  rules  of  the  association  pro- 
vided that  ships  crossing  t'.ie  North  Sea  to  any 
port  north  of  the  Texel,  the  Atlantic,  or  Bay 
of  Biscay,  or  to  any  port  south  of  Brest,  if  the 
cargo  consists  of  iron  or  other  metal,  ore,  etc., 
shall  not  carry  more  than  thirty-five  per  cent, 
above  the  registered  tonnage,  N.  M.,  or  fifty 
per  cent.  N.  N.  M. ;  that  sliips  employed  in  the 
coasting  trade,  and  ports  between  the  Texel 
and  Brest,  with  cargoes  consisting  of  any  x)f 
the  above  named  articles, "  shall  not  carry  more 
than  they  make  out,  with  an  average  with 
coals,"  and  in  all  cases  of  damage  or  loss  while 
so  laden,  shall  be  subject  to  a  deduction  as 
follows:  A.  1,  iO  per  cent.;  A.  2, 15  per  cent.; 
A.  3,  owner  shall  forfeit  all  claim,  but  no  ves- 
sel shall  be  considered  loaded  with  the  except- 
ed articles  where  the  cargo  does  not  consist 
of  more  than  ten  per  cent,  of  the  burden  of  the 
vessel.  She  was, classed  A.  2,  registered  261 
tons.  She  had  100  tons  of  iron,  and  355  tons 
of  coal,  which  was  in  excess  of  the  50  per  cent, 
stated.  She  was  lost  off  Blakeney  Bar  on  the 
Norfolk  coast,  while  on  a  voyage  from  Sun- 
derland to  Bordeaux.  Held,  she  could  not  be 
regarded  as  employed  in  the  coasting  trade, 
though  lost  on  the  coast  of  Norfolk,  for  the 
ship's  destination  must  be  looked  to,  for  the 
purpose  of  determining  the  trade  in  which  she 
was  engaged ;  that  the  plaintiff  was  entitled 
to  be  paid  his  loss  less  a  deduction  of  fifteen 
per  cent.  Harvey  v.  Beckwith,  12  W.  R.,  819; 
affirmed,  id.,  896;  10  L.  T.  (N.  S.),  632. 


PROOFS  OF  LOSS. 

(See  Condition  Precedent;  Notice  of  Loss.) 

I.  Of  the  preliminary  rnooFS. 

(a)  Who  may  make. 

(b)  What  precludes  insurers  from  in- 

sisting on. 
C)  Wltat  does  not  preclude   insuren 
from  insisting  on. 

551 


1103 


PROOFS  OF  LOSS. 


1104 


Of  the  preliminary  proofs. 


I.  Of  the  puEi^iMiKAHT  PROOF  —  (con.). 

(d)  W/wn  insurer  is  precluded  from  ob- 

jecting to  defects  or  insufficiencies. 

(e)  N^ot  precluded  from  objecting  to  de- 

fects or  insufficiencies- 

(f)  What  are  sufficient  proojs  of  loss, 
fg)  When   preliminary  proofs  are  in 

j  time. 

(h)  When  preliminary  proofs  are  not 

not  in  time. 
(i)  Of  authority  to  waive  preliminary 
proofs. 
II.  Of  the  pakticular  accotxst. 

(a)  What  is  sujicient. 

(b)  7iot  sufficient. 

III.  Of  the  m.^gistrate's  or  surgeon's 

CERTIFICATE. 

(a)  Wlien  sufficient. 

(b)  not  sufficient. 

TV.   Op  ESTOPPEL. 

(a)  When  insured   is  estopped  by  his 

proofs  of  loss. 

(b)  When  insured  is  not  estopped  by  his 

proofs  of  loss. 
v.  Op  Evidence. 

(a)  When  the  preliminary  proofs  are. 

(b)  are  not. 
VI.  Op  copies  OF  other  policies. 

VII.  Of  the  invoices,  books,  papers,  and 
vouchers  of  insured. 
VIII.  Appraisement  op  dajiage. 
IX  Questions  for  the  jury. 
X.  Generally. 

I.  Of  the  pkelimixakt  peoofs. 

(a)  Who  may  inake. 

1.  Polic}'  to  mortgagee.  The  mortgagor 
paid  the  premium;  notice  of  loss  and  prelim- 
iuar}'  proofs  were  made  by  the  mortgagor,  ac- 
companied by  an  affidavit  of  the  mortgagee, 
verifying  the  mortgagor's  statements.  Held, 
it  was  too  late  on  the  trial  for  insurers  to  say 
the  notice  and  proof  were  not  in  the  name  of 
the  insured.  Kernothan  v.  New  York  Bowery 
Ins.  Co.,  17  N.  T.,  428;  s.  c,  5  Duer.  1. 

2.  Insurance  to  mortgagor,  "loss,  if  any, 
payable  to  mortgagee."  The  mortgagor  re- 
fused to  sign  and  verify  the  prelimiuar}- 
proofs,  and  the  mortgagee  made  them  and  de- 
livered them  to  defendant's  agent.  May  215, 
1871.  June  6th  following  defendant  served 
notice  on  mortgagee  that  the  proofs  were  not 

532 


raafle  in  accordance  with  the  conditions  an- 
nexed to  the  policy;  that  they  would  not  be 
recognized  as  proofs  iu  the  case.  Held,  mort. 
gagce  was  not  bound  to  furnish  additional 
proofs.  Pratt  r.  New  York  Central  Ins.  Co., 
55  N.  Y.,  505;  8.  c.,  Oi  Barb.,  589. 

3.  Insured  died  during  the  term  insdred. 
Held,  his  personal  representative  succeeding 
to  bis  legal  rights  Ci)nld  give  tlie  notice  of 
loss,  and  make  the  necessary  preliminary 
proofs.  Farmers  Mat.  Ins.  Co.  v.  Graybill,  74 
Penn.  St.,  17. 

4.  While  insured  was  absent  from  the  state 
the  properly  was  consumed  by  fire,  and  his 
creditor  brought  suit  in  equity  alleging  the 
nonresidence  of  insured  and  insurer,  exhib- 
ited her  claims,  and  obtained  an  attachment. 
The  policy  stipulated:  "All  persons  sustain- 
ing loss  by  fire  are  forthwith  to  give  notice 
thereof  to  the  company,  and  as  soon  after  as 
possible  to  give  a  particular  account  of  it, 
signed  .and  verified  by  insured  with  a  certifi- 
cate of  the  loss  under  the  band  of  a  magis- 
trate most  contiguous  to  the  fire,  stating  the 
amount  of  it,  etc."  Held,  the  attaching 
creditor  had  a  right  to  proceed  in  rem  to 
compel  insurer  to  answer;  and  if  insured 
failed  to  furnish  the  preliminary  evidence 
uecessar3'  to  perfect  his  right,  the  attach- 
ing creditor  might  do  it  by  taking  the  te.s- 
timony  of  insured  and  others  in  the  usual 
manner;  that  the  condition  providing  for 
the  certificate  of  a  magistrate  might  be 
satisfied  by  taking  the  deposition  of  the 
magistrate  and  proving  by  him  all  the  facts 
requisite  to  fix  insurer's  liability;  and  this 
having  been  done,  the  attaching  creditor  was 
entitled  to  judgment.  Northwestern  Ins.  Co. 
V.  Atkins,  3  Bush,  328. 

5.  The  policy  required  notice  of  the  loss 
forthwith, and  a  particular  account  signed  and 
sworn  by  insured  within  three  days,  to  be  de- 
livered at  the  office  of  insurer.  Kotice  of 
the  fire  was  given  immediately,  and  an  agent 
of  insurer  produced  the  usual  blanks  for  mak- 
ing proofs  and  the  particular  account  of  the 
loss.  These  were  filled  up  under  the  agent's 
directions  and  sworn  to  by  S.,  a  person  act- 
ing as  agent  of  insured.  The  property  was 
in  Carroll  county,  under  the  exclusive  control 
and  management  of  S.  The  policy  was  ob- 
taiued  by  S.,  tlie  application  and  the  pre- 
mium note  being  executed  by  hira.  In- 
sured resided    at    St.   Louis.     Held,    if     & 


1105 


PROOFS  OF  LOSS. 


1106 


Of  the  preliminar}'  proofs. 


could  not  make  the  proof  it  could  not  be 
made  at  all;  tlie  posiliou  assumed  by  insurers 
l)laced  them  in  the  altitude  of  issuing  policies 
and  receiving  premiums,  knowing  from  the 
nature  of  the  case  that  no  legal  proof  could 
be  made  of  the  losses,  if  any  should  occur, 
•which  iiosition  the  court  would  not  recognize. 
Sims  V.  State  Ins.  Co.,  47  Mo.,  54. 

6.  Policy  to  A.  &  B.,  loss,  if  any,  payable 
to  C.  A.  sold  all  his  interest  to  B.,  of  which 
insurers  had  notice.  B.  made  the  preliminary 
proofs  of  loss  in  his  own  name.  Uild,  they 
were  well  made  in  his  name.  Keeler  v.  Niag- 
ara Fire  Ins.  Co.,  16  Wis.,  523. 

7.  If  the  insured  is  a  nonresident  and  has 
an  agent  in  charge  of  the  premises  insured, 
the  proofs  of  l(^ss  may  be  made  b}-  him,  and 
they  will  be  sufTicieut  unless  objections  to 
them  are  made  for  that  cause.  Ayres  v.  Hart- 
ford Fire  Ins.  Co.,  17  Iowa,  176. 

8.  Insured  had  been  absent  for  a  long  time 
prior  to  the  destruction  of  the  property.  His 
wife,  who  acted  as  his  agent,  gave  notice  of 
the  loss  and  made  preliminary  proof.  Held, 
sufficient.  O'Connor  v.  Hartford  Fire  Im.  Co., 
31  Wis.,  160. 

(b)    W/iat  precludes  insurers  from  in- 
sisting on. 

9.  The  insurer  resisted  payment  of  the  loss 
on  the  ground  that  no  obligation  to  insure  was 
entered  into;  that  the  contract  was  incomplete 
at  the  time  of  the  loss.  Held,  tlie  insured  was 
not  bound  to  produce  preliminary  proofs  of 
the  loss.  Tayloe  ».  Merchants  Ins.  Co.,  9 
How.,  390. 

10.  It  was  stipulated  that  the  insured 
should  make  certain  preliminary  proofs  of  the 
loss  before  any  riglit  of  action  should  accrue 
under  the  policy.  Insured  gave  timely  notice 
of  the  loss,  and  insurers  examined  and  in- 
quired into  all  the  circumstances  connected 
with  it,  and  then  denied  all  liability,  on  the 
ground  that  the  loss  was  the  result  of  a  marine 
peril  for  which  the  insurers  were  not  liable 
upon  their  contract.  Held,  the  denial  of  all 
liability  was  in  law  a  waiver  of  any  fur- 
ther proof  of  the  loss;  the  denial  of  lia- 
bility admitted  the  loss,  and  was  a  notice  to 
the  insured  that  the  insurers  would  not  be 
bound  in  any  event,  though  formal  proofs 
were  furnished ;  and  under  such  an  admis- 
sion, preliminary  proofs  were  of  no  import- 


ance to  either  party,  for  the  law  does  not 
require  performance  of  that  which  is  mere 
idle  formality  (citing  Schenck  v.  Mercer  Coun- 
ty Mutual  Fire  Ins.  Co.,  24  N.  J.,  447;  Alle- 
gre  B.  Maryland  Ins.  Co.,  G  H.  &  J.,  408;  Mc 
Masters  v.  Westchester  County  Mut.  Ins.  Co., 
25  Wend.,  379;  Francis  v.  Ocean  Ins.  Co.,  0 
Cow.,  404;  Tayloe  v.  Merchants  Fire  Ins.  Co ,  !> 
How.,  390;  O'Neil  v.  Buffalo  Ins.  Co.,  3  N.  Y., 
122;  Maryland  Ins.  Co.  t.  Balhursl.  5  G.  &  J., 
l.">9;  Graves  v.  Washington  Marine  Ins.  Co., 
12  Allen,  391).  Norwich  and  N.  T.  Trans. 
Co.  r.  West  .Uass.  Ins.  Co.,  34  Conn.,  561 ;  s.  c, 
6  Blatch.,  241 ;  s.  c.  affirmed,  12  Wall.,  194. 

1 1.  If  the  insured  was  so  insane  as  to  have 
been  incapable  of  making  an  intelligent  state- 
ment, that  would  of  itself  e.xcuse  the  condition 
of  the  policy,  whicli  requires  an  affidavit  of 
the  loss;  if  the  affidavit  was  made  while 
the  insured  was  insane,  the  fact  of  his  insanity 
does  not  vitiate  it.  Insurance  Companies  v. 
BoyUn,  12  Wall.,  433. 

12.  The  defendant  pleaded  that  the  proofs 
were  not  furnished  as  required  by  the  policy. 
Hel,d,  the  Insured  miglit  prove  that  proofs,  in 
some  respects  defective,  were  accepted  by  the 
company,  or  the  acceptance  might  be  inferred 
from  the  company's  failure  to  object  ti>  them, 
or  by  placing  its  refusal  to  pay  upon  other 
grounds.  Spratley  o.  Hartford  Ins.  Co.,  1  Dil. 
Cir.  C,  392. 

13.  If  the  underw'riters  make  no  objection 
to  the  preliminar}-  proofs,  but  put  their  refusal 
to  pay  upon  the  ground  that  they  are  not 
liable  to  the  person  who  prefers  the  claim,  it 
is  a  waiver  of  preliminary  proof.  Rogers  v. 
Traders  Ins.  Co.,  6  Paige  Ch.,  583. 

14.  Payment  to  the  insured  of  a  part  of  the 
sum  insured  is  a  waiver  of  the  usual  prelim, 
iuar}'  proofs;  and  if  there  is  a  defect  in  them, 
and  it  is  supplied  during  the  trial  by  the  in- 
surers, that  is  a  waiver  of  any  exception  baseil 
on  the  defect.  Westlake  v.  St.  Lawrence  County 
Mut.  Ins.  Co ,  14  Barb.,  206. 

15.  The  defendant  resisted  the  claim  on  the 
ground  that  the  policy  had  not  been  renewed, 
and  no  agreement  for  its  renewal  had  been 
entered  into.  Held,  if  the  defendants  intended 
to  resist  payment  of  the  loss  on  account  of 
plaintiff's  failure  to  furnish  preliminary  proofs, 
they  should  have  so  stated,  because  plaintiflr 
then  had  time  and  ability  to  remove  the  objec- 
tion by  making  and  serving  the  proofs.  Post 
V.  yEtua  Ins.  Co.,  43  Barb.,  351. 

553 


1107 


PROOFS  OF  LOSS. 


1108 


Of  the  preliminaiy  proofs. 


16.  Insured  applied  to  insurer's  agent  for 
blanks  to  make  preliminary  proofs,  wlio  re- 
plied that  lie  would  not  give  any  because  tlie 
<lefendants  did  not  recognize  the  claim.  Held, 
it  was  uunecessaiy  to  make  any  proofs  of  loss. 
Dean  v.  uEtna  Life  Ins.  Co.,  2  Hun.  (X.  Y.), 
358;  s.  C,  4N.  Y.  S.  t!.,  497. 

17.  No  evidence  was  ofTered  of  any  pre- 
limiuar)'  proof  made  before  the  action  was 
lirought,  except  an  abandonment  and  a  de- 
mand for  payment ;  but  it  appeared  that  the  in- 
surers had  always  refused  payment  on  the 
ground  of  the  unseaworthiness  of  the  vessel, 
and  not  on  account  of  the  want  of  further  pre- 
liminary  proof.  Held,  the  insurers  had  thereby 
waived  their  right  to  an}-  further  prelimiuar}- 
proof.    Martin  v.  Fishing  Ins.  Co.,  20  Pick.,  389. 

18.  Tlie  by-laws  required,  in  case  of  loss, 
•certain  preliminary  proofs  to  be  made.  Held, 
the  company  could  expressly  or  impliedly 
■waive  the  condition ;  that  the  implied  waiver 
•could  be  found  from  the  fact  that  payment 
was  refused  on  grounds  other  than  defects  in 
the  preliminav}'  proofs  (citing  Underbill  x. 
Agawam  lus.  Co.,  6  Cush.,  440).  This  waiver 
is  unlike  a  waiver  of  matters  relating  to  the 
substance  of  the  contract.  Stipulations  as  to 
the  preliminary  proofs  are  not  of  the  sub- 
stance or  essence  of  the  contract,  but  relate 
only  to  the  mode  or  form  in  which  the  liabil- 
ity of  the  company  shall  be  ascertained  and 
proved.  Priest  v.  Citizens  Mutual  Fire  Ins. 
Co.,  3  Allen,  002. 

19.  The  president  of  the  company  was 
asked  to  pay  the  loss,  and  refused  to  do  so  on 
grounds  other  than  the  want  of  preliminary 
proofs.  Held,  sufficient  evidence  for  the  jury 
to  find  that  preliminary  proofs  liad  been  fur- 
nished satislactorj-  to  the  companj-.  Stetson 
1).  Insurance  Co.,  4  Phila.,  8. 

20.  Some  notice  of  the  plaintiff's  loss  had 
been  received,  but  it  did  not  appear  that  the 
provisions  of  the  statute  in  that  respect  had 
been  complied  with.  The  refusal  to  pay 
was  placed  on  the  ground  of  overvaluation. 
Held,  abundant  proof  that  the  companj-  had 
waived  any  noncompliance  witli  the  require- 
ments of  the  law  in  regard  to  notice  and  pre- 
liminary  proofs.  Lewis  v.  Monmouth  Mutual 
Fire  Ins.  Co.,  53  Me.,  493. 

21.  D.  notified  insurer's 'agent  of  the  loss, 
and  told  him  that  tlie  property  belonged  to 
D.  instead  of  tlie  persons  insured.  Tlie  agent 
■«tated  tliat  defendant  was  not  upon  the  risk, 

554 


if  the  property  insured  and  burned  was  the 
property  of  D.,  and  that  the  loss  would  not  be 
paid.  The  agent  again  stated,  at  a  subsequent 
date,  to  D.  and  to  insured,  that  the  company 
would  not  pay  the  claim.  No  preliminary 
proofs  of  loss  were  offered.  Held,  a  waiver  of 
all  preliminary  proof.  Franklin  Fire  Ins.  Co. 
V.  Coates,  14  Md.,  285. 

22.  Insurers,  on  being  notified  of  the  loss, 
demanded  the  master's  protest.  Having  re- 
ceived  it,  they  notified  insured  that  they  did 
not  consider  themselves  answerable  for  the 
claim.  Held,  a  waiver  of  all  objections  to  pre- 
liminary proofs  of  loss.  Maryland  Ins.  Co.  v. 
Bathurst,  5  G.  &  J.,  159. 

23.  Stipulated:  "  Insured  shall  give  notice 
and  make  proof  of  loss  within  thirt}-  days  after 
its  occurrence."  After  the  time  limited  in  the 
policy,  the  attorney  of  insured  wrote  insurers 
informing  them  of  tlie  loss,  and  that  the  policy 
had  been  burned.  He  requested  a  copy  of  the 
policy,  and  instructions  as  to  the  proper  mode 
of  verifying  the  loss.  Insurer's  treasurer  ac- 
knowledged the  receipt  of  the  letter,  and 
wrote:  "The  matter  will  be  laid  before  the 
executive  committtee  at  their  next  meeting." 
And  again  he  wrote:  "The  committee  has 
rejected  the  claim  on  the  ground  of  nonpaj-- 
ment  of  assessments."  Meld,  a  clear  waiver 
of  any  form  of  notice  or  particular  kind  of 
proof.  Noyes  v.  Washington  Ins.  Co.,  30  Yt., 
059. 

24.  Insurer  denied  all  liability  and  refused 
to  pay  any  thing.  Held,  a  waiver  of  notice 
and  proof  of  death  required  by  the  terms  of 
the  policy.  McComos  j).  Covenant  Mutual  Life 
Ins.  Co.,  50  Mo.,  573. 

25.  The  policy  exempted  defendant  from 
all  claim  •'  if  the  insured  shall  die  in  conse- 
quence of  delirium  tretuens."  The  company 
set  up  as  a  defense  to  the  action,  that  his  death 
was  caused  by  delirium  tremens.  Held,  w^hea 
insurers  interpose  a  defense  which  exempts 
them  from  an}-  payment  at  all,  that  is  a  waiver 
of  the  formal  proofs  required  under  the  con- 
tract.  liippstein  v.  St.  Louis  Mutual  Life  Ins. 
Co.,  57  5Io.,  86. 

26.  Insurer  and  insured  completed  a  con- 
tract to  insure  $1,000  upon  a  building  for  one 
year,  tlie  policy  to  be  delivered  when  called 
for,  and  the  premium  to  be  paid  within  five 
days.  The  building  was  consumed  within 
five  days.  Insured  tendered  tlie  premium  and 
demanded   thb    policy,    which   was    refused. 


iioa 


PROOFS  OF  LOSS. 


1110 


Of  the  preliminary  proofs. 


Held,  it  was  not  necessarj'  to  show  a  compli- 
nnce  with  the  terms  of  the  policy,  because 
insurer  refused  to  issue  one  (citing  Tah>e  v. 
Merchants. Ins.  Co..  9  How.,  390;  Post  j).  /Etna 
Ins.  Co.,  43  Bar)).,  3")1).  New  England  Fire 
and  Murine  Ins.  Go.  v.  Robiimon,  25  Ind.,  530. 

27.  Appellant  inquired  for  the  office  of  the 
company  in  Chicago,  but  failed  to  find  its 
place  of  business.  He  notified  the  local 
agents  of  his  loss,  and  was  informed  by  them 
that  the  company  was  whollj-  bankrupt,  and 
•was  led  to  believe  it  would  be  useless  for  him 
to  make  any  formal  proofs  of  loss.  Ileld  (in 
an  action  against  the  receiver),  the  other  cred- 
itors could  not  profit  by  a  mistake  induced  by 
the  company's  agent.  Perinell  v.  Chandler, 
S.  C.  111.,  7  Chi.  Leg.  News,  227. 

28.  Insurer's  agent  told  insured  that  a  cer- 
tain alleged  sale  of  the  property  had  released 
insurer,  and  that  proofs'  of  loss  would  be  su- 
perfluous and  unavailing.  Relying  upon  this 
insured  made  no  proofs  of  the  loss.  Held,  in- 
surer could  not  insist  upon  proofs.  Manhat- 
tan Ins.  Co.  V.  Stein,  5  Bush,  652. 

29.  The  day  after  the  fire  occurred  the  loss 
was  made  known  to  the  secretary  and  agent 
of  the  company.  The  agent  promptly  ig- 
nored all  responsibility  on  the  ground  that 
the  policy  had  been  canceled  for  nonpayment 
of  premium.  Held,  insured  were  not  bound 
to  make  preliminary  proofs  of  loss.  La  Soci- 
ete.  etc.,  v.  Morris,  24  La.  An.,  347. 

30.  The  general  agent  called  at  plaintiff's 
residence  to  examine  into  the  loss,  and  made 
an  examination.  He  told  plaintiff  that  he 
could  not  recommend  the  companj'  to  pay  the 
claim,  because  he  was  satisfied  the  sales  of 
goods  were  greater  than  the  purchases;  that 
insured  had  no  claim  under  the  policy,  and 
<lenied  all  liability.  Held,  the  making  and 
presenting  formal  proofs  of  loss  would  have 
been  superfluous;  and  a  failure  to  make  and 
present  them  was  no  defense  to  the  action 
(citing  Norwich  &  New  York  Trans.  Co.  v. 
Western  Mass.  Ins.  Co.,  34  Conn.,  501).  Mc- 
Uride  v.  liepuhlic  Fire  Ins.  Co.,  30  Wis.,  502. 

31.  Insured  did  not  make  any  otter  to 
prove  a  compliance  with  the  condition,  which 
required  certain  preliminary  proofs,  but  put 
in  evidence  a  letter  written  1)y  insurer's  super- 
intendent, which  stated  that  the  claim  was  re- 
jected on  the  ground  that  a  subsequent  policy 
had  been  made  without  defendant's  permis- 
sion, and  that  the  risk  was  fully  covered  by  I 


prior  policies.  Held,  no  obligation  rested  up- 
on insured  to  make  any  preliminary  proofs  of 
loss.     Parker  v.  Amazon  Ins.  Co.,  34  Wis.,  303. 

(c)    What  does  not  preclude  insurers 
from  insisting  on. 

32.  The  insurer  did  not  state  that  the  ol). 
jectiou  to  paying  the  loss  was  founded  upon 
the  failure  of  the  insured  to  deliver  prelim- 
inary proofs  of  it.  Held,  not  a  waiver  of  the 
preliminary  proofs.  Columbian  Ins.  Co.  v. 
Lawrence,  2  Pet.,  25. 

33.  Policy  upon  the  lives  of  plaintiff  and 
her  husband,  payable  to  the  survivor,  in  sixty 
days  after  due  notice  and  proof  of  death.  Ho 
died  May  15,  1872.  She  addres.sed  a  letter  to 
defendants  informing  them  of  the  death.  De- 
fendants retained  it,  and  never  demanded  any 
further  proof.  Held,  not  any  evidence  of  com- 
pliance  with  the  condition.  O'Reilly  v.  Cuard- 
ian  Life  Ins.  Co.,  60  N.  Y.,  169 ;  reversing  s.  c, 
1  Hun.  (N.  Y.),  460;  s.  c,  3  N.  Y.  S.  C,  487; 

34.  Stipulated:  "Persons  sustaining  loss 
shall  forthwith  give  notice  thereof,  and  shall 
within  forty  days  deliver  in  a  particul.ar  ac- 
count of  such  loss,  signed  and  verified.  All 
communications  and  notices  to  the  company 
must  be  postpaid,  and  directed  to  the  secretary 
at  Canajoharie."  House  burned  January  9, 
1858.  Damage,  .$1,300.  February  15tli  plaint- 
ift'  made  sworn  statement,  and  particular  ac- 
count of  the  loss,  left  it  with  his  counsel,  who 
sent  it  by  mail  postpaid,  directed  to  the  secre- 
tary. The  company  never  received  it.  Held, 
the  words  "deliver  in"  meant  a  delivery  to 
the  company.  A  deposit  of  the  proof  of  loss 
in  the  post  office  was  not  sufiicient.  Hodg- 
kins  V.  Montgomery  County  Mut.  Ins.  Co.,  34 
Barb..  213. 

35.  Policy  required  notice  of  loss  and  pre- 
liminary proof  signed  and  sworn  to.  A  verbal 
notice  of  the  loss  having  been  given,  the 
company  .sent  an  agent  who  investigated 
the  circumstances  of  the  fire,  and  examined 
persons  concerning  the  cost  of  constructing 
the  premises;  but  the  agent  testified  that  he 
told  the  insured  to  send  his  proofs  of  loss  to 
the  company.  Held,  no  evidence  that  the  in- 
surers waived  preliminary  proof.  Busch  r. 
Insurance  Co.,  6  Phila.,  252. 

36.  The  preliminary  proofs  of  loss  were  de- 
livered December  28th,  the  company  demand- 
ed a  view  of  the  books  and  papers  of  insured 

535 


1111 


PROOFS  OF  LOSS. 


1112 


0£  the  preliminaiy  proofs. 


January  13tli.  February  lltb,  insurers  were 
notified  tliat  tlie  boolis  and  papers  were  ready 
for  inspection  at  tlie  office  of  the  attorneys  of 
the  insured.  March  3d,  insurers  rejected  tlie 
chiim  on  the  ground  of  material  concealment 
as  to  the  character  of  the  risk,  slating  at  the 
same  time  that  the  preliminary  proofs  of  loss 
•were  wholly  unsatisfactory,  reserving  all  right 
of  objection,  and  protesting  against  any  inten- 
tion to  waive  any  rights  under  the  policy. 
Jlehl,  the  court  did  not  err  in  refusing  to  in- 
struct the  jury  that  the  defendants  had  waived 
prelim inarj'  proofs  of  loss.  Edwards  v.  Balti- 
more Ins.  Go.y  3  Gill,  176. 

37.  A  witness  called  at  insurer's  office,  in- 
quired why  the  loss  had  not  been  paid,  and 
stated  if  there  was  any  deficiency  in  the  proofs 
he  would  try  and  supply  it.  The  parson  who 
represented  himself  as  president,  said  "They 
had  sent  an  agent  to  "Winchester,  and  from 
bis  information  they  did  not  believe  there 
could  have  been  so  much  stock  in  a  little 
room  of  ten  by  twelve  feet."  The  witness  de- 
nied the  correctness  of  the  information,  and 
inquired  what  further  proof  was  wanted.  The 
president  replied,  the  policy  will  show,  or  it 
is  laid  down  in  the  policy.  Upon  the  trial, 
the  proliminarj-  j)roofs  were  called  for  by  no- 
tice served  upon  insurer's  attorney,  but  they 
were  not  jiroduced,  and  it  seems  there  was  no 
evidence  given  as  to  their  contents.  Held,  no 
evidence  of  preliminary  proof  of  the  loss,  nor 
any  evidence  of  waiver.  Spring  Garden  Mut. 
Ins.  Co.  V.  Etans,  9  Md.,  1. 

38.  A  traveling  agent  of  insurer  was  told 
of  the  loss.  lie  replied,  "The  matter  will  be 
all  right  with  the  company."  Held,  not  evi- 
dence that  the  company  waived  its  right  to 
tlie  proofs  required  by  the  policy.  Boyle  v. 
North  Carolina  Ins.  Co.,  1  Jones'  Law,  373. 

39.  Plaintiff  was  required  to  furnish  proofs 
of  the  loss  sustained  by  sinking  of  the  boat; 
but  defendant's  agent  had  previously  stated  to 
plaintiff  that  he  was  not  prepared  t(j  pay  the 
loss.  Ileld,  no  recovery  could  be  liad.  Me- 
Cann  v.  ^ina  Ins.  Co.,  3  Neb., -198. 

40.  The  policy  required  sworn  statement 
of  loss  within  thirty  days.  The  value  of  the 
premises  was  the  only  question  disputed  be- 
tween the  parties,  and  insurer  and  insured 
agreed  to  submit  that  question  to  an  ai'bitrator ; 
but  it  never  was  so  submitted;  and  aflor  thirty 
days  had  elapsed,  plaintifl'  made  a  statement 
of  the  loss  and  delivered  it.     Ueld,  this  was 

55U 


not  evidence  of  waiver,  hence  insured  could 
not  recover.  Niagara  District  Ins.  Co.  v. 
Lewis,  Vi  U.  C.  C.  P.,  123. 

41.  Defendant's  secretary  wrote  plaintiff 
that  the  claim  was  rejected  because  plaintiff 
had  failed  to  make  certain  disclosures  de- 
manded of  him  b)'  the  application.  Ueld,  not 
admissible  as  evidence  of  waiver  of  certain 
other  conditions  stated  in  the  policy,  because 
it  had  not  been  specially  pleaded ;  nor  was 
the  letter  to  be  considered  as  evidence  that  the 
insurer  was  satisfied  with  tlie  particular  ac- 
count of  the  loss.  Scott  v.  Niagara  iJist.  Mut. 
Ins.  Co.,  25  U.  C.  Q.  B.,  119. 

(d)  When  insurer  is  pj'ecluded  from, 
ohjectmg  to  defects  or  insufficiencies. 

42.  Anagentof  the  insurer,  on  preliminary 
proofs  of  loss  being  submitted,  ascertained 
the  amount  due,  and  lirought  it  into  court. 
Held,  the  sufficiency  of  the  preliminary  proof 
was  admitted.  Johnson  c.  Columbian  Ins.  Co., 
7  Johns.,  315. 

43.  Insured  produced  to  insurer  the  protest 
of  the  master.  The  register  proving  the  in- 
sured's interest  in  the  vessel  was  not  produced. 
Insurer  made  no  objection  to  the  preliminary 
proof,  but  placed  his  refusal  to  pay  specifically 
and  solely  on  the  ground  of  deviation.  Held, 
he  thereb}'  waived  further  preliminary  proof. 
Vos  11.  Robinson,  9  Johns.,  192. 

44.  Insurers  declared  "  they  would  not  set- 
tle in  any  way,"  Jiutting  their  objections  on 
the  merits  of  the  case,  and  not  on  any  defect 
in  the  jorelimiuary  proofs.  Held,  that  what- 
ever imperfections  there  may  have  been  in  the 
preliminary  proofs  were  waived.  Francis  v. 
Ocean  Ins.  Co.,  6  Cow.,  404;  s.  c,  2  Wend.,  04. 

4.'^.  The  insured  refused  to  p.iy  on  grounds 
other  than  insufficiency  of  proofs  of  loss.  Held, 
the  proof  of  loss  must  be  considered  sufficient. 
Catlett  V.  Pacificlns.  Co.,  1  Wend.,  561 ;  affirmed, 
4  id.,  75;  Ocean  Ins.  Co.  v.  Francis,  3  id.,  64; 
Bttmsiead  v.  Diindend  Mut.  Ins.  Co.,  12  N.T.,  81. 

46.  A  failure  to  point  out  a  formal  defect 
in  preliminary  proofs,  and  putting  the  objec- 
tion to  pay  on  other  grounds,  is  a  waiver  of 
the  defect.  McMasters  v.  WestcJiester  Countf 
Mat.  Ins.  Co.,  25  Wend.,  379. 

47.  Affidavit  of  the  loss  made  by  the  in- 
sured was  considered  sufficient  preliminary 
]>roof.  Sex-tan  v.  Montgomery  County  Mut. 
Ins.  Co..  9  Barb..  191. 


1113 


PROOFS  OF  LOSS. 


lilt 


Of  the  preliminary  proofs. 


48.  Dcfecis  in  preliminary  proofs  not 
pointed  out  are  waived.  Boynton  v.  Clinton 
and  Essex  Mut.  Ins.  Co..  16  Barb.,  254. 

4!).  Tlie  insurer  received  and  aclod  upon 
notice  and  preliminary  proofs  furnished,  witli- 
out  objecting  to  tlieir  form  or  time  of  service, 
ducliued  to  pay  the  loss,  but  did  not  plaoe 
their  refusal  upon  any  defect  iu  the  notice  or 
jiroofs.  Ileld,  all  former  defects  in  them  were 
waived.  Hynds  v.  Schenectady  County  Mut. 
Ins.  Co.,  11  N.  Y.,  554;  16  Bar)).,  119. 

50.  For  the  purpose  of  showing  notice  and 
proof  of  loss,  insured  read  in  evidence  a  letter 
of  insured  to  insurers,  in  which  he  informed 
them  that  it  had  become  necessary  for  him  to 
give  notice  of  loss  and  damage  to  the  prem- 
ises insured,  mentioning  the  time  when  the 
fire  occurred,  the  number  of  the  policy,  and 
requesting  indemnitication  according  to  the 
eti'ect  of  the  policy.  The  policy  did  not  re- 
quire any  particular  account  of  the  loss,  but 
provided  that,  in  case  of  loss  the  company 
shoulil  have  the  right  to  replace  the  property 
with  others  of  the  same  kind  and  equal  good- 
ness. Held,  the  letter  was  sufficient  notice 
and  preliminary  proof  in  the  absence  of  any 
demand  for  distinct  specification.  Heath  v. 
Frauklin  Ins.  Co.,  1  Cush.,  257. 

.51.  The  insuyer  received  preliminary  proofs 
of  loss,  but  the}'  did  not  contain  all  the  de- 
tails required  by  the  policy.  No  objection 
was  made  to  them  on  that  ground,  nor  any 
further  information  required.  Payment  was 
refused  on  other  grounds.  Held,  a  more  full 
and  particular  account  of  the  loss  was  waived. 
Underhill  v.  Agawain  Mutual  Fire  Ins.  Co.,  C 
Cush.,  440. 

52.  Insured  sent  defendant  certain  notices 
and  proofs  pursuant  to  the  by-laws.  Held,  if 
the  notices  were  defective,  good  faith  required 
insurers  to  point  out  the  defects;  and  if  in- 
surers proceeded  to  negotiate  with  insured 
without  adverting  to  the  defects,  and  then  re- 
fused to  pay  the  loss  on  other  and  distinct 
grounds,  insurers  were  estopped  to  rely  upon  or 
set  u])  the  defects  as  a  defense  to  the  action, 
lor  the  law  assumes  tliat  the  notices  were  cor- 
rect and  will  not  permit  the  insurer  to  prove 
the  contrary.  lilake  v.  Exchange  Mut.  Ins. 
Co.,  13  Gray,  265. 

53.  InsunTS  refused  to  pay  the  claim,  but 
suliscquently  neu'otiated  about  its  payment 
and  never  made  any  objections  to  the  i)relim- 
iaary  proofs  of  iU    Held,  a  waiver  of  all  uj- 


jections  to  them.     Omven  v.  Washington  Ma- 
rine Ins.  Co.,  13  Allen,  391. 

54.  Insurers  rested  their  defense  exclusively 
on  grounds  other  than  the  want  of  formal 
notice  and  proof  of  the  claim.  Held,  they  liad 
waived  all  objection  to  tl>e  sufficiency  of 
notice  and  proof  of  loss  (citing  Martin  v.  Fish- 
ing Ins.  Co.,  20  Pick.,  380;  Vose  v.  Itobinsou, 
9  Johns.,  193;  Tayloe  v.  Merchants  Ins.  Co.,  9 
How.,  3y0.  Thwing  v.  Great  Western  Ins.  Co., 
Ill  Mass.,  93. 

55.  The  charter  required  all  members  to 
give  notice  of  the  loss  to  the  directors  or  some 
one  of  them,  or  to  the  secretary,  within  thir»y 
days  after  it  should  occur.  The  by-laws  le- 
quired  insured  to  deliver  a  particular  account 
on  oath,  of  the  property  damaged  and  the 
value  thereof,  etc.,  within  thirty  days  after 
the  loss.  Within  thirty  days  after  the  loss  a 
notice  thereof,  sworn  to  by  insured,  was  for- 
warded by  mail  to  the  company  and  received. 
Held,  by  receiving  notice  of  the  loss  and  fail- 
ing  to  point  out  its  defects,  insured  waived 
the  right  to  take  exceptions  to  it.  Barllett  «. 
Union  Mutual  Fire  Ins.  Co.,  46  Me.,  500. 

56.  If  the  insurer  intended  to  rely  upon  the 
insufficiency  of  the  preliminary  proofs  of  loss, 
they  should  have  requested  further  proofs,  and 
when  they  received  those  that  were  defective 
and  failed  to  demand  others,  they  waived  their 
right  to  insist  upon  the  defect.  Walker  v. 
Metropolitan  Ins.  Co.,  56  Me.,  371. 

57.  Proofs  of  loss  were  seasonably  made, 
but  no  objection  was  taken  to  their  sufficiency 
until  the  cause  came  on  for  trial.  Held,  all 
defects  were  waived.  Patterson  v.  Triumph 
Ins.  Co.,  64  Me.,  500. 

58.  The  defense  relied  upon  a  defect  in  the 
preliminary  proofs  of  loss.  Held,  insured  had 
the  right  to  prove  that  insurer's  agent  stated 
to  him  that  the  quantity,  quality  and  value  of 
the  property  were  what  the  company  objected 
to;  and  if  proved,  it  was  a  waiver  of  all  objec- 
tions grounded  on  defective  preliminary 
proofs.  liathbone  v.  City  Fire  Ins.  Co.,  31 
Conn.,  193. 

59.  Policy  required  notice  of  the  injury  and 
death  to  be  given  within  thirty  da3-s  from  the 
happening  of  either.  He  received  a  blow  on 
the  bowels  from  a  Iiay  fork  July  9,  1867,  and 
(lied  the  14th.  August  13th  insurers  were 
nolilied  of  the  death.  The  widow's  allidavit 
sl.ited  that  the  death  was  caused  by  injuries 
..^cived  iu  the  bowels  while  working  in  a 

557 


1115 


PROOFS  OF  LOSS. 


IIIG 


Of  the  preliminaiy  proofs. 


hay  field,  from  whicli  penlonitis  resulted. 
Subrcquently  the  affidavit  of  the  atteuding 
physciau  was  furnished,  which  stated  that  he 
was  killed  by  accident  ocr-  --"ed  by  exer- 
tions made  while  assisting  in  ..auling  in  hay, 
wliich  injured  the  abdominal  muscles  and 
produced  peritoneal  inflammation,  and  all  its 
concomitant  symptoms,  which  resulted  in  his 
death.  Held,  taking  both  affidavits  together, 
ihey  were  prima  facie  proofs  that  he  came  to 
his  death  by  an  accident.  Iforth  American 
Accident  Ins.  Co.  v.  Burroughs.  09  Penu.  St.,  43. 

60.  Preliminary  proofs  of  loss  were  sent  by 
mail  from  P(>ttsville,  Penn.,  to  insurers,  New 
i\.rk  office,  January  2-5,  1870,  and  a  reply 
given  March  15th,  same  year,  stating  gen- 
erally, that  the  preliminary  proofs  were  not 
made  in  pursuance  of,  and  were  not  in  accord- 
ance with  the  conditions  of  the  policj',  that 
until  those  conditions  should  be  complied 
with,  no  answer  would  be  given  as  to  what  the 
company's  action  would  be.  Held,  insurers 
could  not  remain  silent  for  nearly  two  months 
and  then  complain  in  general  terms.  Imperial 
Fire  Ins.  Co  v.  Murray,  73  Penn.  St.,  13. 

61.  Proofs  of  loss  were  made  and  delivered, 
and  no  objections  made  to  them  till  the  time 
of  the  trial.  Held,  all  objections  were  waived, 
overruling  Roumage  v.  Mechanics  Fire  Ins. 
Co.,  1  Green,  110.  Basch  v.  Humholdt  Mutual 
Fire  and  Marine  Ins.  Cu.,35  N.  J.,  429. 

62.  All  objectiims  to  preliminary  proofs  are 
waived,  except  those  pointed  out  when  they 
are  delivered.  Hartford  Protection  Ins.  Co.  v. 
Ilarmer,  2  Ohio  St.,  452. 

63.  Preliminary  proofs  were  presented,  and 
the  claim  was  rejected,  on  the  ground  that  in- 
.surcd  was  not  the  owner  of  the  property.  No 
objections  were  made  to  the  preliminary  proofs. 
Held,  the  failure  to  object  to  them  was  a  waiver 
of  all  defects.  Globe  Ins.  Co.  v.  Boyle,  21  Ohio 
St.,  119:  s.  c,  1  Cin.  Sup.  Ct.,  444. 

64.  It  is  necessary  on  a  trial  at  law  for  the 
insured  to  show  that  he  exhibited  preliminary 
proofs  of  loss  to  the  insurer,  before  the  action 
was  commenced.  If  the  insurer  does  not  re- 
ject the  claim  on  the  ground  that  the  prelim- 
in;'.ry  proofs,  or  a  part  of  them  have  not  been 
[iroduced,  but  states  that  the  claim  will  not  be 
adjusted,  this,  b}-  necessary  implication,  gives 
tlie  insured  to  understand  that  all  further  ofters 
of  preliminary  proof  would  be  useless.  Alle- 
gre  v.  Maryland  Ins.  Co.,  6  H.  &  J.,  408; 
affirmed,  2  G.  &  J.,  136. 

55S 


65.  The  fire  occurred  early  in  the  morning 
of  August  11,  18G9.  Notice  was  given  at  Chi- 
cago to  the  agents  who  had  made  the  policy. 
Preliminary  proofs  of  loss  were  made,  but  no 
certificate  of  a  magistrate  or  notary  public 
accompanied  them.  The  claim  was  referred 
by  the  president  to  B.  &  W.,  adjusters  at  Chi- 
cago, who  declined  to  act,  and  L.  was  ap- 
pointed to  act  in  their  place,  to  whom  the 
preliminary  proofs  were  delivered  about  ten 
days  after  the  flre.  L.  said  he  would  let  in- 
sured know  if  they  were  deficient.  Insurers 
received  them  from  L.  about  the  last  of  Sep- 
tember, 18G9.  December  28,  1869,  insurers 
made  a  general  objection  to  the  preliminary 
proofs,  to  which  the  altornej-s  of  insured  re- 
plied, requesting  insurers  to  indicate  the  par- 
ticular defect,  and  offered  to  cure  any  defect 
that  was  material;  to  which  insurers  replied 
that  the  attorneys  must  determine  "from  the 
polic)'  what  preliminary  proofs  were  neces- 
sary and  material.  The  policy  stipulated: 
"Nothing  but  a  distinct,  specific  agreement, 
clearly  expressed  and  indorsed,  shall  operate 
as  a  waiver  of  any  printed  or  written  condi- 
tion, warranty  or  restriction  herein."  Held, 
the  stipulation  referred  to  those  parts  of  the 
contract  necessary  to  make  it  a  binding  con- 
tract between  parties;  it  had  no  reference  to 
conditions  subsequent,  the  performance  of 
which  were  to  be  made  after  a  loss  occurred, 
such  as  giving  notice  and  furnishing  proofs 
of  the  loss ;  and  if  insurers  failed  to  object  to 
the  payment  of  the  loss  because  there  was  not 
a  m.igistrate's  certificate,  and  refused  to  pay 
the  claim  upon  grounds  other  than  defects  ia 
the  preliminary  proofs,  then  they  were  es- 
topped to  urge  the  defect  as  a  defense  to  the 
action.  Franklin  Fire  Ins.  Co.  v.  Chicago  Ice 
Co.  36  Md.,  102. 

66.  If  the  formal  proofs  of  interest  and  loss 
are  defective,  the  insurer  must  apprise  the  in- 
sured of  their  objections.  If  insurers  receive 
the  proofs  without  objection,  and  refuse  to 
pay  the  claim  on  other  grounds,  they  cannot 
be  permitted  to  avoid  liability  by  showing 
technical  objections  to  the  proofs  furnished. 
St.  Louis  Ins.  Co.  ».  Kyle.  11  Mo.,  278. 

67.  The  insurers  refused  to  pay  the  claim 
on  grounds  other  than  defects  in  tlie  prelimi- 
nary proofs.  Held,  they  couiil  not  afterwards 
insist  upon  such  defects,  and  it  matters  not 
that  they  said  in  terms,  "  We  waive  nothing;'* 
the  court  will  look  to  thoir  acts  and  ascertain- 


1117 


PROOFS  OF  LOSS. 


Ills 


Of  the  preliminary  proofs. 


if  there  was  a  waiver.    Phillips  v.  Protection 
Ins.  Co.,  U  Mo.,  220. 

68.  Notice  of  the  loss  was  given  and  an  ac- 
count of  it  furuislied.  Held,  all  grounds  of 
objections  that  might  have  been  taken  to  the 
preliminary  proofs,  but  which  were  not  slated, 
were  to  be  considered  waived ;  the  company 
could  not  afterwards  insist  upon  objections 
not  stated  when  the  proofs  were  delivered 
(citing  Vos  v.  Robinson,  9  Johns.,  192;  Child 
D.  Suu  Mut.  Ins.  Co.,  3  Saudf.,  27;  Bumstead 
V.  Dividend  Jlut.  Ins.  Co.,  12  N.  Y.,  81).  Pe- 
oria Marine  and  Fire  Ins.  Co.  v.  Lewis,  18  111., 
553. 

69.  The  insurer's  secretary,  in  reply  to  in- 
sured, stated  that  tlie  preliminarj-  proofs  were 
not  made  clearly,  nor  were  they  in  accordance 
with  the  requirements  of  the  policy,  and  re- 
quested new  proofs,  made  in  accordance  with 
article  nine  of  llie  conditions  of  the  contract. 
Ten  days  thereafter  insured  replied  that  he 
had  no  objection  to  make  such  proofs  of  loss 
as  were  necessary  and  the  facts  would  justify; 
that  the  insurer's  president  and  agent  had 
both  expressed  themselves  satisfied  with  the 
proofs  already  delivered,  that  he  did  not  know 
what  fact  required  furllier  elucidation,  and 
that  if  he  knew  wliat  insurer  wished  he  would 
endeavor  to  comply.  It  seems  the  prelimina- 
ry proofs  did  not  disclose  the  names  of  the 
owners  of  the  property  insured,  noi"  their  in- 
terest in  it.  Held,  every  informality  was  waived, 
for  every  ground  of  objection  tliat  might  have 
been  taken  and  which  was  not  stated  when 
the  proofs  were  furnished,  was  waived.  At- 
lantic Ins.  Go.  V.  Wrigld,  22  111.,  462. 

70.  No  defects  in  the  preliminary  proofs 
■were  stated  when  they  were  presented  to  the 
companj'.  Insured  asked  tlie  company's  sec- 
retary if  he  should  make  any  further  proofs 
of  loss,  who  replied,  "  He  could  do  so  if  he 
had  a  mind  to."  Held,  a  refusal  to  paj',  based 
on  grounds  other  than  a  defect  in  the  prelimi- 
nary proofs,  and  the  failure  to  suggest  any  de- 
fects in  them,  must  be  treated  as  a  waiver  of 
all  defects,  and  they  were  to  be  considered  as 
made  according  to  the  conditions  of  the  pol- 
icy. Peoria  Marine  and  Fire  Ins.  Co.  v. 
Wkitehill,  25  111.,  46G ;  Great  Western  Ins.  Co.  v. 
Standen,  26  id.,  360. 

71.  The  insurers  furnished  blanks  for  the 
purpose  of'making  proofs.  They  were  made 
and  returned  to  insurer's  agents,  who  sent 
them  to   the  principals,  who  retained   them 


without  making  specific  objections.  Held,  all 
existing  objections  were  waived.  Insurance 
Company  of  North  America  v.  McDowell,  50 
111.,  120. 

72.  Stipulated:  " Proofs  of  loss  shall  be  de- 
livered  to  insurer  within  thirty  days  after  the 
loss  occurs."  They  were  made  and  delivered 
within  the  time  mentioned;  but  they  were  not 
correct  in  form.  Insured  visited  insurer's 
office  several  times  but  no  objections  were 
taken  against  them.  Held,  all  objections  were 
waived.  Winncshcik  Ins.  Co.  v.  Schueller,  GO 
111.,  465. 

73.  Insured  notified  company's  resident 
agent  of  the  destruction  of  the  property,  lie 
was  told  the  adjuster  would  soon  be  there,  and 
to  call  again.  Preliminary  proofs  of  los» 
were  made  and  presented  to  the  agent,  wh» 
refused  to  receive  them  on  the  ground  that 
the  company  was  not  liable  for  the  loss. 
Held,  the  company  could  not  raise  formal  ob- 
jections to  them.  If  they  were  insufficient  it 
was  the  duty  of  the  agent  to  object  at  once 
and  thus  enable  insured  to  ascertain  the  defect 
and  cure  it.  Lycoming  Fire  Ins.  Co.  v.  Hun. 
more,'ta  111.,  14. 

74.  The  local  agent  testified  he  received 
notice  of  the  fire,  and  wrote  the  proofs  of  loss. 
Held,  sufficient  evidence  that  the  proofs  were 
received  by  the  agents  of  the  company;  that 
failing  to  make  any  objections  to  them  was  a 
waiver  of  all  objections.  Warner  v.  Peoria 
Marine  and  Fire  Ins.  Co.,  14  Wis.,  318. 

75.  Insured  presented  a  certificate  of  his 
claim  to  the  agent  of  insurer,  who  retained  it, 
and,  about  a  month  after,  said  to  insured  that 
the  preliminary  proofs  were  irregular,  in- 
formal and  insufficient;  but  he  did  not  go 
into  details  as  to  the  insufficiency.  Held,  evi- 
dence of  a  waiver  of  strict  compliance  with 
the  requirements  of  the  policy  as  to  proofs  of 
loss.  Madsdcn  v.  Phcenix  Ins.  Co.,  1  So.  Car.,  21. 

76.  Stipulated:  "Insured  shall  forthwith 
give  notice  of  the  loss,  and,  as  soon  thereafter 
as  possible,  deliver  a  particular  account  of  it, 
signed,  etc.,  and  verified  by  oath."  Prelimin- 
ary proofs  were  delivered  to  the  agents  of 
insurers,  but  thej'  were  objected  to  on  the 
ground  that  insured  had  not  signed  and  sworn 
to  them.  Other  preliminary  proofs  were  made 
and  delivered  to  the  insurer's  agents,  who 
made  no  objection  to  Ihem.  Held,  they  could 
not  demand  further  preliminary  proofs.  Home 
Ins.  Co^  V.  Cohen,  20  Gratt.,  812. 

559 


1119 


PROOFS  OF  LOSS. 


1120 


Of  the  preliminary  proofs. 


77.  Defcnilants  agreed  that  no  objection 
should  be  taken  to  the  want  of  a  policy;  that 
the  question  to  be  tried  should  be  confined  to 
the  cause  and  manner  of  the  loss ;  that  all  pro- 
•ceediugs  should  be  in  the  same  manner  and  to 
the  same  effect  as  if  the  policy  had  been  duly 
and  properlj-  signed  and  produced.  Held,  de- 
fendant could  not  raise  any  question  as  to 
whether  the  notice  and  proofs  of  loss  re- 
quired by  the  policy  had  been  made.  Walker 
V.  Western  Ais.  Co.,  18  U.  C.  Q.  B.,  19. 

(e)  When  insurer  is  not  precluded 
from  ohjecting  to  defects  or  insuffi- 
ciencies. 

78.  Insurers  received  the  preliminary  proofs, 
notified  insured  that  they  were  wholly  unsat- 
isfactory as  to  the  amount  of  his  claim,  de- 
nied all  liability  on  the  ground  that  the  title 
had  been  misrepresented,  reserved  all  objec- 
tions to  a  recovery  in  an}'  form,  declared  that 
they  did  not  waive  any  rights  under  the  policy, 
but  left  insured  to  pursue  such  course  as  he 
should  deem  expedient.  Held,  no  waiver  of 
preliminary  proofs.  Citizens  Fire  Ins.  Co.  v. 
Doll,  35  Md.,  89. 

(f)  What  are  sufficient  proofs  of  loss. 

79.  Stipulated:  "To  be  paid  thirty  days 
after  proof  thereof."  Held,  not  to  mean  proof 
in  a  strictly  legal  and  technical  sense,  but 
reasonable  information  of  the  fact  of  the  loss, 
and  the  usual  documentary  evidence  is  suflS- 
cient.  Talcot  v.  Marine  Ins.  Co.,  2  Johns., 
1.30. 

80.  The  clause  in  the  policy  that  the  loss  is 
to  be  paid  "  thirty  days  after  proof,"  requires 
the  insured  to  furnish  reasonable  information 
to  the  insurer,  that  he  might  be  able  to  esti- 
mate his  rights  and  duties.  Barker  c.  Phoenix 
Ins.  Co.,  8  Johns.,  307. 

81.  The  clause  in  the  policy  which  makes 
preliminary  proof  necessary  before  payment 
can  be  demanded  requires  only  the  best  evi- 
dence of  the  loss  that  the  party,  possesses  at 
the  time.  Lawrence  v.  Ocean  Ins.  Co.,  11 
Johns.,  240. 

82.  The  preliminary  proofs  stated  that  the 
mill  insured  was  totally  destroyed  by  fire. 
Held,  suflScient;  that  the  insured  was  not 
bound  to  state  in  the  preliminary  proofs  the 

5(i0 


nature  or  extent  of  his  interest.     Gilbert  v. 
North  American  Ins.  Co.,  23  Wend.,  -13. 

83.  Conditioned :  "  Claimant  must  state 
the  name  of  the  physician  or  physicians  in  at- 
tendance  at  the  place  and  date  of  burial, 
and  produce  an  affidavit  from  the  med- 
ical  attendants,  etc.  A  nonpracticing  phy- 
sician, B,,  was  present  at  the  time  deceased 
was  brought  in  with  a  gunshot  wouud,  and  to 
relieve  his  sufferings,  administered  morphine. 
Held,  B.  was  not  an  attending  physician, 
therefore,  his  name  being  omitted  in  the  pre- 
liminary proofs,  was  no  defense  to  the  .iction. 
Gibson  «.  American  Mut.  Ins.  Co.,  37  N.  Y., 
580. 

84.  Life  policy  to  be  paid  within  ninety 
days  after  due  notice  and  proof  of  interest,  and 
of  the  de.ath  of  the  insured.  The  only  evi- 
dence  tending  to  show  a  compliance  with  this 
condition  was  the  following  question  and 
auswer:  "Did  you  deliver  preliminary 
proofs?"  Ans.  "Yes,  at  the  defendant's 
office,  more  than  ninety  days  before  the  com- 
mencement of  this  suit."  Ueld,  sufficient  to 
sustain  the  verdict.  Hineken  v.  Mutual  Bene- 
fit Life  Ins.  Co.,  50  N.  Y.,  657. 

85.  For  account  of  whom  it  m.ay  concern. 
The  preliminary  proof  failed  to  show  the 
transfer  of  the  interest  of  Albert  to  Francis. 
Held,  that  did  not  invalidate  the  claim  of  the 
plaintiff  under  the  policy  as  trustee.  Walsh 
V.  Washington  Marine  Ins.  Co.,  32  N.  Y.,  427; 
3  Rob.,  202. 

86.  The  defendants  objected  that  the  Dre- 
liminary  proofs  of  loss  did  not  disclose  the 
interest  of  the  owners  of  the  cargo,  nor  did 
they  show  the  contents  of  the  cargo.  The 
preliminary  proofs  consisted  of  the  ship's 
register,  and  an  affidavit  of  her  managing 
agent,  in  which  were  set  forth,  when  she 
sailed,  at  what  place  she  was  reported,  where 
she  was  then  bound,  wheu  she  was  again 
spoken,  and  that  she  had  uever  been  heard  of 
from  that  date,  November,  18,  1845.  This  af- 
fidavit was  dated  July  17,  1847.  Held,  they 
were  sufficient.  Child  v.  Sun  Mut.  Ins.  Co.,  3 
Sandf.,  26. 

87.  Payable  in  ninetj'  days  after  due  notice 
aud  proof  of  death.  AVheu  plaintiff  presented 
proofs  of  death,  insurer  delivered  to  him  a 
pamphlet  which  stated,  among  other  things, 
that  a  certificate  from  the  physician  who  at- 
tended the  parly  in  his  last  sickness  was  re- 
quired.   Hdd,  the  party  was  bound  by   tho 


1121 


PROOFS  OF  LOSS. 


1122 


Of  tha  prelimiiiary  proofs. 


contract  only,  aiul  hv  was  not  Ijouml  to  fur- 
iiisli  physician's  cerlifieatc.  Tuijlur  n.  JEtna 
Life  Iiii.  Co.,  13  Giay,  434. 

88.  The  statute  provides  that  certain  pre- 
liminary proofs  of  loss  shall  be  tluemcd  suf- 
ficient to  authorize  the  plaintilT  to  maintain 
Lis  suit.  Held,  it  did  not  debar  the  insured 
from  maintaining  a  suit  wlien  the  notice  re- 
quired by  the  conditions  of  the  contract  had 
been  given.  Fvx  v.  Conway  Fire  Ins.  Co.,  5S 
Me.,  107. 

89.  Stipulated  that  proof  of  the  extent  of 
interest  of  the  equitable  lieu  holder  shall  bo 
given  to  the  dfreclors  to  their  satisfaction. 
Held,  it  was  suflicient  to  show  that  proof  was 
laid  before  them  with  which  reasonable  men 
would  be  satisfied.  Jfoore  v.  Woohey.  i  El.  & 
HI.,  243;  s.  c,  24  L.  J.  Q.  B.,  40;  1  Jur.  (N. 
S.),  468. 

90.  Stipulated:  "  Proof  of  death  or  acci- 
dent, satisfatory  to  the  directors,  shall  be  fur- 
nished by  the  claimant,  together  with  such  ev- 
Uenoe  or  information,  if  any,  as  the  directors 
shall  think  necessary  to  establish  the  claim." 
Held,  the  directors  could  not  capriciously  de- 
mand proof  which  was  unreasonable. 
Braunsteiii  v.  Accidental  Death  Ins.  Co.,  1  B. 
&  S.,  782;  s.  c,  8  Jur.  (X.  S.),  50G;  31  L.  J.  Q. 
ii.,  17;  5  L.  T.  (N.  S),  550. 

(g)   When  prelhninarxj  fvoofs  are  in 

time. 

91.  Stipulated:  "In  event  of  injuries  for 
which  claim  may  be  made  under  the  policy, 
insured  shall  immediately  thereafter  give  no- 
tice in  writing  to  insurer  at  Hartford,  Connec- 
ticut, stating  full  name,  occupation,  and  ad- 
dress of  insured,  with  full  particulars  of  the 
accident  and  injury."  The  local  agent  was 
notified,  and  the  branch  office  or  agency  at 
Chicago  furnished  with  the  necessary  particu- 
lars. The  company's  agent  at  llichmond,  In- 
diana, notitied  the  insured  by  letter  that  the 
company  had  decided  his  case,  and  concluded 
to  pay  him  four  weeks  compensation  at  twen- 
ty-live dollars  per  week  as  a  compromise;  but 
asserted,  that  he  had  not  established  his  claim 
by  the  proofs  sunt.  Held,  it  was  a  waiver  of 
the  condition  (citing  Bodle  i\  Chenango 
County  Mut.  Ins.  Co.,  2  N.  Y.,  53;  Brown  ». 
Kings  County  Ins.  Co.,  31  How.  Pr.,  508;  Se.x- 
ton  V.  Montgomery  County  Ins.  Co.,  9  Barb., 
191 ;  Clark  i\  New  England  Mut.  Ins.  Co.,  0 

36 


Cush.,  342;  Francis  v.  Ocean  Ins.  Co.,  6  Cow., 
104;  Columbia  Ins.  Co.  j).  Lawrence,  10  Pet., 
507;  Tayloe  x.  ilerchauts  Ins.  Co.,  9  How. 
•390;  ^tna  Fire  Ins.  Co.  ■».  Tyler,  16  Wend., 
385).   Unthank  v.  Travelers  Ins.  Co.,  4  Biss.,  357. 

92.  Policy  ret|uired  a  particular  account 
of  the  loss  to  be  delivered  as  soon  as  possible 
after  the  fire.  One  was  made  and  delivered; 
insured  subsequently  requested  permission  to 
make  a  copy  of  it,  wliicli  was  repeatedly  evad- 
ed, and  finally  refused.  Insured  then  made  a 
new  account,  and  delivered  it  four  months 
after  the  fire.  jSfeW,  it  was  in  time.  Cornell  v. 
Le  liny,  9  Wend.,  163. 

93.  Stipulated:  "Insured  shall  deliver  to 
the  company  a  verified  written  .account  of  his 
loss  within  ten  days  after  it  shall  occur." 
This  was  not  done  till  about  one  month  after 
the  fire.  Plaintiff  testified  that  on  the  third 
day  after  the  fire,  he  called  upon  defendant's 
agent,  by  whom  the  policy  was  eflected,  told 
him  of  the  fire,  and  asked  what  he  should  do. 
Agent  said  he  would  write  to  defendant's  gen- 
eral agent,  who  would  come,  and  they  would 
call  upon  insured,  make  affidavits,  and 
straighten  the  matter  up.  They  came  about 
a  mouth  after  the  fire,  prepared  an  affidavit 
which  he  verified,  in  which  an  account  of  the 
loss  was  given,  and  they  took  it  and  promised 
to  straighten  the  matter  up.  They  returned 
on  the  same  day,  talked  with  him  about  the 
loss,  but  did  uot  adjust  or  pay  it.  lu  about 
three  weeks  thereafter,  about  seven  weeks 
after  the  fire,  insured  made  another  account 
of  the  loss,  seut  it  to  the  secretary,  who  re- 
turned  it  because  it  was  not  made  and  deliv- 
ered within  ten  days  after  the  fire.  This 
evidence  was  contradicted.  Held,  the  court 
erred  in  refusing  to  submit  the  question  of 
waiver  to  the  jury.  Underwood  v.  Farmers 
Joint  Stock  Ins.  Co.,  57  N.  Y.,  500;  s.  c,  48 
How.  Pr.,  307. 

94.  Stipulated:  "A  particular  account  of 
the  loss  shall  be  delivered  within  ten  days 
after  it  shall  occur."  Insured  was  absent 
when  the  fire  occurred,  but  another  person 
named  in  the  policy  as  having  an  interest  in 
it,  gave  notice  of  the  fire  which  occurred  May 
20,  1868.  Twenty  days  thereafter  defendants' 
general  agent  and  adjuster,  and  one  of  the 
directors,  came  to  the  place  with  a  view  to 
settling  the  claim.  He  returned  July  1st,  and 
slated  that  he  came  to  adjust  the  loss.  On  be- 
ing told  that  tlie  plaintill'  was  absent,  and  that 

501 


1123 


PROOFS  OF  LOSS. 


1124 


Of  the  preliminary  proofs. 


the  proofs  of  loss  had  not  been  prepared,  he 
stated  it  would  make  no  diflVrence,  they  could 
be  made  and  sent  when  the  plaintifT  returned. 
On  his  return  they  were  made  and  sent  to  the 
defendants  August  14th,  who  retained  them 
ten  or  twelve  days  and  then  returned  them. 
Held,  a  distinct  recognition  of  the  defendants' 
liability  for  the  loss  after  the  time  for  serving 
tlie  proofs  had  expired  ;  and  this  was  sufficient 
to  establish  a  waiver  of  the  condition  which 
required  the  proofs  to  be  made  in  ten  days. 
Owen  ■».  Farmers  Joint  Stock  Ins.  Co.,  57 
Barb.,  518;  8.  c,  10  Abb.  Pr.  (N.  S.),  160  n. 

9.5.  Stipulated:  "Insured  shall,  within  ten 
days  after  any  loss  occurs,  deliver  a  particular 
account  thereof  to  the  company,  signed  and 
verified  by  the  insured."  Held,  evidence  that 
the  person  who  solicited  the  insurance  used 
language  to  the  insured  which  might  have  in- 
duced him  to  postpone  the  making  and  for- 
warding of  the  proofs  within  the  time  limited, 
was  evidence  to  sustain  a  waiver  of  the  condi- 
tion. I>o!in  V.  Farmers  Joint  Stock  Ins.  Co.,  5 
Lans.,  275. 

96.  Insurer's  agent  was  supplied  by  his 
principal  with  policies  signed  in  blank.  He 
had  filled  out  and  delivered  one  for  this  risk. 
Stipulated:  "Insured  shall  forthwith  give 
notice  thereof  (Ins.s)  in  writing  to  the  com- 
pany, and  within  sixty  days  from  the  occur- 
ring of  the  fire,  shall  deliver  as  particular  an 
account  of  the  loss  as  the  nature  of  the 
case  will  admit."  The  secretary  of  the 
insured  informed  him  that  numerous  fires 
were  occurring  along  the  line  of  the  road; 
that  insured  were  examining  carefully  the 
claims  made  therefor.  B.  replied,  "This  was 
satisfactor3',  and  that  when  the  railroad  com- 
pany should  get  through  paying,  to  hand  in  a 
schedule  of  what  had  been  paid  and  it  should 
be  attended  to."  Neither  notice  nor  proofs  of 
loss  were  made ;  but  about  eight  months  after 
all  the  claims  had  been  paid  by  the  railroad 
company,  the  treasurer  made  a  sworn  state- 
ment of  each  and  all  the  losses  which  had 
been  sustained.  Held,  the  preliminary  proofs 
of  loss  were  waived,  and  insured  entitled  to 
j  udgment.  Eastern  Railroad  Go.  v.  Relief  Fire 
Ins.  Co.,  105  Mass.,  570. 

97.  Stipulated:  "  Notice  and  proof  of  loss 
.shall  be  made  by  the  insured  within  three 
months  after  it  sliall  luippen."  The  insured 
averred  notice  and  proof  of  loss  within  the 
time  mentioned,  of  which  there  was  no  denial 

562 


in  the  pleadings;  but  the  evidence  showed 
that  an  agent  of  the  compan3'  examined  into 
the  m.atter,  and  took  the  deposition  of  the  in- 
sured. Held,  a  sufllcient  compliance  with  the 
condition.  Cumberland  Valley  Mutual  Protec- 
tion Co.  V.  Schell,  29  Penn.  St.,  31. 

98.  On  receiving  notice  of  the  loss,  insurer* 
referred  insured  to  their  resident  agent,  and 
instructed  him  to  procure  a  statement  of  it. 
The  policy  required  a  particular  account  of 
the  loss  to  be  made  within  thirty  days  after  it 
should  happen.  Held,  the  agent  had  authority 
to  extend  tlie  time.  Lycoming  County  Ins.  Co. 
V.  Schollenberger,  44  Pcnn.  St.-,  259. 

99.  The  fire  occurred  March  2,  1871.  No- 
tice  of  it  was  given  tlie  following  day;  but 
the  particular  account,  required  as  soon  after 
the  loss  as  possible,  was  not  given  till  April 
3d,  following.  In  the  meantime  the  adjusting 
agent  examined  the  premises,  had  conversa- 
tions  with  insured,  and  examined  his  books. 
Held,  sufficient.  Jones  v.  Mechanics  Fire  Ins. 
Co.,  36  N.  J.,  29. 

100.  Stipulated:  "The  insured  shall  give 
notice  of  the  loss,  and  within  thirty  days  de- 
liver  a  particular  account  thereof,"  etc.  The 
fire  occurred  June  30th.  The  preliminary 
proofs  were  furnished  Jul}'  15th,  and  a  corres- 
pondence continued  between  the  jiarties  to 
October  24th,  negotiating  an  adjustment  and 
settlement.  Held,  all  defects  in  the  prelimin- 
ary proofs  were  waived.  Planters  Mut.  Ins. 
Co.  V.  Deford,  38  Md.,  382 ;  Frederick  Count;/ 
Mvt.  Ins.  Co.  V.  Same,  id.,  404. 

101.  Notice  of  the  loss  was  given,  but  the 
preliminary  proofs  were  not  delivered  until 
nineteen  days  thereafter.  Held,  the  delay  was 
not  unreasonable.  Wightman  v.  Western  Ma- 
rine and  Fire  Ins.  Co.,  8  Rob.  (La.),  442. 

102.  The  preliminary  proofs  were  made  a 
few  days  too  late.  They  were  transmitted  by 
the  agent  to  insurer,  who  made  no  objectioa 
to  the  form,  substance  or  time  of  presentation; 
and  the  company  made  repairs  upon  another 
building  insured  under  the  same  policy.  Held, 
insurers  were  estopped  to  take  advantage  of  a 
failure  to  make  the  proofs  within  tlie  exact 
time  specified  in  the  policy.  Hibernia  Ins, 
Co.  0.  O'Connor,  29  Mich.,  241. 

103.  The  defendant  moved  a  nonsuit,  on 
the  ground  that  the  insured  had  not  proved 
the  time  he  forwarded  the  particulars  i)r  his 
loss,  substantiated  as  required  by  the  terms  of 
the  policy  and  within  the  time  (thirty  daysy 


1125 


PROOFS  OF  LOSS. 


1126 


Of  the  preliminary  proofs. 


limited  by  tlie  policy;  but  the  secretary  ac- 
knowledged notice  of  the  loss  and  of  tlie  pre- 
liminary proofs,  saying  that  he  was  satisfied 
Mitli  them,  and  would  lay  them  before  tlie 
directors  or  an  acting  committee.  Held,  the 
secretary's  letter  was  sufficient  evidence  that 
tlie  condition  had  been  complied  with.  Troy 
Fire  Ins.  Co.  v.  Carpenter,  4  Wis.,  20. 

104.  Stipulated:  "Loss  shall  be  paid  si.xty 
days  after  due  notice  and  satisfactory  proof 
of  tlie  same;  and  in  case  of  loss,  insured  shall 
give  immediate  notice  thereof,  and  shall  ren- 
der a  particular  account  thereof  to  the  com- 
l)any.  Held,  a  verbal  notice  of  the  loss  to  the 
company's  agent  was  sufficient;  that  proofs 
of  loss  were  not  required  to  be  furnished  im- 
mediately, but  within  a  reasonable  time.  Kil- 
lijis  ».  Putnam  Fire  Ins.   Co.,  28  Wis.,  472. 

10.5.  Stipulated:  "The  insured,  in  case  of 
loss,  sliall  immediately  notify  the  general 
agent  al  Chicago."  The  policy  was  effected 
through  a  local  agent  residing  in  the  town  of 
Arago.  The  premises  were  burned  April  IG, 
1871.  About  July  15,  1871,  insured  sent  a  let- 
ter to  the  general  agent  of  the  company,  stat- 
ing the  loss  of  the  propertj'.  Insurer's  gen- 
eral agent  addressed  a  letter  to  tlie  insured, 
dated  August  16,  1871,  in  wliicli  the  writer 
said  tliere  were  suspicious  circumstances  con- 
nected with  tlie  tire  wluch  should  l)e  ex- 
plained. Insured  made  formal  prool's  of  loss, 
and  transmitted  tliem  to  tlie  general  agent  at 
Chicago,  January  22, 1872.  Held,  it  was  proper 
to  leave  to  the  jury  the  question  whether  ia- 
sured  had  used  due  diligence  in  furnishing 
the  preliminary  proofs  of  the  loss.  Continen- 
tal Ins.  Co.  V.  Lippold,  3  Neb.,  391. 


(li)    When  j/reliminary  proofs  are  not 
in  time. 

106.  The  policy  required  insured  to  furnish 
proofs  of  loss  within  thirty  da3'S  after  tlie  fire. 
Insurer's  adjuster  visited  the  premises,  made 
inquiry'  into  tlie  circumstances  of  tlie  fire,  but 
without  direction  from  his  principals.  lie 
made  no  communication  or  negotiation  witli 
insured.  Four  montlis  thereafter  tlie  neces- 
sary proofs  of  loss  were  made  and  served. 
Defendant  acltnowledged  receipt  of  them,  and 
ol)jected,  first,  tliat  the  proof  was  too  late,  that 
it  sliould  have  been  made  within  tliirty  days 
after  the  loss;  and  second,  that  tlie  claim  was 
fraudulent.   Held,  the  defendant  was  at  liberty, 


in  response  to  tlie  claim  tlien  made  for  the  first 
time,  to  take  every  .objection  whicli  w.as  open, 
and  refusing  to  pay  it  on  tlie  ground  that  it 
was  fraudulent  was  not  a  waiver  of  the  right 
to  insist  upon  the  want  of  timely  proof.  (Ct. 
of  App.,  N.  Y.)  Blossom  o.  Lycoming  Fire 
Ins.  Co.,  5  Ins.  L.  J.,  302. 

107.  A  failure  to  point  out  defects  in  tho 
preliminary  proofs  of  loss  does  not  waive  in- 
surer's  right  to  insist  upon  tlie  trial  that  the 
notice  and  proofs  of  the  loss  were  not  deliv- 
cred  witliin  the  time  required  by  the  policy. 
St.  Louis  Ins.  Go.  11.  Eyle,  11  Mo.,  378. 

108.  Stipulated:  "Insured  sliall  give  imme. 
diate  notice  of  any  loss  or  dam:igc  by  lire, 
and  as  soon  as  possilile  deliver  a  particular  ac^ 
count  of  it,  accompanied  by  a  magistrate's' 
certificate,  showing  (among  otlicr  things)  the 
amount  of  the  loss."  Insured  delivered  a 
defective  certificate,  and  was  compelled  on  the 
trial  to  submit  to  a  nonsuit.  A  proper  certifi- 
cafe  was  then  obtained,  and  delivered  eight 
montlis  after  tlie  loss.  Held,  whether  it  was 
delivered  in  time  was  a  question  for  the  court ; 
tliat  the  failure  of  insurers  to  point  out  the 
defects,  in  the  first  certificate,  could  not  be 
considered  in  determining  the  question,  and 
that  it  was  not  in  time,  hence  no  recovery 
conld  be  had.  Hohson  v.  Western  Ass.  Co., 
19  tr.  C.  Q.  B.,  814. 


(i)  Of  authority  to  waive  jpreltmmary 
proofs. 


109.  The  company's  charter  provided  that 
the  president,  with  one  third  of  the  directors, 
shall  be  competent  to  trau.sact  all  the  business 
of  the  corporation.  Held,  tlie  president  alone 
had  no  authority  to  waive  preliminary  proofs 
of  loss.  Daw  s  v.  North  Miver  Ins.  Co.,  7 
Cow.,  462. 

110.  Stipulated:  "No  act  or  omission  of 
the  company,  or  its  officers  or  agents,  shall  bo 
deemed  a  waiver  of  a  full  and  strict  compli- 
ance  with  the  conditions  concerning  prelim- 
inary prool's  of  loss,  except  it  shall  be  in 
writing  signed  by  the  president  or  secretary 
of  the  company."  Held,  the  condition  was 
directly  in  conflict  with  the  settled  legal  rules 
of  law  e.stablished  for  the  government  of  this 
class  of  cases;  that  while  a  part3-  may  re- 
nounce  those  settled  rules  of  law  existing  iu 
his  favor,  liis  purpose  to  do  so  must  be  clearly 

563 


11-27 


PROOFS  OF  LOSS. 


1128 


Of  the  particular  account. 


evinced;  tliut  tlie  acceptance  of  the  policy 
contiiining  this  clause,  unless  his  attention  was 
directed  to  it,  should  never  be  permitted  to 
produce  such  a  result,  for  the  polic}'  of  the  law 
stands  directly  in  the  B'ay  of  allowing  persons 
to  be  fluccessfully  entrapped  by  sucli  an  in- 
geuious  device,  into  an  implied  surrender  of 
their  v.ell  established  rights.  Pitney  v.  Glens 
Falls  Ins.  Co.,  61  Barb.,  335. 


II.  Of  the  pakticular  account. 

(a)  What  is  sufficient. 

1.  All  of  the  books  and  papers  of  the  in- 
sured were  destroyed  by  the  fire.  He  made  a 
statement  in  gross  of  the  amount  of  the  loss. 
Held,  it  was  as  particuhir  an  account  of  the 
loss  as  the  nature  of  the  case  would  admit. 
Norton  v.  Rensselaer  Ins.  Go.,  7  Cow.,  645. 

2.  AtRd^vit  of  loss  stated;  "Merchandise 
on  hand  when  fire  occurred,  $1,497.87;  goods 
saved,  $G05.25;  supposed  to  be  damaged  in 
part,  104.67;  clothing  consumed,  $53;  amount 
of  produce,  $19;  thirty  half  barrels,  $4. 
Total,  $1,639.54.  Deduct  goods  saved,  $605.25 
(leaves  $1,034.07),  whole  amount  of  loss  as 
near  as  we  can  estimate  the  same.  There  was 
no  other  insurance  on  store  or  merchandise. 
The  store  was  totally  destroyed."  Held,  a 
sufficient  particular  account  of  the  Inss. 
McLaughlin  v.  Washington  County  3/ut.  Ins. 
Co.,  23  Wend.,  525. 

3.  The  particular  account  of  the  loss  was 
made  under  the  advice  of  the  company's  agent. 
:?\o  objection  was  made  to  it,  and  the  com- 
jiany  offered  to  pay  about  three-fuurths  of  the 
claim.  On  being  pressed  for  payment,  they 
objected  generally  to  the  account  of  the  loss. 
Held,  it  was  the  company's  duty  to  fiave  made 
objection  at  the  tijiie,  and  to  show  wherein 
it  was  insufficient ;  an  objection  that  it  was  not 
such  a  particuhir  account  as  was  required  by 
the  policy  was  too  general  and  indefinite. 
Jtodle  B.  Chenango  County  Mut.  Itis.  Co.,  2  N". 
Y.,  53. 

4.  Stipulated:  "  Insured  shall  within  thirty 
days  deliver  to  insurer  a  particular  account  of 
loss,  verified  by  oath,  and,  if  required,  by  his 
books  and  papers,"  etc.  Held,  the  conditiim 
was  satisfied  by  as  full  and  accurate  an  .iccount 
as  tlie  insured,  without  fraud  on  his  part,  was 
able  to  furnish;  and  where  his  books,  papers, 

361 


and  inventories  were  consumed,  his  statement 
verified  by  oath,  showing  the  fact,  and  that  tlie 
property  insured  was  at  least  of  tlie  value  in- 
sured, was  sufficient.  Hynds  v.  Sehcneclady 
County  Mut.  Ins.  Co.,  11  N.  Y.,  554;  s.  C,  16 
Barb.,  110. 

5.  Stipulated:  "In  caseofloss, insured  shall 
render  a  particular  account  of  such  loss,  signed 
and  sworn,  etc.,  and  if  personal  property  shall 
be  damaged,  insured  shall  cause  it  forthwith 
to  be  put  in  order,  assorting  the  various  arti- 
cles according  to  their  kind,  separating  the 
damaged  from  the  undamaged,  and  shall  fur- 
nish to  the  company  an  inventory  of  the  whole 
naming  the  quantit}',  quality  and  cost  of  each 
article;  the  amount  of  souud  value  and  dam- 
age shall  then  be  ascertained  by  appraisal." 
Insurers'  agents  took  possession  of  the  store 
the  morning  after  the  fire  occurred,  made  an 
examination  of  the  property  and  of  plaiutifTs 
books,  which  occupied  several  days,  and  tliey 
concluded  the  loss  was  total,  and  that  no  further 
examination  would  be  necessary,  whereupon 
proofs  of  loss  were  forwarded,  in  which  noth- 
ing but  the  amounts  of  purchases  and  sales, 
and  the  value  of  the  goods  saved  were  staled. 
This  was  delivered  December  1st.  Insured  w  as 
shortly  after  asked  to  make  an  inventory  of 
the  goods  saved ;  as  to  whether  it  was  done  the 
evidence  was  conflicting.  About  six  weeks 
thereafter  insurers  notified  insured  by  letter 
that  his  proofs  of  loss  were  not  accepted.  Held, 
if  it  appeared  from  the  evidence  that  the  agents 
who  made  the  examination  told  the  insured 
that  the  adjustment  was  satisfactory,  and  that 
his  loss  would  be  paid,  insured  had  the  right 
to  rely  upon  that  promise,  and  insurers  must 
be  estopped  to  set  up  as  a  defense  to  the  ac- 
tion a  noncompliance  with  the  conditions 
mentioned.  Bush  t.  Westchester  Fire  Ins.  Co., 
2  N.Y.  S.  C,  629. 

6.  Insured  stated  under  oath  the  value  of  the 
goods  lost,  and  the  value  at  the  time  of  the 
fire.  Held,  a  sufficient  compliance  with  the 
condition  which  required  a  particular  account 
of  the  loss.  Harkins  v.  Quincy  Mutual  Fire 
Ins.  Co.,  16  Gray,  591. 

7.  Tlie  preliminary  proofs  stated  that  the 
building  was  consumed  by  fire,  and  that  there 
was  a  total  loss  of  it.  The  brick  chimneys 
and  the  stone  work  were  left  standing,  hut  llie 
preliminary  proofs  did  not  so  state.  Held, 
they  were  sufficient  notwithstanding  the  by- 
laws required  that  the  value  of  such  parts  as 


1129 


PROOFS  OF  LOSS. 


1130 


Of  the  particular  account. 


rcmaiu  should  lie  stated.     Wi/maii  v.  People's 
JSquity  Ins.  Co.,  1  Allen,  301. 

8.  Insurers  refused  to  pay  on  the  ground 
that  the  risk  liad  been  changed,  and  thereby 
increased.  Held,  a  waiver  of  the  conditions 
requiring  notice  of  the  fire,  and  particular  ac- 
count of  the  loss  anil  damage.  Francis  ■c.  Som- 
mcnille  Mut.  Ins.  Co.,  25  N.  J.,  W. 

9.  Insured  and  the  company's  agent  agreed 
that  the  amount  of  the  loss  should  be  ascer- 
tained by  an  examination  of  the  books  of  in- 
sured. They  wore  submitted  and  examined. 
lu  conuection  with  this  the  president  of  the 
company  acknowlcged  receipt  of  a  state- 
ment of  the  claim,  but  rejected  it  "  ou  account 
of  circumstances  connected  with  the  insur- 
ance." There  was  no  particular  account  of 
the  loss  deliveriid,  as  required  by  tlie  policy. 
JIdd,  evidence  of  a  waiver  of  the  particular 
account.  Franklin  Fire  Ins.  Co.  v.  Updegraff, 
43  Penn.  St.,  350. 

10.  On  a  coal  breaker  valued.  Insured 
wrote  insurers:  "My  coal  breaker,  which  is 
insured  in  your  office,  is  burned  down  this 
morning.  The  number  of  the  policy  is  40,093; 
amount  |'2,500.  Please  give  your  agent  in- 
structions in  regard  to  settlement."  Ileld,  as 
particular  an  account  of  the  loss  as  could  well 
be  given.  Lycoming  County  Ins.  Co.  v.  Schol- 
lenherger,  44  Penn.  St..  259. 

11.  Stipulated:  "  In  caseof  loss  the  iusured 
shall  give  immediate  notice,  and  render  to  the 
conipany  a  particular  account  of  said  loss, 
under  oath,  stating  the  time,  origin,  and  cir- 
cumstances of  the  fire."  Held,  the  word,"  im- 
mediate,"  applied  to  the  notice;  that  a  verbal 
notice  was  sufficient ;  that  it  was  not  necessary 
to  render  the  particuhir  account  immediately. 
O'Connor  v.  IJartford  Fire  Ins.  Co.,  31  Wis., 
1(!0.  But  if  the  particular  account  ought  to 
h:ive  been,  but  w;vs  not  given  immedijitely,  w 
fiulure  to  object  to  the  proofs  on  that  ground, 
was  a  waiver  of  the  condition.    Ibid. 

(b)    What  is  not  svfficient. 

12.  Stipulated:  "The  insurance  shall  not 
be  paid  until  insured  shall  have  made  a  par- 
ticular account  in  writing  under  oath, 
stating  the  value  of  the  property  lost  and 
the  nature  and  value  of  his  interest.  Held, 
an  account  which  does  not  state  the  nature  and 
value  of  insurer's  interest  at  the  time  of  the 
loss  is  insufficient,  altliough  it  states  that  the 


entire  pn^perty  was  destroyed.  Wellcome  v. 
People's  Equitable.  Mutual  Fire  Ins.  Co.,  2 
Gray,  480. 

13.  Stipulated:  "Every  one  sustaining 
loss  shall  within  thirty  days  file  a  particular 
account  with  the  secretary."  etc.  Held,  au 
oraissi.)n  to  present  the  particular  account 
for  seventeen  months  released  insurer,  and  a 
letter  written  by  the  president,  when  the  p.ar- 
ticular  account  was  received,  stating  tlmt  the 
company  would  be  disposed  to  do  what  was 
right,  that  they  knew  at  the  lime  of  the  fire 
that  the  loss  was  theirs  and  were  surprised  that 
they  had  not  been. notified,  was  not  a  waiver 
of  the  forefeiture.  Smith  v.  Rnverhill  Mutual 
Fire  Ins.  Co.,  1  Allen,  297. 

14.  Stipulated:  "Persons  sustaining  loss 
or  damage  by  tire  must  forthwith  give  written 
notice  to  the  conjpany,  and  within  sixty  d:iys 
deliver  as  particular  an  account  thereof  as  the 
nature  of  the  case  will  permit ;  also,  this  policy 
is  made  and  accepted  in  reference  to  the  terms 
and  conditions  herein  contained  and  hereto 
anne.xed."  Held,  before  insured  could  recover, 
it  must  appear  that  he  liad  complied  with  the 
condition.  Eastern  liailroad  v.  Pelief  Fire 
Ins.  Co.,  98  Mass.,  420. 

1.5.  Stipulated:  "Notice  of  the  loss  shall 
be  forthwith  given  to  the  company,  and  as 
soon  thereafter  as  possible  a  particulai-  ac- 
count of  it,  verified  by  Oiith  or  affirmation." 
The  plaintiff  averred  compliance,  and,  for  the 
purpose  of  supporting  it,  gave  evidence  to 
prove  that  the  company's  agent  waived  notice 
of  the  loss.  Held,  evidence  establishing  a 
waiver  of  the  notice  did  not  establish  a  waiver 
of  the  particular  account  of  the  loss.  Desiher 
V.  State  Mut.  Ins.  Co.,  38  Penn.  St.,  130.     - 

16.  Stipulated:  "  Insured  shall  make  and 
deliver  to  the  secretary  of  the  company,  within 
thirty  days  after  loss,  a  particular  account  of 
it."  The  day  after  the  fire  the  president  vis- 
ited the  ruins,  and  a  few  d.ays  thereafter  the 
books  of  accounts  of  insured  were  carried 
to  his  hotel  and  delivered  to  him  and 
an  agent  of  another  company,  interested 
in  the  loss.  About  a  week  thereafter  in- 
sured addressed  a  letter  to  the  president, 
stating  the  amount  of  the  loss,  giving  the 
amount  of  purchases  and  sales,  less  the  profits, 
showing  a  balance  as  loss,  and  mentioning  the 
name,  number  and  amount  of  insurance  made 
in  other  comp.anies.  This  was  signed  by  the 
iissignees  of  the  policy,  not  by  the  persons 

ser. 


1131 


PROOFS  OF  LOSS. 


1132 


0£  the  magistiute's  or  surgeon's  certificate. 


insured.  Held,  not  a  particular  account  of  the 
loss,  nor  any  evidence  of  a  waiver  thereof. 

Lycoming  County  Inn.  Co.  v.  U2)(legr(iff,40  Penn. 
St.,  311.  But  in  another  action  the  court  held,  if 
it  was  received  by  the  company,  and  no  objec- 
tion made  to  it,  that  would  be  evidence  from 
which  the  jury  might  find  there  was  a  waiver 
of  a  more  particular  statement.  Franklin 
Fire  Ins.  Co.  v.  Updegmf,  43  Penn.  St.,  350. 

17.  S.,  local  agent  of  the  company,  was  au- 
thorized to  make  surve}'S,  to  submit  tlieui  to 
the  company,  and  to  receive  assessments  made 
upon  policies.  He  made  an  examination  on 
the  day  after  the  Sre,  and  notified  insured  that 
the  company  would  not  pay  the  claim.  Held, 
not  sufiflcient  to  establish  a  waiver  of  the  par- 
ticular account  of  the  loss.  Stipulated:  "In- 
sured shall  deliver  a  particular  acount  of  his 
loss  to  the  secretary,  within  .thirty  days  after 
loss."  The  paper  purporting  to  be  a  particu- 
lar account,  stated:  "Household  furniture 
f  367,  groceries  $233."  Held,  no  compliance 
with  the  condition,  hence  it  was  not  proper  to 
submit  the  question  1o  the  jurj-.  Beatty  v.  Ly- 
coming County  Ins.  Co.,  66  Penn.  St.,  9. 

18.  Defendant  pleaded  nonperformance  of 
the  condition  requiring  delivery  of  a  particu- 
lar account  of  the  loss.  Plainlitf  offered  pa- 
rol evidence  of  waiver  of  the  condition.  Held, 
it  could  not  be  received,  for  that  would  substi; 
tute  a  parol  agreement  in  answer  to  a  sealed 
instrument;  that  the  managing  director  and 
secretary  h.ad  not  power  to  waive  performance 
of  a  condition  precedent.  Scott  v.  Niagara 
District  Ins.  Co.,  25  U.  C.  Q.  B.,  119. 

19.  A  condition  in  the  policy  requir- 
ing the  insured  to  deliver  to  the  secretary 
of  the  insurer,  within  three  months  after  loss, 
full  particulars  of  it,  is  a  condition  precedent 
to  the  right  of  the  insured  to  recover  for  any 
loss.  Mason  v.  Harcey,  8  Exch.,  819;  22  L.  j. 
Ex.,  336. 

20.  Stipulated:  "Particular  account  of  the 
loss,  verified  bj'  affidavit,  shall  be  delivered  to 
the  compan)- within  thirty  days  after  the  loss." 
The  parties  agreed  upon  everything  except  the 
jimouut  of  the  loss,  and  an  arbitration  was 
proposed,  but  did  not  take  place  before  the 
tliirty  daj'S  elapsed,  and  then  the  proofs  were 
perfected  and  delivered.  Held,  no  evidence 
that  the  condition  had  been  waived,  hence  the 
insured  could  not  recover.  Lewis  v. Niagara 
District  Mutual  Fire  Ins.  Co.,  12  U.  C.  C.  P., 
123. 

56G 


III.  Of  the  magistkate's  oe  sur- 
geon;'s  GEETIFICATE. 

(a)  W/ien  svfficient. 

1.  Policy  required  tlie  production  of  a 
magistrate's  certificate,  showing  the  amount 
of  loss.  Held,  whether  it  was  produced  withitt 
a  reasonable  time,  all  the  facts  pertaining  to 
it  being  set  up  in  the  special  pleadings,  was  a 
question  for  the  court;  and  the  court  deter- 
mined that  the  production  of  it  in  five  years 
after  the  loss  was  not  unreasonable.  Colum- 
bian Ins.  Co.  V.  Laicrence,  10  Pet.,  507. 

2.  The  magistrate's  certificate  was  defective 
in  not  having  a  seal.  Defendant  refused  to 
pay  the  claim,  but  failed  to  direct  the  atten- 
tion  of  the  insured  to  the  defect.  Held,  ob- 
jection could  not  be  made  to  it  at  the  trial. 
McMastera  v.  Westchester  County  Mut.  Ins.  Co., 
25  Wend.,  379. 

3.  Stipulated  :  "  Insured  shall  produce  a, 
certificate  under  the  hand  and  seal  of  a  magis- 
trate  or  notary  public  most  contiguous  to  the 
place  of  the  fire,"  etc.  The  magistrate  who 
gave  the  certificate  was  not  the  nearest.  Held, 
an  exact  and  literal  compliance  was  not  neces- 
sary. But  he  omitted  to  state  that  he  w.as 
acquainted  with  the  character  of  the  insured. 
Insurer's  agent  refused  to  return  the  proofs 
for  correction,  or  to  point  out  the  defect. 
Held,  a  waiver  of  the  defect.  Turley  v.  North 
American  Ins.  Co.,  25  Wend.,  374. 

4.  Magistrate's  certificate  stated  that  he 
resided  two  miles  from  the  place  of  loss,  that 
he  verily  believed  insured  had,  by  misfortune 
and  without  fraud  or  evil  practice,  sustained 
damage  Ijy  fire  to  the  amount  of  the  build- 
ings therein  mentioned.  Held,  a  good  cer- 
tificate. JEtna  Fire  Ins.  Co.  v.  Tyler,  16  Wend., 
385;  12  id.,  507. 

5.  Tlie  certificate  of  loss  was  by  a  near,  but 
not  by  the  nearest  magistrate.  The  insurer 
did  not  object  to  pay  the  loss  on  that  ground. 
Held,  the  defect  was  waived.  O'Nie!  v.  Buffalo 
Fire  Im.  Co.,  3  N.  T.,  122. 

6.  Stipulated:  "In  case  of  loss,  insured 
shall  produce  the  certificate  of  a  magistrate. 
notary  public  or  commissioner  of  deeds,  most 
contiguous  to  the  fire."  etc.,  stating  that  he  has 
examined  the  circumstances,  etc.  The  loss 
occurred  December  5,  1861.  Insured  made 
his  proofs  of  loss  ou  the  10th,  but  without  the 
required  certificate.     Insured  testified  that  he 


1133 


PROOFS  OF  LOSS. 


1134 


Of  the  magistrate's  or  surgeon's  certiScate. 


jirocured  one  on  the  13tli,  and  tliat  it  was  sent  a 
day  or  two  after  to  tlie  defendants;  but  the 
jiresident  testified  tliat  it  liad  never  heen  re- 
ceived. There  was  no  evidence  of  a  request  for 
further  proofs ;  the  claim  was  not  objected  to  on 
tlie  ground  that  the  preliminary  proofs  were 
defective,  nor  was  there  ever  any  intimation 
given  the  plaintiff  that  he  had  not  complied 
with  all  the  terms  of  the  jwlicy.  lldd,  a  de- 
fect in  the  prelim iiiary  proofs  could  not  be 
taken  for  the  first  lime  at  the  trial.  Van  Deu- 
ten  V.  Charter  Oak  Ins.  Co.,  1  Abb.  Pr.  (N.  S.), 
349;  s.  C,  1  Rob.  (N.  Y.),  55. 

7.  Papers  purporting  to  be  pi'eliminary 
proofs  of  loss  were  served,  but  no  magistrate's 
certiticate  accompanied  them,  as  required  by 
the  conditions  oi  the  policy.  Insurers  did 
not  object  to  pay  the  loss  on  that  ground,  but 
because  they  did  not  insure  a  chandler's  shop. 
Held,  it  was  too  late  upcm  the  trial  to  urge  the 
defect.  Brown  v.  Kings  County  Fire  Inn.  Co., 
31  How.  Pr.,  508. 

8.  The  amount  of  the  claim  was  definitely 
stated  in  the  preliminary  proofs,  certified  and 
sworn  to  by  two  appraisers,  but  there  was  not 
the  required  magistrate's  certificate.  Ileld, 
the  defendants  could  not  insist  upon  the  de- 
fect for  the  first  time  at  the  trial.  -Bilbroughv. 
Metropolis  Ins.  Co.,  5  Duer,  58". 

9.  Insurer  objected  that  the  magistrate  who 
signed  the  certificate  was  not  nearest  the  place 
•of  loss,  but  did  not  object  to  the  form  of  the 
certificate.  Held,  insurer  was  precluded  from 
urging  any  defect  as  to  the  form  of  the  certifi- 
cate. The  policy  was  dated  at  Portland, 
Maine,  stipulated:  "Insured  shall  in  case  of 
loss  procure  a  certificate  under  the  hand  of  a 
magistrate  or  notary  most  contiguous  to  the 
place  of  the  fire;  but  the  statute  law  of  the 
state  required  insured  to  procure  the  certifi- 
<:ate  of  a  magistrate  or  notary,  not  limiting 
liis  place  of  residence.  Held,  the  terms  of 
the  contract  were  in  conflict  with  the  statute, 
and  the  latter  must  govern  the  rights  of  the 
parties.  Bailey  v.  Hope  Ins.  Co.,  56  Me., 
474. 

10.  Insured  furnished  within  the  time  lim- 
ited, preliminary  proofs  of  loss.  They  were 
received  without  objection,  April  18th.  There 
was  no  magistrate's  certificate  annexed,  but 
dustead  of  it  there  was  the  certificate  of  a  repu- 
tablecitizen.  In  respect  to  this  the  agent  stated 
■it  would  be  .all  right.  Held,  a  question  for  the 
jury,  whether  the  magistrate's  certificate  had 


been  waived.    Taylor  «.  Huger  Williams  Ins. 
Co.,  51  N.  H.,  50. 

11.  Stipulated:  "Insured  shall  produce  a 
certificate  of  the  nearest  magistrate  or  notary, 
certifying  the  amount  of  the  loss,  etc."  A 
certificate  to  that  eft'ect  was  delivered  to  the 
agent  of  insurer,  but  the  magistrate  was  not 
the  nearest  to  the  place  where  the  fire  oc- 
curred. It  was  received  by  insurer's  agent 
and  no  objeeticm  stated;  upon  the  trial,  in- 
surer was  allowed  to  prove  that  the  magistrate 
who  gave  the  certificate  was  not  the  nearest 
magistrate  to  the  place  where  the  fire  occurred. 
Held,  error:  that  a  failure  to  object  to  it  on 
that  ground  specifically  was  a  waiver  of  the 
defect.  Byrne  v.  Rising  Sun  Ins.  Co.,  20  lud. 
103. 

12.  Property  was  destroyed  June  2,  18G7. 
Notice  of  the  loss  was  given.  The  certificate 
of  the  magistrate  which  accompanied  the 
proofs  was  not  made  by  the  nearest  justice, 
but  no  intimation  was  given  of  any  defects  or 
ubjectif/us  to  the  proofs  until  March  1,  18C8. 
Held,  it  was  waived.  Killips  v.  Putnam  Fire 
Ins.  Co.,  28  Wis.,  472. 

13.  The  policy  required  a  certificate  of  the 
loss  to  be  procured  from  the  magistrate, 
notary  or  commissioner  nearest  tlie  place  of 
the  fire.  Hull,  a  justice  of  the  peace,  occupied 
the  adjoining  building  as  a  store  and  resi- 
dence. The  fire  communicated  from  the  in- 
sured premises  to  Hull's  building,  which  was 
consumed,  together  with  a  quantity  of  his 
personal  property.  Hull  refused  to  give  the 
certificate,  and  made  complaint  before  a 
magistrate  against  the  plaintiff,  charging  him 
with  the  crime  of  setting  fire  to  the  premises, 
thereby  causing  the  destruction  of  Hull's 
property.  Insured  procured  a  certificate  from 
the  next  nearest  magistrate.  Held,  Hull  w.as 
concerned  in  the  loss,  and  the  next  nearest 
justice  was  the  proper  person  to  make  the  cer- 
tificate. Wright  v.  Hartford  Fire  Ins.  Co.,  36 
Wis.,  523. 

14.  A  few  days.after  the  fire,  the  attornej-  of 
Insured  saw  the  company's  secretary,  and 
asked  whether  a  compliance  with  all  the  con- 
ditions of  the  policy  would  be  required,  and 
received  answer,  "Yes,  to  the  very  letter." 
Afterwards  he  submitted  to  the  company  an 
affidavit  of  the  insured,  showing  the  amount 
of  the  loss,  his  books  of  accounts,  and  a  receipt 
for  money  paid  .by  insured  for  goods  iiur- 
chased   in  New  York.    The  president  of  thg 

507 


1135 


PROOFS  OF  LOSS. 


113(5 


Of  the  magistrate's  or  surgeon's  certificate. 


company  was  asked  wliethcr  the  company 
would  pay  the  claim,  to  which  he  replied, 
"  No,  we  will  not  pay  it."  A  notary's  certifi- 
cate of  the  loss  was  not  tendered  to  the  com- 
pany until  it  was  offered  in  court  upon  the 
trial,  and  then  the  company  refused  to  receive 
it  because  it  had  not  been  presented  sooner. 
Held,  if  the  insurers  intended  to  insist  on  that 
defect  in  the  preliminary  proofs,  tliey  should 
have  apprised  the  insured  that  they  considered 
them  defective  in  that  particular,  or  have  jjut 
their  refusal  to  pay  on  tliat  ground;  if  they 
failed  to  do  so,  their  silence  was  a  waiver  of 
the  defect,  and  the  preliminary  proofs  were  to 
he  treated  as  though  they  were  perfect.  Fire- 
metVs  Ins.  Co.  v.  Crandall,  33  Ala.,  9. 

15.  Insured  was  bound  to  furnisli  the  com- 
pany with  a  certificate  made  by  the  magistrate 
or  notarj'  public  residing  nearest  to  the  place 
where  the  loss  occurred,  showing  the  kind  and 
value  of  the  goods  destroyed  by  fire,  and  the 
simount  of  the  claim.  The  local  agent  was 
immediately  notified  of  the  fire,  and  he  sug- 
gested delay  until  the  arrival  of  insurers'  ad- 
justing agent,  who  came,  made  an  examina- 
tion of  the  books  of  the  insured,  took  the  afl5- 
davits  of  the  parties,  expressed  himself  satis- 
fied, and  stated  that  nothing  more  was  required 
of  insured.  Insurers  refused  to  pay  the  loss, 
hecause  insured  had  a  quantity  of  gunpowder 
in  stock  at  the  time  of  the  fire.  A  magistrate's 
certificate  was  never  made.  ITeld,  it  had  been 
waived  by  the  acts  of  insurers'  agents.  Phmnix 
Ins.  Go.  D.  Taylor,  5  Minn.,  492. 

16.  The  policy  required  insured  to  produce 
the  certificate  of  a  magistrate  nearest  the  fire, 
not  concerned  in  the  loss,  showing  that  he 
had  examined  the  circumstances  attending  it, 
knows  the  character  and  circumstances  of  in- 
sured, and  verily  believes  that  insured  has 
•without  fraud  sustained  loss,  etc.  The  loss 
occurred  after  the  death  of  insured,  and  his 
administratrix  made  preliminary  proof,  but 
the  certificate  did  not  comply  precisely  with 
the  requirements  of  the  policy,  for  it  stated, 
"That  the  estate  of  the  insured  had  sustained 
loss,"  etc.  B'eM,  a  sufficient  compliance.  Oer- 
mania  Fire  Ins.  Co.  i\  Ourran,  8  Kan.,  9. 

17.  The  policy  required  insured  to  procure 
the  certificate  of  the  nearest  magistrate  as  to 
the  amount  of  the  loss;  and  the  defendant 
pleaded  that  the  nearest  magistrate  had  not 
given  such  a  certificate.  The  plaintiff  gave 
some  evidence  tending  to  prove  that  a  certifi-  I 

568 


cate  of  a  magistrate  had  been  sent  to  the  com- 
pany, but  it  was  not  produced.  Held,  the  onua 
probandi  was  upon  defendant  to  show  that  it 
was  not  such  a  certificate  as  the  conditions 
demanded.  Piatt  v.  Gore  District  Fire  Ins. 
Co.,  9  U.  C.  C.  P.,  405. 

18.  The  magistrate's  certificate  did  not 
show  upon  its  face  that  he  was  not  related  to 
the  person  to,  whom  the  loss  was  made  paj-- 
able.  Held,  no  defense  to  the  action.  Ketc?ium 
V.  Protection  Ins.  Co.,  1  Allen  (N.  B.),  136. 

(b)    When  not  sufficient. 

1 9.  Stipulated  to  jiay  the  sum  insured  to 
the  said  31.  C,  her  executors,  administra- 
tors  and  assigns,  in  ninety  day  after  due  notice 
and  proof  of  death  of  the  person  whose  life  is 
hereby  assured  under  the  following  con- 
ditions:  "That  in  the  opinion  of  the  sur- 
geon-in-chief  of  this  company  the  party  in- 
sured did  not  die  of  intemperance."  Held, 
the  plaintiff  could  not  recover  without  pro- 
ducing  the  decision  of  the  surgeon-inchief  or 
showing  a  proper  excuse  for  the  omission. 
Campbell  v.  American  Popular  Life  Ins.  Co.,  1 
JlacArtlmr,  246. 

20.  Magistrate's  certificate  not  furnished. 
Application  made  to  two  magistrates,  both  re- 
fused to  grant  it.  Held,  no  right  of  action 
(citing  Oldman  v.  Bewicke,  2  H.  Bl.,  577  n; 
Routledge  v.  Burrell,  1  id.,  254;  Worsley  «. 
Wood,  6  Term,  710;  Scott  t.  Phoenix  Ins.  Co., 
1  Stuart,  354;  Mason  ».  Harve}-,  8  Esch.,  819; 
Langel  v.  Mut.  Ins.  Co.,  17  U.  C.  Q.  B.,  524 ; 
Leadbetter  v.  .Etna  Ins.  Co.,  13  Me.,  205 ;  S.\.\v.\ 
Ins.  Co.  1).  Tyler,  16  Wend.,  385;  Turley  v. 
North  American  Ins.  Co.,  23  Wend.,  374;^ 
Rounnage  ».  Mechanics  Ins.  Co.,  13  N.  J., 
110;  Protection  Ins.  Co.  ■».  Pherson.o  Ind., 
417;  Noonan  v.  Hartford  Ins.  Co.,  21  Mo.,  81 ; 
Cornell  «.  Hope  Ins.  Co.,  15  Martin,  223). 
Johnson  V.  Ph<Bnix  Ins.  Co.,  112,  Mass.,  49. 

21.  Insurers  refused  to  pay,  giving  as  their 
reason  that  they  believed  that  insured  waa 
attempting  to  defraud.  The  magistrate's  cor- 
lificate  failed  to  state  any  amount  of  loss. 
The  company  never  pointed  out  this  defect. 
Held,  this  was  no  evidence  of  a  waiver  of  tlie 
condition  which  required  the  production  of  a 
magistrate's  certificate,  hence  insured  could 
not  recover.  Ronmaje  v.  Mechanics  Ins.  Co., 
13  N.  J.,  110;  overruled,  Basch  v.  Humboldt 
Mutual  Fire  and  Marine  Ins.  Co.,  35  id.,  43!K 


1137 


PROOFS  OF  LOSS. 


Ii38 


Of  ostoppcl. 


22.  Policy  required  a  certificate  of  loss,  un- 
der tlio  hand  of  a  magistrate  or  notary  most 
contiguous  to  the  place  of  the  fire.  .John  Mc- 
Conncll,  at  the  time  of  the  fire  an  acting  jus- 
tices of  the  peace,  resided  and  kejjt  his  office 
within  thirty  rods  of  the  place.  He  was  nei- 
ther concerned  in  the  loss  nor  related  to  the 
insured.  Wm.  A  Stewart,  another  justice  of 
the  jieace,  resided  and  kept  his  office  a  mile 
and  a  lialf  from  the  place.  McConnell  refused 
to  give  a  cerliticate,  but  Stewart  gave  one  to 
tlic  insured.  Held,  nothing  short  of  McCon- 
i-.ell's  certificate  would  authorize  a  recovery. 
Protection,  Ins.  Co.  v.  Pherson,  5  Ind.,  417; 
Moody  V.  ^tna  Ins.  Co.,  2  Tliomp.  (Nova  Sco- 
tia), 17;{. 

2H.  Stipulated:  "Insured  shall  procure  a 
cerlificate  under  the  hands  of  the  minister  and 
cliurch  wardens,  together  with  some  other 
reputable  inhabitants  of  the  parish  not  con- 
cerned in  the  loss,  importing  that  they  were 
well  acquainted  with  the  character  and  cir- 
cumstances of  the  insured ;  that  they  knew,  or 
verily  believed  that  the  insured  had  sustained 
loss,  etc."  Tlie  plaintiff  averred  that  the  goods 
were  burned  without  fraud  on  his  part;  that 
he  applied  for  saii.l  certificate,  but  that  tlie  de- 
fendants, by  false  insinuations  and  promises 
of  indemnity,  prevailed  on  the  minister  and 
church  wardens  to  refuse  to  sign.  Held,  he 
could  not  recover.  Routledga  v.  Burrell,  1  H. 
Bl.,  251 

24.  Stipulated:  "Insured  shall  procure  a 
e.'rtificatc  uudor  the  hand  of  the  minister  and 
church  wardens,  together  with  some  other  rep- 
utable inhabitants  of  the  parish  not  concerned 
with  the  loss,  importing  that  they  are  well  ac- 
quainted with  the  character  and  circumstances 
of  the  insured,  and  kuow,  or  verily  believe 
that  the  person  insured,  by  misfortune,  and 
without  fraud  or  evil  practice,  sustained  loss, 
etc."  There  was  no  allegation  in  the  declara- 
tion that  this  certificate  was  obtained,  and  there 
was  no  plea  upon  the  record  relying  upon  the 
want  of  it.  Held,  judgment  must  be  arrested. 
Oldmtm  V.  Beicicke,  2  II.  Bl.,  57T,  n. 

25.  The  policy  required  a  magistrate's  cer- 
tificate  to  state,  among  other  things,  that  the 
insured  has,  by  misfortune,  and  without  fraud, 
sustained  loss  and  damage  to  the  amount 
which  the  insured  claims  to  have  lost.  The 
certificate  furnished  omitted  to  state  the 
amount  of  the  loss.  Held,  an  absolute  defect- 
ive title,  which  might  be  taken  advantage  of 


in  the  court  of  appeals,  though  no  notice  had 
been  given  to  it  in  the  court  below  by  either 
party.     Scott  v.  Plicmix  As^.  Co.,  1  Sluarl,  3.54. 

20.  Policy  on  mill.  Stipulated:  "  Imme- 
diale'notice  of  the  loss  .shall  be  given  williin 
fourteen  days  to  the  agent  of  the  company,  and 
as  soon  after  as  possible  a  particular  account 
of  it,  signed  and  verified;"  also,  "the  usual 
certificate,  under  the  hand  and  seal  of  a  raagis. 
trate  most  contiguous  to  the  fire."  The  fire 
occurred  July  3d.  Insured  signed  a  written 
notice  on  the  7th,  stating  the  destruction  of  the 
mill,  that  its  whole  value  was  $2,400,  and  ap- 
pended  a  magistrate's  certificate,  which  set 
forth  that  he  had  examined  several  persons  on 
oath,  and  he  believed  "  insured  had  sustained 
loss  to  the  amount  of  his  insurance  and  over," 
On  the  lOUi,  defendant's  agent  wrote  to  in- 
sured, stating  that  the  papers  sent  were  not  in 
compliance  with  the  conditions  c*"  the  policy. 
On  the  20th  insured  made  and  aelivered  an- 
otjier  paper,  in  which  they  set  forth  that  tha 
fire  occurred  on  the  night  of  July  8d  by  which 
the  mill  was  destroyed ;  that  it  was  of  the 
value  of  $2,400 ;  that  it  was  owned  by  insured  ; 
that  there  was  no  other  insurance  upon  it. 
This  was  signed  and  sworn  to  July  14th,  be- 
fore a  justice  of  tlie  peace,  who  certified  th.at 
he  had  made  inquiries,  and  believed  the  facts 
set  forth  in  the  paper,  and  that  the  plaintifls 
had,  without  fraud,  sustained  loss  to  the 
amount  therein  mentioned.  His  seal  was  not 
afl3.\ed  to  the  certificate.  Held,  both  certifi- 
cates were  insufficient  for  not  stating  the 
amount  of  the  loss,  and  the  last  was  insuffi- 
cient because  it  had  not  a  seal.  The  insurers 
were  discharged.  Mann  'o.  Western  Ins.  Co., 
19  U.  C.  Q.  B.,  190. 

27.  The  magistrate's  certificate  did  not 
state  the  amount  of  the  loss  which  insured 
had  sustained  on  the  property  insured.  Held, 
no  recovery  could  be  allowed.  Langel  v. 
Mutual  Ins.  Co.,  17  U.  C.  Q.  B.,  534. 

IV.  Of  estoppel. 

(a)  When  insured  is  estoj)j>ed  hy  hi» 
^proofs  of  loss. 

1.  The  preliminary  proofs  of  death  stated; 
"Insured  came  to  his  death  by  a  pistol  shot 
fired  by  a  pistol  in  his  own  hand  through  the 
heart."  The  court  instructed  the  jury  to  dis- 
regard that  statement.    Held,  error,  for  every 

009 


1139 


PROOFS  OF  LOSS. 


1140 


Of  estopiiel. 


admission  is  to  be  tiilieu  as  an  entirety  of  the 
fact  wliich  malces  for  tlie  one  side  witli  the 
(lualifications  which  limit,  modify  or  destroy 
its  eflect  on  the  other  side.  Tlie  whole  ad- 
mission, therefore,  sliould  have  been  talvCn  to- 
gether (reversing  the  case,  2  Dil.  Cir.  Ct., 
154),  S.  C.  U.  S.  Mutual  Bewjit  Life  Ins.  Co. 
0).  Newton,  22  Wall.,  33. 

(b)    WTien  insured  is  not  estopped  hy 
his  jn'oofs  of  loss. 

2.  Stipulated:  "The  company  will  pay  the 
insurance  within  ninety  days  after  due  notice 
and  proof  of  death."  In  the  printed  forms 
furnished  hy  the  conjpany  for  making  prelim, 
inary  proof,  there  was  one  lieaded  medical 
proof  of  loss  and  cause  of  death,  which  was 
made  by  Dr.  White,  who  stated  tliat  deceased 
had  been  sick  five  months,  and  that  he  died 
January  21,  1871,  of  pulmonary  consumption. 
If  this  were  true,  it  would  have  tended  to 

«how  that  at  the  time  the  policy  was  rc'instated, 
tlcceased  was  suflering  from  a  disorder  that 
caused  his  death.  In  making  out  the  plaint- 
iff's case,  the  court,  at  the  request  of  defen- 
dant,  required  her  to  put  in  evidence  the 
whole  preliminary  proof,  which  included 
the  affidavit  made  by  Dr.  White;  and  the 
defendant  requested  the  court  to  charge, 
that  on  the  evidence  presented  by  the  plaintiff 
she  was  not  entitled  to  recover,  which  the 
court  refused.  Held,  no  error,  because  the 
circumstances  or  causes  of  death  were  not  re- 
quired in  the  preliminary  proofs  under  any 
of  the  provisions  of  the  policy;  that  piece 
of  evidence  was  brought  into  the  case  at  the 
request  of  the  defendant  and  against  the  ob- 
jection of  the  plaintiff",  hence  plaintiff  was 
not  ccmcludcd  by  the  statement  of  Dr.  White, 
the  jjroof  of  death  being  ample  without  it. 
Day  v.  Mutual  Benefit  Life  Ins.  Co.  1  MacAr- 
thur,  598. 

3.  Stipulated:  "  Insured  sh.all,  in  their  pre- 
liminary  proofs,  state  the  actual  cost  of  their 
articles."  Held,  insured  was  not  bound  bj- 
the  actual  cost  stated  in  the  proofs  of  loss,  but 
miglit  show  that  the  goods  were  in  fact  worth 
a  larger  sum.  Hoffman  v.  uUtna  Ins.  Co.,  1 
Rob.  (N.  T.),  501 ;  s.  c,  32  N.  Y.,  405 ;  19  Abb. 
Pr.,  325. 

4.  The  policy  described  the  building  as  oc- 
cupied   by    the    insured.      The    preliminary 


proofs  of  loss  stated  that  it  was  occupied  by 
the  insured  and  another  person.  Held,  insured 
was  not  estopped  by  the  proofs  of  loss.  Ho 
miglit  prove  what  the  fact  reall}-  was.  Parme- 
lee  V.  Hoffman  Fire  Ins.  Co.,  54  K.  Y.,  193; 
MeMaster  v.  Insurance  Co.  of  North  America, 
55  id.,  222 ;  s.  c,  G4  Barb.,  536. 

5.  Insured  omitted  in  the  preliminary  proofs 
and  notice  of  loss  certain  goods  destroj-cd  in 
the  iire.  Held,  he  was  not  precluded  from 
showing  on  the  trial  that  thej- were  lost,  and 
he  was  entitled  to  recover  for  them  if  they 
were  omitted  inadvertently.  .Mtna  Ins.  Co.  v. 
Stevens,  48  III.,  31. 

6.  Held,  when  the  assured  is  forced  to 
bring  suit  for  his  loss,  he  has  a  right  to  prove 
and  recover  for  the  goods  lost,  notwithstand- 
iug  some  of  them  were  not  stated  in  the  pre- 
liminary proofs  of  loss;  that  the  preliminary 
proofs  of  loss  as  to  the  amount  of  the  claim 
stated  in  them,  ai-e  binding  only  in  cases  where 
the  insurer  settles  promptly.  Commercial  Ins. 
Co.  V.  Huchherger,  52  111.,  4G4. 

7.  Stipulated:  "To  be  void  if  the  insured 
shall  become  so  far  intemperate  as  to  impair 
his  health  or  to  induce  delirium  tremens." 
The  policy  required  notice  and  proof  of  death, 
but  did  not  require  the  insured  to  set  out 
in  the  proof  of  death  the  facts  and  circum- 
stances attending  it;  but  the  proof  was  accom- 
panied by  an  affidavit  in  which  the  medical 
attendant  stated  that  while  the  policy  was  iu 
force  the  insured  was  suffering  from  delirium 
tremens  ftom  drink.  Held,  when  an  apparent 
ground  of  defense  is  declared  by  a  separate 
and  unnecessary  narration  of  circumstances, 
and  the  proois  required  by  the  policy  are  com- 
plete without  that  narration,  it  cannot  be  said 
that  the  party  has  failed  to  complj-  with  the 
condition  imposed  upon  his  right  to  litigate 
his  claim.  Connecticut  Mutual  Life  Ins.  Go. 
V.  Siegel,  9  Bush,  450. 

8.  The  insured  died  before  the  fire  hap. 
pened,  and  his  administratrix  preferred  the 
claim  and  made  proofs  of  loss.  In  her  exam- 
ination upon  oath,  provided  fc:)r  under  the 
polic}',  she  stated  that  she  had  sold  the  prop- 
erty. Held,  she  was  not  estopped  to  show  that 
the  property  had  not  been  sold,  and  that  what 
she  designated  a  sale  was,  iu  fact,  only  an 
agreement  to  sell,  which  was  not  effected  at 
the  time  the  fire  occurred.  Oermania  Fire 
Ins.  Co.  V.  Curran,  8  Kan.,  9. 


570 


1141 


PROOFS  OF  LOSS. 


1U2 


Of  eridence  —  Of  copies  of  otl-Ci-  policies  —  Of  the  invoices,  books,  papers,  etc. 


V.  Of  evidenci;. 

(a)  When  the  jyrdiminary  proofs  are. 

1.  Proliminary  proofs  were  furnislicd  in 
compliance  wilh  the  conditions.  Ueld,  in- 
surers could  read  them  to  tlie  jury,  and  then 
introduce  contradictory  evidence,  lloicard  v. 
City  Fire  Ins.  Co.,  4  Deni-j,  502.  And  after 
proof  has  been  given  to  contradict  them,  the 
insured  cannot  read  them  on  rebuttal,  because 
they  are  not  evidence  for  him.    Ibid. 

"i.  The  ledger  and  cash  book  of  insured 
■«ere  admitted  in  evidence,  showing  original 
accounts  of  sales.  Tliey  were  delivered  to  in- 
surers as  parts  of  the  preliminary  proofs. 
Held,  legitimate  testimony.  Jvncs  v.  Mechan- 
ics Fire  Ins.  Co.,  36  N.  J.,  29. 

3.  The  preliminary  proofs  were  admitted 
in  evidence  without  objection.  Held,  they 
llien  became  evidence  as  to  the  amount  of  tlie 
Joss.    Moore  v..  Protection  Ins.  Cu.,  29  Me.,  97. 

4.  Upon  tlie  trial  insured  gave  in  evidence 
his  preliminary  proofs  of  loss;  the  record  did 
not  show  that  the  paper  was  introduced  for 
any  particular  purpose.  Ileld,  it  was  to  be 
considered  b^'  tlie  jury  like  all  other  testimo- 
ny, and  effect  must  be  given  to  all  that  it 
proved  or  tended  to  prove.  North  American 
Fire  Ins.  Co.  v.  Zucngcr,  63  111.,  404. 

(b)  When  the  preliminary  proofs  are 

not. 

5.  The  court  permitted  t!ie  schedule,  affida- 
vits and  statements  of  the  plainlitfs,  which 
constituted  the  preliminary  proofs,  to  go  to 
tlie  jury  as  prima  facie  evidence  of  the  num- 
ber and  quality  of  the  goods.  Held,  error. 
They  were  not  to  be  used  as  evidence,  except 
for  the  purpose  of  showing  compliance  with 
the  condition  which  required  such  papers  to 
be  made.     Commonveullh  Ins.  Go.  v.  Sennett, 

41  Penn.  St.,  161 ;  Lycoming  Ins.  Co.  c.  Schreffler, 

42  id.,  188;  s.  c.,  44  id.,  269. 

6.  The  preliminary  proofs  of  loss  are  evi. 
dence  that  insured  has  complied  with  the 
condition,  requiring  him  to  make  and  deliver 
them;  they  are  not  evidence  of  the  amount  of 
'the  loss.  Newmark  v.  Liverpool  and  London 
Ins.  Co.,  30  Mo.,  IGO. 

7.  The  preliminary  proofs  of  loss  were 
offered  and  read  by  the  plaintiff  to  the  jury. 
Held,  error,    notwithstanding  the  court    in- 


structed the  juiy  to  regard  them  as  evidence 
only  of  a  cmnpliance  with  the  condition  re- 
quiring such  proofs  to  be  made  and  delivered 
(citing  La  Fayette,  B.  &  Miss.  R.  R.  v.  Wiuslow, 
CO  III.,  219).  111.  S.  C.  Lycoming  Ins.  Co.  v. 
liubin,  8  Chi.  Leg.  News,  150. 

8.  The  preliminary  proofs  of  loss  are  not 
evidence  of  ownership,  amount  of  loss,  nor  of 
the  values  stated  in  it.  Southern  Insurance 
and  Trust  Co.  «.  Lciois,  43  Ga,,  587. 

Yl.    Of  CDPlliS  OF  OTUEH  POLICIES. 

1.  Tlie  claimant  was  required  by  the  terms 
of  the  policy  to  state  what  other  insurance 
has  been  made  upou  the  property  insured. 
He  stated  it  was  not  insured  since  the  policy 
was  taken  out.  Held,  sufficient.  Lounsbury 
V.  Protection  Ins.  Co.,  8  Conn.,  459. 

2.  Stipulated:  "Insured  shall  give  imme- 
diate notice  of  loss,  and  as  soon  as  possible 
render  a  particular  account  of  it  under  oath, 
and  state  whether  any,  and  what,  other  insur- 
ance has  been  made  on  the  property,  giving 
copies  of  the  written  portions  of  all  policies 
thereon."  In  the  proofs  of  loss  the  insured 
stated  there  was  three  hundred  dollars  other 
insurance,  namely,  a  policy  believed  to  be 
dated  January  27,  1803,  No.  0,730,  in  the  Me- 
chanics Mut.  Ins.  Co.  of  Milwaukee;  that  the 
insured  was  unable  to  furnish  a  written  copy, 
because  the  policy  had  been  mislaid,  and  the 
compan3-  had  no  record  of  the  written  part. 
Held,  no  recovery  could  be  had.  Blakeley 
V.  Phanix,  Ins.  Co.,  20  Wis.,  205. 

3.  One  of  the  conditions  required  proofs  of 
the  loss  to  be  made,  and  delivered  to  the  com- 
panj'  within  a  time  certain  after  the  loss  should 
occur,  together  with  a  copy  of  the  written  part 
of  the  policy.  Plea:  copy  of  the  written  part 
of  the  policy  had  not  been  delivered  to  the 
company.  Held,  deliverj-  of  the  written  part 
of  the  policy  was  not  a  condition  precedent. 
Richnrdson  v.  Canada  Farmers  Mut.  Ins.  Co., 
10  U.  C.  C.  P.,  430. 

YII.    Of  the  invoices,  books,  papers 

AND    vouchers    OF    INSURED. 

1.  The  case  did  not  show  when  the  request 
was  made  for  duplicate  invoices;  there  was 
no  evidence  that  certified  copies  of  invoices 
were  required.  Held,  the  court  did  not  err  in 
refusing  to  tell  the  jury  that  if  the  insured 

571 


1143 


PROOFS  OF  LOSS. 


1144 


Appraisement  of  damages. 


ncglecled  to  produce  duplicale  invoices  before 
the  commencemeut  of  tlie  action,  no  riglit 
to  recover  existed.  Insurance  Companies  v. 
Weides.  14  Wall.,  375. 

2.  On  schooner  from  New  York  to  a  port 
in  North  Carolina,  thence  to  Port  Antonio  and 
Anotta  Bay,  Jamaica,  valued.  Stipulated: 
"  If  upon  a  regular  survey  she  shall  be  de- 
clared unseaworthy  by  reason  of  her  bcins 
unsound  or  rotten,  or  incapable  of  prosecuting 
her  voyage  for  that  cause,  insurers  shall  not 
be  bound."  On  the  voyage  from  North  Caro- 
lina, she  encountered  heavy  weather,  and  could 
not  prosecute  it  further,  without  great  repairs, 
which  could  not  be  had  at  Port  Antonio,  and 
if  they  could  have  been  had,  they  would  have 
cost  more  than  she  would  have  been  worth. 
She  was  condemned,  and  sold  for  a  very  small 
sum,  which  was  received  by  the  insured  and 
credited  to  the  insurers.  There  was  no  proof 
of  survey.  Held,  the  insured  was  bound  to 
produce  it  as  part  of  the  preliminary  proof. 
Uaf  u.  Marine  Ins.  Co.,  4  Johns.,  132;  s.  c, 
Anthou's  N.  P.,  22;  overruled,  S  Johns.,  164. 

3.  The  insurers  are  entitled  to  the  papers  or 
letters,  or  true  copies  thereof,  w-hich  pertain 
to  the  loss  or  to  the  claim  of  the  insured. 
Lawrence  v.  Ocean,  Ins.  Co.,  11  Johns.,  345,  n. 

4.  Stipulated:  "The  insured  shall,  if  re- 
quired by  the  insurers,  produce  his  books  of 
accounts  and  other  vouchers,  in  support  of 
his  claim,  and  permit  extracts  or  copies  of 
them  to  be  made,  and,  until  such  request  shall 
be  complied  with,  the  loss  shall  not  be  pay- 
able. Insured  was  required  to  produce  his 
bills  of  purchases,  to  which  he  replied,  that  it 
was  impossible  to  do  so;  that  he  had  found 
only  a  few  bills;  that  he  liad  since  found 
others.  He  did  not  produce  any  of  them, 
refusing  to  do  so  under  advice  of  counsel.  Held, 
he  could  not  recover;  that  this  case  is  different 
to  Bumstead  v.  Dividend  Mut.  Ins.  Co.,  2 
Kern.,  81.  Jube  v.  Brooklyn  Fire  Ins.  Co.,  28 
Barb.,  412. 

.5.  The  evidence  did  not  show  tliat  insured 
had  documentary  evidence  in  their  pos.ses- 
siou  touching  the  nature  and  extent  of  the  loss. 
Held,  until  that  was  proven  no  objection  could 
be  sustained  to  the  plaintiff's  recovery  on  the 
ground  that  thej'  had  not  furnished  invoices 
and  documents.  Foster  r.  Jackson  Marine  Ins. 
Co.,  Edm.  (S.  C.  N.  Y.),  290. 

6.  Conditioned  that  insured  should  pro- 
duce  his  books  of  accounts  and  other  vouch- 
573 


ers.  Tliey  were  consumed  in  the  fire.  Held, 
he  was  thereby  excused.  Mechanics  Fire  Iiu. 
Co.  V.  l^icJiols,  IG  N.  J.,  410. 

7.  Stipulated;  "The  parties  insured  must- 
when  required,  make  proof  of  loss  by  declar- 
ation or  affidavit,  before  the  nearest  magistrate, 
and  by  producing  their  invoices  and  books  of 
account,  and  all  other  vouchers  as  shall  be 
reasonably  requested."  Held,  a  request  to 
produce  vouchers,  for  the  mere  purpose  of 
annoyance,  was  not  reasonable,  and  insured 
was  not  bound  to  comply  witli  it.  But  of  this, 
the  jury  were  the  judges,  for  it  was  a  question 
of  fact,  exclusively.  Cameron  v.  Times  and 
Beacon  Fire  Ins.  Co.,  7  U.  C.  C.  P.,  334. 

8.  Stipulated:  "Insured  shall,  witjiin  a 
month  after  loss,  deliver  to  insurers  as  partic- 
ular an  account  of  it  as  the  nature  of  the  case 
will  admit,  and  make  proof  thereof  by  pro. 
ducing  his  books  of  accounts  and  other  proper 
vouchers,  and  shall  give  such  further  explana- 
tions as  shall  be  necessary;  and  until  these 
shall  be  done,  the  loss  shall  not  be  payable." 
Insurers  required  certain  invoices,  which  in- 
sured refused  to  produce,  although  within  his 
power.  Held,  he  could  not  recover.  CinqueU 
lars  V.  Equitable  Ins.  Co.,  15  U.  C.  Q  B.,  143 ; 
s.  C-,  id.,  346. 

9.  Stipulated:  "A  particular  account  of 
the  claim  shall  be  delivered  within  thirty 
days  after  the  loss,  verified  by  the  affidavit  of 
the.  insured,  and  by  his  accimnt  liooks  and 
other  proper  vouchers."  Plaintiff  delivered 
his  affidavit,  stating  generally  the  value  of  the 
goods  saved  and  destroyed,  and  a  book  con- 
taining  statement  of  goods  sold,  made  partly 
from  invoices  and  memory,  not  verified  by 
books  of  accounts,  or  the  vouchers  wiiich 
he  had.  Held,  not  a  compliance  witn  the 
stipulation.  Graves  v.  Niagara  Hist.  Mut. 
Ins.  Co.,  25  U.  C.  Q.  B.,  127;  Scott  t.  ThtSame, 
id.,  119;  Muhey  v.  Gove  Hist.  Mut.  Jus.  Co., 
id,  424;  Banting  v.  Niagara  Hist.  oiut.Ins. 
Co..  id.,  431. 

YIII.    ApPEAISEMENT  of  DAjVIAGES. 

1.  Stipulated:  "The  sound  value  and  the 
damaged  value  of  the  goods  insured  shall  be 
ascertained  bj'  persons  mutuall.'  appointed." 
Insurer  liad  the  right  to  take  the  whole  or  any 
pavt  of  the  property  at  the  value  appraised; 
and  the  loss  was  not  payable  until  sixty  day» 
after  compliance   witli   all    conditions  men. 


1U5 


PRO  RATA  -  PROXIMATE  CAUSE  OF  LOSS. 


114C 


Negligence. 


tinned.  Ueld,  wlien  insured  delivered  to  the 
e()nii);iny  an  inventory  of  the  goods  burned  or 
injured,  he  did  all  that  he  was  t)ound  to  do; 
it  was  not  incumbent  on  hira  to  move  further 
in  the  matter;  if  the  insurers  wanted  an  ap- 
jiraisement  they  should  have  insisted  upon  a 
(•omjiliiince  with  the  condition.  Commercial 
/««.  Co.  J).  Robinson,  64  111.,  2Go. 

2.  Stipulated:  "A  survey  shall  beheld  by 
competent  persons,  mutually  chosen,  as  soon 
as  possible  after  any  accident  shall  happen, 
ami,  if  she  l)e  found  worthy  of  repairs,  no 
abandr)nment  shall  be  made  unless  with  in- 
surer's consent.  If,  on  stuvey,  she  shall  be 
found  and  declared  unscaworthy,  on  account 
of  being  unsound,  rotten,  or  incapable  of  pros- 
ecuting lier  voyage  on  the  same  account,  in- 
surers shall  not  be  bound  to  pay  the  amount 
insured  or  any  part  thereof."  Plea:  no  survey 
was  made.  Held,  a  bar  to  the  action.  Hamil- 
ton V.  Montreal  Ins.  Co.,  23  U.  C.  Q.  B.,  437. 

IX.  Questions  fok  the  juey. 

1.  Stipulated:  "Insured  shall  make  and 
deliver  as  particular  an  account  of  the  loss  as 
the  nature  of  the  case  will  admit."  The  state- 
ment delivered  was  general.  It  did  not  specify 
the  difi'ercnt  articles  consumed.  Held,  if  in- 
sured could  have  made  a  particular  statement 
and  did  not,  no  recovery  could  be  had;  but 
'he  jury  were  to  determine  whetlier  it  was 
within  the  power  of  insured  to  give  a  detailed 
statement.  Franklin  Fire  Ins.  Co.  v.  Updegraff, 
43  Penn.  St.,  350. 

2.  The  jury  are  the  judges  whether  the 
notice  of  loss  was  given  forthwith,  and 
whether  the  particulars  of  the  loss  were  given 
aa  soon  as  possible,  for  both  terms  mean  with 
«iue  diligence.  Edwards  v.  Baltimore  Fire 
Ins.  Co.,  3  Gill,  176. 

3.  The  insured  offered  to  pay  a  portion  of 
the  claim,  but  did  not  object  to  tlie  fact  that 
the  nearest  magistrate  had  not  signed  the  cer- 
tificate of  the  loss.  Suljsequcntly,  while  the 
parties  were  in  treaty  for  an  adjustment,  ob- 
jection was  made  on  the  ground  that  the  cer- 
tificate was  not  such  as  the  conditions  of  the 
policy  required.  //eW,  the  court  had  not  the 
right  to  determine,  as  matter  of  law,  that  in- 
surer had  waived  the  proper  certificate;  the 
question  of  waiver  was  to  be  determined  by 
the  jury,  as  matter  of  f.ict.  upon  the  evidence 
submitted  to  them.  Noonan  v.  Hartford  Fire 
Int.  Co.,  21  Mo.,  81. 


4.  Whether  there  is  a  waiver  of  preliminary 
proofs  of  loss  depends  upon  the  facts  aud  cir- 
cumstances of  the  case.  Charleston  Insurance 
and  Trust  Co.  v.  Neve,  2  ilcMuUen,  237. 

X.  Generally. 

1.  Mere  silence  cannot  be  construed  into  a 
waiver  of  the  preliminary  proofs  of  loss;  if 
the  company  makes  no  objection  to  their  suf- 
ficiency, and  no  request  for  further  particulars, 
that  does  not  amount  to  a  waiver;  but  if  a  re- 
fusal to  pay  is  put  upon  grounds  other  than 
defects  in  the  preliminary  proofs,  that  operates 
as  a  waiver.  Keenan  v.  Missouri  State  Mutual 
Ins.  Co.,  13  Iowa,  120. 

2.  Whether  there  is  a  waiver  of  preliminary 
proofs  depends  upon  the  facts  and  circum- 
stances of  the  case.  Charleston  Insurance  and 
Trust  Co.v.  Neve,  3  McMullcn,  237. 


PRO  RATA. 

(See  Fekight;  RErasnEAKCK.) 


PROXIM-ATE  CAUSE  OF  LOSS. 

I.  Negligence. 

(a)  When  the  acts  of  insured  are  a  <fo. 

fense. 

(b)  the  acts  of  the  insured  are  no 

defense. 
(cj  Vie  acts  of  the  master,  crew  or 

agent. 1  are  a  defense. 
(d)  the  acts  of  the  master,  crew  or 

agents  are  no  defense. 
II.  What  is  proximate  cadse. 

III.  Op   the    distinction    between    NBOLl- 

GENCE  AND  DESIGN. 

IV.  What  is  gross  negligence. 

I.  Negligence. 

(a)  TF7i<??i  the  ads  of  insured  are  a 
drfense. 

1.  On  steamboat.  Owner  was  master.  He 
assigned  the  policy  to  R.,  for  whose  u.se  suit 
was  brought.  While  racing,  insured  took  a 
barrel  of  turpentine,  put  it  in  front  of  the  fur- 

573 


1147 


TROXIMATE  CAUSE  OF  LOSS. 


1148 


Negligence. 


nace,  and  used  it  on  the  wood  and  coal  to  in- 
crease steam.  Fire  communicated  with  tlie 
barrel,  and  the  vessel  was  burned.  Held,  sucli 
misconduct  as  released  insurers,  notwithstand- 
ing the  jury  found  specially  that  the  master's 
act  was  not  willful.  Citizens  Ins.  Co.  v.  Marsh, 
41  Penn.  St.,  386. 

2.  Policy  against  accidents.  Insured  care- 
lessly put  his  arm  out  of  the  window  of  the 
car  in  which  he  was  sitting,  and  while  in  that 
position  the  accident  happened.  Held,  the  in- 
jury did  not  result  from  the  dangers  common 
to  passengers,  but  from  the  position  in  which 
lie  had  needlessly  and  carelessly  placed  his 
arm;  and  was  produced  by  his  own  fauU,  and 
therefore  tleprivcd  him  of  all  right  to  compen- 
sation. Morel  V.  Miasisaippi  Valley  Life  Ins. 
Co.,  4  Bush,  535. 

3.  The  master  of  an  American  vessel  going 
to  Havana,  agreed  with  the  iilaiutift"  to  carry 
to  that  port  certain  jewelry,  and  in  case  of  cap- 
lure  to  claim  them  as  his  own,  it  being  the 
practice  among  privateers  to  exempt  the  prop- 
erty of  the  master  from  capture.  In  order  to 
efl'ectually  mask  the  property,  he  agreed  to  put 
it  in  his  own  chest,  hence  the  goods  were  not 
named  in  the  manifest  and  clearance.  No 
jcpresentalions  were  made  to  insurers.  By 
the  same  vessel  the  owner  inclosed  a  bill  of 
lading  to  his  consignee  at  Havana.  On  being 
captured,  the  master  claimed  the  goods  as  his, 
but  the  bill  of  lading,  found  on  tlie  vessel,  led 
to  a  discovery  of  the  truth.  Held,  insurer  had 
a  right  to  e.xpect  every  proper  precaution 
would  be  used  by  tlie  master  and  insured,  to 
mask  the  property  in  the  way  proposed;  that 
sending  the  bill  of  lading  by  the  vessel  exposed 
the  property  to  the  very  danger  which  the 
mask  was  intended  to  cover;  that  the  master 
was  to  be  treated  as  the  agent  of  insured,  for 
whose  acts  insured  was  responsible,  and  his 
fault  or  misconduct  was  not  chargeable  against 
insurers.    Himely  v.  Stewart,  1  Brev.,209. 

(l»)  When  the  acts  of  the  insured  are 
no  defense. 

4.  A  loss  occasioned  bj'  the  fault  and  negli- 
gence of  the  insured,  their  servants  and  agents, 
without  fraud  or  design  on  the  jxirt  of  insured, 
is  a  loss  within  the  policy.  Columbian  Ins. 
Co.  V.  Laxcrenee,  10  Pet.,  507. 

5.  The  insured  may  recover,  notwithstand- 
574 


ing  the  lire  is  communicated  from  one  of  his 
own  buildings  in  process  of  erection  (the  pol- 
icy  not  prohibiting  the  rebuilding);  but  tha 
insured  is  bound  to  use  reasonable  care  to 
guard  against  accidents.  Toung  v.  Washing, 
ion  C'lunty  Mutual  Ins.  Co.,  14  Barb.,  545. 

6.  Policy  against  injuries  caused  by  acci- 
dent  while  traveling  by  public  or  private  con- 
veyances for  transportation  of  passengers.  In- 
sured  attempted  to  jump  on  an  omnibus  while 
it  was  in  motion;  he  succeeded  in  getting 
upon  the  steps  in  the  rear,  but,  unable  to 
maintain  his  footing,  slipped  and  fell.  Held, 
the  contract  of  insurance  is  not  subject  to  tho 
rule  which  deprives  a  party  of  compensation 
for  an  injury  caused  by  his  own  negligence  or 
want  of  due  care.  Champlin  v.  Railway  Pas- 
senger  Ass.  Co.,  6  Lans.,  71. 

7.  On  a  stock  of  drugs,  cheinicals  and  other 
merchandise,  hazardous  and  e.xtra  hazardous. 
The  insured  placeil  about  five  gallons  of  oint- 
ment, an  inflammable  compound,  upon  tho 
stove  to  warm,  which  ignited  and  caused  the 
fire.  Held,  if  the  evidence  established  the  fact 
that  it  was  usual-  for  druggists  to  mix  antl 
melt  ointment  on  their  stoves,. as  was  done  in 
this  case,  insurers  must  be  deemed  to  be  ac- 
quainted wi:h  the  business,  and  to  have  in- 
cluded it  in  the  risk  (citing  Harper  t.  Albany 
Ins.  Co,,  17  N.  T.,  194;.  And  in  the  absence 
of  fraud,  insurers  must  be  held  liable  for  the 
loss.  Brown  v.  Kings  County  Fire  Ins.  Go., 
31  How.  Pr.,  508. 

8.  Mere  negligence  on  the  part  of  insured 
is  no  defense  to  the  action,  though  it  was  tho 
direct  cause  of  the  fire.  Johnson  v.  Berkshire 
Mutual  Fire  Ins.  Co.,  4  Allen,  388. 

9.  Insurers  asked  the  court  to  instruct,  that 
the  plaintiff  was  bound  to  exercise  all  the 
care,  skill  and  prudence  usually  employed  by 
persons  of  that  description  engaged  in  mer- 
cantile business,  and  that  for  want  of  any  such 
care,  skill  and  prudence  in  conducting  the 
business,  the  plaintiff  alone  must  suffer;  but 
the  court  refused.  Held,  no  error,  for  the  care- 
lessness or  negligence  of  the  plaintiff  or  his 
servants  was  no  defense  to  the  action,  unle.ss 
fraud  or  design  is  connected  with  it.  Huc/c 
ins  V.  People's  Mutual  Fire  Ins.  Co.,  31  N.  H., 
238. 

10.  Insured  docs  not  forfeit  the  benefit  of 
his  contract  by  failing  to  repair  defects  Avhich 
have  arisen  since  the  execution  of  the  policy, 
unless  he  is  guilty  of  gross  negligence  in  re- 


1U9 


PROXIMATE  CAUSE  OF  LOSS. 


lloO 


^Negligence. 


spect   to  it.     Whitehurst  v.  Fnyeiteville  M>it. 
Jii3.  Co.,  6  Jones'  Law,  352. 

1 1.  The  dcfcndiint  requested  the  court  to  in- 
struct the  jury:  "If  the  fire  Wiis  caused  by,  or 
resulted  from,  the  gross  carelessness  or  gross 
misconduct  of  the  insured,  they  could  not  re- 
cover." Held,  it  was  properly  refused,  for  the 
word  "gross"  is  sometimes  treated  as  equiva- 
lent to  fraud,  and  should  not  be  used  without 
properly  explaining  its  import;  that  negli- 
gence is  one  of  the  risks  assumed  by  the  in- 
surer. Mueller  v.  Putnam  Fire  Ins.  Co.,  45 
Mo.,  84. 

1 2.  The  eighth  paragraph  of  the  answer  al- 
leged that  the  plaintiff  negligently  stood  by 
at  the  time  of  said  loss  and  permitted  said 
propert3%  embraced  in  said  policj-,  to  be  con- 
sumed and  destroyed,  and  did  not  make  any 
reasonable  exertion  to  prevent  said  fire,  or  to 
preserve  said  property  or  any  part  thereof. 
Held,  that  it  had  no  legal  meaning.  Aurora 
Fire  Ins.  Co.  v.  Johnson,  46  Ind.,  315. 

13.  The  defendant  requested  the  court  to 
instruct:  "That  the  defendant  need  not  prove, 
beyond  a  reasonable  doubt,  that  the  fire  was 
intentional  on  the  part  of  the  plaintiff;  and  if 
the  jury  believe  from  the  evidence  that  plaint- 
iff willfully,  negligently  or  carelessly  allowed 
the  property  to  be  destroyed  by  fire  so  as  to 
procure  the  insurance  thereon,  or  that  any 
portion  of  the  stock  was  removed  before  the 
fire,  they  must  find  for  the  defendant."  Held, 
the  latter  part  of  the  instruction  was  neither 
law  nor  common  sense;  that  if  the  instruction 
was  not  correct  entirely,  the  court  had  a  right 
to  reject  it  altogether.  Kansas  Ins.  Co.  v. 
Berry,  8  Kan.,  159. 

14.  That  the  loss  was  caused  by  the*  mere 
negligence  of  insured  is  no  defense  to  the  ac- 
tion. Sliaio  V.  Mobberds,  6  A.  &  E.,  73 ;  1  N.  & 
P.,  379;  6  L.  J.  (N.  S.),  K.  B.,  106. 

15.  The  defendants  pleaded  that  the  fire 
was  caused  by  and  through  the  carelesness, 
negligence  and  improper  conduct  of  the 
plaintiffs  and  their  servants.  Held,  no  defense 
to  the  action.  Jameson  v.  Royal  Ins.  Co.,  7 
Irish  Law  R.,  126. 

(c)    When  acts  of  the  master,  crew  or 
agents  are  a  defense. 

16.  The  vessel  was  partly  laden  with  pow- 
der; a  candle  was  carelessly  put  by  llie  bin- 


nacle, which  took  fire  and  communicated  with 
the  powder;  she  was  blown  uj)  and  lost.  Held, 
it  was  not  barratry;  and  when  fire  is  occa- 
sioned by  the  fault  of  the  master  or  mariners, 
the  loss  is  not  to  be  borne  by  the  insurer. 
Orim  V.  rhmnix  Ins.  Co.,  13  Johns.,  451 ;  over- 
ruled, Mathews  v.  Howard  Ins.  Co.,  11  N. 
Y.,  9. 

17.  Loss  by  capture  from  the  negligence  of 
the  master  in  leaving  the  ship's  register  oa 
shore.  Held,  the  insurer  was  discharged. 
Cleveland  v.  Union  Ins.  Co.,  8  Mass.,  308.  ° 

18.  Where  the  loss  was  caused  by  the  mas- 
ter's gross  ignorance  and  want  of  judgment, 
the  insurer  was  discharged,  lliggin  v.  Pa- 
tapsco  Ins.  Co.,  7  H.  &  J.,  279. 

19.  "  On  corn  laden  on  two  flatboats,  Louis- 
ville to  New  Orleans,  against  the  perils  of  the 
rivers,  fires,  enemies,  pirates,  rovers,  assailing 
thieves,  and  all  other  perils,  losses  and  mis- 
fortunes, which  shall   come  to  the   damage 
thereof,  according  to  the  true  intent  and  mean- 
ing of   said   policy."     The   boats  were   both 
made  fast  at  an  ajiparcntly  safe  place;    the 
night  was  calm,  and   the  river  falling;   all 
hands  retired  to  rest,  leaving  no  watch.    About 
five  o'clock  in  the  morning  the  crew  being 
awakened,  found  one  of  the  boats  sinking 
rapidly.     She  went  down  so  quickly  that  the 
hands  escaped  with  difficulty,  and  were  un- 
able to   ascertain  the   cause.     The   court   in- 
structed:    "If   the   jury  were  satisfied   that 
those  in  charge  of  the  boat  used. due  care  to 
ascertain  that  the  place  of  landing  was  a  safe 
one,  it  was  not  indispensable  to  the  plaintiff's 
right  to  recover,  that  a  waking  watch  should 
have  been  kept."    Held,  it  should  have  been 
left  to  the  jury  to  ascert:un,  as  a  fact,  if  the 
loss  resulted  from  the  negligence  of  the  crew. 
For   insured  warrants  that  those  persons  he 
employs  shall   be  careful  and  diligent,  and 
that  everything  shall  be  done,  within  the  reach 
of  ordinary  human  agency,  to  prevent  loss. 
Lodwicks  V.  Ohio  Ins.  Co.,  5  Ohio,  433;  Hotoell 
Cincinnati  Ins.  Co.,  7  id.,  pt.  1,  276;  Fulton 
V.  Lancaster  Ins.  Co.,  id.,  pt.  3,  5;   overruled, 
Perrin  v.  Protection  Ins.  Co.,  11  id.,  147. 

20.  The  question  between  the  parties  was, 
whether  there  had  been  a  total  loss.  It  a]>- 
peared  that  when  she  sailed  she  was  worth 
£2,200;  that  the  night  following  she  went 
ashore,  seventy  miles  west  of  Alexandria. 
Held,  any  evidence  tending  to  prove  what  a 
jirudent   owner  would  have  done  under  the 

575 


1151 


PROXIMATE  CAUSE  OF  LOSS. 


1152 


I^egligence. 


circumstances,  if  uninsured,  was  admissible; 
and  tliat  tliercfore  tlie  insurers  were  at  liberty 
to  prove  any  facts  which  tended  to  show  that 
the  judgment  exercised  by  the  master  was  en- 
titled to  no  respect;  and  a  state  of  mind 
superinduced  by  intoxication  was  a  fiict  with- 
in lliaf  limit.  Alcvck  v.  Royal  Exchange  Ass. 
Co.,  13  Q.  B.,  292. 

21.  Ou  cargo.  "Excepting  loss  arising 
from  and  caused  b}'  ice,  theft,  barratrj'  or  rob- 
bery, or  from  want  of  ordinaiy  care  and  skill, 
such  as  is  necessary  and  proper  on  such  voy- 
ages and  in  said  navigation;  excepting,  also, 
all  losses  arising  from  or  caused  by  the  said 
Tessel's  being  unseaworthy,  or  unduly  or  im- 
properly laden  on  the  voyage  aforesaid."  De- 
fendant pleaded  that  by  the  want  of  ordinaiy 
<;are,  skill,  knowledge,  attention  and  seaman- 
ship on  the  part  of  the  master,  and  others  in 
charge  of  her,  and  from  ignorance  of  the 
chaaucl  and  navigation  of  the  river  St.  Law- 
rence on  the  part  of  the  said  master  and  others 
in  charge  of  her,  and  not  from  any  of  the 
perils  and  misfortunes  of  said  navigation,  she 
was  run  against  and  upon  an  island  in  the  said 
river;  and  by  means  of  such  stranding,  the 
said  cargo  was  damaged.  Held,  a  valid  de- 
fense to  the  action.  Oillespie  v.  British  Amer- 
ican Fire  and  Life  Ass.  Co.,  7  U.  C.  Q.  B.,  108. 

22.  Ou  cargo.  "  Loss  caused  by  the  negli- 
gence of  the  master  or  crew  in  navigating  the 
vessel  excepted."  She  was  stranded;  and  the 
court  told  the  jury,  if  the  stranding  was  caused 
either  by  gross  mismanagement,  ignorance  or 
uegligence  on  the  part  of  the  master  or  crew, 
the  plaiutitl"  could  not  recover.  Held,  the  in- 
struction was  correct.  Gillespie  v.  British 
American  Fire  and  Life  Ass.  Co.,  7  U  C.  Q.  B., 
108. 

(d)    Wlien  the  acts  of  the  master.,  creiv 
or  agents  are  no  defonse. 

23.  On  profits,  at  and  from  Pliiladelphia  to 
■Gibraltar.  AVhile  she  lay  at  Gibraltar,  and 
before  the  cargo  was  discharged,  she  took  fire. 
The  evidence  tended  to  show  that  it  might 
Jiave  been  extinguished  and  tlie  cargo  saved, 
if  the  master  and  crew  had  acted  witli  proper 
diligence.  Evidence  was  also  given  tending  to 
show  that  the  fire  originated  from  the  careless- 
ness of  the  master.  Held,  when  the  proximate 
cause  of  the  loss  is  a  peril  insured,  the  insurer 
is  liable,  nlilumgh  the  remote  cause  was  the 

57(i 


negligence  of  the  master  and  mariners.    Pa- 
tapsco  Ins.  Co.  v.  Coulter,  3  Pel.,  222. 

24.  "  Perils  of  rivers,  fire,  enemies,  pirates, 
assailing  thieves,  and  all  other  losses  and  mis- 
fortunes, which  shall  come,"  etc.,  were  taken. 
An  explosion  took  place  by  which  she  was 
lost.  Pleas:  1.  That  it  was  caused  by  means 
of  fire  negligently  and  carelessly  communi- 
cated by  the  officers  and  crew  to  gunpowder 
iu  the  hold.  2.  That  she  was  loaded  partly 
with  gunpowder;  that  it  was  unskillfully  and 
negligently  stowed  b>  the  officers  and  crew; 
that  it  took  fire  in  consequence  of  that  negli- 
gence, and  caused  the  explosion.  To  which 
the  insured  demurred.  Held,  if  the  fire  was 
comnuiuicated  and  occasioned  by  the  direct 
agency  of  the  master  and  crew,  intentionally 
done  with  a  barratrous  purpose,  it  was  not  a 
loss  within  the  policy;  that  if  the  loss  yras 
remotely  caused  by  the  negligence,  careless- 
ness or  unskillfulness  of  the  master  or  crew 
(not  such  as  would  amount  to  a  breach  of  the 
implied  warranty  that  there  should  be  a  mas- 
ter and  crew  of  suflicient  skill  and  competent 
to  navigate  her),  then  the  loss  was  withiu  the 
policy.  Waters  v.  Merchants  Louisville  Ins. 
Co.,  11  Pet.,  213;  1  McLean,  275. 

25.  The  imprudence  of  the  master  cannot 
aft'ect  the  rights  of  the  insured.  Sperry  v, 
Delaware  Ins.  Co.,  2  Wash.  C.  C,  243. 

26.  That  the  loss  occurred  by  the  careless- 
ness of  the  servants  or  tenants  of  the  insured, 
is  no  defense  to  the  action.  Gates  t\  Madison 
County  Mut.  Ins.  Co.,  5  N.  Y.,  469 ;  3  Barb.,  73. 

27.  The  insured  is  bound  no  further  than  to 
furnish  a  competent  master  and  crew  at  the 
beginning  of  the  voyage,  without  implicitly 
warKiuting  that  they  will  be  diligent  to  the 
end  of  it;  and  although  the  maxim  respondeat 
superior  is  applicable  to  the  responsibility  of 
a  master  for  the  acts  of  his  servants,  yet  the 
insured,  so  long  as  he  acts  with  fidelity,  shall 
recover  for  the  loss,  notwithstanding  the  re- 
mote cause  of  it  was  the  negligence  of  the  mas- 
ter  and  crew.  American  Ins.  Co.  v.  Insley,  7 
Penn.  St.,  223. 

28.  The  loss  was  caused  by  a  peril  insured 
against,  the  consequence  of  improperly  leaving 
a  large  quantity  of  freight  on  tlie  deck  cf  the 
barge.  Held,  the  negligence  of  the  servant  of 
tlic  insured  was  no  defense  to  the  action.  Phoe- 
nix Fire  Ins.  Co.  v.  Cochran,  -51   Pcnn.  St.,  143. 

29.  The  negligence  of  the  insured  or  his 
workmen  is  no  defense  to  the  action  for  loss. 


1153 


PROXIMATE  CAUSE  OF  LOSS. 


115* 


Williams  v.  New  England  Mutual  Fire  Ins.  Co., 
SI  Me.,  219. 

30.  If  the  cargo  insured  was  dnmagt-d  by 
perils  of  the  sea,  the  insurer  is  liable,  notwith- 
standing it  was  not  properly  stowed,  for  the 
insurer  is  liable  when  the  proximate  cause  of 
the  loss  is  a  peril  insured  against,  though  the 
remote  cause  is  negligence  of  the  master  and 
mariners,  because  the  insurer  may  be  subro- 
gated to  the  rights  of  the  insured,  and  so  com- 
pel the  ship's  owner  to  answer  for  the  negli- 
gence of  his  servants.  Georgia  Insurance  and 
Trust  Co.  V.  Dawson,  2  Gill,  365. 

31.  "  Permission  to  keep  one  barrel  of  ben- 
zine or  turpentine  in  tin  cans,  and  one-half 
barrel  of  varnish,  for  use."  Insured  were  not 
in  the  habit  of  allowing  barrels  of  benzine  or 
turpentine  to  remain  on  their  premi-ses  for  a 
time  longer  than  necessary  to  empty  them.  A 
barrel  of  benzine  was  carried  into  the  store, 
a  syi)hou  inserted  into  the  bunghole,  and  the 
process  of  emptying  into  a  tin  can  com- 
menced. The  weather  being  moist,  the  liquid 
vaporized  rapidly.  A  workman  with  a  lamp, 
searching  for  a  leak,  approached  within  six 
feet  of  the  barrel,  an  explosion  resulted  and 
started  the  fire  which  consumed  the  premises. 
Held,  the  insurers  were  liable  for  the  loss. 
Mart/land  Fire  Ins.  Co.  v.  Whileford,  31  Md., 
219. 

32.  The  negligence  or  misconduct  of  the 
master  or  crew  does  not  relieve  tlie  insurer,  if 
the  loss  is  caused  by  a  peril  insured  against. 
If  the  misconduct  is  willful  and  fraudulent,  so 
that  it  amounts  to  barratry,  that  excuses  the 
insurer,  unless  the  policy  includes  the  risk  of 
bari-atry.  .  Firemen's  Ins.  Co.  v.  Powell,  13  B. 
Mon.,  .311. 

33.  The  defendant  ofTered  evidence  tending 
to  show  that  the  fire  was  caused  by  the  negli- 
gence of  the  plaintiffs  agent,  with  intention 
to  defraud  the  insurers.  Held,  inadmissible, 
for  the  negligence  of  the  insured  himself,  un- 
less coupled  with  fraud  or  design,  would  be 
no  defense  to  the  action  (citing  Phillips  on 
Ins.,  6;32;  Patapsco  Ins.  Co.  v.  Coulter,  3  Pet., 
222;  Columbian  Ins.  Co.  d.  Lawrence,  10.  id., 
."507;  Waters  v.  Merchants  Louisville  Ins.  Co., 
11  id.,  218;  McManus  v.  Cricket,  1  East,  106; 
Foster  v.  Essex  Bank,  17  Mass.,  479;  Ware  v. 
Barataria  &  L.  Canal  Co.,  15  La.  (O.  S.),  170; 
Oillardet  r.  Demaries,  18  id.,  490.)  Henderson  v. 
Western  Marine  and  Fire  Ins.  Co.,  10  Rob. 
(La.),  164.    Nor  was  the  evidence  admissible, 

37 


though  it  was  admitted  that  the  agent  was 
insured  on  property  in  the  same  premises,  for 
it  did  not  appear  that  the  plaintiff  here  was 
privy  to  that  fact.    Ibid. 

34.  The  loss  was  caused  by  an  explosion  of 
her  boilers.  Held,  the  negligence  of  those 
managing  the  boat  could  not  be  used  as  a  de- 
fense in  favor  of  the  insurer.  Ptrrin  v.  Pro- 
tection Ins.  Co.,  11  Ohio,  147. 

35.  On  steamboat,  against  loss  by  fire  only; 
loss  by  barratry  excepted.  She  came  in  col- 
lision with  the  United  States,  a  boat  owned 
by  insured.  Both  vessels  were  damaged',  took 
fire  and  weie  consumed.  Held,  insured  were 
entitled  to  recover,  notvi'ithstanding  the  fire 
may  have  been  caused  by  the  collision,  and 
the  collision  was  caused  by  the  negligence  of 
the  persons  in  charge;  for  an  insui'ance  against 
loss  by  fire  only  embraces  losses  by  fire  gen- 
erally, without  regard  to  the  producing  cause 
or  causes.  Oermania  Ins.  Co.  v.  Sherlock,  25 
Ohio  St.,  33. 

36.  The  loss  was  caused  by  the  presence  of 
aqua  fortis,  the  carrying  of  which  was  pro- 
hibited by  act  of  congress.  Held,  it  was  im- 
material how  the  fire  was  produced,  whether 
by  mere  accident  or  by  the  negligence  of  tho 
olflcers,  unless  there  was  fraudulent  or  bar- 
ratrous  conduct,  for  the  proximate,  not  the  re- 
mote, cause  of  the  loss  must  be  considered  in 
determining  insurers  liability.  Sherlock  v. 
Globe  Ins.  Co.,  1  Cin.  Sup.  Ct.,  193. 

37.  That  the  loss  occurred  by  the  negli- 
gence or  misconduct  of  the  officers  and  crew 
is  no  defense  to  the  action,  if  it  docs  not 
amount  to  barratry.  St.  Louis  Ins.  Co.  v.  Glas- 
gow, 8  3Io.,  713. 

38.  The  wife  of  the  insured  removed  a 
stovepipe  which  passed  through  the  floor  of 
an  upper  room  and  into  a  chimney,  and  placed 
abed  over  the  hole  in  the  floor;  forgetting 
that  she  had  done  this,  she  caused  a  fire  to  be 
built  in  tho  stove,  which  burned  bed  and 
house.  The  policy  stipulated  that  insured 
would  keep  the  stoves  and  pipe  in  proper  con- 
dition.  Held,  the  insured  were  entitled  to  re- 
cover. Mickey  v.  Burlington  Ins.  Co.,  35  low.H, 
174. 

39.  Stipulated :  "  Whenever  any  alteratioa 
shall  be  made  that  increases  the  hazard,  so  as 
to  increase  the  premium,  the  policy  shall  be 
void,  unless  an  additional  premium  shall  be 
given,  according  to  the  rate  of  exposure;  and 
insurers  are  not  liable  for  any  losa  that  occurs 

577 


1155 


PROXIMATE  CAUSE  OF  LOSS. 


115G 


What  is  proximate  cause. 


in  consequence  of  repairing,  finishing,  or 
building  additions."  A  stove  was  put  in  use 
for  tlie  purpose  of  drying  the  plastering  in  the 
ballroom;  and  it  was  alleged  that  the  care- 
lessness of  tlie  agents  of  insured  caused  the 
fire,  lleld,  if  insured  had  a  right  to  Iseep  a 
fire  in  the  ball  room,  for  any  purpose  what- 
ever, he  could  use  it  for  drying  the  plaster,  or 
any  other  purpose,  and  the  negligence  of  his 
servants,  however  great  in  degree,  was  no  de- 
fense  to  the  action.  Troy  Fire  Ins.  Co.  ».  Car- 
penter, 4  Wis.,  20. 

40.  On  ship  Amsterdam  to  St.  Petersburg. 
She  sailed  with  a  sufBcient  crew,  but  was 
driven,  by  stress  of  weather,  into  Biorkoo 
Sound,  in  the  Gulf  of  Finland,  and  frozen  in 
for  the  winter.  Crew  were  discharged,  and 
she  was  left  in  care  of  the  mate.  The  master 
left  her,  went  to  St.  Petersburg,  and  settled 
ship's  accounts,  intending  to  return  and  com- 
plete the  voyage  when  the  season  would  per- 
mit. The  mate  kindled  a  fire  on  board,  and 
went  aboard  anotlier  vessel  near  by,  where 
he  remained  the  night.  The  loss  was  caused 
by  the  mate's  negligence  in  lighting  the  fire 
and  failing  to  see  that  it  was  properly  extin- 
guished. Held,  the  negligence  of  the  mate 
was  no  defense  to  the  action.  Busk  v.  Royal 
Exchange  Ass.  Co.,  2  B.  &  A.,  73. 

41.  On  boats  belonging  to  ship  and  on  pro- 
duce in  said  boats,  or  in  any  other  craft  em- 
ployed in  loading  the  ship  during  her  stay, 
etc.  A  sloop  (fully  laden  with  sugar  for  the 
ship,  in  charge  of  the  mate  and  three  sailors, 
part  of  the  ship's  crew,  and  four  negro  laborers, 
all  of  whom  fell  asleep),  ran  upon  breakers, 
was  beaten  to  pieces  by  the  sea,  and  the  sugar 
lost.  Held,  the  loss  was  within  the  policy, 
notwithstanding  the  remote  cause  of  it  was  tiie 
negligence  of  the  persons  employed  to  navi- 
gate tlie  sloop.  Walker  ■».  Maitland,  5  B.  & 
A.,  171. 

42.  The  insurer  is  liable,  notwithstanding 
the  loss  was  remotely  caused  by  the  negli- 
gence of  the  ship's  crew.  Bishop  v.  Pentland, 
7B.  &C.,  219;  1  M.  &  R.,  49. 

43.  The  goods  insured  were  not  mentioned 
in  the  ship's  manifest,  contrary  to  the  provis- 
ions of  the  statute.  Held,  this  did  not  release 
insurers.  Carruthers  v.  Gray,  3  Camp.,  143; 
15  East,  35. 

44.  Time  policy.  The  defendant  pleaded 
that  though  she  was  lost  by  perils  of  the  sea, 
yet  such  loss  was  occasioned  wholly  by  the 

578 


wrongful,  negligent  and  improper  conduct 
(not  barratrous)  of  the  master  and  mariners, 
by  willfully,  wrongfull}-,  negligently  and  im- 
properly (not  barratrously;  throwing  over- 
board so  much  of  the  ballast  that  she  became 
unseaworthy,  and  was  lost  by  perils  of  the  se.'i 
which  otherwise  she  would  have  encountered 
and  overcome.  Held,  the  insurer  was  liable 
for  the  consequences  of  the  willful  act  of  the 
master  and  crew.  Dixon  v.  Sadler,  5  Mee.  & 
W.,  405;  9  L.  J.  (N.  S.)  Ex.,  48;  affirmed,  » 
Mee.  &  W.,  895;  11  L.  J.  Ex.,  435. 

45.  From  London  to  Sierra  Leone,  there, 
and  back  to  London.  In  consequence  of  neg- 
ligent loading  she  became  leaky,  was  unable 
to  keep  the  sea,  and  was  run  ashore  to  prevent 
ship  and  cargo  from  sinking.  Held,  insurers 
were  liable,  although  the  remote  cause  of  the 
loss  was  negligence  in  loading,  for  the  imme- 
diate cause  was  perils  of  the  sea.  Redman  v. 
Wilson,  14  Mee.  &  W.,  476;  9  Jur.,  714;  14  L. 
J.  Ex.,  333. 

II.  What  is  pkoximate  cause. 

1.  On  cargo  of  hay.  New  Tork  to  Washing- 
ton. She  was  in  a  tow  with  other  boats  going 
down  the  Delaware.  A  heavy  gale  separated 
the  tug  and  boats.  She  went  ashore  fifteen  or 
twenty  miles  below  Philadelphia,  losing  her 
roof  and  twenty-seven  bales  of  hay.  She  had 
fourteen  inches  of  water.  It  came  on  very 
cold  and  she  was  frozen  in.  In  five  or  six 
days  thereafter  she  broke  away  from  the  ice, 
and  drifted  several  miles  down  the  river. 
Again  she  came  back  in  the  return  tide,  and 
finally  broke  in  the  middle  and  went  down  in 
ten  feet  of  water.  Held,  the  gale  which  sepa- 
rated her  from  the  tug  was  the  primary  cause 
of  the  loss.  Brown  v.  St.  N'icholas  Ins.  Co.,  3 
J.  &  Sp.,  231. 

2.  The  ship  encountered  sea  perils  and  was 
driven  into  a  port  of  necessity,  and  there 
seized  by  the  authorities.  Held,  the  seizure 
was  the  proximate  cause  of  the  loss.  Rice  v. 
Homer,  12  Mass.,  230. 

3.  Insurance  on  a  dwelling  house.  The 
tenant'.s  minor  son  carried  a  cask  of  gunjjow- 
der  into  the  attic  without  the  knowledge  of 
the  insured,  and  fired  it  with  a  match.  The 
gunpowder  exploded,  blew  t>e  roof  olf  tlie 
house  and  set  fire  to  the  bed  clothing,  charred 
and  stained  some  of  the  woodwork.  Held,  all 
the  injury  to  the  building,   whether  in   the 


1157 


PROXIMATE  CAUSE  OF  LOSS  —  REBUILDING. 


1158 


Of  the  distinction  between  negligence  and  design  —  Wliat  is  gross  negligence. 


nature  of  combustion  or  explosion,  or  both, 
were  within  the  terms  of  the  polic3'.  Scrip- 
ture V.  Lowell  Mutual  Fire  Ins.  Co.,  10  Cush., 

4.  An  averment  that  the  loss  was  caused  by 
perils  of  the  sea  is  satisfied  if  the  jjroof  sliows 
that  a  peril  of  the  sea  wus  tlie  proximate 
cause,  notwithstanding  the  negligence  of  the 
master  and  crew  was  the  remote  cause.  Amer- 
ican Ins.  Co.  V.  Insley,  7  Pean.  St.,  333. 

5.  The  property  was  seized  by  order  of  a 
government  officer.  There  was  no  evidence 
of  its  condemnation  or  forfeiture,  and  it  was 
Bubsequcntly  destroyed  by  fire.  Held,  insured 
were  entitled  to  recover.  Keithv.Olohelns. 
Co.,  52  111.,  518. 

6.  She  was  captured  and  carried  in  for  ad- 
judication,  but  was  afterwards  acquitted. 
During  her  detention,  she  was  driven  ashore 
in  a  violent  storm,  by  which  she  received 
great  damage.  Ileld,  insurers  could  not  de- 
fend the  action  on  the  ground  Unit  she  had  an 
unlawful  cargo,  which  was  condemned.  Bai- 
ley V.  South  Carolina  Ins.  Co.,  3  Brev.,  354. 

7.  On  cargo,  "  warranted  free  from  capture 
and  seizure."  She  was  stranded  on  a  shoal 
within  a  few  miles  of  destination.  "While  she 
lay  in  the  sand,  she  was  seized  by  the  com- 
mander of  the  place  and  the  goods  were  con- 
fiscated, lleld,  the  proxim.ate  cause  of  the  loss 
was  pei'ils  of  the  sea.  Ilalui  v.  Corbett,  3  Bing., 
205 ;  3  L.  J.  C.  P.,  258 ;  9  Moore,  393. 

III.    Of    the    distinction    between 

NEGLIGENCE    AND    DESIGN. 

1.  A  loss  by  the  negligence  of  the  insured 
is  not  a  loss  by  design,  for  design  imports 
plans,  schemes  and  intentions  carried  into 
effect.  Catliii  v.  Springfield  Fire  Ins.  Co.,  1 
Sumn.,  434. 

2.  The  insurer  set  up  as  a  defense  the  will- 
ful act  of  the  master,  done  with  the  eonniv. 
auce  of  the  insured.  Held,  a  negligent  act 
could  not  be  relied  upon  at  the  trial,  for  negli- 
gence diti'ers  from  willfulness  in  that  the  latter 
is  positive  and  the  other  negative.  Sturm  v. 
Atlantic  Mut.  Ins.  Co.,  6  J.  &  8p.  (N.  Y.),  281. 

3.  The  insured  was  the  owner  of  an  undi- 
vided part  of  the  premises  insured.  His  wife 
intentionally  set  tire  to  them,  and  they  were 
burned.  She  was  insane  at  tlie  time,  and  so 
Uad  been  for  some  time  prior,  but  she  was 


carelessly  left  ahme  on  the  day  the  fire  oc- 
curred. Held,  not  evidence  of  a  degree  of 
negligence  which  the  law  deems  equivalent 
to  a  fraudulent  purpose  or  design;  hence,  no 
defense  to  the  action.  Oove  v.  Farmers  Mutual 
Fire  Ins.  Co.,  48  N.  H.,.41. 

4.  The  omission  to  exercise  due  caution  is 
not  negligence  in  the  legal  sense  of  the  term. 
West  V.  Reid,  3  Hare,  249;  13  L.  J.  Ch.,  347. 

IV.  What  is  gkoss  negligence. 

Stipulated:  "  In  case  of  gross  negligence  oa 
the  part  of  insured,  the  policy  shall  be  void." 
The  court  told  the  jury  that  "  gross  negligence 
is  the  utter  disregard  of  those  precautionaiy 
measures  which  men  of  ordinary  prudence 
would  adopt  in  such  a  case."  Held,  not  a  cor- 
rect definition;  because  gross  negligence  is 
the  want  of  that  diligence  which  even  careless 
men  are  wont  to  exercise,  for  he  who  is  only 
less  diligent  than  very  careful  men  cannot  be 
said  to  be  more  than  slightly  inattentive;  he 
who  omits  ordinary  care  is  a  little  more  neg- 
ligent than  men  ordinarily  are;  and  "he  who 
omits  slight  diligence  fails  in  the  lowest  de- 
gree of  prudence,  and  is  grossly  negligent." 
Campbell  v.  Monmouth  Mutual  Fire  Ins.  Go., 
59  Me.,  430. 


QUESTIONS  FOR  COURT  OR  JURY. 

(See  Court  and  Jobt.) 


IL 
III, 


RATIFICATION, 

(See  Contract.) 


REBUILDING. 

Of  rights  and  liabilities  op  insubkii 

when  he  has  elected  to  rebuild. 
When  insurers  sh,\i,l  not  rebuild. 
What  does  not  defe.^t  the  right  tc 

REBUILD. 

579 


1159 


REBUILDING. 


1160 


Of  rights  and  liabilities  of  insured  when  he  has  elected  to  rebuild. 


I.  Of  bights  and  liabilities  of   in- 

SUKEB  WHEN    HE    HAS   ELECTED    TO 
EEBUILD. 

1.  Stipulated:  "Insurers  shall  have  the 
right  to  replace  or  reRuild  ihe  premises  with- 
in a  reasonable  time,  giving  notice  of  their  in- 
tention to  do  so  within  twenty  days  after 
receipt  of  the  preliminary  proofs  of  loss." 
There  were  two  policies  upon  the  same  prop- 
erty. The  premises  were  destroyed  January 
C,  1857.  Both  elected  to  rebuild,  but  the  work 
of  rebuilding  was  not  complete  at  the  time 
this  action  was  commenced,  November  4,  1857. 
Held,  electing  to  rebuild  converted  the  con- 
tract of  insurance  into  a  contract  to  rebuild, 
according  to  plans;  and  it  could  be  enforced 
as  a  building  contract,  without  reference  to 
the  amount  insured;  that  if  insurer  failed  to 
perform  the  contract  to  rebuild,  insured  was 
entitled  to  the  damages  sustained  in  conse- 
quence of  the  breach  of  it;  tliat  the  action 
might  be  sustained  against  each  insurer  sepa- 
rately or  both  jointly,  and  if  against  one,  tlie 
other  insurer  would  be  liable  to  his  co'insurer ; 
tliat  the  measure  of  plaintiff's  damages  was 
the  difference,  if  any,  between  the  value  of  tlie 
building  furnished  by  the  insurance  company 
and  the  value  of  that  destroyed,  without  refer- 
ence to  the  sum  insured,  or  to  the  fact  that 
there  was  other  insurance  upon  the  premises, 
or  that  both  companies  had  joined  in  rebuild- 
ing. Morrell  v.  Irving  Ins  Co.,  33  N.  Y.,  429; 
s.  c,  3  Am.  Law  Reg.  (N.  S.),  404. 

2.  Stipulated:  "  The  insurers  shall  have  the 
right  to  rebuild,  repair,  or  replace  the  property 
insured."  Immediately  after  the  loss,  insured 
commenced  to  rebuild,  but  within  thirty  days, 
the  insurers  gave  notice  that  they  would  re- 
build. Insured  refused  to  permit  them,  and 
continued  to  erect  his  building.  Held,  the 
plaintiff"  could  not  maintain  his  action.  Benls 
V.  Home  Inn.  Co.,  36  N.  Y.,  522 ;  s.  c,  30  Barb., 
614. 

.3.  The  defendants  undertook  to  repair  a 
building  that  had  been  injured  by  fire,  and 
made  payments  to  the  contractor  on  the  certifi- 
cate of  the  insured  ;  but  before  all  advances 
and  payments  were  made  to  the  contractor, 
tlie  plaintiff'  gave  notice  to  the  defendants  of  a 
certain  defect  in  one  of  the  walls,  at  wliich 
time  the  defendants  had  sufficient  money  in 
their  bauds  for  the  contractor  to  make  good 
the  defects.  Held,  the  defendants  could  not 
580 


claim  to  have  been  damnified  by  the  plaint- 
ifl^'s  certificate,  the}'  were  therefore  bound  to 
have  the  defect  made  good.  Rydtr  v.  Com- 
monwealth Fire  Ins.  Co.,  53  Barb.,  447. 

4.  The  building  insured  was  destroj-ed  by 
fire,  and  anollier  was  put  in  its  place  by  insur- 
er. Held,  the  insurer  was  not  entitled  to  any 
deduction  or  allowance  on  the  ground  that  the 
building  erected  was  new,  and  that  burned 
was  old.  Brinley  v.  National  Ins.  Co.,  11 
Met.,  195. 

5.  The  insurer  had  the  right  to  rebuild,  and 
did  so  at  an  expense  less  than  the  sum  insured, 
and  the  buildings  insured  were  again  con- 
stmied  witliin  the  terra  mentioned  in  the  pol- 
icj'.  Held,  insurer  was  liable  for  the  differ- 
ence  between  the  sum  expended  in  rebuilding 
and  the  sum  insured.  Trull  v.  Roxbury  Mut. 
Ins.  Co.,  3  Cush.,  263. 

6.  Insurers  elected  to  replace,  and  insured 
gave  the  securitj-  required  by  the  policy  No- 
vember  19th.  As  soon  as  the  repairs  were 
completed,  notice  was  given  and  a  part  offered ; 
but  insured  refused  to  receive  on  the  ground 
that  repairs  had  been  unreasonably  delayed. 
Held,  it  was  a  question  of  fact  for  the  jury  to 
determine,  whether  the  repairs  were  made 
within  a  reasonable  time;  if  they  were  not  so 
made,  insured  was  not  bound  to  sue  for  that 
failure,  but  had  the  right  to  sue  upon  the  pol- 
icy. Haskins  v.  Hamilton  Mut.  Ins.  Co.,  5 
Gray,  433. 

7.  Insurers  elected  to  rebuild,  and  attempted 
to  do  so,  but  did  not  complete  the  repairs. 
Held,  the  measure  of  damage  was  the  differ. 
ence  between  the  value  of  the  buildings  as  re- 
paired and  what  the  value  would  have  been 
had  the  repairs  been  full  and  complete. 
Parker  v.  Eagle  Fire  Ins.  Co.,  9  Gray,  153. 

8.  Insurers  had  the  right  to  rebuild,  and 
gave  notice  that  they  intended  to  do  so. 
Held,  the  contract  was  an  agreement  to  pay  a 
sum  certain,  if  iusurer  failed  to  rebuild;  the 
effect  of  the  notice  of  an  intention  to  rebuild 
did  not  transform  it  into  an  agreement  to  re- 
build; if  the  company  neglected  to  rebuild- 
in  a  reasonable  time,  insured  might  disregard 
the  notice  and  sue  upon  the  policy,  and  he 
would  be  entitled  to  interest  and  the  rental 
value  of  the  grouud  during  the  dela}-,  in  ad- 
dition  to  the  damages  properly  recoverable 
under  the  policy.  Home  Mutual  Fire  Ins  Co. 
V.  Gatfield,  60  III.,  124. 

i).  On   a  wooden  building,  §2.000.     Stipu- 


1161 


REBUILDING. 


1162 


When  insurer  shall  not  rebuild  — What  does  not  defeat  the  right  to  rebuild. 


lalcd:  "The  iusurcrs  shall  have  the  right  to 
rehuiUi  or  repair  within  a  reasonable  time 
afler  damage  or  loss."  Subsequently  to  the 
making  of  tlie  coulraci,  a  city  ordinance  was 
passed  which  prohibited,  witliout  tlie  consent 
of  the  proper  authorities,  any  rebuilding  or 
repairs  upon  wooden  buildings  within  the 
limits  of  the  city.  The  roof  of  the  building 
insured  being  completely  burned  away,  in- 
surers oflercd  to  repair  it;  but  the  authorities 
refused  their  consent.  Before  the  fire  the 
l)uilding  was  worth  $4,000.  It  was  now  not 
worth  $100.  The  contract  of  insurance  was 
renewed  after  the  adoption  of  the  city  ordi- 
nances. Held,  by  renewing  the  policy,  the 
parties  consented  to  be  bound  by  the  laws 
and  ordinances  existing  at  that  time,  and  con- 
tracted with  reference  to  them;  wlictlicr  the 
city  authorities  would  permit  the  building  to 
be  repaired  was  a  risk  insurer  assumed,  for  it 
was  optional  with  insurers  wliether  they  would 
or  would  not  repair;  and,  if  for  any  cause 
they  could  not  exercise  that  option,  they  must 
bear  tlie  loss,  heuce  the  amount  that  plaintilf 
w;is  entitled  to  recover  would  be  the  sum  in- 
sured, because  the  value  immediately  preced- 
ing the  fire  exceeded  that  sum.  Brady  v. 
Northwestern  Ins.  Co.,  11  Mich.,  425. 

10.  Insurers  gave  notice  of  an  intention  to 
rebuild.  Held,  a  waiver  of  any  defects  based 
on  misrepresentation,  unless  fraud  or  mistake 
appeared.  Bersche  v.  Globe  Mut.  Ins.  Co., 
31  Mo.,  546 ;  Bersche  v.  St.  Louis  Mut.  Ins.  Co., 
id.,  555. 

11.  The  plaintiffs  elected  to  reinstate  the 
building,  and  employed  defendant  to  do  the 
work,  who  contracted  to  put  the  premises  in 
the  state  in  which  they  were  before  the  lire. 
Tlie  plaintitls  were  sued  by  insured,  and  the 
defendant  was  notified.  He  was  present  when 
the  original  action  was  referred  to  an  arbi- 
trator, but  refused  to  become  a  party  to  it. 
The  award  was  in  favor  of  the  insured  £120 
and  the  costs,  taxed  at  £133.  Held,  it  was  for 
the  jury  to  say  whether  the  defendant  here 
sanctioned  the  defense  interposed  to  the 
iorraer  action,  and  whether  that  defense  was 
reasonable.  Verdict  for  defendant.  Times 
Fire  Ins.  Co.  v.  Hawke,  1  F.  &  F..  40G;  5  H.  & 
N.,  935 ;  albrmed,  28  L.  .J.  Ex.,  317. 

12.  Stipulated:  "In  every  case  of  loss  tlie 
company  will  reserve  to  itself  the  right  of  re. 
lustatemeut,  in  preference  to  the  payment  of 
claims,  if  it  shall  judge  the  former  course  to 


be  the  most  expedient."  The  defendant  pro. 
ceeded  to  rebuild  the  premises,  but  the  com- 
missioners of  sewers,  acting  in  pursuance  of 
the  authority  conferred  upon  them  by  the 
metropolitan  building  act  of  1855,  prohibited 
the  rebuilding.  He'd,  the  case  stands  as  if 
the  policy  had  bein  simply  to  reinstate  the 
premises  in  case  of  fire;  tliat  the  defendant's 
undertaking  was  lawful  at  the  time,  and  con 
tinueil  to  be  lawful,  the  fact  that  it  had  become 
impossible  was  no  legal  excuse  for  not  per. 
forming  (citing  Hall  v.  Wright,  El.,  Bl.  &  El., 
746).  Brown  v.  Royal  Ass.  Co.,  1  El.  &  El., 
853;  s.  c,  5  Jur.  (N.  S.),  1255;  28  L.  J.  Q.  B., 
275. 

II.  "When  insueees  shaxl  not  eebtjild. 

1 .  Proofs  of  loss  were  presented  May  6th. 
A  general  objection  was  made  to  Iheiji,  but  no 
specific  defect  stated.  They  were  delivered 
to  the  local  agent.  Insurer  gave  notice  of  an 
intention  to  repair  about  the  middle  of  June. 
Held,  insurer  had  no  right  to  repair  or  rebuild 
for  they  were  bound  to  give  notice  of  their 
election  so  to  do  within  thirty  days  after  de- 
livery of  the  proofs  to  the  local  agent;  and 
were  not  entitled  to  credit  for  the  repairs 
made.  Insurance  Co.  of  North  America  v. 
Hope,  58  111.,  75. 

2.  The  policy  was  silent  upon  the  question 
of  rebuildiiig.  Held,  insurers  had  not  the 
right  to  rebuild.  Wallace  v.  Insurance  Co.,  4 
La.  (O.  S.),  289. 

III.  What  does  not  defeat  the  eight 

TO  eebuild. 

1.  Insurer  had  the  right  to  replace  the  prop- 
erty  insured,  or  pay  its  cash  value.  An  ac- 
count  of  the  loss  was  delivered  April  23d,  ten 
daj's  after  the  fire.  Negotiations  then  com- 
menced for  a  settlement.  Insurers  elected, 
May  22d,  to  replace  tlie  property.  Held,  the  dc- 
lay  did  not  preclude  them  from  doing  si>. 
Sutherland  v.  Sun  Fire  OJii-e,  14  C.  C.  S.,  775 ; 
Stuart,  710;  24  Scot.  Jur.,  440. 

2.  On  mills  and  machinery,  with  the  right 
to  replace  or  pay  for  all.  Insured  raised  an 
action  to  declare  tlic  lease  ended,  and  on  this 
being  granted,  to  declare  the  company  bound 
to  pay  tlie  loss  in  money.  Held,  an  order  to 
interdict  rebuililing  till  the  right  could  be 
ilecided,  would  not  be  granted.  Bissct  v.Boyal 
Exchange  Ass.  Co.,  1  S.  &  D.,  175. 

581 


1163 


llEFEREES. 


1164 


When  the  cause  will  be  sent  to  —  Of  the  referee's  findings  —  When  cause  sent  to  another  referee. 


REFEREES. 
I.  When"  the  cause  will  be  sent  to. 

II.  WILL  KOT  BE  SEST    TO. 

III.  Of  the  referee's  findings. 

IV.  When  the  cause  will  be  sent  to  an- 

•   OTHER  REFEREE. 

1.  When  the  cause  will  be  sent  to. 

1.  In  an  action  upon  a  policy  of  insurance, 
the  defendants  admitted  making  it,  and  their 
liability  for  the  loss.  The  defense  related 
merely  to  the  amount  of  the  claim.  Held,  the 
jury  would  be  directed  to  bring  in  a  nominal 
verdict  for  the  plaintiff,  and  the  case  sent  to 
referees  to  report  the  exact  amount  due.  8am- 
ble  V.  Mechanics  Fire  Ins.  Co.,  1  Hall  (N.  T.), 
560. 

2.  The  proof  of  loss  consisted  of  one  hun- 
dred and  forty-five  items  of  goods,  consumed 
by  fire,  of  the  alleged  aggregate  value  of 
$11,127.24,  and  of  forty-nine  items  of  goods 
saved  from  the  fire,  damaged  to  the  extent  of 
$3(53.  Held,  a  proper  case  to  be  referred  un- 
der  section  271  of  the  Code,  the  allegations  in 
the  answer  being  insufficient  to  raise  an  issue 
of  fraud  (citing  Dean  c.  Empire  State  Mut. 
Ins.  Co.,  9  How.  Pr.,  69 ;  Lewis  v.  Irving  Fire 
Ins.  Co.,  15  Abb.  Pr.,  140  n;  Samble  v.  Me- 
chanics Fire  Ins.  Co.,  1  Hall,  160;  Mills  v. 
Thursbj-,  11  How.  Pr.,  113;  Atocha  v.  Garcia, 
15  Abb.  Pr.,  303).  Batchelor  v.  Albany  City 
Ins.  Co.,  6  Abb.  Pr.  (N.  S.),  240;  s.  c,  1 
Sweeney,  346;  37  How.  Pr.,  399. 

3.  The  cause  was  noticed  for  trial,  and 
placed  on  the  calendar  October,  1862.  The 
defendants  set  up  fraud  on  the  part  of  the  in- 
sured, alleging  that  he  had  claimed  for  a 
larger  loss  than  he  had  sustained.  The  de- 
fendants moved  that  the  cause  be  referred  on 
the  grouud  that  the  trial  would  require  the 
examination  of  a  long  account.  Held,  it  was 
proper  to  refer  the  cause.  Lewis  v.  Irving  Fire 
Ins.  Co.,  15  Abb.  Pr.,  303  n. 

4.  The  court  has  the  right  to  order  the  case 
before  a  jury,  after  hearing  has  been  com- 
menced before  the  court.  Hoffman  v.  Western 
Marine  and  Fire  Ins.  Co.,  1  La.  An.,  216. 

5.  After  one  witness  had  been  examined,  the 
court  ordered  a  compulsory  reference  to  an 
arbitrator.  He'd,  authorized;  but  if  that  were 
not  so,  defendant's  appearance  before  the  arbi- 
trator without  protest,  was  a  waiver  of  all  right 

583 


to  object  to  the  order  of  reference.  Newman 
T.  Niagara  Dist.  Mut.  Ins.  Co..  25  U.  C.  Q.  B, 
435. 

II.  When  the  cause  will  not  be  sent 

TO. 

The  parties  have  the  right  to  trial  by  jury, 
if  insurers  defend  on  the  ground  of  fraud. 
Levy  V.  Brooklyn  Fire  Ins.  Co.,  25  Wend.,  687. 

III.  Of  the  eefeeee's  findings. 

1.  On  exceptions  to  referee's  report  new 
evidence  cannot  be  received,  nor  will  the  court 
set  aside  the  referee's  findings  except  for  plain 
mistakes  in  matter  of  law  or  fact.  Barton  v. 
Anthony,  1  Wash.  C.  C.  317. 

2.  The  report  of  a  referee  must  be  regarded 
as  a  special  finding  of  a  jury,  and  ought  not 
to  be  set  aside  unless  it  is  against  the  clear 
weight  of  evidence ;  and  the  preponderance  of 
the  evidence  must  be  so  great  against  the  find- 
ing, as  to  lead  to  the  conclusion  not  only  that 
injustice  has  been,  but  that  the  finding  must 
have  been  the  result  of  passion,  prejudice,  bias, 
or  corruption  (citing  Graham  on  New  Trials, 
453;  Jackson  «.  Loouiis,  4Cow.,  168;'  12  Wend., 
27;  Diblin  v.  Murphy,  3  Sandf.  S.  C,  19;  Keeler 
t.  Fireman's  Ins.  Co.,  3  Hill.,  2.50 ;  Eaton  c.  Ben- 
ton, 3  id.,  576;  Collins  t.  Albany  and  Schenec- 
tady R.  R.,  13  Barb.,  492;  Lee  t;.  Schmidt,  6 
Abb.,  183).  Woodruff  v.  Commercial  Mut.  Iru. 
Co.,  2  Hilt.,  130. 

3.  The  case  was  referred  to  an  auditor,  who 
n>ade  his  report,  slating  the  sum  he  found  the 
plaintiff  entitled  to  recover,  but  added  it  was 
"an  estimate  not  entirely  satisfactory,  but 
probably  covering  the  amount  of  goods  actu- 
ally consumed  by  fire."  Held,  an  objection  to 
the  report  when  it  was  offered  in  evidence  up- 
on the  trial  was  properly  overruled,  because 
the  court-should  have  been  asked  on  motion, 
before,  the  trial,  to  recommit  the  auditor's  re- 
port. Fair  v.  Manhattan  Ins.  Co.,  113  Mass.. 
820. 

IV.  "When  the  cause  will  be  sent  to 

ANOTHER  EEFEREE. 

The  cause  was  referred,  and  the  court  set  the 
finding  aside,  on  the  ground  that  it  was  against 
the  evidence.  Held,  the  case  must  be  sent  to 
another  referee.  Paine  v.  Agricultural  Int. 
Co.,  5  N.  Y.  S.  C,  619. 


1165 


REFORMATION  OF  WRITING. 


1168 


When  it  shall  be  refoniied. 


REFORMATION  OF  WRITING. 

I.  When  it  shall  be  reformed. 

II.  NOT  BE  REEORMED. 

III.  Admiralty   has   not  jurisdiction  to 

KKFORM. 

IV.  OmDS  I'ROBANDI.    , 

I.  "When  it  shall  be  refoemed. 

1.  If  the  written  instrument  does  not  rep- 
resent tlie  intention  of  both  parties,  or  if  it 
fails  ti)  represent  the  intention  of  eltlier, 
through  .accident,  mistalie,  or  fraud,  it  inay 
be  set  aside,  or  reformed,  as  best  suits  the  pur- 
poses of  justice;  and  this  may  be  done  in  a 
court  of  law  as  well  as  in  a  court  of  equitj'. 
Insurance  Co.  v.  Wilkinson,  lo  Wall.,  223;  S. 
c,  3  Dil.  Cir.  Ct.,  570. 

2.  The  insured  jiroposed  for  insurance  at 
Ihrce  per  cent,  from  Liverpool  to  Cuba,  and 
to  Europe  via  Falmouth,  for  orders  to  dis- 
charge. The  company  declined  that  rate,  but 
suggested  that  they  would  take  the  risk  at 
lour  per  cent.  Insured  argued  against  the 
rate,  and  the  company  answered  the  follow- 
ing day  that  they  would  take  the  risk,  "Eu- 
rope to  Cuba  and  back  to  Europe,  at  three 
and  a  half  per  cent,  net;"  adding  to  their 
Tcply,  "It  is  worth  something,  you  know,  to 
■cover  the  risk  at  the  port  of  loading  in  Cuba." 
Insured  accepted  the  proposition.  The  pol- 
icy was  written:  "At  and  fr(jm  Liverpool  to 
port  of  discharge  in  Cuba,  and  at  and  from 
thence  to  port  of  advice  and  discharge  in 
Europe."  Held,  the  correspondence  consti- 
tilted  a  preliminary  agreement  to  insure;  in- 
sured was  bound  to  read  the  letters  of  the 
company  in  reply  to  his  own,  with  care;  but 
lie  had  a  right  to  assume  that  the  policy 
would  accurately  conform  to  the  agreement 
made,  and  to  rest  confidently  in  that  belief; 
nor  was  it  to  be  assumed  that  he  scanned  the 
policy  with  the  same  vigilance  that  he  di- 
rected to  the  letters  of  the  comp.any;  that 
what  was  implied  must  be  as  eifectual  as 
Tvhat  is  expressed;  that  the  policy  as  written 
did  not  conform  to  the  contract;  hence  equity 
would  interfere  and  make  it  conform.  Equi- 
table Ins.  Go.  V.  Uearne,  20  Wall,  494. 

3.  Application  made  by  D.  R.  McKay,  .an 
insurance  broker  at  Boston,  to  the  Mutual 
■Commercial   Marine   Ins.  Co..  for  insurance, 


$10,000  on  ship  and  $o,000  on  her  freight, 
which  was  accepted.  Insurer,  during  the 
day,  sent  to  McKay  for  the  names  of  the  par- 
ties to  be  inserted  in  the  policies,  and  he  re- 
plied for  "McKay,  on  account  of  McLiniont, 
and  payable  to  him  or  order."  A  policy  was 
delivered,  insuring  "McKay,  on  account  of 
McLiinont,  loss  p.ayable  to  him  or  his  order." 
At  the  time  the  risk  was  accepted,  McKay 
exhibited  to  insurers  McLimont's  letter,  which 
indicated  that  both  McKay  and  McLiraont 
were  acting  as  agents;  but  it  did  not  disclose 
the  name  of  the  person  for  whom  they  were 
acting.  Neither  McLimout  nor  McKay  had 
any  insurable  interest  in  the  proi)erty.  It 
belonged  to  the  complainant,  who  had  di- 
rected  a  brother  of  D.  K.  McKay  to  procure 
the  insurance.  Held,  when  the  application 
fur  the  insurance  was  accepted,  McKay  had 
the  right  to  stand  insured  as  agent  or  for 
whom  it  might  concern ;  because  if  one  applies 
for  insurance  and  makes  known  that  he  is  an 
agent  only,  and  the  company  agrees  to  write 
the  risk,  it  must  be  implied  that  such  words 
shall  be  inserted  in  the  policy  as  are  usual 
and  necessary  to  make  a.  binding  contract; 
and,  if  it  was  usual  to  insert  in  policies  of  in- 
surance effected  by  agents,  in  their  own  names, 
a  declaration  that  they  were  insured  as  agents 
or  for  whom  it  might  concern,  which  wag 
known  to  the  company  and  McKay,  McKay's 
mistake  in  directing  the  policy  to  be  made  for 
account  of  McLimont  ought  to  be  corrected, 
and  the  policy  reformed;  that  courts  of  equity 
possess  the  authority  to  correct  such  mistakes, 
even  to  the  extent  of  changing  the  most  mate- 
rial clauses  therein  (citing  Motteux  v.  London 
Ass.  Co.,  1  Atk.,  54.5;  Collett  jj.  Morrison,  9 
Hare,  103;  Phcenix  Fire  Ins.  Co.  v.  Gurnee,  1 
Paige,  278).  Oliver  ».  Mutual  Commercial  Ma- 
rine Ins.  Co.,  2  Curtis,  277. 

4.  If  by  fraud  or  mistake  the  policy  made 
and  delivered  does  not  agree  with  the  terms 
of  the  order  that  was  given  for  the  insurance, 
the  court  will  treat  the  order  as  tht;  contract 
and  the  variance  itself  is  evidence  of  mistake; 
but  the  order  will  be  resorted  to  so  far  as  it 
varies  from  the  policy;  in  all  other  respects, 
the  policy  will  govern.  Delaware  Ins.  Co.  v. 
Hogan,  2  Wash.  C.  C,  4. 

5.  W.  applied  to  P.,  agent  of  a  number  of 
companies  for  insurance,  on  a  stock  of  goods 
in  store,  for  a  period  of  two  months.  The 
premium,  according  to  regular  rates,  on  tlio 

583 


1167 


REFORMATION  IX  WRITING. 


lies 


Wlien  it  shall  be  reformed. 


whole  amoUDt  for  the  period  named,  amounted 
to  |00,  and  was  paid  by  W.  An  applicali<m 
was  made  in  the  presence  of  W.,  in  due  Ibrm, 
and  was  used  by  the  policy  clerk  in  writing 
the  policies,  who  filled  up  a  policy  com- 
mencing October  22,  1864,  to  terminate  De- 
cember 23,  18G5.  The  goods  were  destroyed 
Deceraher  10,  1805.  The  policy  clerk  testified 
that  he  made  tlie  policy  by  mistake,  to  expire 
in  1805;  according  to  the  memorandum  appli- 
cation, it  ought  to  have  been  written  to  termi- 
uate  December  22,  1864.  Seld,  the  court 
would  reform  the  policy;  and  upon  the  facts 
stated  a  suit  at  law  which  liad  been  brought 
•  upon  it  was  enjoined.  North  American  Ins. 
Co.  D.  Whipple.  2  Diss.,  418. 

6.  B.  &  B.,  the  builders  of  a  vessel,  applied  to 
an  agent  of  the  insurers,  stating  that  there  was 
due  to  them  from  her  owner  for  building  her, 
$12,982.50,  which  was  to  be  secured  by  a  mort- 
gage on  the  vessel,  and  for  which  they  re- 
quired insurance  for  their  own  benefit.  It 
was  agreed  that  she  should  be  valued  in  the 
policy  at  $60,000,  and  that  she  might  be  in- 
sured to  the  amount  of  $50,000.  A  policy  was 
made  and  delivered,  insuring  A.,  the  owner, 
on  account  of  himself.  "  Loss,  if  any,  paya- 
ble to  B.  &  B.,  as  their  interest  may  appear, 
balance  to  him.  Valuation  .$50,000,  limit  of 
insurance  $40,000."  The  policy  was  delivered 
to  B.  &  B.,  and  laid  away,  and  not  until  she 
was  lost,  nearly  a  year  after  its  date,  did  they 
ascertain  the  difference  between  it  and  the 
agreement.  B.  &  B.  brought  this  action  to 
reform  the  writing  and  to  recover  the  loss 
according  to  the  agreement.  The  court  below 
found  the  facts  as  alleged,  and  gave  judgment 
for  the  plaintiflT  for  the  sum  insured.  Held, 
the  fact  that  the  policy  was  actually  made  and 
remained  in  the  hands  of  the  plaintiffs,  for  so 
considerable  a  time,  was  a  circumstance  to  be 
considered  as  bearing  upon  the  trutli  of  the 
allegation  only;  that  if  the  policy  did  not  fol- 
low the  agreement,  the  court  had  power  to 
give,  in  one  action,  complete  relief.  Bidwell  v. 
Asior  Mut.  Ins.  Co.,  16  N.  Y.,  203. 

7.  Defendant's  agent  agreed  for  an  insurance 
upon  cargo  of  lumber  at  a  fixed  value,  but  the 
rate  of  jircmium  was  to  be  three  per  cent,  if 
she  sailed  before  the  tenth  of  October,  and 
three  and  a  half  per  cent,  if  she  sailed  after 
the  tenth,  but  before  the  sixteenth.  She  sailed 
on  the  fifteenth  and  a  policy  was  forwarded 
which  warranted  her  to  sail  on  the  tcutli.   The 

584 


agent  changed  the  cipher  into  a  five  and  de- 
livered the  policy.  The  company  defended 
on  the  ground,  that  the  agent  had  no  autliority 
to  alter  the  policy,  and  this  action  was  brought 
to  reform  the  writing  and  for  complete  relief 
upon  the  contract  as  reformed.  Ileld,  the 
court  had  the  power  to  grant  relief;  tliat  the 
l)laiuliff  was  entitled  to  judgment  for  the 
sum  insured.  Bunten  ■».  Orient  Mut.  Ins.  Co., 
41*  N.  Y.  (2  Keyes.),  667;  s.  c,  8  Bos.,  448;  1 
Abb.  Dec,  257. 

8.  On  stock  in  a  maunfacturing  establish- 
ment. Conditioned :  "  To  be  void  in  case  the 
machinery  shall  be  worked  in  whole  or  La 
part  over  or  extra  time  or  at  night,  without 
special  agreement."  Insured  brought  this 
action  after  the  loss  to  recover  for  it,  and  to 
reform  the  policy,  by  striking  out  the  con- 
dition recited;  and  proved,  that  applicatioa 
was  made  for  insurance,  and  that  the  policy 
was  to  be  the  same  as  that  of  the  United  States 
Ins.  Co.,  which  did  not  contain  the  clause 
above  recited ;  that  the  clause  recited  was  not 
discovered  until  after  the  fire.  Held,  a  proper 
case  for  reformation  and  recovery.  Van  Tuyl 
V.  Westchester  Fire  Ins.  Co ,  55  N.  Y.,  657 ; 
Weed  V.  Schenectady  Ins.  Co.,  7  Lans.,  452. 

9.  The  application  was  made  for  insurance 
on  a  two  story  and  a  half  frame  grist  mill ;  but 
the  p')licy  described  it  as  a  "  frame  mill  house, 
two  and  a  half  stories  high,  privileged  as  a 
grist  mill  only."  The  plaintiff  claimed  that 
insuring  it  as  a  frame  grist  mill  included  the 
machinery,  but  the  defendant  denied  all  lia- 
bility for  loss  on  machinery.  Held,  the  policy 
must  be  reformed  to  conform  to  the  applica- 
tion. Phaaix  Fire  Ins.  Co.  v.  Gurnee,  1  Paige, 
278. 

10.  Action  on  an  open  polic}'.  Stipulated: 
"  No  shipment  considered  insured  until 
approved  and  Indorsed  on  this  policy  by 
the  company.  The  indorsement  was  mado 
from  La  Union  to  Panama;  amount  insured 
.$3,500;  rate  four  and  a  half;  eight  boxes  in- 
digo." The  policy  remained  with  the  defend- 
ant.  The  plaintiffs  agent  testified  he  exibited 
to  the  defendant's  president  the  letter  of  ad- 
vice requesting  insurance;  left  it  with  him 
together  with  the  bill  of  lading  and  invoice,  in 
which  was  stated,  the  vo3-age  was  to  be  riix 
Realejo;  that  the  president  wrote  out  a  memo- 
randum application  which  was  not  signed  by 
the  plaintiff  or  his  agent,  nor  read  by  them, 
nor  was  the  indorsement  on  the  policy  ever 


1109 


REFORMATION  OF  WRITING. 


1170 


When  it  shiill  be  reformed. 


BecQ  lill  after  the  loss.  The  ilefendanl's  pres- 
ident testilied  tliul  he  had  nu  rceoUeetiou  that 
the  hill  uf  ladiuj^  was  exhihUed;  that  the 
application  was  made  bimliiig  without  slaliug 
(he  U'iuie  of  tlie  vessel  or  describing  the  mer- 
chandise. Ileld,  a  court  ol'  equity  will  not 
iuterlere  to  correct  a  mistake  in  the  writing, 
uidess  the  mistake  is  mutual  and  the  writing 
does  not  embody  the  terms  as  understood  by 
both  parties;  but  that  rule  does  not  apply 
when  coulidenee  is  reposed  by  one  party  in 
the  other,  wlio  assumes  to  prepare  the  instru- 
ment; that  it  the  latter  either  willfully  or  neg- 
ligently omits  wliat  has  been  clearly  slated  to 
him  as  the  intention  of  the  other  party,  who 
relying  on  its  correctness  and  without  par- 
ticular e.xaniiuatiou  incautiously  a.s.sents  to  it 
under  supposition  that  it  conforms  to  the 
verbal  terms  negotiated,  the  court  will  decree 
a  reformation.  Uric/so  c.  Pacific  Mut.  Ins.  Co., 
4  Daly,  246. 

11.  A  policy  was  issued  through  an  agent 
(not  the  insurer's)  November  6,  1871,  was 
returned  about  the  loth  for  it  to  be  made  pay- 
able in  case  of  loss,  to  C  H.  Kingsbury,  mort- 
gagee. The  insurers  canceled  it  and  made  a 
new  one  to  Kingsbury  as  mortagee.-  Neither 
the  agent  nor  Kingsbuiy  had  authority  fri)m 
insured  to  alter  or  change  the  policj' ;  but  Kings, 
bury  retained  it  for  seven  months  until  the  fire 
occurred,  and  insured  was  then  informed  fur  the 
first  time  of  the  change.  Insurers  ofl'ered  to  pay 
the  claim  if  Kingsbury  would  assign  the  mort- 
gage. Held,  the  keeping  ot  the  new  policy  by 
Kingsbury  was  a  question  for  the  considera- 
tion of  the  jury,  being  some  evidence  tending 
to  show  an  acceptance  by  the  plaintiff;  but 
that  the  court  had  no  right  to  rule  its  a  matter  of 
law,  that  it  constituted  an  acceptance;  and  if 
the  first  policy  was  canceled  without  the 
plaintitrs  express  consent,  or  under  circum- 
stances which  did  not  imply  his  con.sent,  the 
insurers  were  liable  upon  it.  Bennett  v.  City 
Ins.  Co.,  115  Mass.,  241. 

12.  Insurer  appointed  H.  an  agent  to  re- 
ceive and  forward  applications  for  insurance, 
and  for  that  purpose  furnished  him  with 
blank  applications  containing  questions  to 
wliich  answers  were  required.  II.  solicited 
the  owner's  agent  to  insure  the  property,  and 
read  over  to  him  the  questions  contained  in 
the  application,  in  answer  to  which  the  own- 
er's agent  stated,  "  No  watch  on  the  premises," 
and  it  w  as  so  written ;  but  he  added,  "  We  have 


a  man  who  watches  our  annealing  premises; 
his  duties  require  him  there  ail  night,  from 
nine  to  twelve  o'clock,  but  not  all  tlic  time; 
during  those  hours  he  must  come  in;  he  is 
not  a  watchman  for  the  building,  but  will  bo 
likely  to  see  if  anything  is  wrong  about  the 
buildings,  and  when  the  furnaces  are  run,  he 
is  obliged  to  be  there."  II.  said  he  should  con- 
sider this  man  as  a  watchman  till  twelve 
o'clock,  and  thereupon  he  erased  the  word 
"  No,"  and  w  role  "  Walehman  till  twelve 
o'clock."  H.  was  familiar  with  the  premises 
and  had  seen  a  clock  in  them,  and  without 
asking  about  it,  wrote,  "A  watch  clock  kept." 
There  was  in  fact  no  watch  clock  and  no 
watchman.  Held,  the  insured  were  entitled  to- 
have  the  policy  reformed,  and  to  a  decree  for 
the  sum  insured.  Malleable  Iron,  Works  v. 
Phoenix  Ins.  Co.,  25  Conn.,  405. 

13.  P.  was  the  agent  of  the  defendant  at 
New  Haven,  and  B.  was  agent  there  for  sov- 
eral  other  insurance  companies.  The  prac- 
tice between  P.  and  B.  was,  if  B.  met  with 
property  which  would  not  be  insured  by  any 
of  the  companies  he  represented,  to  make  ap- 
plication through  P.  to  some  company  for 
which  P.  was  agent,  and  when  the  policy  was 
issued  P.  and  B.  divided  the  commissions. 
This  was  a  general  custom  among  insurance 
agents  well  known  to  the  officers  of  insurance 
companies  generally,  and  to  this  company  in 
particular.  P.'s  companies  furnished  him 
with  applications,  renewals  and  policies 
signed  in  blank,  some  of  which  he  delivered 
to  B.,  who  represented  that  he  was  the  agent 
of  P.,  and  as  proof  thereof,  exhibited  the 
blank  renewals,  policies  and  applications. 
W.  was  mortgagee  of  certain  property,  and 
the  mortgagors  had  become  insolvent.  S.  was 
directed  by  W.  to  procure  insurance  to  pro- 
tect the  mortgagee's  interest.  He  stated  bis 
object  to  B.,  said  that  he  did  not  know  the 
situation  of  the  property;  that  he  understood 
the  title  of  it  was  in  dispute;  requested  him 
to  examine  it  and  to  procure  for  the  mortga- 
gee a  policy  in  proper  form  to  insure  and 
protect  the  mortgage,  of  which  he,  S.,  was  no 
judge  himself.  B.  undertook  to  do  so,  and 
stated  to  P.  the  substance  of  what  S.  had  com- 
municated to  him.  P.  and  B.  e.\amined  the 
properly,  took  measurements  of  it  and  made 
inquiries  of  persons  whom  they  found  on  Die- 
premises.  B.  delivered  to  S.  a  blank  applica- 
tion, for  him  to  sign,  the  heading   was  fillej 

565 


1171 


REFORMATION  OF  WRITIXG. 


1172 


When  it  shall  te  reformed. 


in  with  the  names  of  S.  B.  &  B.  (the  mortga- 
gors), the  amount  to  be  insured,  premium  and 
the  amount  of  the  mortgage;  after  the  name 
S.  B.  &  B.,  the  words,  "  or  assigns,"  wore 
added  by  S.,  who  signed  it  and  delivered  it  to 
B.,  who  carried  it  to  P.,  and  together  they 
-completed  the  application.  P.  made  a  policy 
insuring  S.  B.  &  B.,  loss,  if  any,  payable  to  \V. 
and  delivered  it  to  S.,  who  took  it,  supposing 
that  it  would  insure  the  mortgagee's  interest. 
Before  the  policy  was  made,  S.  B.  &  B.  made 
another  mortgage  to  another  person,  which 
was  foreclosed,  and  S.  B.  &  B.  conveyed  all 
their  equity  of  redemption  to  a  third  person. 
Held,  x>uh\ic  policj- and  the  protection  of  the 
community  require  that  local  agents  of  in- 
surance companies,  in  giving  aid  to  appli- 
cants for  insurance,  shall  be  deemed  the 
agents  of  the  insurance  companies,  and  not 
agents  of  the  applicants,  and,  therefore,  the 
companies  are  bound  by  the  acts  of  local 
agents  whenever  that  can  be  done  consistently 
with  the  evidence  and  the  rules  of  law;  that 
P.  and  B.  were  to  be  regarded  as  agents  of  the 
insurer  in  making  the  preliminary  contract  to 
insure;  that  B.  was  tlie  agent  of  the  compauj-, 
for  he  was  employed  by  P.  in  pursuance  of  a 
general  custom  whicli  prevailed  among  local 
agents,  which  was  known  and  approved  by 
companies  in  general  and  this  one  in  particu- 
lar; that  the  case  was  to  be  regarded  as  one 
where  there  was  an  agreement  to  insure  the 
mortgagees  on  their  interest  as  mortgagees  in 
the  propcrtj-  in  question ;  that  it  was  a  case  of 
mutual  mistake  as  to  the  proper  mode  of  fil- 
ling out  the  papers,  for  the  application  was 
made  in  the  wrong  name  and  the  policy 
issued  to  the  wrong  person ;  they  would  have 
been  made  out  right  if  the  agents  had  known 
how  to  make  them,  and  it  was  immaterial 
whether  the  mistake  was  one  of  fact  or  of 
law ;  hence  the  complainants  were  entitled  to  a 
decree  correcting  the  mistakes  and  prohibit- 
ing the  insurer  from  producing  evidence  to 
show  that  the  property  described  in  the  pol- 
icy was  not  the  property  of  the  complainants. 
Woodhurji  Savings  Bank  v.  Charter  Onk  Ins. 
Co.,  31  Conn.,  517. 

14.  When  insurer  defends  on  the  ground 
that  the  jiroperty  for  which  claim  is  made, 
does  not  correspond  with  that  mentioned  in 
the  policj',  ever}'  thing  that  was  said  and  done 
between  the  insured  and  insurer  when  the  in- 
surance was  jnade,  may  be  proved  in  equity, 
58G 


to  correct  a  mistake  in  the  policy,  and  make  it 
conform  to  the  intentions  of  the  parlies;  and 
there  is  no  reason  why  the  same  thing  shall 
not  be  done  at  law.  Moliere  «.  Pennsylvania 
Fire  Ins.  Co.,  5  Rawle,  343. 

1 5.  The  master  chartered  her  to  take  a 
cargo  to  a  place  in  Cuba,  and  there  at  tlio 
usual  place  in  the  island  to  take  a  full  and 
complete  cargo  for  Queenstown  or  Falmouth 
for  orders.  She  arrived  at  St.  Jago  with  coal, 
and  then  went  to  Mansanilla  in  Cuba,  where 
she  loaded  with  timber  and  sailed  for  Pal- 
mouth  f(3r  orders.  After  she  reached  a  point 
where  the  routes  from  St.  Jago  and  Mansan- 
ilia  unite  for  Falmouth,  she  was  lost.  The 
policy  was  written  at  and  from  Liverpool  to  a 
port  of  discharge  in  Cuba,  and  at  and  front 
thence  to  a  port  of  advice  and  discharge  in 
Europe.  The  insured  alleged  that  insurer's 
president  was  informed  as  to  the  particulars 
of  the  charter,  and  agreed  to  make  the  policy 
for  the  round  voyage.  Held,  the  evidence 
established  that  the  policy  was  not  written  ac- 
cording to  agreement;  and  therefore  it  must 
be  reformed.  National  Traders  Bank  r. 
Ocean  Ins.  Co.,  Gi  Me.,  519. 

16.  The  code  permits  a  writing  to  be  re- 
formed, and  a  final  judgment  rendered  upon 
the  merits  in  the  same  case.  Globe  Ins.  Co.  v. 
Boyle,  21  Ohio  St.,  119;  s.  c,  1  Cin.  Sup.  Ct., 
444. 

17.  Insurer's  secretary  and  his  brother 
were  agents  for  foreign  insurance  companies; 
the}'  were  directed  to  insure  in  tlie  companies 
represented  by  them;  but  being  unable  to 
place  the  whole  risk  in  those  companies,  the 
sum  of  $7,500  was  placed  in  this  company,  and 
the  policy  was  made  to  K.  The  property 
was  owned  by  K.  S.  &  T.  Held,  if  insurer  or 
its  oiBcers  understood  and  intended  to  insure 
the  entire  interest  in  the  property,  insured 
was  entitled  to  have  the  writing  reformed  to 
accord  with  the  intention  of  the  parties,  and  it 
should  be  made  to  embrace  the  interests  of 
the  firm.    Keith  a.  Globe  Ins.  Co.,  52  III.,  518. 

18.  Insured  informed  insurer's  agent  that 
they  were  commission  merchants,  doing  busi- 
ness as  such  in  a  certain  building;  that  they 
had  on  hand  and  were  constantly  receiving 
goods  on  consignment,  on  some  of  which  they 
were  making  advances,  and  as  to  others  thej' 
were  instructed  to  insure ;  that  they  wanted 
insurance  on  the  goods  consigned.  The  agent 
delivered  a  receipt  aatcd  April  15,  1840,  for 


1173 


REFORMATION  OF  WRITING. 


1171 


When  it  sluill  not  be  rofonueJ. 


the  premium  to  insure  $10,000  on  their  stock 
of  merchandise  generally,  contained  in  a  cer- 
tain building  occupied  by  them  as  a  commis- 
sion house,  for  one  year,  the  receipt  to  be  void 
on  delivery  of  the  i)olicy,  which  was  delivered 
April  15,  1S40,  "$10,000  on  their  stock  of  uier- 
chandise  generally,  contained  in  their  new 
three  story  brick  building,  occupied  by  them 
as  a  commission  house."  Plaintiffs  brought  a 
bill  to  refi)rm  the  contract,  alleging  that  it  was 
the  intention  of  both  parties  to  make  the  pol- 
icy to  cover  goods  on  consignment.  It  ap- 
peared that  the  clerk  of  insured  received 
it  from  insurers  at  the  time  it  was  made, 
put  it  away  among  the  papers  of  insured, 
and  insured  never  read  it  or  had  their  atten- 
tion called  to  it  till  after  tlie  fire,  November 
24,  1840.  Held,  this  was  not  such  an  ac- 
ceptance as  would  preclude  the  insured  from 
having  the  writing  reformed  to  meet  the  inten- 
tions of  both  parties.  Franklin  Ins.  Co.  v. 
Hewitt,  3  B.  Men.,  231. 

19.  On  schooner  "trading  between  New 
Orleans  and  any  port  in  the  West  Indies, 
United  States  or  Gulf  of  Mexico,  except  Rio 
Grand  or  Brassos  San  Jago."  She  was  lost  on 
a  voyage  between  Matanzas  and  Savannah, 
and  it  was  alleged  that  the  policy  was  written 
in  error  or  fraud,  and  that  it  did  not  conform 
to  the  agreement  of  the  parties.  The  applica- 
tion e.xhibited  proved  that  insured  asked 
permission  "  to  trade  to  any  port  in  the  West 
Indies,  Gulf  of  Mexico,  or  United  States ;"  and 
was  marked  "  accepted."  Held,  the  doctrine 
of  merger  was  not  applicable  to  the  case  ;  there 
is  no  unbending  principle  of  the  law  of  evi- 
dence which  precludes  proof  of  error  in  reduc- 
ing a  contract  to  form ;  the  court  will  consider 
as  done  that  which  ouglit  to  have  been  done 
in  making  out  the  policy,  and  will  bold  insur- 
ers bound  by  the  agreement  thus  corrected. 
Lippincott  v.  Insurance  Co.,  3  La.  (0.  S.), 
540. 

20.  S.  and  A.,  residents  of  St.  Louis,  estab- 
lished a  business  at  Vicksburg,  and  appointed 
B.  their  agent.  He  applied  to  defendant's 
agent  for  insurance  on  the  stock;  informed 
the  agent  that  he  held  and  was  selling  the 
stock  as  agent  of  the  owners.  Insurer's  agent 
made  a  policy  on  the  goods  in  the  name  of  B. 
A  loss  occurred  and  the  claim  was  resisted  on 
the  ground  that  the  person  to  whom  the  policy 
■was  issued  had  not  an  insurable  interest. 
Udd,  the  ijolicy  should  be  reformed  so  as  to 


make  it  effectual  upon  the  property  insured. 
Phmiix  Ins.  Co.  «.  Huffheimcr,  46  Miss.,  040. 

21.  Bates  was  directed  to  insure  goods  on 
the  Mary  Galley.  He  carried  the  order  to  S., 
who  by  mistake  wrote  the  policy  on  the 
"  Mary,"  and  the  defendant  subscribed  it.  The 
"  Mary  Galley  "  was  lost.  Held,  the  mistake 
might  be  corrected  after  loss.  Bates  v.  Grab- 
ham.  Holt  K.  B.,  469;  2  Salk.,  444. 

22.  The  person  who  received  the  policy  did 
not  compare  it  with  the  application  or  "  label." 
Held,  this  would  not  prevent  the  insured  from 
having  it  made  to  conform  with  the  applica- 
tion or  label.  A  paper  called  "  the  label "  was 
written  "at  and  from."  The  policy  in  its  iu- 
troductory  or  printed  part  described  the  voy-. 
age  "  at  and  from,"  but  in  that  part  which  de- 
scribed the  adventure,  the  risk  was  confined 
to  her  departure  from  Fort  St.  George.  Held, 
also,  if  the  label  was  made  out,  or  if  it  was 
agreed  or  intended  that  the  adventure  should 
begin  from  and  immediately  after  her  arrival 
at  Fort  St.  George,  the  policy  should  be  made 
to  accord  with  the  agreement,  and  it  was 
proper  to  send  the  case  to  a  court  of  commou 
law  upon  that  issue.  Motteux  i>.  London  Ass. 
Co.,  1  Atk.,  545. 

23.  A.  and  B.,  contemplating  marriage,  pro- 
posed for  insurance  on  their  joint  lives,  the 
policy  to  be  made  payal)le  to  the  survivor  of 
either.  The  company's  officers  drafted  it 
"  Payable  on  the  death  of  either  of  said  assured 
to  the  executors,  administrators  and  assigns 
of  the  said  assured."  On  the  death  of  the 
husband,  the  trustee  of  his  estate  claimed  the 
proceeds  of  the  policy.  Held,  he  was  not  en- 
titled  to  it,  because  the  benefits  of  the  policy 
were  to  be  for  the  survivor.  The  intention 
must  prevail,  notwithstanding  the  error  in 
drafting.  North  British  Ins.  Co.  v.  Tummock, 
3  C.  C.  S.  (N.  S.),  1;  37  Scot.  Jur.,  1. 

24.  If  one  party  seeks  the  execution  of  a 
contract  which  is  in  fieri,  the  other  may  show, 
if  it  has  not  been  e.'cccuted,  that  it  does  not 
conform  to  the  intention  of  the  parties ;  but  if 
it  has  been  executed,  no  defense  can  be  alleged 
on  that  ground.  The  party  seeking  to  make 
any  defense  for  that  cause  must  proceed  ia 
equity  to  reform  the  contract.  Law  v.  War- 
ren, Di-ury,  31 ;  s.  c,  6  Irish  Eq.,  2U0. 

II.  When  it  shall  not  be  eefoemed. 

].  Stipulated:   "Other  insurance,  whether 

587 


1175 


REFORMATION  OF  WRITIXG. 


117G 


When  it  shall  not  be  reformed. 


subsequent  or  prior,  must  lie  notified  to  the 
compnuj-,  and  the  same  indorsed  on  the  pol- 
icy, or  otherwise  aclinowledgcd  in  writing. 
Insured  brought  his  action  at  law,  and  was 
defeated  on  the  ground  that  other  insurance 
had  been  made  but  was  not  indorsed  on  the 
policy.  He  now  brought  this  bill,  claiming 
that  insurer  had  notice  of  it,  and  that  he  ought 
not  be  permitted  to  set  up  the  failure  to 
indorse  as  a  defense  to  the  loss.  Held,  the 
court  would  not  aid  the  complainant,  because 
the  evidence  on  his  side  was  not  plain  and 
satisfactory.  Carpenter  v.  Providence  Wash- 
ington Ins.  Co.,  4  How.,  185 ;  s.  c,  16  Pet.,  495. 

2.  G.  &  B.  were  jointly  and  equally  inter- 
ested in  ship  and  cargo.  G.  wrote  to  S.,  of 
Boston,  inquiring  the  rate  of  insurance  on 
her,  and  described  himself  as  one  of  the  par- 
ties interested  in  the  property  to  be  insured. 
On  receiving  a  reply  he  wrote:  "  Your  office 
asks  too  high  a  premium  for  the  risk  I  was 
inquiring  alter,"  and  he  referred  to  the  copy 
of  an  application  on  the  back  of  his  letter, 
made  to  a  number  of  offices,  for  insurance.  S. 
procured  this  insurance  in  the  name  of  G. 
only,  to  the  amount  of  $10,000  upon  the  car- 
go,  by  a  printed  form  of  policy,  which  did  not 
contain  the  ordinary  clause,  "  as  well  for  the 
benefit  of  the  persons  named  in  the  policy  as 
for  the  benefit  of  ail  concerned."  It  was  de- 
livered to  S.,  who  retained  it  for  several 
months  before  the  loss  happened,  and  before 
the  defect  was  discovered.  Held,  interest  of  a 
copartnership  could  not  be  given  in  evidence 
upon  an  averment  of  individual  interest  in  a 
court  of  law,  nor  would  an  averment  of  a  co- 
partnership interest  be  supported  by  a  special 
contract  which  in  terms  related  to  an  individ- 
ual interest;  that  the  facts  proven  were  too 
equivocal  to  warrant  a  court  of  equity  to  varj' 
this  writing;  that  before  a  court  of  equity 
would  conform  the  writing  to  the  intention 
of  one  of  the  parties,  the  information  given  to 
the  other,  on  which  the  contract  was  predi- 
cated, ought  to  be  very  clear;  that  it  was  not 
so  in  this  case,  therefore  the  bill  was  dis- 
m  issed.  Qravei  v.  Boston  Marine  Ins.  Co.,  2 
Cranch,  215. 

3.  The  defendant  issued  a  certificate  of  in- 
surance on  property  in  189  and  191  South  Wa- 
ter street.  The  property  was  destroyed  in  187, 
same  street.  This  bill  was  brought  to  reform 
the  writing  and  make  it  cover  in  187.  Held, 
there  was  no  evidence  that  the  insurance  com- 

583 


pany  at  any  time  supposed  that  the  property 
was  in  187,  hence  the  bill  must  be  dismissed. 
Severance  v.  Continental  Ins.  Co.,  5  Biss.,  150. 

4.  A  policy  existing  upon  the  property  by 
its  terms  permitted  other  insurance.  Plaintiff's 
agent,  before  it  expired,  applied  for  its  re- 
newal,  and  defendant  made  a  new  policy  but 
omitted  to  indorse  permission  to  make  other 
insurance.  This  omission  was  not  discovered 
b^-  insured  till  after  the  fire  occurred.  The 
defendant's  clerk  testified  that  he  was  in- 
structed by  his  superior  not  to  insert  the 
clause  giving  permission  to  make  other  insur- 
ance.  It  also  appeared  that  the  plaintiff  pre- 
sented the  policy  for  material  changes  to  be 
made  in  it  on  two  different  occasions  before 
the  fire  occurred.  Held,  it  could  not  be  re- 
formed for  the  purpose  of  inserting  permission 
to  make  other  insurance,  that  to  do  so  would 
be  to  impose  upon  the  defendants  conditions 
and  terms  to  which  they  never  assented. 
•McHugh  8.  Imperial  Fire  Ins.  Co.,  48  How.  Pr., 
230. 

5.  The  plaintiffs  in  this  action  sought  to 
have  the  writing  reformed.  Held,  if  the  con- 
tract was  made  under  a  mistake  of  both  par- 
ties as  to  the  description  of  the  premises,  it 
could  not  be  reformed,  for  the  minds  of  the 
parties  never  met.  New  York  Ice  Co.  c.  North- 
icestern  Ins.  Co.,  31  Barb.,  72;  s.  c,  20  How. 
Pr.,  424. 

6.  Where  insured  claims  that  it  was  the 
mistake  or  fault  of  insurer  in  failing  to  ex- 
press upon  the  policy  prior  insurance,  that  in- 
sured did  not  read  it,  but  supposed  the  prior 
policy  was  expressed  upon  it:  Held,  a  court 
of  law  must  act  upon  the  agreement  as  it  is; 
it  cannot  strike  out,  change  or  add  anything 
to  it.  If  relief  can  be  given  at  all,  it  must  bo 
sought  exclusively  in  a  court  of  equity. 
Barrett  v.  Union  Ins.  Co.,  7  Cush.,  175. 

7.  This  bill  was  filed  May  23,  1856,  to  re- 
cover  a  loss  which  occurred  July  17,  184S, 
which  was  payable  sixty  days  after  proof  and 
adjustment.  Held,  after  the  remedy  at  law  was 
barred  by  lapse  of  time,  insured  could  not  re- 
vive the  claim  and  recover  in  equity  by  prov- 
ing that  the  agreement  sued  upon  at  law  was 
framed  by  mistake  and  was  not  the  coutntct 
of  the  parties.  In  cases  of  bills  filed  to  cor- 
rcct  mistakes  in  contracts,  the  courts  will  re- 
fuse to  grant  relief,  as  in  cases  of  fraud,  if  the 
period  of  limitation  has  elapsed,  between  the 
filing  of  the  bill  and  the  time  that  the  mistake 


1177 


REFORMATIOJi  OF  WRITING. 


1178 


Whon  it  shall  not  be  refoi-mcd. 


was  discovered,  or  when  by  the  use  of  due 
diligence  it  ought  to  have  been  discovered 
(citing  Brooksbank  v.  Smith,  2  Y.  &  Coll.  Ex., 
CS;  Blair  r.  Bromley,  5  Hare,  542;  s.  c,  2 
Pliil.  Ch.,  354;  Hough  v.  Richardson,  3  Story, 
Cr)9).     Dodfje  V.  Essex  Ins.  Co.,  12  Gray,  63. 

8.  Insured  untruly  sfatcd  the  amount  of 
ilie  incumbrances.  Held,  he  could  not  show 
that  ho  was  mistaken,  and  thereby  claim  to 
have  the  writing  reformed,  because  to  eflcct  a 
reformation  of  the  w^riting  there  must  have 
been  mutual  mistake.  Cvoper  v.  Farmers 
Ins.  Co.,  50  Penn.  St.,  299.  Nor  was  it  enough 
that  insurer's  agent  was  mistaken,  for  he  had 
no  authority  to  make  the  contract  for  the 
companj'.    Ibid. 

!).  Tlie  policy  prohibited  other  insurance^ 
unless  consent  were  given  bj'  an  indorsement 
made  b}-  the  company  upon  it.  and  this  was 
ail  amended  petition  to  reform  the  writing  by 
striking  out  the  prohibitory  clause.  It  was 
alleged  that  at  the  time  the  policy  was  made, 
the  defendant's  agent  had  notice  of  the  insur- 
ance. The  jury  found  specially  that  in  the 
treaty  or  agreement  between  the  insured  and 
insurers'  agent,  one  of  the  terms  or  matters 
intended  to  be  put  in  writing  as  a  part  of,  or 
as  an  indorsement  on  the  policy,  was  permis- 
sion to  make  other  insurance  on  the  property. 
That  there  were  other  insurances  on  the  proper- 
ty. But  the  jury  did  not  find  specially  that  this 
intention  was  mutual,  or  tliat  the  insurer 
agreed,  or  undertook  to  make  the  indorsement. 
Held,  befoi'e  the  court  would  reform  the  writ- 
ing, it  piust  be  made  to  appear,  by  clear  proof, 
tliat  the  duty  of  indorsing  the  fact  of  other  in- 
sur'ince  was  cast  upon  the  company  by  ex- 
press agreement,  ou  by  general  usage  amongst 
insurers.  Fellowes  v.  Madison  Im.  Co.,  2  Dis- 
ney, 128. 

10.  A  policy  of  insurance  may  be  reformed 
when  it  is  demonstrated  by  legal  and  exact 
evidence  tliat  there  has  beeu  a  mistake  in  pre- 
jiaring  it,  which  has  violated  the  understand- 
ing of  the  parties.  But  the  case  must  show 
by  clear  and  unequivocal  aUegations,  that  be- 
fore the  policy  was  written,  there  was  an  agree- 
ment between  the  parties  that  risks  should  be 
included  which  were  afterward,  by  mistake  or 
fraud,  left  out  of  the  written  instrument.  Da- 
vega  v.  Crescent  Mut.  Ins.  Co..  7  La.  An.,  238. 

11.  An  application  was  signed:  "On  his 
dwelling  house,  hou.seliold  furniture  therein, 
baru  and  shed   adjoining,  grain  therein,  oii 


his  hay  and  other  fodder  therein,  live  stock 
and  farming  utensils  therein."  Insured  sought 
to  reform  the  writing  by  striking  out  the  word 
"tlierein,"  wherever  it  occurred  in  the  apjili- 
calion  and  in  the  policy.  The  evidence  to 
support  the  action  was  that  the  application 
was  made  through  an  agent  to  agree  willi  the 
terms  mentioned  in  another  policy,  exhibited 
to  the  agent,  which  covered  property  anywhere 
on  the  farm;  that  the  application  was  signed 
without  reading  it;  that  the  policy  was  re- 
ceived and  not  read  till  after  tlie  tire.  Held, 
before  the  writing  could  be  reformed,  it  must 
appear  that  insurer  understood  the  bargain  in 
the  same  way  that  insured  did,  for  no  reforma- 
tion could  be  made  unless  the  writing  was 
contrary  to  the  intention  of  both  parties. 
Guernsey  ».  American  Ins.  Co.,  17  Minn.,  104. 

12.  Policy  on  the  life  of  the  son  of  the 
insured.  The  company  refused  to  pay  the 
claim  on  Uie  ground  that  the  application  had 
not  truly  stated  the  interest  of  the  insured.  It 
seems  a  statement  of  the  estates  and  property 
upon  which  his  interest  in  his  sou's  life  was 
based  had  been  delivered,  but  he  signed  the 
paper  in  blank,  and  the  company's  agent  after- 
wards  wrote  into  it  what  he  supposed  was  a 
correct  statement,  but  which  was  in  fact  un- 
true, and  this  bill  was  brought  to  reform  that 
statement.  The  agent  was  examined  .and  testi- 
tied  that  he  was  unable  to  recollect  the  partic- 
ulars stated  to  him  by  the  plaintiff  of  the  in- 
terest in  his  son's  life,  or  as  to  Ihe  property 
which  he  held  upon  his  son's  life.  He  ad- 
mitted that  he  filled  up  the  application  an 
hour  or  two  after  the  plaintiff  signed  it,  but  he 
was  unable  to  state  whether  the  mistake  was 
his,  or  whether  it  arose  from  a  misapprehension 
of  what  plaintiff  told  liim.  Held,  the  plaiutiiT 
had  not  proved  that  he  gave  a  jiroper  and  cor- 
rect statement  to  the  agent  of  liis  interest  in 
his  son's  life,  and  therefore  the  bill  was  dis- 
missed. Parsons  v.  Bignold,  15  L.  J.  Ch., 
379;  13  Sim.,  518. 

13.  An  agent  at  London  acted  for  a  life 
insurance  company,  whose  principal  place 
of  business  was  at  Edinburg.  There  was  a 
proposal  made  to  the  agent  at  London  for  in- 
surance on  the  life  of  A.  The  agent  agreed, 
that  some  of  the  ordinaiy  conditions  of  the 
company's  policies,  prohibiting  visits  to  and 
residence  at  ports  in  Africa,  ohould  be  waived ; 
but  the  agent  did  not  communicate  to  th_' 
CMV.'vmy  the  terms  agreed  upon  between  hiin- 

589 


1179 


REINSURANCE. 


llSf> 


Valid  or  void  conti-act  of. 


self  and  the  person  insured.  A  policy  was 
made  and  accepted,  -n-liich  did  not  accord  with 
the  agreement.  It  appeared  however  that  the 
agent  had  no  authority  to  do  more  than  accept 
proposals  and  transmit  them  to  the  principal 
ofHce  for  the  contract  to  be  made  in  Edinburg. 
Held,  this  was  not  a  case  in  which  the  instru- 
ment could  be  reformed,  because  the  principal 
nes-er  understood  the  contract  as  the  plaintiif 
contends  it  should  be  understood,  for  the  real 
terms  of  the  agreement  were  not  communi- 
cated to  or  adopted  by  the  principal;  hence  it 
was  an  instrument  binding  on  neither  party, 
and  therefore  it  must  be  delivered  up  to  be 
canceled,  and  the  company  must  refund  the 
premium  received  upon  it.  fowler  v.  Scottish 
Equitable  Life  Ass.  Co.,  28  L.J.  Ch.,  335;  4 
Jur.  (N.  S.),  1169. 

14.  Application  was  made  to  the  insurer 
to  underwrite  501  bundles  of  bright  hoop  iron. 
The  application  was  rejected  unless  the  insur- 
ance was  made  free  of  particular  average. 
Thereupon,  the  clerk  added  the  letters  f,  p,  a, 
and  it  was  initialed  by  the  insurers,  which  in- 
dicated that  they  were  bound  for  the  risk  so 
initialed.  The  application  being  taken  to  the 
underwriter's  clerk,  who  drafted  policies,  he 
omitted  to  insert  in  the  policy  the  clause, 
"Free  of  particular  average,"  the  letters  f,  p,  a 
having  escaped  his  attention.  The  iron  being 
damaged  on  the  voyage,  this  bill  was  brought 
to  reform  the  polic}'.  Held,  the  slip"  or  appli- 
cation constituted  no  evidence  of  a  contract  be- 
tween the  parties,  that  there  was  none  until  the 
policy  was  executed  and  delivered;  hence 
there  was  nothing  to  reform.  MacKenzie  v. 
Coulson,  8  L.  K.  Eq.,  368. 

III.  Admiralty  has  not  jurisdiction 

TO  REFORM. 

Insured  made  application  for  "  $3,000  in- 
surance on  brig  Union  and  appurtenances, 
$8,000  on  effects  on  board  said  brig  from 
Salem  to  port  or  ports  in  the  West  Indies,  one 
or  more  times,  for  the  purpose  of  selling  out- 
ward and  procuring  a  return  cargo;  and  at 
and  from  thence  to  a  port  of  discharge  in  the 
United  States.  She  is  bound  for  Kingston, 
Jamaica;  if  not  allowed  to  sell  there,  will 
proceed  to  Cuba."  There  was  nothing  in  the 
policy  showing  she  was  "bound  to  Kingston, 
and  if  not  allowed  to  trade  there,  will  proceed 
to  Cuba."  Both  parties  supposed  the  port  of 
590 


Kingston  open  lo  American  vessels,  and 
neither  contemplated  illicit  trade.  She  sailed 
for  Kingston,  supposing  the  port  was  open; 
but  it  was  not  open,  and  she  was  there  seized 
and  condemned  for  illicit  trade.  Held,  while 
courts  of  admiralty  had  jurisdiction  over  pol- 
icies  as  maritime  contracts,  it  had  no  juris- 
diction over  contracts  leading  to  or  prelimin- 
ary to  policies,  and  therefore  admiralty  had 
not  the  power  to  make  a  policy  conform  to 
the  contract.  Andrews  v.  Essex  Fire  and  Ma- 
rine Ins.  Co.,  3  Mason,  6. 

TV.  Onus  peobandi.- 

1.  If  there  is  a  mistake  in  the  writing  pro-  , 
fessedly  by  the  contract  of  the  parties,  the  party 
complaining  against  the  mistake  must  allege 
it  and  pray  affirmative  relief  to  have  the  writ- 
ing  reformed  (citing  Rigsby  ».  Trees,  21  Ind., 
237;  Rhode  v.  Green,  26  id.,  83;  Conger  v. 
Parker,  29  id.,  880).  King  v.  Enterprise  Ins. 
Co.,  45  Ind.,  43. 

2.  Insurers  urged  that  they  did  not  intend 
to  insure  certain  corn  and  flour,  and  that  U 
the  policy,  by  its  language,  included  those  ar- 
ticles, it  was  through  mistake.  Held,  the  court 
had  the  right  to  correct  the  mistake,  if  any 
existed,  but  the  burden  of  establishing  the 
mistake  was  upon  insurers,  and  they  must 
make  it  out  by  the  cleai'est  evidence.  Wood- 
rt/ff  «.  Columbus  Ins.  Co.,  5  La.  An.,  667. 


REINSURANCE. 

I.  Valid  or  toid  contract  op. 
II.  "Op  the  keinsurers'  defenses. 

III.  PROOF    TO    BE    GIVEN    BY    REIN- 

S"aRED. 
IV  D.\M.\GES,   .\ND    OP    THE    CLAUSE, 

"  LOSS    IP    ANY    PAYABLE     PRO 

R.4.TJV,"  ETC. 
V.   Op  ABANDONMENT. 
VI.   Wh.\.T  is  NOT  REINSUR.WiCE. 

I.    VaUD    or   toid   CONTRACT   OF. 

1.  W.  Ins.  Co.  icsured  $3,000  on  brig,  "lost 
or  not  lost,  on  and  from  June  6,  1848,  for  five 
months,  with  use  of  globe  (Taiupico  and  Tex- 


IISI 


REINSURANCE. 


11S2 


Of  the  reinsurers'  defenses. 


as  ports  excepted).  If  at  sea,  at  oxpinUion  of 
time  risk  to  continue  at  same  rate."  She  was 
then  at  sea,  on  a  voyage  to  Havana.  P.  Mut.  Ins. 
Co.  reinsured  $1,500  on  her  at  and  from  Rio 
to  Havana,  and  at  and  from  thence  to  Phihi- 
delphia,  subject  to  such  risks,  valuations,  con- 
ditions and  mode  of  settlement  as  are  or  may 
1)6  assumed  or  adopted  by  W.  Ins.  Ci).,  for  ac- 
count of  whom  it  may  concern.  Held,  an  in- 
surable interest  can  spring  from  a  prior  insur- 
ance; that  a  time  policy  as  well  as  any  other 
creates  an  insurable  interest;  that  the  rein- 
surance  need  not  be  for  the  specific  original 
risk ;  that  while  it  must  not  be  larger  it  may 
be  smaller  than  the  original  risk ;  that  the 
subject  matter  and  the  kind  of  perils  must  be 
the  same.  Hence  the  reinsurer  was  liable. 
Philadelphia  Ins.  Co.  v.  Wasliingiern  Ins.  Co., 
23  Penn.  St.,  250. 

2.  The  F.  Mut.  Ins.  Co.  made  a  policy  for 
the  benefit  of  the  plaintiff,  upon  the  life  of  her 
liusband,  and  U.  S.  L.  Ins.  Co.  reinsured  the 
same  life  in  favor  of  the  F.  Mut.  Ins.  Co.  The 
plaintiff  had  judgment  against  the  F.  Mut. 
Ins.  Co.,  who  assigned  to  the  plaintiff  the  con- 
tract of  reinsurance.  Held,  the  plaintifi'  had 
a  good  cause  of  action  against  the  U.  S.  L. 
Ins.  Co.  on  that  contract,  notwithstanding  it 
prohibited  any  assignment  or  sale,  for  that 
prohibition  must  be  limited  to  an  assignment 
or  sale,  piior  to  the  happening  of  a  loss.  Lee 
■c.  Fraternal  Mut.  Ins.  Co.,  1  Handy,  217. 

3.  The  insurer  made  a  parol  agreement  to 
transfer  to  another  for  a  higher  premium  the 
risk  he  had  assumed.  Held,  it  was  not 
Buch  a  reinsurance  as  was  prohibited  by  19 
Goo.  Ill,  ch.  37,  sec.  4.  Belver  v.  Barnes,  1 
Taunt.,  48. 

4.  Every  reinsurance  in  England,  whether 
by  British  subjects  or  foreigners,  whether  on 
British  or  foreign  ships,  was  void  under  19 
Geo.  II,  ch.  37,  unless  the  reinsured  was  in- 
solvent, a  bankrupt,  or  dead.  Andree  v.  Fletch- 
er, 2  Term,  IGl.  Nor  can  there  be  any  return 
of  premium,    s.  c,  3  id.,  2G6. 

II.  Of  the  eeinsureks  defenses. 

T .  Reinsurers  can  make  the  same  defense 
and  take  the  same  objections  against  the  ori- 
ginal insurers  as  the  hatter  might  have  made 
in  a  suit  upon  the  first  policy;  and  the  rein- 
sured is  entitled  to  recover  full  indemnity 
from  the  reinsurer,  including  costs  and  ex- 


penses necessarily  incurred  to  protect  himself" 
and  to  entitle  him  to  a  recovery  over  against 
the  reinsurer;  but  the  costs  and  expense* 
mu.st  be  incurred  in  good  faith,  not  wantonly 
or  unnecessarily,  in  a  plain  case  where  there 
is  no  reasonable  ground  of  defense.  Nao 
York  State  Marine  Ins.  Co.  v.  Protection,  Init. 
Co.,  1  Story,  45S. 

2.  February  24,  1851,  the  A.  L.  &  H.  Ins. 
Co.  insured  the  life  of  N.  for  .$2,500,  one  year, 
with  privilege  of  another.  May  31st,  follow- 
ing, P.  L.  Ins.  Co.  reinsured  $1,000  on  same 
life  for  one  year,  but  when  that  year  was  ti> 
begin  or  end  the  policy  did  not  mention.  The 
reinsurer's  policy  stipulated  thiU  it  was  issued 
on  the  faith  of  a  declaration  made  by  the  sec- 
retary of  the  original  insurer,  aud  if  that  was 
untrue  the  policy  of  reinsurance  should  be 
void.  That  declaration,  dated  May  31,  1851, 
stated  that  the  life  insured  did  not  exceed 
thirty  years,  and  "  he  is  now  in  good  health." 
The  life  insured  expired  May,  5,  1S51 ;  but 
neither  of  the  parties  knew  the  fact.  Both 
knew  that  the  life  insuretl  was  on  his  way  to 
California.  A  copy  of  the  original  application 
was  delivered  to  the  reinsurer  before  the  con- 
tract was  made.  Held,  the  writing  by  itself 
would  be  construed  as  a  contract  running  one 

,year  from  its  date,  but  that  the  court  must 
look  outside  of  the  paper  to  ascertain  whether 
it  was  or  was  not  a  reinsurance,  from  date, 
for  the  paper  itself  did  not  disclose  that  fact. 
If  the  reinsurer  knew  all  the  terms  of  tlie 
original  contract,  and  that  it  was  to  run 
one  year  from  February  24th,  and  then  re- 
insured for  one  year  without  date,  it  could 
not  be  presumed  that  the  year  of  the  reinsurer 
was  to  e.xteud  beyond  the  3'ear  of  the  original 
risk.  Therefore,  it  must  be  construed  to  mean 
a  year  beginning  and  ending  with  the  original 
risk,  and  the  reinsurer  was  liable,  though  the 
life  had  ceased  prior  to  the  making  of  the  con- 
tract, the  time  of  the  loss  being  immaterial. 
Philadelphia  Life  Im.  Co.  v.  American  Life 
and  Health  Ins.  Co.,  23  Penn.  St.,  65. 

3.  Reinsurance.  Stipulated:  "Subject  to 
such  risks,  valuations  and  conditions,  includ- 
ing the  risk  of  premium  note,  as  are  or  miiy 
be  taken  bj-  the  said  Gh)be  Ins.  Co."  Held, 
the  policy  made  by  the  original  insurer  must 
control  the  contract  of  reinsurance.  Common.. 
%reaUh  Ins.  Co.  v.  Globe  Mut.  Ins.  Co.,  35  Penn. 
St.,  475. 

4.  D.  &  Co.  were  insured  by  the  Merchants 

591 


1183 


REINSURANCE. 


1184 


Of  the  proof  to  be  given  —  Of  the  damages,  etc. 


Mut.  Ins.  Co.  on  831  bales  of  cotton,  at  $200  per 
bale,  New  Orleans  to  Havre,  who  procured 
reinsurance.  She  arrived  at  the  port  of  des- 
tination, discharged  325  bales,  and  tools 
fire,  which  was  extinguished  by  letting  wat- 
er  into  the  hold,  by  which  the  balance 
of  the  cargo  was  damaged.  According  to  the 
usage  and  custom  at  Havre,  a  statement  or  ad- 
justment was  made  by  the  Tribunal  du  Com- 
merce, by  which  the  loss  was  declared  to  bo 
partial  only;  but  before  it  was  finished  the 
Merchant's  Mut.  Ins.  Co.  made  large  advances 
to  D.  &  Co.  on  account  of  the  loss,  and  then 
D.  &  Co,  claimed  that  the  loss  was  construct- 
ively  total,  and  refused  to  refund  any  portion 
of  the  advances.  Judgment  was  rendered,  by 
consent,  for  a  constructive,  total  loss  against 
the  Merc'.iants  Mut.  Ins.  Co.,  who  l)rought  suit 
against  their  reinsurers.  Held,  the  reinsurerj 
were  entitled  to  make  the  same  defenses  and 
to  urge  the  same  objections  which  might  have 
been  made  by  the  original  insurers,  for  rein- 
surers are  only  liable  when  the  original  in- 
surer is  legally  liable.  The  damage  and  loss 
sustained  by  fire  before  the  vessel  was  entirely 
unloaded  was  partial  only,  and  the  reinsurer's 
liability  was  to  be  determined  upon  the  basis 
of  a  partial  loss  only,  notwitlistanding  the 
original  insurers  had  paid  a  total  loss.  Mer- 
chants Mut.  las.  Co.  V.  New  Orleans  Ins.  Co.,  24 
La  An.,  305. 

5.  The  action  was  brought  upon  a  contract 
to  reinsure.  The  original  insurers  had  not  ad- 
justed nor  paid  the  loss.  Held,  the  reinsurers 
could  make  every  defense  to  the  action  which 
could  be  made  to  an  action  brought  against 
the  original  insurer  by  the  person  originally 
insured.  Eagle  Ins.  Co.  v.  La  Fayette  Ins.  Co., 
9  Ind.,  443. 

III.  Of  the  proof  to  be  given  bt  re- 

INSUKED. 

1.  The  A.  Co.  became  insurers,  |3,000  on 
a  stock  of  dry  goods  and  ready  made  clothing, 
and  $500  on  household  furniture.  It  applied 
to  the  B.  Co.  for  reinsurance,  $3,000  on  the 
dry  goods  and  clothing.  A  policy  was  issued 
making  the  word  "insure"  read  "reinsure." 
In  all  other  respects  it  was  the  usual  jirinted 
policy,  requiring  proofs  of  loss,  particular  ac- 
count of  it,  and  magistrate's  certificate.  The 
A.  Co.  gave  permission  to  make  other  insur- 
ance $3,000,  but  there  was  no  such  permission 
502 


in  the  policy  issued  by  the  B.  Co.  The  A.  Co. 
Ijaid  the  loss,  and  brought  this  action  against 
the  B.  Co.,  having  previouslj'  transmitted  tbo 
original  notices  and  proofs  of  loss  delivered 
by  the  owner  of  the  property.  Held,  the  orig- 
inal  notices  and  proofs  of  loss  made  by  the 
insured  to  the  A.  Co.  were  sufficient  couipli- 
ance  with  the  conditions  requiring  proofs  of 
loss  to  be  made  by  the  reinsured.  Boicery  Fire 
Ins.  Co.  V.  New  York  Fire  Ins.  Co.,  17  Wend., 
359. 

2.  The  reinsured  is  not  obliged,  in  order  to 
maintain  his  action  against  liis  reinsurer,  to 
show  that  he  has  paid  the  loss.  He  may  at 
once  resort  to  his  action  against  the  reinsurer, 
or  he  may  wait  a  suit  by  the  first  insured,  give 
notice  of  it  to  his  reinsurer,  and  rvn  being  sulj- 
jected  to  damages,  recover  them  with  costs  of 
litigation,  against  the  reinsurers.  Han's  b.  Mu- 
tual Safety  Ins.  Co.,  1  Sandf .  137;  2  N.  Y.,  33.5. 

:-{.  Reinsurance.  Held,  before  the  plaintiffs 
could  recover  they  must  show  tliat  the  claim 
which  they  paid  was  valid,  and  that  could  bo 
done  b}'  showing  their  contract  of  insurance, 
and  that  the  subject  insured  was  destroyed. 
Tankers  Ins.  Co.  v.  Hoffman  Ins.  Co.,  6  Rob. 
(N.  Y.),  316. 

IV.     Of  the    damages    and   of  the 

clause,  "  LOSS,  IF  ASiY,  PAYABLE  PEO 

eata,  etc.'' 

1 .  The  Lorillard  Ins.  Co.  had  an  agency  at 
Chicago,  and  reinsured  with  the  Repulilic  Ins. 
Co.  October  9,  1871,  the  Lorillard  became  in- 
solvent, was  dissolved  October  23,  1871,  and 
all  its  effects  passed  into  the  hands  of  a  re- 
ceiver appointed  by  the  courts  of  the  state  of 
New  York.  The  Republic  became  insolvent 
at  the  same  time,  and  was  afterwards  adjudged 
a  bankrupt.  The  Republic's  policies  to  the 
Lorillard  provided :  "  Loss,  if  any,  payable  at 
the  same  time,  and  pro  rata  with  the  insured." 
Held,  tlie  receiver  had  the  right  to  come  into 
court  here  and  assert  a  claim  upon  the  con- 
tracts of  reinsurance;  the  bankrupt  assignee 
could  not  reject  the  claims  on  the  ground  that 
the  Lorillard  h.ad  failed  to  comply  with  the 
conditions  of  tlie  policies  providing  for  notice 
and  proofs  of  loss,  because  the  evidence 
showed  that  copies  of  the  original  proofs  were 
presented  to  the  bankrupt,  and  no  objcc,tions 
were  made  to  them ;  if  the  bankrupt  had  any 
doubt  as  to  the  authenticity  of  the  copies,  it 


llSo 


RELEASE. 


1186 


Miscellaneous. 


iilioiild  Imve  dcraaiulcil  tUu  urigiiials ;  Udviiij; 
lailcJ  to  ilo  so,  all  objections  on  that  grouni.1 
must  be  treated  as  waived,  and  the  banknii)t 
was  liable  for  the  loj^ses  adjusted  bj-  the  Lorii- 
lard,  even  tliough  tlie  Lorillard  had  not  paid 
anylhing  to  the  persons  originally  insured. 
Ex,  parte  Norwood,  3  Biss.,  504. 

2.  The  Fulton  Co.  insured  $10,000  on  a  su- 
gar refinery,  and  reinsured  $5,000.  Stiimlated: 
"  Loss,  if  anj',  payable  pro  rnta  to  them  at  the 
same  time,  and  in  the  same  manner  as  they 
pay."  //eW,  the  reinsurer  was  liable  for  one- 
half  the  (U'iginal  claim,  notwithstanding  the 
original  insurer  had  become  bankrupt  and 
had  paid  but  a  small  dividend.  Consolidated 
Fire  Ins.  Co.  v.  Caahow,  41  Md.,  59 ;  Cashau  v. 
Northwcdern  National  Ins.  Co.,  5  Biss.,  476. 

3.  August  5,  1871,  N.  A.  F.  Ins.  Co.  made  a 
policy  to  K.  —  .%j,000  on  goods  —  and  the   de- 
fendant reinsured   one-half   the   risk.     Stipu- 
lated :    "  Loss,  if  any,  payable  pro  rata  at  the 
same   time  with  the  reinsured."     October  9, 
1871,   loss  was  sustained  by  the  reinsured  — 
$4,407.62  —  at  which   time  the  reinsured  be- 
came insolvent,  and  subsequently  declared  di- 
vidends forty-four  per  cent.,  being  all  that  the 
reinsured  could  or  would  ever  pay  upon  their 
original  contract.      Held,  the  liability  of  the 
reinsurer  cannot  be  alfected  by  the  insolvency 
of  the  reinsured  (citing  Hone  v.  Mutual  Safety 
Ins.   Co.,  1   Sandf.,  137;    s.  c,  3  N.  Y.,  235). 
Held,  also,  that  the  clause,  "  Loss,  if  anj',  pay- 
able  pro  rata  and  at  the  same  time  with  the  re- 
insured," limits  the  recovery  of  the  reinsured 
to  that  proportion  of  the  loss,  viz:    As   the 
sum  reinsured  bears  to  the  amount  originally 
insured.     Hence,  the   defendant    was   liable 
to  the  receiver  of  the  reinsured  for  one-half 
of  the  hiss  sustained  by  the  person  originally 
insured.      Blackstone  v.   Alemannia  Firn  Ins. 
Co.,  56  X.  Y.,  104;  s.  c,  4  Daly,  209. 

4.  Reinsurance;  stipulated:  "Loss,  if  any, 
payable  pro  rata  with  the  reinsured."  Printed 
condition  as  follows:  "  Reinsurance;  in  case 
of  loss  to  be  settled  in  proportion  as  the  sum 
reinsured  shall  bear  to  the  whole  sum  covered 
by  the  reinsured  company."  Held,  the  rein- 
surer was  bound  to  indemnify  the  original  in- 
surer in  the  same  proportion  that  the  latter 
■was  bound  to  indemnify  the  persons  original- 
ly insured.  Noi'wood  v.  Resolute  Fire  I ns.  Co., 
4  J.  &  Sp.  (X.  Y.;,  552. 

a.  The  Andes  Ins.  Co.  reinsured  the  Illinois 
Mat.  Ins.  Co.  $2,000,  being  one-third  of  the 
38 


original  risk.  Stipulated  :  "  Loss,  if  any, 
payable  ^jj'w  )■«<«  at  the  same  time  and  in  the 
same  manner  as  the  rei'jisured  company."  The 
reinsured  became  liable  to  pay  the  original 
insured  the  sum  of  $6,000,  but  being  insolvent, 
settled  its  liabilities  at  ten  cents  on  the 
dollar,  and  discharged  their  liability  for  the 
sum  of  $600.  Ueld,  the  plaintilT's  action  was 
for  indemnity.  It  must  be  founded  upon  the 
damnilicatiun  really  existing  at  the  time  the 
action  was  brought.  The  sura  paid  in  dis- 
charge of  the  original  insurer's  liability  must 
be  regarded  as  the  amount  of  damage  sus- 
tained; that  as  the  original  insurer  dis- 
charged the  claim  for  ten  cents  on  the  dollar 
the  reinsurer's  liability  must  be  measured  by 
the  same  ratio,  namely,  $200.  Illinois  Mut. 
Fire  Ins.  Co.v.  Andes  Ins.  Co.,  67  111.,  363. 

V.  Of  abandonment. 

No  abandonment  is  necessary  from  the  first 
insurer  to  the  reinsurer,  and  the  latter  is  liable 
for  all  costs  and  expenses,  bona  fide,  incurred 
in  defending  the  claim  of  the  first  insurer, 
with  interest,  on  all  that  he  has  expended. 
Hastie  v.  DePcyster,  3  Caines,  190,  b. 

YI.  What  is  not  eeinsurance. 

On  goods  by  ship  or  ships.  These  policies 
were  canceled  and  others  made  by  other 
underwriters.  The  former  at  ten  per  cent, 
and  the  latter  at  twenty  per  cent.  It  was  un. 
derstood  the  first  insurers  were  to  make  good 
to  insured  the  difleience  of  premium.  Ueld, 
the  last  policies  were  not  reinsurance.  Reed 
V.  Baird,  Faculty  Dee.,  1808  to  1810,  p.  688. 


RELEASE. 

1.  "  On  cotton  gins,  $50,000 ;  all  sums  placed 
at  risk  under  this  policy  are  to  be  indorsed 
hereon  and  policy  to  be  closed  in  twelve 
months  if  not  sooner  filled."  The  day  after  it 
was  made,  a  loss  occurred.  Insured  applied 
to  have  it  indorsed,  which  was  refused  and 
the  claim  rejected.  Subsequently  insurer  in- 
dorsad  $29,995.50  on  gins.  Held,  the  subse- 
quent indorsement  did  not  waive  or  release 
the  previous  \oss.  Career  Co.  v.  Manufacturers 
Ins.  Co.,  6  Gray,  314. 

59:^ 


1187 


REMOVAL  OF  CAUSE. 


113S 


When  it  shall  be  removed. 


2.  Insurer's  agent  accepted  a  risk,  and  gave 
a  binding  agreement  to  deliver  a  pDlicy. 
The  application  was  sent  to  the  home  otHce, 
but  instead  of  making  a  policy  the  company 
procured,  in  the  name  of  the  applicant,  three 
policies,  for  separate  sums,  from  different 
companies,  to  cover  the  risk,  and  sent  them  to 
their  agent.  But  all  these  policies  prohibited 
other  insurance,  and  not  one  of  the  companies 
who  made  them  had  notice  of  the  fact  that 
other  insurance  was  being  made  upon  the 
same  property.  After  the  loss  occurred  the 
agent  took  back  the  agreement  to  deliver  this 
company's  policy;  indorsed  upon  each  of  the 
policies  permission  to  make  other  insurance, 
and  delivered  them  to  the  plaintiff,  who  made 
proofs  of  his  loss,  which  were  rejected  and 
the  claim  denied  on  the  ground  that  consent 
to  make  other  insurance  upon  tlie  property 
had  never  been  given.  H-dd,  the  liability  of 
the  defendant  had  become  fixed  when  the 
agreement  for  the  policy  was  surrendered; 
that  plaintiff  was  not  bound  by  the  surrender 
and  release,  unless  they  were  given  for  a  valu- 
able-consideration; that  the  policies  given  for 
the  surrender  and  release  were,  in  law,  worth- 
less, hence  no  offer  to  return  them  was  neces- 
sary, and  the  defendant  was  liable  upon  the 
original  contract.  Dayton  Ins.  Co.  10.  Kelly,  24 
Ohio  St.,  345. 


REMOVAL  OF  CAUSE. 

1.   AVhEN  it  shall  be  REirOVED. 
II.  KOT  BE  KEMOVED. 

III.  "Who  mat  complete  the  removal. 

I.  "When  it  shall  be  eehovep. 

1.  The  administratrix  sued  the  insurer  in  a 
state  court  and  had  judgment.  The  state  law 
gave  the  right  to  either  party,  after  judgment, 
to  a  second  trial,  upon  entering  into  an  under- 
taking, with  security,  that  the  party-  obtaining 
the  second  trial  should  abide  by  and  perform 
the  order  of  judgment  and  pay  all  moneys, 
costs  and  damages  which  might  be  awarded 
consequent  upon  such  second  trial.  The  in- 
surer entered  into  such  an- undertaking;  but 
-before  the  second  trial  was  had,  filed  a  petition 
to  remove  the  cause  to  the  circuit  court  of  the 
United  States.  The  circuit  court  overruled 
594 


the  motion  to  remand.  The  administratrix 
filed  an  amended  declaration  in  tliat  court, 
and  there  the  case pended.  Theadministratri.t 
returned  to  the  state  court  and  obtained  a  re- 
versal of  the  order  of  removal,  and  the  parties 
appeared  in  the  state  court  for  a  second  trial, 
and  the  case  was  contested  upon  the  law  and 
the  facts,  and  the  plaintiff  had  a  verdict  and 
judgment,  which  was  subsequently  affirmed. 
A  writ  of  error  was  taken  from  the  supreme 
court  of  the  TTnited  States  to  the  state  court. 
Held,  if  there  was  error  on  the  part  of  the 
circuit  court  in  overruling  the  motion  to  re- 
mand  to  the  state  court,  the  remed3'  should 
have  been  sought  in  the  federal  courts,  be- 
cause the  jurisdiction  of  the  state  coiirt  was 
at  an  end  until  the  case  should  be  remanded, 
by  order  of  the  federal  court,  if  that  were 
ever  done;  that  the  trial  and  judgment  in  the 
state  court  before  the  petition  for  removal  was- 
filed,  was  not  a  final  trial,  and  did  not  take 
awaj'  the  right  of  removal,  for  when  the 
requisite  bond  was  given  and  approved,  the 
case  stood  upon  the  docket  In  the  state  courts, 
in  all  respects,  as  if  a  new  trial  had  beea 
granted  for  error  or  defect  in  the  former  trial. 
Insurance  Co.  v.  Dunn,  19  Wall.,  214. 

2.  A  statute  of  the  state  of  Wisconsin  pro- 
hibited foreign  insurance  companies  froia 
doing  business  in  that  state  unless  thej-  exe- 
cuted an  agreement  to  litigate  their  disputes 
in  the  state  courts  only.  This  company  com- 
plied with  the  law,  and  was  sued  in  a  state 
court  for  a  loss.  Held,  the  statute  was  an  at- 
tempt to  abridge  a  right  secured  by  the  con- 
stitutiou  of  the  United  States,  and  as  such  it 
was  illegal  and  void;  that  all  proceedings 
had  in  the  state  court,  after  filing  the  petition 
for  removal,  were  coram  non  judice.  Insur- 
ance Go.  V.  Morse,  20  Wall.,  445 ;  s.  c,  49  How. 
Pr.,  314. 

.3.  The  defendants,  a  corporation  of  Connec- 
ticut, filed  the  petition  and  bond  to  remove 
the  case  to  the  United  States  court,  which  w.as 
overruled  and  judgment  rendered.  Held,  all 
proceedings  after  the  filing  of  the  petition 
and  bond,  were  coram  non  judice.  Stetem  v. 
Plmnix  Ins.  Co.,  41  2^.  Y.  (2  Hand),  149  ;  s.  C, 
24  How.  Pr.,  517. 

4.  At  the  time  of  entering  appearance,  in- 
surers filed  a  petition  praying  for  the  removal 
of  the  cause  to  the  circuit  court  of  the  United 
States  to  be  held  in  the  district  where- the  suit 
was  pending,  and  offered  good  and  sufficient 


1189 


REiMOVAL  OF  CAUSE. 


1190 


When  it  shall  not  be  removed. 


surety  for  entering  in  tlie  circuit  court,  on  the 
first  (lay  of  the  session,  copies  of  the  process, 
etc.,  and  compliance  in  other  respects  with 
the  terms  of  the  act  of  congress.  Held,  it  was 
error  to  refuse  to  order  a  transfer  of  the  cause. 
Ilobbt  V.  Manhnttan  Ins.  Co.,  56  Me.,  417. 

5.  Tlie  statute  law  of  the  stale  required  all 
foreign  insurance  companies  to  appoint  an' 
agent  to  accept  service  of  process,  and  agreed 
to  waive  all  right  of  error  by  reason  of 
such  service  or  acknowledgment  of  service. 
Jleld,  the  corporation  had  the  right,  under  the 
act  of  congress,  to  remove  the  cause  from  the 
state  to  the  federal  court.  Knorr  v.  Ilome  Ins. 
Co.,  25  Wis.,  143. 

II.  When  it  sfiall  not  be  removed. 

1.  Insurer  was  a  citizen  of  the  state  of  New 
York,  and  the  insured  a  citizen  of  Illinois. 
The  suit  was  brouglit  in  a  court  of  the  state 
of  Mississippi.  Held,  the  statute,  March  2, 
1867,  autliorized  a  transfer  from  tlie  state  to 
the  federal  court,  in  those  cases  only  where 
one  party  was  a  citizen  of  the  state  wlierein 
the  suit  was  brought,  and  the  other  party  a 
citizen  of  another  state;  that  as  the  declara- 
tion averred  the  defendant  was  a  corporation 
created  by  an  act  of  the  legislature  of  the  state 
of  New  York,  in  legal  effect  that  was  an  aver- 
ment tliat  the  defendant  was  a  citizen  of  New 
York,  because  a  corporation  can  have  no  legal 
existence  outside  the  sovereignt}'  by  which  it 
was  created.  Tlie  transfer  was  unauthorized, 
and  the  federal  court  had  no  jurisdiction. 
Insurniice  Co.  v.  Francis,  11  Wall.,  210. 

a.  Prior  to  tlie  statue  March  3,  1873,  the 
district  court  of  the  United  States  for  the  mid- 
dle district  of  Alabama  had  the  powers  of 
circuit  courts  and  the  right  to  hear  and  de- 
cide cases  properly  removable  from  the  state 
courts,  within  the  limits  of  that  district;  that 
an  order  made  by  the  state  court,  within  that 
district,  directing  the  removal  of  a  case  into 
the  circuit  court  for  the  soutliern  district  of 
Alabama,  was  therefore  void,  and  that  court 
was  right  in  refusing  to  proceed  with  it.  Ex 
parte  State  Ins.  Co.,  18  Wall.,  417. 

H.  Action  commenced  December  28,  1872. 
Defendant  filed  a  petition  .January  18,  1873. 
The  necessary  affidavit  was  made  as  to  the 
citizensliip  of  the  parties,  and  surety  offered 
for  the  removal  of  the  cause  from  the  state  to 


tlie  United  States  court.  The  court  overruled 
tlie  motion  and  defendant  answered.  Trial 
was  liad  and  judgment  entered  for  the  plaint- 
iff in  October,  1873.  Under  the  state  statute, 
application  was  made  fur  a  second  trial,  the 
necessary  bond  required  by  the  statute  was 
executed  and  filed  February  19,  1874,  defend, 
ant  filed  an  amended  answer  to  the  original 
complaint,  and  February  23,  1874,  the  defend, 
ant  filed  a  .second  petition  for  the  transfer  of 
the  cause  from  the  stale  to  tlie  United  States 
court,  complying  in  all  respects  with  the  acts 
of  congress.  At  the  May  term,  1874,  the  court 
dismissed  the  petition  for  removal,  and  denied 
the  motion.  A  second  trial  was  had  October, 
1874,  upon  wliicli  a  judgment  was  rendered 
for  the  plaintitl',  which  was  reversed  because 
there  was  error  in  dismissing  the  petition  to 
remove.  Copies  of  tlie  pleadings,  etc.,  were 
certified  to  and  filed  in  the  United  States  cir. 
cuit  court  August  18,  1875.  //eW,  the  juris- 
diction of  tlie  United  States  court  was  purely 
statutory.  The  act  of  congress  must  be  strictly 
followed,  or  no  jurisdiction  is  obtained.  It 
was  the  duty  of  tlie  petitioner  to  enter  copies 
of  the  proceedings  in  the  United  States  cuurl 
within' the  time  limited  in  the  act,  namely,  ou 
the  first  day  of  its  then  next  session,  April  7, 
1874.  No  action  of  the  state  court  in  refusing 
to  accept  the  security  and  make  the  order  of 
transfer  could  take  that  right  awaj',  because 
the  right  did  not  depend  upon  the  inder  of  the 
state  court.  Hence  it  was  now  too  late  to  con. 
fer  jurisdiction  upon  the  United  States  court, 
and  the  motion  to  remand  the  cause  to  the 
state  court  was  accordingly  granted.  N>  D. 
Ohio.  Glippinger  V.  Missouri  Valley  Life  Ins. 
Co.,  8  Chi.  Leg.  News,  155. 

4.  A  petition  wlii,cli  states  that  tlie  plaintiff 
is  a  citizen  of  anotlier  state  is  not  sufficient  for 
the  removal  of  a  cause  under  the  act  of  con- 
gress, 1789.  It  must  show  that  tlie  plaintiff 
w  as  a  citizen  of  another  state  on  the  day  the 
action  was  commenced.  Pecliner  v.  Phmnia 
Ins.  Co.,  6  Lans.,  411. 

5.  Verdict  was  rendered  against  defendant, 
a  citizen  of  anotlier  state,  in  favor  of  a  citizen 
of  this  state;  exceptions  being  taken,  it  wa* 
transferred  to  the  full  bench,  and  judgment 
given  on  the  verdict.  The  defendant  sued  out 
a  writ  of  review  under  the  statute,  and  then 
filed  a  petition  to  remove  the  cause  from  tlie 
state  court  to  the  circuit  court  of  the  United 
States.     Held,  the  act  of  congress  docs  not 

595 


1191 


REMOVAL  OF  GOODS. 


1192 


From  threatened  danger. 


authorize  tlic  removal  of  the  cause.     Whittier 
V.  Uartfurd  Fire  Ins.  Co.,  55  N.  H.,  141. 

6.  PlaintilTwas  a  citizen  of  the  state  of  Vir- 
ginia, an-d  defendant  a  citizen  of  the  state  of 
New  Jersey.  Defendant  sought  to  remove 
the  cause  from  the  state  to.  the  federal  court. 
i/eW,  the  court  rii^litly  refused  the  application. 
Mutual Beiufil  Lifeliis.  Co.  v.Wise,  34Md.,  583. 

7.  The  defendant,  a  corporation  of  tlie  state 
of  New  Yorli,  filed  its  petition  to  remove  the 
cause  to  the  circuit  court  of  the  United  States. 
The  statutes  of  Ohio  required  all  insurance 
companies  doing  business  in  the  .state,  to  file 
in  the  office  of  the  superintendent  of  insurance 
a  written  instrument  waiving  the  right  to 
transfer  or  remove  any  cause  from  any  court 
in  the  state.  This  law  had  been  fully  com- 
plied with  by  the  defendant.  Ileld,  the  cause 
could  not  be  removed.  Overruled  by  the  su- 
preme court  of  the  United  States.  Insurance 
Co.  V.  Morse,  20  Wall.,  445;  New  York  Life 
Ins.  Co.  V.  Best,  23  Ohio  St.,  105. 

8.  The  insurers  filed  a  petition  under  the 
act  of  congress,  18G7,  to  remove  the  case  from 
the  state  to  the  United  States  court.  Held,  the 
petition  must  be  signed  in,  propria  persona, 
and  the  bond  presented  for  acceptance  at  the 
time  the  petition  is  filed.  Bat  v.  New  York 
Life  Ins.  Co.,  2  Cin.  Sup.  Ct.,  829.  And  de- 
fendants, a  foreign  corporation,  after  they  had 
filed  their  petition  to  remove  the  cause  from 
the  state  to  the  United  States  court,  complied 
with  the  general  law  of  Ohio,  and  obtained  a 
license  to  carry  on  the  business  of  life  insur- 
ance in  that  state;  and  in  compliance  with 
that  law,  they  filed  with  the  auditor  of  the 
state  an  instrument  duly  signed  and  sealed  by 
the  corporation,  by  which  the}^  waived  all 
claim  or  right  to  transfer  from  the  state  courts 
to  the  courts  of  the  United  States,  any  suit  or 
action  brought  or  pending  against  them.  Held, 
the  statute  was  not  unconstitutional,  for  the 
consent  under  which  a  foreign  corporation  is 
permitted  to  transact  business  in  any  state 
may  be  accompanied  by  such  conditions  as 
the  state  may  impose  (citing  La Faj'ette  Ins.  Co. 
i\  French,  18  How.,  404;  Bank  of  Augusta  v. 
Earle,  13  Pet.,  519;  Paul  v.  Virginia,  8  Wall., 
168).    Ibid. 

9.  Insurers,  a  corporation  of  the  state  of 
New  York,  made  application  to  transfer  the 
cause  from  the  state  to  the  United  States  circuit 
court.  The  company  had  complied  fully  with 
the  state  law  as  to  the  appointment  of  agents  in 

59G 


the  slate.  The  circuit  court  refused  to  grant 
the  motion,  and  a  mandamus  was  asked  from 
the  supreme  court  to  compel  the  court  be!ow 
to  order  the  transfer.  Held,  the  corporation 
was  permitted  by  statute  to  transact  business 
upon  the  condition:  "That  the  courts  of  the 
state  should  have  exclusive  jurisdiction  of  all 
cases  arising  under  the  act.''  Submitting  to  the 
provisions  of  the  statute  took  away  the  right 
to  transfer  the  cause.  Gkns  Falls  Ins.  v.  Tits 
Judge  of  the  Circuit  Court  of  Jackson  County,  21 
Mich.,  577 ;  Home  Ins.  Co.  v.  Davis,  29  id.,  238. 
10.  Tjhe  defendant  filed  a  petition  and  bond 
for  the  removal  of  the  cause  from  the  state  to 
the  United  States  court.  No  motion  was  en. 
tered  or  made,  nor  did  it  appear  that  the  at. 
tention  of  the  court  was  ever  drawn  to  the 
question.  The  parties  went  to  trial  without 
raising  any  objection.  Held,  the  defendant 
could  not  go  to  trial  upon  the  merits,  take  his 
chances  upon  the  results,  and  then  question 
the  jurisdiction?  Home  Ins.  Co.  v.  Curtis,  S. 
C.  Mich.,  5  Ins.  Law  Jour.,  120 ;  s.  c,  32  Mich., 
402. 

III.  Who  mat  complete  the  removal. 

The  defendant  procured  an  order  to  remove 
the  cause  from  the  state  to  the  federal  court. 
hut  failed  to  take  a  transcript  of  the  record. 
Held,  the  plaiirtitf  could  bring  the  transcript 
on  the  first  day  of  the  term,  file  it  and  docket 
the  case. (citing  McBratney  «.  Usher,  1  Dil.  Cir. 
Ct.,  367;.    Hyde  v.  Insurance  Co.,  2  id.,  525. 


IL 


REMOVAL  OF  GOODS. 

I.  Fkom  threatened  danger. 

(a)  Wlien  insurers  are  liable  for  damagcB 

caused  by. 

(b)  not  liable  for  dam. 

ages  aiused  by. 
By  coksent  op  insurers. 
(a)   Wltere  the  policy  attaches. 
(b'r  does  not  attach. 

I.  Fkom  threatened  danger. 


(a)  Wlien  insurers  are  liable  for  dam- 
ages caused  iy. 

1.  "On  goods  whilst  they  shall  be  and  re- 
main in  said  building."    They  were  removed 


1193 


REMOVAL  OF  GOODS. 


mu 


By  consont  of  insurers. 


because  of  a  fire  in  the  ncighborliood  which 
exposed  lliera  to  imniineut  ihingor,  and  in  the 
removal,  sustained  damage.  Ileld^  if  the  dan- 
ger  was  such  tliat  a  prudent  man  would  not 
have  allowed  them  to  remain  in  the  house, 
and  if  as  mucli  care  was  used  in  their  removal 
as  a  prudent  man  would  have  used  with  re- 
spect to  his  own  goods  not  insured,  insurers 
were  liablo  for  the  damage.  Holizman  v. 
FranUCn  Fire  Ins.  Co.,  4  Cranch  C.  0.,  295. 

2.  Tlie  building  in  which  the  goods  insured 
were  stored  was  threatened  by  fire.  A  heavy 
wind  carried  the  sparks  and  flames  upon  tlie 
premises,  so  that  the  roof  of  the  rear  building 
was  repeatedly  on  fire.  They  were  moved  at 
an  expense  of  .f  115.90.  Held,  the  interests  of 
insurance  companies  and  the  public  will  be 
subserved  l)y  holding  the  insurer  liable  for  the 
damage  which  insured  sustained  in  removing 
the  goods  out  of  the  reach  of  the  threatened 
peril  (citing  Case  v.  Hartford  Ins.  Co.,  13  111., 
G70).  White  v.  Itepuhlic  Fire  Ins.  Co.,  57 
Me.,  91. 

3.  The  policy  required  insured  to  use  all 
possible  diligence  to  preserve  the  property 
in  case  of  fire,  and  stipulated:  "That  the  in- 
surer would  not  be  liable  for  loss  in  conse- 
quence of  a  failure."  They  were  removed  to 
protect  them  from  threatened  loss.  Field,  the 
necessity  for  removal  must  be  governed  by 
the  circumstances  of  the  case,  and  whatever 
loss  or  damage  was  necessarily  sustained  by 
removal  insurer  must  bear,  the  removal  being 
iiecesary  and  properly  made.  Cuse  v.  Hart- 
ford Fire  Ins.  Co.,  13  111.,  G7G. 

4.  Tlie  insured  were  bound  by  the  terms  of 
the  policy  to  labor  for  the  protection  of  goods ; 
they  were  damaged  by  flood,  mud  and  water 
while  being  removed  during  a  dark  night. 
Held,  insurers  were  liable  for  the  damages. 
Talamon  v.  Home  and  Citizens  Mut.  Ins.  Co., 
10  La.  An.,  420. 

5.  Stipulated:  "Wliere  property  insured  iu 
this  company  is  damaged  by  removal  from  a 
building  in  which  it  is  exposed  to  fire,  said 
damage  shall  be  borne  bj'  insured  and  insurers 
in  such  proportion  as  the  whole  sum  insured 
bears  to  the  wliole  value  of  the  property  in- 
sured." A  portion  was  wholly  destroyed  by 
fire,  a  part  damaged  by  fire,  and  a  part  by  re- 
moval. Held,  the  damage  caused  by  removal 
must  be  borne  by  the  parties  according  to 
iheir  respective  interests  or  risks,  the  share  of 
either    bearing   the   same   proportion   to   the 


whole  damage  that  his  interest  in  the  property 
or  risk  bears  to  the  wlioIe  actual  value. 
Peoria  Marine  and  Fire  Ins.  Co.  v.  Wilson,  5 
Minn.,  53. 

(b)   When  insurers  are  not  liablo  for 
damages  caused  hy. 

6.  Insured  moved  his  goods  from. the  prem- 
ises under  a  reasonable  apprehension  of  a  fire 
which  was  impending,  but  the  fire  did  not  ex- 
tend to  the  building  from  whicli  the  goods 
were  removed.  Held,  the  defendant  was  not 
liable  for  the  loss,  because  they  were  not  re- 
moved in  order  to  save  them  from  burning; 
the  removal  was  a  prudent  precaution  under 
the  circumstances  of  the  case.  Hillier  v.  Alle- 
gheny County  Mut.  Ins.  Co.,  3  Penn.  St.,  470. 

II.    By  CONSENT  OF   INS0KEES. 

(a)  Where  the  policy  attaches. 

1.  On  goods  in  a  store  mentioned.  Insured 
intended  to  remove  his  stuck  inlo  another 
building,  and  procured  insurers  to  indorse  the 
policy  "  transferred  to  cover  similar  property  in 
another  building  "  named.  But  the  following 
day,  before  the  goods  were  removed  from  the 
old  building,  a  fire  occurred  and  they  were 
consumed.  Held,  all  parties  contemplated  a 
transfer  of  the  risk  after  the  goods  should  be 
removed;  that  the  policy  covered  them  while 
they  remained  in  the  place  where  they  were 
first  insured,  and  until  removed.  Kunzze  v. 
American  Exchange  Fire  Ins.  Co.,  41  N.  Y.  (3 
Hand),  412;  s.  C,  2  Rob.,  443. 

(b)  Where  the  policy  does  not  attach. 

2.  "  On  goods  in  21,  Avenue  D."  They  were 
removed  to  371,  Grand  street,  February  1st, 
and  notice  given  to  insurers  March  1st.  The 
compau3''s  charter  provided  that  the  president, 
or  other  person  appointed  by  the  board  of  di- 
rectors  for  that  purpose,  shall  be  authorized 
to  make  contracts  of  insurance,  and  the  poli- 
cies issued  in  pursuance  of  those  contracts 
shall  be  signed  by  the  president  and  counter- 
signed by  the  secretary.  The  plainfifT  giive 
evidence  tending  to  show  that  insurers  con- 
sented to  the  removal.  Held,  that  to  revive 
the  policy  was  the  same  as  to  make  a  new 
one,  and  that    could    be  done    in    no  way 

597 


1195 


REPRESENTATIONS. 


1196 


What  axe  material. 


except  by  a  writing  signed  by  the  president 
and  countersigned  hi'  the  secretary.  l:>pilzer 
v.  St.  Marks  Ins.  Co.,  G  Duer,  G. 

3.  Policy  on  certain  goods  for  the  period  of 
one  year  in  certain  premises  described.  Dur- 
ing the  period  insured,  the  goods  were  re- 
moved from  the  premises  to  another  place, 
hut  no  note  or  writing  of  the  removal  was 
made  either  upon  the  policy  or  the  books  of 
the  company  or  otherwise.  The  plaintiff  al- 
leged that  insurer's  agents  agreed  to  make  the 
necessary  transfer  on  the  books,  and  stated 
that  it  was  not  necessary  to  alter  the  policy. 
The  Code  of  Georgia,  §  2794,  requires  that 
all  contracts  of  insurance  must  be  in  writing. 
Held,  any  alteration  of  the  contract  must  also 
be  in  writing,  for  every  alteration  is  a  new 
contract;  nor  was  there  such  a  part  perform- 
ance as  would  take  the  case  out  of  the  statute. 
Simonton  v.  Liverpool,  London  and  Globe  Ins. 
Co.,  51  Ga.,  76 ;  Groghan  v.  Vnderwriters  Agency, 
53  id.,  109. 

4.  Stipulated:  "Persons  changing  their 
habitations  or  warehouses  may  preserve  the 
benefit  of  their  policies  if  the  nature  and  cir- 
cumstances of  the  risk  are  not  altered;  but 
the  policy  will  be  of  no  force  till  the  removal 
or  alteration  is  allowed  at  the  office  by  in- 
dorsement on  the  policy."  The  policy  was  on 
goods  in  Victoria  street.  A  removal  was  al- 
lowed by  indorsement  to  stores  in  Corporation 
street.  Goods  were  removed  to  Corporation 
street  exceeding  in  value  the  sum  insured. 
Before  the  removal  was  completed,  a  loss  oc- 
curred on  goods  in  Victoria  street  exceeding 
the  sum  insured.  Held,  but  one  risk  was  con- 
templated; therefore  insurers  were  not  liable. 
McClure  v.  Lancashire  Ins.  Co.,  6  Irish  Jur. 
(N.  S.),  C3. 


RENEWAL  OF  POLICY. 

(See  Contract.) 


REPAIRS. 

(See  ALTERATIONS    AND    RePAIBS.) 


69S 


REPRESENTATIONS. 

(See  CONCEAlilENT;  MiSBEPBESENTATIONS  ;    SlOSKEBg 

AND  Disease;  Title.) 
I.  What  are  material. 

II.  NOT  MATERIAIi. 

III.  Whek  satisfied. 

IV.  KOT   SATISFIED 

V.  Interpretation  of. 
VI.  Questions  for  the  jtjby. 
VII.  Genekallt. 


I.  What  aee  mateeiai,. 

1.  On  ship  valued,  dated  November  11, 
1795,  in  which  she  was  described  as  French 
built  and  warranted  safe  on  September  2d  pre- 
ceeding,  and  represented  that  she  would  have 
an  original  bill  of  sale  or  an  attested  copy  of 
it  on  board.  Held,  a  material  representation ; 
that  a  failure  to  have  it  where  it  could  have 
been  used  for  the  protection  of  the  ship  avoid- 
ed the  policy,  although  it  was  on  board  but 
not  within  the  knowledge  of  the  master. 
Murray  v.  Alsop,  3  Johns.  C,  47. 

2.  The  policy  and  survey  constituted  an 
entire  contract,  and  there  was  a  question  as 
follows:  "Is  there  a  watchman  in  the  mill 
during  the  night?"  Answer:  "There  is  a 
watchman  nights."  Held,  a  representation 
material  to  the  risk,  to  be  substantially  per- 
formed. Sheldon  v.  Hartford  Fire  Ins.  Co., 
22  Conn.,  235. 

3.  The  application  stated  that  the  store  was 
occupied  by  tenants,  including  a  cabinet 
maker.  The  third  story  was  vacant.  There 
were  joiners  shops  in  the  first  and  second 
stories.  Held,  not  a  warranty,  it  was  a  repre- 
sentation merely,  which  must  be  true  so  far  as 
it  was  material  to  the  risk.  Boardman  v.  Neva 
Hampshire  Mutual  Fire  Ins.  Co.,  20  N.  H., 
551. 

4.  Stipulated  in  the  application  that  the  an- 
swers to  questions  propounded  were  fair  .ind 
true;  that  they  should  form  the  basis  of  the 
contract ;  that  if  any  of  them  were  untrue  or 
fraudulent,  or  any  facts  suppressed,  the  policy- 
should  be  void.  Held,  the  answers  were  not 
warranties,  the}-  were  representations  merelj-, 
but  all  were  material  representations,  made  so 
by  the  terms  of  the  contract.  Price  r.  Vhcmix  ■ 
Mutual  Life  Ins.  Co.,  17  Minn.  497. 


119  i 


REPRESENTATIONS. 


11 98 


What  aie  not  material. 


~y.  The  ship's  agent  stilted  iu  a  letter:  "The 
JJiilliaut  will  sail  from  Nassau  for  Clyde  on 
May  1st;  a  running  ship;"  they  instructed 
their  correspondents  to  make  iiisurauce  on 
Jier.  The  letter  was  exhibited  to  the  insurers. 
A  favorable  opportunity  for  convoy  olVered ; 
■she  sailed  April  23d,  and  was  captured  May 
11th,  Held,  the  representation  was  not  the 
lepreseutatiou  of  an  expectation;  it  was  the 
representation  of  a  fact  material  to  the  risk, 
uot  complied  with,  and  therefore  the  insur- 
ers were  released.  Dennistouii  v.  Liliie,  3  Bli., 
202. 

0.  The  following  representation  was  made 
Tjy  the  broker  to  the  insurer:  "She  was  seen 
safe  in  the  Delaware  December  llth,  by  a  ship 
which  arrived  at  New  York."  She  was  lost 
December  9th  by  running  against  a  chevaux  de 
frige,  placed  across  that  river.  Held,  it  was  a 
material  representation,  wliich  must  be  true 
substantially;  that  when  the  insured  repre- 
sented facts,  without  knowing  the  truth,  he 
took  upon  himself  the  risk  of  showing  that  they 
were  true,  hence  the  insurer  was  discharged. 
MacDovxdl  v.  Frazer,  1  Doug.,  260.  And  the 
representation  by  the  agent  was  the  act  of  the 
principal.     Ihid. 

7.  About  a  week  before  insurers  signed  the 
policy,  the  broker  represented  that  she  was  "to 
sail  with  the  Hopewell  and  Young  Roscius, 
both  armed  ships ;  she  would  herself  carry  ten 
guns  and  twenty-five  men."  She  did  uot  sail 
with  those  vessels,  and  carried  only  eight  guns 
and  liftecn  men.  Held,  it  was  a  representation 
that  must  be  substantially  complied  with. 
Edwards  o  Footner,  1  Camp.,  530. 

8.  The  person  whose  life  was  insured  was 
asked  whether  she  had  etfected  any  other  in- 
«urancc  on  her  life,  to  which  she  replied  she 
liad  not,  but  intended  to  apply  for  one  for 
£3,000.  She  had  at  that  lime  £11,000  upon 
lier  life.  Held,  it  was  proper  to  tell  the  jury 
that  they  were  to  determine  whether  the  fact 
not  disclosed  was  material ;  if  it  was  material 
and  the  insurers  were  not  apprised  of  it,  the 
policy  was  void.  WaiJiewright  v.  Bland,  1  M. 
&  Rob.,  481 ;  s.  c,  6  Tyrw.,  417 ;  1  Mee.  &.  W., 
■32;  5  L.  J.  (N.  S.)  Ex.,  147. 

9.  The  party  for  whoso  benefit  the  policy 
Tvas  made  delivered  a  proposal,  printed  and 
■written,  in  which  the  life  of  the  person  pro- 
posed was  described;  and  it  stated:  "He  had 
lived  freely,  but  since  his  marriage  was  sober 
:and  temperate;  that  he  had  no  disease  or  dis- 


order tending  to  shorten  life,  and  that  he  had 
not  at  any  time  had  fits."  The  proposal  con- 
cluded: "And  do  hereby  declare  that  we  be- 
lieve the  above  particulars  and  statements  ai:o 
true."  Held,  the  statements  taken  together 
were  representations  and  not  warranties. 
Wheelton  v.  Hardiaty,  27  L.  J.  Q.  13.,  241 ;  5 
Jur.  (N.  S.),  14. 

II.  What  ake  not  material. 

1 .  Insured  represented :  "We  have  no  doubt 
we  could  get  the  insurance  etfected  in  New 
York  at  that  premium  — 1.5  per  cent."  Appli- 
cations  had  in  fact  been  made  to  all  the  in- 
surance oflices  in  New  York,  but  they  had 
refused  the  risk.  Insurers  refused  to  take 
it  at  15,  but  took  it  at  20  per  cent.  Held, 
while  the  statement  could  not  be  defended  at 
the  bar  of  conscience,  the  misrepresentation 
could  have  had  no  influence  affecting  the  rate 
of  premium,  because  upon  their  own  judg. 
meut  they  demanded  twenty  per  cent,  instead 
of  fifteen;  nor  ought  it  to  have  induced  the 
acceptance  of  the  risk  at  all,  nor  influenced 
the  rate  of  premium,  for  the  representation 
expressed  nothing  but  an  opinion  that  the  in- 
surance could  be  effected  at  that  rate;  and  fur 
ther,  the  insurer  could  not  have  accepted  it  as 
a  candid  opinion,  because  the  facts  showed  it 
was  not;. for  if  it  were,  why  leave  New  York 
and  go  to  Philadelphia  and  there  pay  20  in- 
stead of  15  per  cent.?  Claaon  v.  Smith,  3 
Wash.  C.  C,  156. 

2.  Representations  do  not  affect  the  policy 
unless  the  facts  represented  are  material,  and 
even  then  a  substantial  comijliance  is  all  that 
the  law  requires.  The  test  by  which  materi- 
ality is  determined  is  that  a  larger  premium 
would  have  been  required;  where  no  larger 
premium  would  have  been  required,  the  rep- 
resentation is  not  material.  Nicoll  c.  Ameri- 
can Ins.  Co.,  3  W.  &  M.,  529. 

3.  Insured  stated,  the  land  adjoining  is 
vacant.  Held,  an  immaterial  representation. 
Stebbins  v.Globe  Ins.  Co.,  3  Hall,  632. 

4.  On  cargo,  recited  that  S.  C.  &  Co.  were 
insured  on  account  of  the  W.  T.  Co.  Held,  no 
representation  that  S.  C.  &  Co.  were  owners  of 
the  boats.  Chase  v.  Washington  Mat.  Ins.  Go., 
12  Barb.,  59o. 

5.  Answer  in  applicalion,  not  responsive  to 
an  inquiry,  does  not  avoid  the  policy  unless 
the  information  sought  and  not  given  was  ma- 

59« 


11119 


REPRESENTATIONS. 


1200 


When  satisfied. 


tcrial  to  the  risk,  and  then  llie  onus  of  proof  is 
upon  insurer  to  show  that.  Daniels  v.  Iliuhna 
River  Fire  Ins.  Co.,  12  Cush.,  41G. 

6.  Insured  said,  in  conversation  witli  the 
agent  wlio  took  the  application,  tlial  he  ex- 
pected to  be  from  home  much  of  tlie  time; 
that  the  carpenter's  shop  would  be  little  used, 
thoutrh  he  might  want  to  use  it,  and  no  fire 
would  be  in  it.  Held,  this  representation 
could  not  affect  the  right  of  insured  to  recover, 
because  it  did  not  appear  that  it  was  ever  com- 
municated to  the  officers  of  the  company,  and 
therefore  could  not  have  had  any  influence  in 
procuring  the  risk  to  be  taken.  Oirard  Fire 
and  Marine  Ins.  Co.  «.  Stephenson,  37  Penn. 
St.,  293. 

7.  Insured  stated  at  the  time  he  applied  for 
permission  to  get  other  insurance,  that  the 
building  was  finished.  Held,  an  immaterial 
representation.  Williams  v.  New  England  Mu- 
tual Fire  Ins.  Co.,  81  Me.,  219. 

8.  To  P.,  "  For  account  of  whom  it  con- 
cerns."  P.  represented:  "  She  is  at  Baltimore 
about  ready  to  sail,  or  she  will  sail  soon.  She 
is  a  good  old  vessel.  On  the  voyage  before,  she 
brought  a  cargo  of  coal  from  Philadeljihia  to 
Charleston,  and  the  cargo  was  not  insured; 
the  man  for  whom  she  brought  it  never 
had  his  cargoes  insured,  as  1  understood." 
Policy  dated  October  28th,  but  she  did  not 
sail  till  December  22d.  Ildd,  no  false  repre- 
sentation, for  •'  That  slie  was  about  readj-  to 
sail,  or  will  sail  soon,"  was  not  a  promissory 
warranty;  nor  "That  slie  was  a  good  old  ves- 
sel," for  that  imported  nothing  more  than  that 
she  was  seaworthy.  Augusta  Insurance  and 
Banking  Co.  t.  Abbott,  12  Md.,  348. 

9.  Statements  in  the  application,  not  re- 
quired by  the  policy,  and  not  descriptive  of 
the  property,  are  representations,  notwith- 
standing the  policy  refers  to  the  application 
and  makes  it  a  part  thereof.  Hartford  Pro- 
tection Ins.  Co.  V.  Harmer,  2  Ohio  St.,  452. 

10.  The  insured  represented  that  the  ship 
was  expected  to  sail  on  a  day  named.  Held, 
not  material.   Barber  v.  Fletcher,  1  Doug.,  305. 

11.  The  broker  represented  that  "A  cargo 
was  ready  for  her  and  she  was  sure  to  be  an 
early  ship;"  but  there  was  considerable  de- 
lay in  beginning  to  load,  which  changed  the 
voyage  home  Irom  a  summer  to  a  winter  risk. 
Held,  the  representation  was  only  the  sul)ject 
of  expectation  and  belief,  that  the  cargo  would 
be  ready  for  her  by  the  time  of  her  arrival, 

600 


and  that  she  might  be  expected  to  be  an  early- 
ship.    Hubbard  v.  Glocer,  3  Camp.,  313. 

12.  Shipper's  agent  received  a  letter  stat- 
ing  she  was  "A  Portugese  ship,  and  would 
sail  in  a  few  days."  The  letter  was  not  ex- 
hibited to  insurers,  but  the  broker  represented 
that  she  would  sail  in  a  few  days.  Held,  a 
representation  as  to  the  time  of  the  ship's  in- 
tended sailing  must  be  considered  onlj'  as  a 
probable  expectation.  Bowden  v.  Vaugluin,  10 
East,  415. 

III.  AYhen  satisfied. 

1.  The  owner  of  a  ship  wrote  from  New 
York  to  an  insurance  broker  at  Boston,  asking 
him  to  get  insurance  upon  her,  and  in  the 
letter  he  stated:  "This  is  the  same  ship  you 
insured  for  me  in  Boston  some  years  since.  I 
will  only  observe  that  I  believe  her  to  be  one 
of  the  strongest  and  best  ships  in  the  whole 
fishery.  She  was  newly  coppered  to  light 
water,  above  which  she  is  sheathed  with  leather 
to  the  wales."  The  terms  "coppered  ship," 
when  applied  to  vessels  destined  on  a  whaling 
voyage  in  the  Pacific  Ocean,  were  understood, 
at  Boston,  according  to  the  usages  of  that  port, 
to  mean  that  ship's  sides,  bottom  and  keel  were 
covered  with  copper;    but  they  were  not  so 

understood  at  New  York,  according  to 

the  usages  of  the  latter  port.  This  letter  was 
exhibited  to  the  insurers,  who  made  insurance 
upon  her.  On  her  voyage  out  she  ran  upon  a 
rock  at  the  Cape  de  Verdes,  and  broke  off  a 
part  of  her  false  keel ;  but  she  proceeded  on 
the  voj-age,  and  continued  the  cruise  for  two 
years  in  the  Pacific  Ocean.  Encountering 
heavy  weather,  she  was  final]}-  compelled  to  re- 
turn to  the  Sandwich  Islands,  where  she  arrived 
in  December,  1829.  in  a  very  leaky  condition. 
Upon  examination,  her  keel,  stem,  stern  post, 
and  some  of  her  planks  were  entirely  perfor- 
ated by  worms,  and  in  that  condition  she  was 
unfit  to  go  to  sea.  It  was  impossible  to  repair 
her  there,  and  she  was  condemned  and  sold. 
Held,  the  insurers  were  bound  to  know  the 
meaning  of  the  terms  used  by  the  insured,  as- 
they  were  understood  according  to  the  usages 
of  the  port  of  New  York,  where  the  writer 
was,  and  where  the  vessel  was  when  she  was 
insured;  that  they  were  bound  to  presume 
that  in  describing  the  ship,  insured  used  terms 
in  the  sense  in  which  thoy  were  understood  at 
New   York,  the   place  where   the  vessel  and 


1201 


REPRESENTATIONS. 


1202 


When  satisfied. 


writer  were,  ;iiiil  not  in  tlie  sense  in  wiiicli  the 
same  terms  witu  uuderstood  in  Boston ;  for 
the  insured  conld  not  be  presumed  to  Icnow 
Ihe  usages  of  llie  port  of  Boston,  and  lie  must 
be  presumed  to  Ivnow  tliosc  of  Ihe  port  of  New 
York.  Reversing  s.  c,  1  Sumn.,  218.  Uazard 
V.  Nein  EngUuid  Marine  Ins.  Co.,  8  Pet.,  557. 

2.  The  brolser  represented  tliat  she  would 
sail  in  ballast.  She  sailed  with  one  trunk  of 
merchandise  and  ten  barrels  of  gunpowder. 
Held,  the  representation  was  satisfied.  Suck- 
ley  V.  JMfiJidd.  3  Caines,  222. 

i{.  Kepresetitation  that,  buildings  are  "  fin- 
ished "  is  complied  with,  if  they  are  substan- 
tially completed.  Delonguemare  v.  Trades- 
men's Ins.  Co.,  3  Hall,  589. 

4.  Represented  to  the  insurer:  "  The  cap- 
tain is  a  careful  and  steady  man,  has  good  of. 
ficers  and  crew,  and  no  spirits  allowed  on 
board."  He  had  two  kegs  of  spirits,  four  or 
five  gallons  each,  ship  stores,  which  would 
have  been  his  on  arrival  at  the  point  of  desti- 
nation. They  we're  not  broached,  nor  were 
they  on  board  for  use.  Held,  the  representa- 
tion was  verified,  if  the  spirits  were  not  on 
board  for  use  of  officers  or  crew  on  the  voy- 
age, during  the  risk  assumed.  Irvin  v.  Sea 
Ins.  Co.,  23  Wend.,  380. 

5.  Policy  required  insured  to  make  a  just 
and  true  statement  of  all  facts  in  regard  to 
condition,  situation,  value  and  risk  of  the 
property.  Insured  stated  the  value  to  be  from 
$2,000  to  $3,000.  The  insurance  was  on 
goods.  Eefd,  if  the  representation  was  made 
in  good  faith,  and  in  reference  to  a  stock  of 
goods  of  which  those  on  hand  should  consti- 
tute part,  varying  from  $2,000  to  $3,000,  which 
insured  intended  and  expected  to  keep  during 
the  term,  it  was  sustained,  notwithstanding 
there  was  less  than  ^2,000  of  .goods  in  the 
store  at  the  time  the  representation  was  made. 
Leev.  Howard  Mutual  Fire  Ins.  Co.,  11  Cush., 
824. 

(5.  Insured  was  required  to  state  the  rela- 
five  situation  with  respect  to  other  buildings, 
and  she  answered:  "  A  dwelling  house  and 
cabinet  shop,  with  fifty  feet."  There  was  a 
cabinet  shop  two  feet  from  the  premises  in- 
sured. Held,  the  meaning  of  the  answer  was 
that  the  buildings  w-erc  within  fifty  feet  of  the 
shop,  and  therefore  the  representations  were 
true.  Allen  v.  Charlestown  Mutual  Pire  Ins. 
Co.,  5  Gray,  384. 

7.  It  was  described  in  the  application  as  "  a 


hotel  occupied  by  H."  lldd,  if  it  was  used 
as  a  hotel  at  the  time,  there  was  no  false  rep- 
resentation. Hall  V.  People's  Mutual  Fire  Ins. 
Co.,  0  Gray,  185. 

8.  Insured  stated  that  the  building  was  used 
for  the  manufacture  of  lead  pipe  only.  Reels, 
for  coiling  lead  pipe,  were  made  iu  the  attic. 
Held,  the  manufacture  of  lead  pipe  included 
the  making  of  all  things  reasonably  necessary, 
for  carrying  on  the  business.  Collins  v. 
Charlestown  Mutual  Fire  Ins.  Co.,  10  Gray, 
155. 

9.  The  question  was  whether  the  ship  was 
at  Limerick,  as  per  representation  made  by 
insured  to  that  efiect.  The  master's  letter  was 
exhibited  to  the  insurers,  which  stated  that 
she  was  at  Grass  Island.  The  proof  was  that 
Grass  Island  was  in  the  port  of  Limerick,  buti 
not  at  the  town.  Held,  she  was  at  Limerick. 
Bell  V.  Marine  Ins.  Co.,  8  S.  &  R.,  98. 

10.  Insured  stated:  "  East  side  of  the  build- 
ing, small  one  story  sheds,  could  not  endanger 
building  if  they  should  burn."  Held,  though 
the  fire  was  communicated  by  the  sheds  in- 
surers were  liable,  unless  the  representation 
was  fraudulently  made.  Hennison  v.  Tlumas- 
ton  Mut.  Ins.  Co.,  20  Me.,  125. 

11.  The  application  contained  these  ques- 
tions and  answers :  "  For  what  purpose  used  ?  '* 
Ans.  "  It  is  used  for  stores  ? "  "  How  many 
tenants?"  Ans.  "Two."  The  preliminary 
proofs  stated  that  the  east  half  of  the  lower 
story  was  occupied  by  insured  as  a  retail  boot 
and  shoe  store  and  shop ;  half  of  the  lower 
story  as  a  retail  tobacco  and  cigar  store  and 
news  rooms  by  Francis  Otto,  and  the  second 
story  and  garret  as  sleeping  rooms.  Held, 
these  facts  did  not  falsify  the  statements 
made  on  the  application.  Peoria  Marine  and 
Fire  Ins.  Co.  v.  Perkins,  16  Mich.,  380. 

12.  Insured  stated  that  the  building  was 
used  for  "Tobacco  pressing:  no  manufactur- 
ing." In  a  shed,  an  addition  to  the  main 
building,  tobacco  hogsheads  were  manufac- 
tured. Held,  if  the  business  of  making  the 
hogsheads  was  incident  to  and  appertained  to 
the  business  of  pressing,  and  b}-  general  cus- 
tom was  included,  and  understood  to  be  in- 
cluded, in  the  term  "tobacco  pressing,"  there 
was  no  false  representation.  Sims  v.  State 
Ins.  Co.,  41  Mo.,  54.  The  inquirj- should  have 
beeii,  whether  it  was  the  general  custom  for 
those  engaged  in  the  business  of  tobacco 
pressing,  to  prepare  their  own  hogsheads  ii» 

GOl 


1203 


REPRESENTATIONS. 


1204 


When  not  satisfied  —  Intei-pretation  of  —  Questions  for  the  jury. 


•the    building  wliere  the   business  was  con- 
<lucted.    Ihid. 

13.  Insured  represented  in  tlieir  application 
that  open  lights  were  not  used  in  the  mill. 
One  open  kerosene  lamp  was  used  in  the  oflBce 
of  the  mill,  but  not  in  the  mill  proper.  Held, 
no  violation  of  the  representation.  Insurance 
Co.  of  North  America  v.  McDowell,  50  111.,  120. 

14.  In  the  application,  these  questions  were 
asked :  "  How  often  is  account  of  stock  taken  ? 
When  was  it  taken  last?  What  amount  did  it 
reach?"  Answer:  "  Every  three  months:  1st 
January,  1873 :  |4,000."  Held,  not  a  condition 
requiring  insured  to  take  an  account  of  stock 
<?very  three  months.  Wynne  v.  Liverpool,  Lon- 
don, and  Globe  Ins.  Co.,  71  N.  C,  121. 

15.  Insured  represented  that  the  ship  had 
been  metaled  in  1867.  The  proof  was  that 
new  metal  had  been  put  where  it  was  required. 
Held,  no  misrepresentation.  Alexander  v. 
Campbell,  41  L.  J.  Ch.,  478;  27  L.  T.  (N.  S.), 
462. 

IV.  "When  not  satisfied. 

The  premises  were  described  as  a  dwelling 
liouse,  "  Then  occupied  by  a  care-taker,  brick 
and  stone  built,  and  slated."  They  were  occu- 
pied by  a  carpenter,  who  carried  on  his  trade  in 
them  for  ten  months, making  the  drawingroom 
his  workshop  and  using  the  house  as  a  resi- 
dence for  himself  and  family.  Held,  a  care- 
taker implied  a  person  whose  only  duty  was  to 
guard  the  premises  against  injury,  not  to 
-create  danger;  that  the  description  was  mate- 
rial and  false;  hence  there  could  be  no  recov- 
ery allowed.  Quin  v.  National  Ass.  Co.,  1 
Jones  &  Carey,  316. 

V.  Ikteepeetation  of. 

1.  A  letter  exhibited  to  the  insurers  read: 
"The  owners  are  already  insured  against  the 
dangers  of  the  seas,  and  all  other  risks  e.xcept 
capture.  You  have  already  had  'a  description 
of  ship  from  C.  &  D.,  the  agents  of  Mr.  J., 
which  I  presume  is  correct.  I  think  proper 
to  mention  that  the  insurance  will  be  on  ac- 
couut  of  Mr.  B.  L.  and  myself;  Mr.  B.  and 
Mr.  G.  are  also  concerned,  but  the  first  genlle- 
man  thinks  there  is  so  little  danger  of  capture 
Ihat,  in  his  letter  from  Lima,  he  expressly 
directs  tliat  no  insurance  be  made  for  him 
against  this  risk,  and  Mr.  G.  is  not  here  to 
C02 


consult.  Both  these  gentlemen,  as  well  as 
those  for  whom  jou  are  desired  to  make  this 
insurance,  are  native  Americans."  Held,  the 
letter  asked  insurance  for  the  owners;  but  it 
could  not  be  construed  into  a  representation 
that  no  other  persons  were  interested  in  the 
safe  return  of  the  cargo,  nor  was  it  to  be  con- 
strued into  a  representation  that  all  persons 
interested  in  the  cargo  were  native  Americans. 
Licingston  v.  Maryland  Ins.  Co.,  7  Cranch,  506. 
2.  Policies,  for  whom  it  may  concern.  The 
application  for  the  first  contained  this  clause: 
"  As  interest  may  appear."  The  second  was 
predicated  upon  a  letter  written  b}'  D.,  a  part 
of  which  was  as  follows:  "I  wrote  you  a  few 
days  ago  by  the  brig  Ospray,  Capl.  Perkins, 
direct  for  Baltimore,  requesting  you  to  have 
insurance  done  for  me  on  the  brig  Columbia 
and  her  cargo,  owned  and  commanded  by  me, 
to  sail  from  this  to  Baltimore  about  5th  to  10th 
May,  with  a  cargo  of  sugar.  When  I  wrote 
you  by  the  Ospray,  I  could  not  say  what 
amount  of  cargo  to  have  insured  for  me.  I 
now  think  I  shall  have  on  board  about  130,000 
pounds,  valued  at  $8,000,  which  atnount  I 
wish  j'ou  to  have  insured  for  me."  Indorsed: 
"  What  will  |3,000  be  insured  at,  agreeable  to 
within  letter  on  cargo,  of  which  you  have 
$6,000,  insured  some  time  since?  B.  &  H." 
"  II4  per  cent.  Agreed,  as  interest  may  ap- 
pear. B.  &  H."  The  whole  cargo  was  con- 
signed to  D.,  the  master;  and  M.,  a  Spaniard, 
a  belligerent,  was  interested  |6,138.50.  D.,  the  ^ 
master,  was  the  owner  of  the  remaining  inter- 
est.  Held,  whatever  might  be  the  effect  of 
that  letter,  if  taken  alone,  yet  taken  in  C'>nnec- 
tion  with  the  indorsement,  with  the  pre^'ious 
policy  to  which  it  referred,  the  actual  state  of 
the  world  and  the  nature  of  such  transactions, 
it  was  not  such  a  representation  as  would  viti- 
ate the  policy.  Buck  11.  Chesapeake  Ins.  Co.,  1 
Pet.,  151. 

\1.  Questions  for  the  juey. 

1.  Insurer  gave  in  evidence  the  appli- 
cation for  the  policy,  in  which  it  was  stated 
that  the  life  proposed  "Never  had  liver  com- 
plaint, or  disease  of  the  stomach  or  bow- 
els; that  he  had  not,  during  seven  years  pre- 
ceding,  any  sickness  or  disease,  and  that  be 
did  not  then  suspect  any  disease."  He  died 
twenty-four  days  after,  of  congestion  of  the 
liver,  which    produced    fever.      A  physcian 


1205 


REPUGNANT  STIPULATIONS. 


1206 


Generally. 


testificcl  that  for  three  or  four  yiMrs  he  had 
1)eeu  the  family  physician,  and  had  prescribed 
for  him  occasioually  since  185G  for  indigestion, 
torpid  liver,  and  colic;  tliat  he  Ivuevv  decca.sed 
was  sick  for  sliort  jieriods  of  a  day  or  two 
•about  eighteen  months  prior  to  his  death ;  that 
he  then  had  cramps  in  the  stomach.  Other 
witnesses  were  examined  for  insurod  wlio 
said  they  had  never  linown  him  to  be  unwell 
except  very  slightly;  that  they  could  not  say 
whether  the  doctor's  statements  were  or  were 
not  correct.  Held,  the  evidence  was  sufficient 
to  carry  the  case  to  the  jury.  Life  I  nit.  Co. 
4).  Francisco,  17  Wall.,  672. 

2.  Whether  the  time  of  sailing  is  a  material 
representation  is  a  question,  not  for  the  court, 
but  for  the  jury.  M'Lanahan  o.  Universal 
Ins.  Co.,  1  Pet.,  170. 

3.  She  was  represented  as  si.v  years  old  and 
A  2  in  the  books  of  tlie  insurance  companies 
in  New  York.  But  she  was  nearly  eight  years 
old  and  was  not  rated  in  the  books  of  any  of  the 
compauies  in  New  York  as  A  2.  Held,  if  the 
representation  was  material  it  would  avoid  the 
policy.  Bulkley  v.  Protection  Ins.  Co.,  2 
Paine,  83. 

4.  Insured  stated,  "  A  good  watch  is  kept 
upon  the  premises  at  night;  men  are  usually 
at  work;  the  watchman  works  at  the  saws; 
the  building  is  not  left  alone  at  any  time  after 
lie  leaves  duty  in  the  morning  until  lie  re- 
turns  in  the  evening."  Held,  a  question  of 
fact  whether  the  watch  actually  kept  was  or 
was  not  "  good  and  suitable."  Parker  •». 
Bridgeport  Ins.  Co.,  10  Gray,  303. 

5.  Application  made  part  of  policy  stated, 
insured  had  a  watchman  in  the  mill  when  it 
was  not  in  use.  On  tlie  niglit  of  tlie  fire  tlic 
mill  stopped  work  at  six  o'clock  and  the  fires 
were  put  out.  Some  of  the  employes  returned 
at  ten  o'clock  to  see  if  all  was  right.  They 
then  returned  to  their  boarding  house,  about 
tliirty  yards  distant,  and  went  to  sleep.  Held, 
the  court  could  not  declare,  as  matter  of  law, 
what  was  the  proper  degree  of  a  watchman's 
care;  tliat  it  was  for  the  jury  to  say  whether 
the  insured  had  complied  with  his  rcpresen- 
tation,  Power  o.  City  Fire  Ins.  Co.,  8  Phila., 
506. 

6.  Insured  represented  that  tlie  business  of 
manufacturing  had  been  completed  for  the 
season;  and  obtained  insurance  ujion  a  starch 
mill.  There  was  then  a  quantity  of  starch  in 
the  drying  room,  and  afterwards   a  fire  was 


made  in  tlic  furnace  to  expel  moisture  from  it. 
Held,  it  was  a  (juestion  for  tlie  jury  to  decide 
whether  the  drying  of  the  starch  was  or  was 
not  a  part  of  the  manufacturing  process. 
Percival  v.  Maine  Mat.  Ins.  Co.,  33  Me.,  243. 

7.  Whether  representations  are  or  are  not 
material  to  the  risk  is  a  question  of  fact 
for  tlie  jury.  Boardmau  v.  JVfK)  Hampshire 
Mutual  Fire  Ins.  Co.,  20  N.  H.,  O.jl. 

8.  In  the  application,  insured  described  the 
property  as  his.  The  fee  was  vested  abso- 
lutely in  his  wife.  Held,nol  a  warranty  that 
he  held  the  fee,  but  a  mere  representation, 
and  did  not  avoid  the  contract  unless  material 
to  tlie  risk,  of  wliich  tlie  jury  were  the  judges. 
Mutual  Fire  Ins.  Co.  v.  Beale,  18  Jld.,  20. 

YII.  Genekally. 

1.  The  Onus  probandi  is  upon  tlic  insurer  to 
make  out  tliat  the  representation  was  untrue, 
or  that  it  lias  not  been  satisfied  (citing  Hough- 
ton V.  Manufacturers  Ins.  Co.,  8  Met.,  114).  In 
this  case  the  defendant  contended  that  the  in- 
sured did  riot  have  a  cask  of  water  and  buck- 
ets in  the  several  stories  of  the  mill  according 
to  the  representation  stated  in  the  application. 
Held,  the  burden  was  upon  the  defendant  to 
show  that  the  representation  was  n(jt  observed. 
Jones  Manufacturing  Co.  v.  Manufacturers 
Mut.  Ins.  Co.,  8  Cush.,  82. 

2.  Representations  are  to  be  substantially 
true  on  points  material  to  the  risk.  Kentucky 
and  Louisrille  Insurance  Co.  v.  Southard,  8  U. 
Mon.,  634. 

3.  A  representation  need  only  be  substan- 
tially performed;  but  if  false,  in  a  material 
point,  it  avoids  the  policy.  Pawsoii  v.  Watson, 
Cowp.,  785;  1  Doug.,  11  n. 


REPUGNANT  STIPULATIONS. 

I.    Of  THE  COMMENCEMENT  ANDTEKMINAf 
TION   OP  THE  RISK. 
II.  WAKRANTfSS. 

III.  WHEN   THE   CLAIM   M.\TUBE8. 

IV.  KREE   FROM  AVERAGE. 
V.            TERKITORI.^L   LIMITS. 

VI.  REINSURANCE. 

VII.  OTHER    INSURANCE. 

VIII.  THE   PROPERTY   INSCKED. 

IX.  GUNPOWDER. 

608 


1207 


RKPDCiiVANT.STIPULATIONS. 


1208- 


Commencemeut  aiid  termination  of  risk  —  Warranty  —  When  claim  matmres  —  Free  from  average. 


I.  Of  the   commencement    and  ter- 
mination OF  THE  EISK. 

1.  On  a  vessel  for  a  peiiod  of  time  speci- 
fied, to-wit:  Until  October  5,1834.  But  in 
the  printed  part  of  llie  policy  were  these 
words:  "  Until  the  vessel  bo  moored  twenty- 
four  hours  in  good  safety."  Held,  tliey  did 
not  convert  it  into  a  voyage  policy,  nor  into  a 
mixed  policy;  that  it  expired  on  the  date 
named.  Leeds  v.  Mechanics  Ins.  Co.,  8  N.  Y., 
351. 

2.  On  barge  "  lost  or  not  lost  wherever  in 
safety  at  noon   March  26,    1868,    and    trom 

thence  to  noon  on day  of 18 — ,  when 

this  policy  shall  expire;  with  permission  to 
navigate  the  Mississippi  from  St.  Louis  to 
Helena."  Tlic  matter  in  Italics  was  written. 
Held,  the  words  of  limitation  were  in  the 
nature  of  an  exception,  and  should  be  con- 
strued contra  the  party  who  made  thein,  and 
should  be  so  applied  as  not  to  contradict  the 
express  agreement  as  to  the  time  the  risk  was 
to  commence;  hence,  a  loss  before  the  barge 
reached  St.  Louis  was  within  the  policy. 
Schroeder  V.  Stock  and Mut.  Ins.  Co.,  46  Mo., 174. 

II.  Of  wareanties. 

1.  The  applicant  agreed  that  the  application 
contained  a  correct  description  of  the  property 
so  far  as  it  regarded  the  condition,  situation, 
value  and  risk  of  the  same,  and  that  any  mis- 
representation or  suppression  of  material 
facts  shall  destroy  his  claim  for  damage  or 
loss.  The  by-laws  made  all  things  stated  in 
the  application  apart  of  the  policy  and  a  war- 
ranty on  the  part  of  the  insured.  Held,  the 
answers  were  to  be  qualified  by  the  agreement 
which  followed  them;  hence,  insured  was 
bound  only  so  far  as  the}'  were  material  to  the 
rislv  and  were  therefore  for  the  jury  to  deter- 
mine. Elliott  V.  Hamilton  Mut.  Ins.  Co.,  13 
Gray,  139. 

2.  Tlie  declaration  or  proposal  was  made 
part  of  the  contract,  which  stipulated  :  "  If  any 
statement  contained  in  the  declaration  is  un- 
true, the  policy  shall  be  void."  The  proposal 
concluded  in  these  words:  "And  if  it  shall 
hereafter  appear  that  any  fraudulent  conceal- 
ment or  designedly  untrue  statement  be  con- 
tained therein,  then  all  of  the  money  which 
shall  have  been  paid  on  account  of  the  policy 

004 


shall  be  forfeited,  and  the  policy  shall  be 
absolutely  void."  Held,  the  proposal  and  pol- 
icy  must  be  read  together  as  one ;  that  a  state- 
ment in  the  proposal,  untrue  in  fact,  did  not 
avoid  the  policy  unless  it  was  designedly 
made.  Fowkes  v.  Manchester  and  London  Life 
Ass.  Co.,  3  F.  &  F.,  440;  3  B.  &  S.,  917;  8.  c, 
33  L.  J.  Q.  B.,  153;  11  W.  R,  632;  8  L.  T.  (N. 
S.),  309. 

III.  Of  when  the  claim  matures. 

1.  The  act  of  incorporation,  section  16,  pro- 
vided:  "Suits  at  law  may  be  prosecuted  and 
maintained  by  any  member  or  stockholder, 
against  sucli  corporation,  for  losses  whicli 
may  have  accrued,  if  payment  is  withheld 
more  than  two  montlis  on  all  risks  after  such 
losses  shall  have  become  due."  The  policy, 
however,  provided:  "Payment  of  the  loss 
shall  be  made  in  sixty  days  after  the  loss  shall 
liave  been  ascertained  and  proved,  without 
any  deduction  whatever."  Held,  repugnant 
stipulations;  that  the  former  must  yield  to  the 
latter.  Howard  v.  Franklin  Marine  and  Fire, 
Ins.  Co.,  9  How.  Pj-.,  45. 

2.  The  policy  was  made  subject  to  certaiQ 
terms  and  conditions  therein  contained  and 
thereto  annexed.  "  Loss  payable  within  sixty 
days  after  due  notice  and  proof  thereof  shall 
be  made  by  the  insured  in  conformity  to  the 
conditions  annexed  to  this  policy."  Held,  in- 
sured  must  give  notice  and  make  proof  of  the 
loss,  according  to  the  conditions  annexed,  not- 
withstanding the  provisions  of  ch.  106  of  the 
statutes  of  1864.  Eastern  Railroad  v.  Relief 
Ins.  Co.,  98  Mass.,  420. 

IV.  Of  free  from  average. 

1.  "  Warranted  free  from  average  under  ten 
per  cent.,"  also  certain  goods  named  and  all 
"  perishable  in  their  own  nature,  free  from  aver- 
age unless  general,  and  all  other  goods  free 
from  average  under  five  per  cent,  unless  gen. 
eral."  The  first  warranty  was  written,  the 
other  two  were  printed.  Certain  expenses 
in  the  nature  of  general  average  were  incurred, 
but  they  did  not  amount  to  ten  per  cent. 
Held,  the  written  warranty  prevailed  over 
those  that  were  printed,  and  limited  all  kinds 
of  average  to  ten  per  cent.  Coster  v.  Pheenm 
Ins.  Co.,  2  Wash.  C.  C,  51. 


320!) 


REPUGNANT  STIPULATIONS. 


1210 


Temtorial  Mmits  —  Reinsurance  —  Other  insurance. 


2.  "  .$14,300  on  6,000  bo.xes  of  lemons,  free 
of  particular  average,  but  liable  for  loss  of  part 
by  jettison.     $3,800  on  4,000  boxes  r.aisins,  sub- 
ject to  leu  per  cent,  average,  Malaga  to  New 
York.     Raisins  valued   at   .fl.90   per   bo.v  in 
wholes,  halves  and  (juarter  bo.\es  in  propor. 
tion.     Lemons  at  |;4.25  gold  per  box."     The 
printed  clause  read  "  against  perils  to  the  dam- 
age of  the  .said  goods  or  merchandise,  or  any 
liart  thereof"     Another  printed  clause  read 
"  No  partial  loss  or  particular  average  shall  in 
any  case  be  paid  unless  amounting  lo  five  per 
C(!nt."     She  was  stranded  and  totally  lost;  but 
4,000  boxes  of  lemons  were  saved  and  deliv- 
ered in  a  sound  condition.    There  was  a  total 
destruction  of  over  2,000  boxes.     Held,  if  a 
j)ortion  of  a  contract  is  wholly  repugnant  to 
the  rest  of  it,  and  irreconcilable  with  the  man- 
ifest intention  of  the  parties,  apparent  upon  a 
consideration  of  the  whole  instrument,  it  must 
be  stricken  out  (citing  Story  on  Contracts,  ch. 
20,  sec.  6G0) ;  that  all  the  words  of  the  policy 
written  and  printed  must  be  read  together,  and 
if  a  repugnancy  existed   between   them,  the 
written  must  control;  that  it  was  not  an  insur- 
ance on  each  box  of  lemons  at  the  sum  valuoil 
per  box ;  but  it  was  a  single  contract  on  the 
entire  number  of  boxes,  and  no  action  for  the 
loss  could  be   maintained   without  showing 
a  total  loss  of   the  whole,  or    a    loss  of  a 
part    by    jettison    (citing    Newlin  v.   Insur- 
ance  Co.    of  Nortli   America,   20  Penn.   St., 
312).  Hernandez  v.  Sun  Mut^  Ins.  Co.,  G  Blatch., 
317. 

3.  "  Warranted  free  from  loss  caused  by 
leakage,  of  molasses  or  other  liquids,  unless 
occasioned  by  stranding  or  otherwise;"  but 
the  policy  was  indorsed  in  writing:  "On 
spirits  of  turpentine  in  cans  packed  in  bo.xes 
on  deck,  free  from  loss  by  wet,  breakage,  leak- 
age or  exposure."  She  was  struck  by  a  heavy 
sea,  which  washed  the  deck  and  caused  the 
cans  to  leak,  so  that  oa  arrival  at  the  port 
of  destination  they  were  nearly  empty.  Held, 
insurers  were  not  liable.  NciUon  v.  Commer- 
cial Ijis.  Co.,  3  Dner,  45.5. 

4.  On  cargo,  "  Free  from  average,"  were 
written  upon  the  face  of  the  policy.  The 
printed  words  of  the  policy  were  as  follows: 
"  Warranted  free  from  average  unless  gen- 
eral." Held,  the  stipulations  were  repugnant; 
the  written  must  prevail,  and  the  printed 
rejected.  Bargctt  v.  Orient  Mut.  Ins.  Co.,  3 
Bos.,  385. 


V.  Of  tekkitorial  limits. 

Policy  upon  the  life  of  S.,  "  of  Valparaiso, 
Chili,  South  America,"  for  the  term  of  his  naU 
ural  life.  The  policy  prohibited  residence  in 
any  part  of  South  America  without  express 
permission  of  insurer  in  writing.  Insurers  in- 
dorsed  "  Permission  to  reside  at  Valparaiso, 
Chili,"  leaving  the  amount  of  consideration 
blank.  Held,  an  insurance  upon  the  life  of  S., 
a  resident  "of  Valparaiso,"  for  an  agreed  pre- 
mium, was  of  itself  permission  for  him  to 
reside  there  without  further  permission  or 
p.ayment  of  further  consideration.  He  was 
under  no  obligation  to  pay  for  that  privilege. 
Forbes  v.  American  Mutual  Life  Ins.  Co.,  15 
Gray,  249. 

YI.    Of  KEINSURANCE. 

Stipulated:  "To  be  subject  to  the  same 
risks,  valuations  and  nii.des  of  settlement  as 
are  or  may  be  adopted  or  assumed  by  said 
company  "  (meaning  the  company  reinsured). 
Held,  the  printed  conditions  requiring  prelim, 
inary  proofs  of  loss  were  overriden  by  the 
written,  and  the  responsibility  of  the  reinsurer 
became  fixed  when  an  adjustment  was  made 
by  the  original  insurers  with  the  original  in- 
sured. Consolidated  Fire  Ins.  Co.  v.  Cashow, 
41  Md.,  59. 

YII.  Of  othee  insueance. 

1.  Stipulated:  "To  be  void  if  otlier  insur- 
ance shall  be  made  without  notice  to  the  de- 
fendant, and  indorsed  upon  the  policy."  The 
agent  noticed  prior  insurance  upon  the  face 
instead  of  the  back  of  the  policy.  Held,  a  suf- 
ticient  compliance.  Ames  v.  New  York  Union, 
Ins.  Co.,  14  N.  Y.,  253. 

2.  "  Other  insur.ance  permitted  without  no- 
tice until  required,"  written  on  the  face  of  the 
policy,  overrides  another  printed  condition, 
prohibiting  other  insurance.  Blake  v.  Ex- 
change Hut.  Ins.  Co.,  12  Gray,  2G5. 

3.  Polic}-  prohibited  other  insurance  with- 
out notice;  but  the  following  words  were  writ- 
ten on  its  face:  "Other  insurance  permitted 
without  notice."  Held,  it  permitted  prior  as 
well  as  subsequent  insurance.  Frederick 
County  Mut.  Ins.  Co.  v.  Ihford,  38  Md.,  404. 

6U3 


1211 


REPUGNANT  STIPCLATIONS. 


1212 


(.>f  the  property  insured. 


YIII.  Of  the  property  insured. 

1.  ''On  his  stock  of  fancy  goods,  toys  and 
otlicr  articles  in  his  line  of  business,  contained 
in  tlie  bricli  building  situate,  etc.,  and  now  in 
his  occupancy  as  a  German  jobber  and  im- 
porter." Stipulated :  "  The  premises  sliall  not 
be  used  for  carrying  on  therein  any  trade  or 
occupation,  or  for  storing  or  keeping  therein 
articles  denominated  hazardous,  extra  liazard- 
ous,  or  specially  hazardous,  in  the  second  class 
of  liazards  annexed."  Among  the  second  class 
of  hazards,  fire  crackers  in  packages  were 
classed  as  hazardous  No.  2,  and  they  added  to 
the  premium  ten  cents  per  hundred  dollars; 
fireworks  were  classed  in  the  same  as  speciallj' 
liazardous,  and  they  added  fiftj-  cents  per  hun- 
dred dollars  to  the  premium,  and  to  cover 
them,   they  must   be  speciallj-  mentioned  in 

■  writing.  Insured  had  fireworks  in  tlie  store 
for  sale;  and,  the  fire  originated  in  them.  Held, 
fireworks  were  not  included  under  the  name 
of  firecrackers,  and  that  evidence  tending  to 
})rove  that  fireworks  constituted  an  article  in 
the  business  of  a  German  jobber  and  importer 
was  not  admissible,  hence  the  keeping  of  fire- 
works avoided  the  policy.  Sieinbach  v.  Ins. 
Co.,  13  Wall.,  183. 

2.  "  On  printing  and  book  materials,  etc., 
printed  books,  steam  engine,  and  machinery. 
Privilege  for  a  printing  oflice,  bindery  and 
bookstore."  The  printed  terms  prohibited  the 
use  of  the  premises  for  any  business  denomi- 
nated hazardous  or  extra  hazardous,  or  speci- 
fied in  the  memorandum  of  special  rates,  or 
for  storing  articles  in  either  of  those  categories, 
unless  by  special  agreement  in  the  policy. 
Stocks  of  booksellers  and  printers'  books  were 
specified  as  extra  hazardous.  The  business  of 
printers  of  books  was  specified  in  the  memo- 
randum of  special  rates.  The  use  of  cam- 
phene  was  also  prohibited  by  the  printed 
terms.  The  fire  was  caused  by  a  lighted  match 
thrown  by  a  workman  into  a  pan  of  camphene. 
Thejury  found  specially  that  the  use  of  cam- 
phene was  general  among  printers,  for  clean- 
ing ink  rollers,  washing  stereotype  plates,  etc. ; 
tliat  it  was  not  onl\-  useful  but  necessary.  Held, 
a  loss  within  the  policy.  Harper  v.  New  York 
City  Ins.  Co..  23  N.  T.,  441 ;  s.  c,  1  Bos.,  530. 

3.  "  On  printing  and  book  materials,  paper, 
stereotype  plates,  and  printed  books.  Privi- 
lege for  a  printing  office,  binders,  and  book- 
store." Stipulated  in  the  printed  terms:  "  The 

606 


use  of  camphene,  spirit  gas  or  burning  fluid, 
prohibited,  unless  consent  to  keep  it  is  in- 
dorsed on  the  policy."  Held,  it  was  not  tlio 
mere  presence  of  the  article  which  was  pro- 
hibited, but  its  common  though  hazardous  use 
of  lighting  buildings:  but  if  that  were  not  so, 
the  term  stock  includes  everj-thing  incidental 
to  the  business  covered,  without  particular 
mention;  therefore,  in  construing  this  policy, 
if  camphene  were  necessary  in  printing  and 
bookbinding,  it  must  be  regarded  as  permitted 
by  the  policy.  Held,  also,  the  written  matter 
controls  the  printed,  when  the  latter  is  repug- 
nant. Harper  v.  Albany  Mut.  Ins.  Co.,  17  N. 
T.,  194 ;  Bryant  n.  Poughkeepsie  Mut.  Ins.  Co., 
id.,  200;  s.  c,  21  Barb.,  154;  Harper  v.  New 
York  City  Fire  Ins.  Co.,  23  N.  Y.,  441 ;  s.  c,  1 
Bos.,  520. 

4.  "  On  his  stock,  such  as  is  usually  kept  in 
country  stores."  Held,  proper  to  admit  evi- 
dence to  prove  what  goods  were  usually  kept  in 
country  stores;  and  if  the  evidence  disclosed 
a  custom  to  keep  spirits  of  turpentine,  then 
turpentine  was  within  the  policy,  though  pro- 
hibited by  the  printed  terms.  Findar  v.  King* 
County  Ins.  Co.,  3G  N.  T.,  648. 

5.  "  On  his  stock  of  fancy  goods,  toys  and 
other  articles  in  his  line  of  business."  Stipu- 
lated :  "  To  be  void  if  the  premises  shall  be 
used  for  the  keeping  therein  goods  denomina- 
ted specially  hazardous  in  the  second  class  of 
hazards  annexed,  except  specially  permitted." 
Fireworks  were  designated  as  specially  haz- 
ardous, in  that  class  of  hazards.  Insured 
kept  fireworks,  and  by  their  accidental  igni- 
tion the  loss  occurred.  Held,  a  question  of 
fact  for  the  jury  to  determine,  whether  fire- 
works were  in  the  plaintilf's  line  of  business, 
if  they  were,  then  the  description  embraced 
them  (Steinback  v.  R.  Fire  Ins.  Co.,  13  Wall., 
disapproved).  Steinback  t.  La  Fayette  Fira 
Ins.  Co.,  54  N.  T.,  90. 

6.  "  On  their  stock  as  photographers,  includ- 
ing engravings  and  materials  used  in  their 
business."  By  the  printed  terms  of  the  policy, 
the  use  of  kerosene  was  prohibited,  but  th8 
proof  showed  that  kerosene  was  ordinarily 
used  in  the  business,  in  a  portable  lamp  or 
stove,  for  heating  paper  and  for  other  purposes. 
It  also  appeared  that  a  portable  gas  lamp  or 
stove  might  have  been  used  for  the  same  ])ui^ 
poses.  Held,  the  word  materials  included  ev- 
erything in  ordinary  use,  although  things 
other  th.-vn  those  used  might  have  been  substi- 


1213 


REPUGNANT  STIPULATIONS. 


1214 


Of  the  property  insured. 


tuted  (citing  Harper  v.  Albany  Mut.  Ins.  Co., 
17  N.  Y.,  194;  Bryant  ».  Poughkeepsie  Mut. 
Ins.  Co.,  id.,  200 ;  Harper  v.  New  York  City 
Ins.  Co.,  23  id,,  441).  nail  v.  Ins.  Co.  of  North 
America,  58  N.  Y.,  293. 

7.  Insured  applied  for  insurance:  "On  a 
stock  of  all  goods  usually  kept  in  a  country 
store."  He  stated  in  the  application  that 
there  was  no  cotton  or  woolen  waste  or  rags 
kept  in  or  near  the  property  insured.  The 
contract  was  made  subject  to  the  insurer's  by- 
laws, and  they  proliibitcd  all  cotton  or  woolen 
waste  or  oily  rags  from  being  kept  in  the 
premises;  that  such  should  be  destroyed  or 
removed  every  evening.  Held,  the  keeping 
of  clean,  white  cotton  rags  did  not  affect  the 
policy,  if  they  usually  formed  part  of  the  stock 
of  a  country  store.  Elliott  v.  Hamilton  Hut. 
Ins.  Co.,  13  Gray,  139. 

8.  "On  stock  in  trade,  consisting  of  the 
usual  variety  of  a  country  store  (except  dry 
goods),  and  on  their  store  fixtures.  J'ermission 
to  sell  burning  fluid  and  gunpowder,  as  per 
application."  Insured  kept,  as  part  of  the 
stock  in  trade,  whale  oil,  friction  matches, 
earthen  and  glassware,  all  of  which  were 
denominated  liazardous  or  extra  hazardous 
goods,  and,  by  the 'printed  conditions,  were 
jvrohibited,  and  for  keeping  them,  special  con- 
sent was  required  in  writing.  Jleld,  the  writ- 
ten part  of  the  policy  insured  stock  in  trade, 
consisting  of  the  usual  variety  of  a  country 
store;  if  whale  oil,  friction  matches,  glass  and 
earthen  ware  were  of  that  usual  variety,  the 
keeping  of  them  was  no  violation  of  the  terms 
of  the  contract,  and  therefore  parol  proof  tend- 
ing to  show  the  usual  variety  was  admissible. 
Wltitmarah  v.  Oomoay  Fire  Ins.  Co.,  16  Gray, 

■359. 

9.  "On  property  belonging  to  the  corapan}-, 
or  on  any  property  for  wliich  they  may  be 
liable  in  freiglit  buildings  or  j'ards."  Stipu- 
lated: "  Accounts,  books,  furniture  and  cer- 
tain other  articles  (enumerated)  are  not  to  be 
insured  unless  by  special  agreement."  Held, 
accounts,  books  and  furniture,  not  being 
specially  described  in  the  policy  were  not 
insured.  Commonwealth  v.  Hide  and  Leather 
Ins.  Co.,  112  Mass.,  136. 

10.  "On  merchandise,  such  as  is  usually 
kept  in  country  stores."  Hardware,  china, 
glassware  and  looking  glasses  were  designated 
in  the  conditions  annexed  as  hazardous  risks, 
and.  by  the  terms  of  the  policy,  such  were 


neither  to  be  insured  nor  kept,  unless  specially 
insured.  Held,  the  language  of  the  policy  in- 
cluded all  goods  usually  kept  in  country 
stores,  and  if  hazardous  goods  were  usually 
kept  in  such  stores,  then  they  were  specially 
insured.  Franklin  Fire  Ins.  Co.  v.  Updegraff, 
43  Penn.  St.,  350. 

11.  Upon  buildings  used  as  a  tannery 
and  patent  leather  manufactory.  Stipulated: 
"  Privilege  granted  for  keeping  not  more  thaa 
Ave  b.irrels  of  benzole  in  a  small  shed  entirely 
detached  from  all  the  other  buildings,  about 
one  hundred  feet  from  the  main  building." 
Held,  taking  benzole  in  buckets  or  cans  into 
the  buildings,  to  be  used  in  the  process  of 
tanning,  was  a  risk  assumed  \iy  the  company, 
if  that  was  usual  and  customary  in  the  manu- 
facture  of  such  leather;  that  tlie  insurers  were 
bound  to  know  what  things  were  employed  in 
the  business  covered  liy  the  policy,  and  if  they 
were  even  ignorant  that  benzole  was  used  in 
this  case,  the  privilege  of  keeping  benzole  in 
a  shed  near  by  ought  to  have  put  them  on  in- 
quiry.  Citizens  Ins.  Co.  v.  McLaughlin,  5iJ- 
Penn.  St.,  485. 

12.  "On  groceries,  hardware,  boots  and 
shoes,  crockery,  hats  and  caps.  Any  trade  or 
occupation,  or  storing  or  keeping  any  articles, 
goods  or  merchandise  denominated  hazardous, 
extra  hazardous  or  specifllly  hazardous,  pro- 
hibited." Stipulated:  "Whenever  gunpow- 
der or  other  articles  subject  to  legal  restric- 
tion shall  be  kept  in  quantities  greater  than 
the  law  allows,  or  in  a  manner  different  from 
that  prescribed  by  law,  this  policy  shall  be 
null,  unless  the  use  or  keeping  is  specially 
provided  for  herein."  Insured  had  in  store  a 
few  bottles  of  spirituous  liquors  and  a  barrel 
of  alcohol.  Spirituous  liquors  and  alcohol 
were  denominated  liazardous,  etc.  Held,  it 
was  proper  for  the  court  to  instruct  the  jury 
that  it  was  a  question  of  fact  for  them  to  tiud 
whether  alcohol  was  or  was  not  included  in 
the  term  "groceries;"  for  if  that  term  in- 
cluded liquors  and  alcohol,  then,  by  insuring 
groceries,  they  were  specially  permitted  in 
writing  on  tlie  policy.  Niagara  Fire  Ins.  Co. 
V.  Be  Graff.  12  Mich,,  124. 

13.  |5,000  on  pork,  lard,  bacon,  etc.,  and 
all  other  articles  composing  the  stock  of  a 
pork  house.  Stipulated:  "Goods  held  in 
trust  or  on  commission  are  to  be  insured 
as  such ;  otherwise  the  policy  will  not 
cover  them."    Held,  it  included  all  properly 

607 


1215 


RESCISSION  Oil  CANCELLATION. 


1216 


What  is  a  rescission. 


known  as  stock  of  a  pork  house,  whether  it 
was  the  property  of  the  insured  or  of  others 
intended  to  be  benefited  by  the  policy  to  the 
extent  of  their  interests,  although  goods  held 
in  trust  or  on  commission  were  not  e.xpressly 
insured.  Jackson  v.  uStna  Ins.  Co.,  10  B. 
Hon.,  243. 

14.  On  a  wagonmaker's  shop  and  materials 
for  manufacturing  wagons.  Insured  had  a 
half  barrel  of  benzine  in  the  shop,  for  mixing 
paints  to  be  used  upon  wagons.  The  policy 
stipulated  that  the  company  should  not  be 
liable  for  damages  resulting  from  explosions 
■caused  by  gunpowder,  gas,  or  other  explosive 
substances,  nor  damages  occasioned  by  cam- 
phene,  spirit  gas  or  burning  fluid,  unless  oth- 
wise  expressly  provided.  Held,  if  a  paint  shop 
■was  a  common  part  of  a  wagonmaker's  shop, 
and  paints  were  used  for  manufacturing  wag- 
ons, and  were  customarily  kept  in  the  building 
vised  for  that  purpose,  and  beuzine  was  a  ma- 
terial used  for  mixing  such  paints,  then  the 
printed  conditions  were  plainly  repugnant  to 
the  written  clause  and  were  to  be  disregarded. 
Arclier  v.  Merchants  aud  Manufacturs  Ins.  Co., 
43  Mo.,  434. 

15.  The  insurer  consented  that  the  building 
should  be  used  for  manufacturing  certain  arti- 
cles. In  the  manufacture  of  them  it  was 
necessary  to  keep  and  use  an  article  expressly 
prohibited.  Held,  consent  to  manufacture 
carried  with  it  consent  tii  keep  for  use  every- 
thing necessarj'  in  the  manufacture.  Viele  v. 
Oermania  Ins.  Co.,  26  Iowa,  9. 

IX.  Of  gunpowdee. 

1.  On  stores.  Permission  was  given  to 
keep  extra  hazardous  goods  enumerated,  tut 
gunpowder  was  not  mentioned  in  the  list.  At 
the  end  of  the  list  these  words  were  printed  : 
"  Gunpowder  is  not  insurable  except  by  spe- 
cial agreement."  There  were  three  kegs  of 
gunpowder  removed  during  the  fire,  and 
while  one  of  the  buildings  was  being  con- 
sumed, a  loud  explosion  took  place  which 
■was  described  as  the  explosion  of  a  quantity 
of  gunpowder.  Held,  insured  had  a  right  to 
put  gunpowder  in  the  buildings,  but  he  was 
not  entitled  to  be  paid  for  gunpowder  con- 
Bunicd  by  the  fire,  for  there  was  no  special 
agreement  to  insure  it.  Duncan,  v.  Sun  Fire 
Ins.  Co..  6  Wend.,  488. 

2.  On  a  stock  of  goods  cimsisting  of  a  gen- 
tSOS 


eral  assortment  of  dr^-  goods,  groceries,  crock, 
ery,  boots  and  shoes,  and  such  other  goods  as 
are  usually  kept  in  a  general  retail  store.  A 
printed  clause  prohibited  the  storing  of  gun- 
l)owder,  phosphorus  or  saltpetre.  Ileld,  the 
written  portion  controlled  the  printed  stipula- 
tions; where  the  two  were  repugnant,  the 
written  must  govern  the  rights  of  the  parties; 
the  written  words  were  broad  enough  to  in- 
clude any  goods  that  were  usually  dealt  in  by 
persons  keeping  a  general  retail  store.  Phoe- 
nix Ins.  Co.  V.  Taylor,  5  Minn.,  493. 


RESCISSION  OR  CANCELLATION. 

I.  What  is  a  kescissiojt. 

II.  NOT  A  KESCISSIOX. 

III.  QTJESTIOKS  SHALL  KOT  BE  SUBMIT- 

TED TO  THE  JUKY. 

IV.  Generally. 

I.  What  is  a  eescission. 

1.  Two  shipments  were  at  sea  and  two  oth- 
'ers    in  port  -nhen  insurers  became  insolvent, 

and  so  notified  defendants,  who  had  given  one 
premium  note  for  the  whole  premium.  The 
da}'  after  this  notice  was  received,  the  parties 
agreed  to  cancel  the  policy.  Held,  the  court 
would  not  infer  an  intent  to  abrogate  the  in- 
surer's obligation  and  leave  that  of  the  insured 
to  stand.  Uerchants  Mut.  Ins.  Co.  v.  Under- 
wood, 1  Sandf.,  474. 

2.  A  broker  employed  by  plaintiff  procured 
the  policy,  which  stipulated  that  the  insurer 
could,  atr  its  option,  .advance  the  rate  of  pre- 
mium. Insurer  notified  the  broker  of  an  ad- 
vance of  premium,  one  per  cent.  The  bro. 
ker's  clerk,  without  the  knowledge  or  consent 
of  the  plaintiff,  returned  the  policy  to  insurer, 
directed  it  to  be  canceled,  and  it  was  can- 
celed.  Held,  though  the  policy  was  returned 
for  cancellation  by  a  mistake  of  plaintiffs 
agents,  no  action  could  be  maintained  on  it. 
Sta7idard  Oil  Co.  t.  Triumph  Ins.  Co  ,  6  N.  Y. 
S.  C,  300. 

3.  Insurers  reserved  the  right  to  cancel  iu 
case  any  assessment  should  remain  unpaid  for 
thirty  days.  After  an  assessment  was  overdue 
insured  assigned  the  policy,  and  insurers  as- 


1217 


RESCISSION  OR  CANCELLATION 


1218 


What  is  not  a  rescission. 


si'nted,  and  subsequently  notified  assignee  as 
follows:  "The  company  cancels  all  policies 
on  which  assessments  are  not  paid  in  thirty 
days."  Held,  insurers  could  not  maintain  an 
action  for  the  premium.  Columbia  Ins.  Co.  v. 
Slasoiihcimer,  70  Penn.  St.,  138. 

4.  A  by-law,  a  part  of  the  contract,  gave 
the  right  to  insurer  to  cancel  the  policy  after 
seven  days  notice.  The  directors  iirdered  the 
canceling  of  a  certain  class  of  policies,  in- 
cluding the  plaintiff's  premises.  A  notice  to 
that  etfect  was  deposited  in  the  postofHce, 
February  t3th,  after  the  mail  had  closed. 
The  plaintiff  received  it  Febrnary  14th,  and 
the  properly  insured  was  burned  February  22d. 
ndd,  the  contract  was  rescinded.  Einmvtt  v. 
Slater  Mutual  Fire  /hs.  Co.,  7  R.  I.,  5(52. 

5.  The  articles  of  incorporation  and  by- 
laws authorized  the  directors  to  recover  delin- 
quent assessments,  or  at  their  option  to  annul 
the  policy.  They  pa.ssed  a  resolution  declar- 
ing that  holders  of  policies  who  were  delin- 
quent on  a  certain  assessment,  and  others  who 
should  remain  delinquent  beyond  a  date  men- 
tioned, should  be  excluded  and  debarred  from 
all  benefits  of  their  Insurances.  Held,  the  di- 
rectors had  the  authority  to  pass  the  resolu- 
tion, and  it  w'as  effectual  to  annul  the  con- 
tract of  the  insured.  Coles  v.  Iowa  State  Mu- 
tual Ins.  Co.,  18  Iowa,  42.5. 

6.  Policy  to  expire  July  29,  1858.  She  was 
in  port  April  13th,  and  insured  directed  the 
broker  to  get  credit  for  the  premium  for  the 
unexpired  time.  On  20th  of  April  the  de- 
fendants canceled  the  polic}',  allowing  credit 
£1  17s.  lOd.,  for  three  months  unexpired  time. 
But  not  having  received  any  reply  on  the  22d 
to  their  order,  they  wrote  a  note  withdrawing 
it.  The  ship  was  burned  on  that  day.  Held, 
the  rescission  was  complete.  Barnes  v.  Wood- 
fall.  6  C.  B.  (N.  S.),  657;  s.  c,  28  L.  J.  C.  P., 
mS:  6  Jnr.  (N.  S.),  19. 

7.  Stipulated:  "The  original  term  shall  be 
treated  as  a  renewed  contract  of  the  like  na- 
ture and  conditions,  unless  the  member  inter- 
ested or  the  board  of  directors  shall  give  two 
calendar  months  notice  of  an  intention  not  to 
renew  the  same."  Insured  told  the  person 
■with  whom  ho  effected  the  policy  that  he 
should  withdraw  from  the  society  and  have 
nothing  further  to  do  with  it.  Held,  a  suffi- 
cient notice  of  withdrawal,  and  insured  was 
not  liable  as  a  contributory  to  the  debts  of  the 
association     In  re  Solvency  Mutual  Guarantee 

39 


Society,  Hawthorne's  Case,  10  W.  R.,  573;  0  L. 
T.  (N.  S.),  574. 

1  r.    A\'irAT  IS  NOT  A  RESCISSION. 

1.  The  insured  signed  an  application  which 
contained  the  following  stipulation:  "The  in- 
surance on  this  api)lication  is  to  take  effect 
when  ajjproved  by  E.  P.  Dorr,  general  agent 
of  the  ^tna  Insurance  Co.,  Buffalo,  N.  Y." 
The  company's  agent,  at  the  place  where  the 
application  was  made,  had  been  furnished 
with  blank  policies  duly  signed  by  the  presi- 
dent and  secretar3',  which  required,  to  make 
them  valid,  nothing  but  the  terms  of  the  con- 
tract  to  be  written  in  them,  and  to  be  counter, 
signed  by  the  agent.  He  filled  up  and  deliv. 
ered  one  of  them  to  the  insured,  and  ac 
cepted  the  usual  premium  note  as  the  con. 
sideration.  The  application  was  transmitted 
by  the  local  to  Dorr,  the  general  agent,  who 
received  it  September  29th.  He  directed  the 
local  agent  to  return  the  premium  note  to  in- 
sured and  to  cancel  the  policy.  Nothing 
further  was  done  till  after  the  loss,  October 
35th.  Held,  the  policy  issued  was  perfect  in 
form  and  substance ;  that  the  act  of  the  local 
agent  could  not  be  regarded  as  a  nullity  until 
approved  by  Dorr;  that  the  stipulation  quoted 
must  be  considered  in  connection  with  other 
parts  of  the  transaction,  and  treated,  at  most, 
as  the  reservation  of  a  right  which  the  general 
agent  could  not  exercise  arbitrarily.  Insur- 
ance Co.  V.  Wehster,  6  Wall.,  129. 

2.  The  insured  proposed  to  insurer  tr,  cancel 
the  polic}',  which  was  rejected;  and  afterwards 
insurers  informed  insured  that  they  would  ac- 
cede to  their  terms.  But  before  insured  re- 
ceived that  notice,  information  reached  them 
that  a  loss  had  occurred.  Held,  the  policy 
was  binding  upon  the  company.  Head  v. 
Providence  Ins.  Co.,  3  Cranch,  127. 

3.  Under  an  agreement  madfe  between  libel- 
lants  and  William,  he  purchased  several  car- 
goes of  wheat  in  Milwaukee  and  shipped 
them  to  libellantsal  Buffalo.  William  associ- 
ated with  him  three  other  persons  in  the  busi- 
ness; but  they  were  neither  known  to  nor 
recognized  by  libellants.  In  pursuance  of  that 
agreement  he  shipped  on  board  the  schooner 
Excelsior  a  quantity  of  wheat  in  the  name  of 
D.  as  shipper,  and  insured  it,  loss,  if  any,  pay- 
able  to  D.,  for  which  he  took  a  certificate  of 
insurance,  loss  p.nyable  to  D.  or  order  hereoa 

009 


1219 


RESCISSION  OR  CANCELLATION. 


1220 


Wliat  is  not  a  rescission. 


on  tlie  return  of  this  certificate.  William  and 
liis  associates  were  agents  of  eastern  insurance 
companies,  and  as  such,  procured  the  certifi- 
cate. William  drew  against  the  shipment  in 
favor  of  D.  Libellants  sent  a  telegram  to 
AVilliam  which  he  misunderstood,  and  in  con- 
sequence, he  notified  insurers  to  cancel  the 
policy.  The  schooner  foundered  and  the 
propertj'  insured  became  a  total  loss.  No- 
tice  was  given  of  the  mistake  forty-eight  hours 
after  the  loss.  Ileld,  libellants  were  in  no 
sense  partners  with  William  and  his  associ- 
ates; D.  held  the  legal  title  to  the  cargo ;  that 
no  person  could  disturb  his  interest  in  the 
certificate  of  insurance  without  his  consent; 
the  libellants  having  honored  the  draft  became 
the  legal  owners  of  the  cargo,  and  by  indorse- 
ment of  the  certificate  of  insurance,  the  legal 
owners  of  it;  that  William  had  no  authority, 
from  any  source,  to  cancel  or  to  give  notice  of 
cancellation.  Marsh  v.  Northwestern  National 
'  Ins.  Co.,  iJ  Biss.,  351. 

4.  Stipulated:  "The  insurer  may  terminate 
the  insurance  at  any  time,  on  giving  notice 
and  refunding  a  ratable  poi-tion  of  the  pre- 
mium for  the  unexpired  term."  In  the  latter 
part  of  November,  1865,  Insurers  gave  notice^ 
to  a  person  said  to  be  the  plaintiff's  agent, 
that  they  would  cancel  the  policj'  and  return 
him  the  unearned  premium  ^;/'o  rata,  but  would 
allow  him  till  noon,  December  6, 18G5,  to  place 
the  insurance  elsewhere.  The  policy  was 
canceled  on  the  books  of  the  company  as  of 
that  date,  and  $24  was  subject  to  the  call  of 
the  plaintilf  or  his  agent.  The  property  was 
consumed  December  25lh ;  but  this  fact  was 
unknown  to  insurers  or  the  agent  of  insured 
December  30th,  at  which  time  he  received  the 
unearned  premium  and  signed  a  cancellation 
receipt.  Ueld,  from  the  time  the  fire  occurred, 
insurer  became  an  absolute  debtor  to  the 
plaintiff  because  the  amount  of  the  insurance; 
that  the  negotiations  after  the  company's 
liability  became  fixed  could  not  discharge  the 
insurer,  for  a  debt  cannot  be  discharged  by 
payment  of  part  only;  that  the  notice  to 
cancel  was  not  effectual  until  paj'ment  of  the 
unearned  premium.  Van  Valkenburgh  v. 
Lenox  Fire  Ins.  Co.,  51  N.  T.,  4G5. 

5.  Stipulated  that  either  party  miglit  cancel 
the  policy  at  any  tmie.  The  agent  was  direct- 
ed to  cancel  it,  but  he  agreed  with  insured 
that  it  should  remain  in  force  till  another 
policy   could    be    procured ;  and   a    loss  oc- 

610 


curred  before  that  was  done.  Held,  a  valid 
existing  contract  against  the  defendants. 
Goit  t.  National  Protection  Ins.  Co.,  25  Barb., 
189. 

6.  Stipulated:  This  insurance  may  be  at 
any  time  terminated  at  the  option  of  the  com- 
pany,  on  giving  notice  to  that  effect  and  re- 
funding  a  ratable  proportion  of  the  premium 
for  the  unexpired  term.  March  13th,  1866,  de- 
fendant's  agent  was  ordered  to  cancel  it, 
which  order  was  communicated  to  insured, 
who  requested  agent  to  ask  defendants  to 
leave  the  policy  in  force  till  April  1st  next. 
The  agent  complied  with  this  request.  The 
defendants  refused,  but  consented  to  allow 
it  to  continue  till  March  21st,  at  noon,  all  of 
which  was  communicated  to  insured  before 
March  20th,  and  to  which  insured  assented 
and  agreed  to  call  at  the  agent's  office  with  the 
policy  March  21st,  and  receive  the  return  pre- 
mium, and  have  the  policy  canceled.  Insured 
called  at  the  agent's  office,  but  failed  to  find 
him.  Several  conversations  took  place  be- 
tween the  parties  afterwards,  but  as  to  what 
was  said  the  evidence  conflicted.  Held, 
the  burden  was  upon  the  defendant  to  prove 
that  the  plaintiff  waived  payment  of  the  re- 
turn premium,  and  unless  that  was  waived  the 
policy  contiuiied  in  force.  Halhvrn  e.  Ger- 
mania  Ins.  Co.,  55  Barb.,  28. 

7.  Insurers  directed  their  agent  to  cancel 
the  policy,  unless  insured  would  pay  an  en- 
Lanced  premium,  which  information  was  con- 
veyed by  the  agent  to  the  person  who  pro- 
cured the  insurance.  Insured  declined  to 
pay  the  additional  rate,  and  the  person  who 
procured  the  policy  requested  insurer's  agent 
to  postpone  the  cancellation  until  he  could 
get  another  company  to  take  the  risk.  The 
vessel  was  destroyed  by  fire  on  the  night  of 
March  1,  1867.  The  person  who  procured 
the  insurance,  without  knowing  that  the  loss 
had  occurred,  procured  a  policy  on  the  same 
risk  fur  the  same  amount,  took  it  to  the  of&ce 
of  insured,  and,  speaking  to  a  person  in 
charge  of  the  books  and  papers,  said  he 
wished  to  make  some  change  in  their  poll- 
cies,  which  were  handed  to  him.  He  took  the 
defendant's  policy  out  and  put  the  Merchants' 
policy  in  its  place.  Neither  the  insured  nor 
the  person  in  charge  of  their  papers  knew 
tliat  he  had  done  so.  He  marked  the  defend- 
ant's  policy  canceled,  and  delivered  it  to  the 
defendant's  agent.    Held,  the  policy  was  not 


1231 


RESCISSION  OR  CANCELLATION. 


1223 


What  is  not  a  rescission. 


canceled.     McLean  v.  Repuhlic  Fire  Ins.  Co., 
3  Liins.,  431. 

8.  Action  on  a  premium  note.  Ileld,  an 
unexecuted  parol  agreement  to  cancel  the  pol- 
icy and  surrender  the  note  for  a  payment  of 
part  could  not  defeat  the  action.  Columbia 
Ins.  Co.  V.  Stone,  3  Allen,  385. 

9.  Stipulated:  "The  company  have  the 
right  of  canceling  any  policy  at  any  time 
■when  two.thirds  of  the  directors  present  at 
any  meeting  shall  doem  there  is  sufficient 
cause  therefor."  The  directors  passed  a  rcso. 
lution  that:  "All  deposit  notes  on  existing 
policies  be  collected  in  full  and  that  holders 
of  policies  be  notified  to  pay  their  notes  with- 
in thirty  days,  and  if  the  same  are  not  paid 
within  that  time  tlie  policies  will  be  can- 
celed." A  copy  of  the  resolution  was  sent  to 
insured,  and  a  request  to  pay  the  note;  no  at- 
tention was  paid  to  it.  Insured  were  furtlier 
notified  to  p;iy  the  premium  or  to  deliver  the 
policy  to  be  canceled.  Held,  neither  the  reso- 
lution nor  the  notice  amounted  to  more  than 
an  intention  to  cancel.  Lyman  v.  State  Mitt. 
Ins.  Co.,  14  Allen,  329. 

10.  The  sixth  plea  alleged  that  the  deceased 
procured  the  policy  in  the  name  of  his  wife, 
and  afterwards  surrendered  it  to  the  company 
in  consideration  of  certain  misrepresentations, 
and  a  new  policy  was  issued  upon  the  life  of 
the  deceased,  bearing  date  about  one  year  af- 
ter the  first,  for  the  amount  of  if.'iOO,  payable 
to  tlie  representatives  of  the  deceased.  Held, 
no 'answer  to  an  action  on  the  first  policy,  for 
the  husband  had  no  legal  right  to  control  it, 
and  the  unauthorized  surrender  set  up  in  tlie 
plea  constituted  no  defense.  Fraternal  Mutu- 
al Life  I}u.  Co.  V.  Applegate,  7  Ohio  St.,  292. 

11.  Insured  wrote  to  insurer's  secretary: 
"Consider  policy  No.  39  canceled  from  the 
18th  inst.,  and  make  a  new  policy  from  that 
date  for  one  year,  with  privilege  of  the  Mis- 
sissippi." Insurer  replied  :  "  I  cannot  agree 
to  the  proposed  change,  and  therefore  cancel 
pro  rata,  and  charge  return  premium."  The 
insured  made  no  rejoinder  to  insurer's  reply, 
but  retained  the  policy.  Held,  until  he  as- 
sented to  insurer's  reply  the  policy  was  a  val- 
id contract.  Wilkins  ».  Tobacco  Ins.  Co.,  1 
Cin.  Sup.  Ct,  349. 

12.  Evidence  was  given  tending  to  show 
that  insurers'  agents  liad  taken  the  promissory 
note  of  insured  for  the  premium.  Insurers 
directed  their  agents  to  cancel  the  policy,  and 


they  gave  insured  notice  that  they  had  can- 
celed it.  Held,  if  the  agents  of  insurers  acting 
for  themselves,  advanced  the  money  for  the 
premium  to  the  insurers,  and  took  tlie  prom- 
issory  note  of  insured  for  the  amount,  insurers 
could  not  cancel  the  policy  without  returning 
the  unearned  premium.  It  was  no  conse- 
quence who  paid  the  premium.  Home  Ins.  Co. 
V.  Curtis,  S.  C.  Mich.,  .5  Ins.  Law  Jour.,  120. 

13.  The  company  had  the  right  to  cancel 
the  policy  if  the  directors  should  so  elect,  after 
notice  given  to  the  insured.  The  directors 
passed  a  resolution  September  21,  1871,  by 
which  they  resolved  to  discontinue  risks  un- 
der  policies  issued  upon  property  outside  the 
county  of  St.  Louis.  The  property  insured 
was  not  within  the  county  of  St.  Louis.  The 
secretary  of  the  company  gave  notice  to  in- 
sured that  tlie  policy  was  canceled,  asked  for 
its  surrender,  and  oflered  to  return  the  premi- 
um note.  No  other  notice  was  served  upon 
insured.  Held,  the  company  could  not  cancel 
without  giving  a  previous  notice  to  insured; 
also,  before  the  cancellation  could  have  any 
effect,  it  must  be  entered  upon  the  books  of 
the  company,  because  the  charter  required 
that  the  Insured  should  be  bound  for  his  pro- 
portion of  assessments  up  to  the  day  of  actu.al 
cancellation  on  tiie  books  of  the  company; 
and,  as  the  compan}'  retained  the  right  to  make 
assessments  up  to  that  da}-,  the  policj'  holder 
could  not  be  divested  of  his  protection  in  the 
absence  of  a  strict  compliance  with  the  condi- 
tion. Landis  v.  Home  Mutual  Fire  and  Ma- 
rine Ins.  Co.,  56  Mo.,  591. 

14.  One  of  the  insured  received  information 
that  insurer  li.ad  directed  the  polic}'  to  be  can- 
celed ;  but  the  insurers' agent  verb.-vlly  agreed 
that  the  risk  should  be  carried  until  insured 
should  again  hear  from  the  agent.  Insured 
subsequently  gave  directions  to  the  agent  to 
transfer  the  risk  to  another  company,  but  the 
agent  did  not  do  so.  Tender  of  the  premium 
was  never  made.  Held,  there  was  no  rescis- 
sion of  the  contract  so  long  as  there  was  no 
tender  of  unearned  premium,  JEtna  Ins.  Go. 
V.  Maguire,  51  111.,  343;  Peoria  Marine  and 
Fire  Ins.  Co.  v.  Botto,  47  id.,  516. 

15.  Stipulated:  "Insurer  may  repay  un- 
earned  premium  and  cancel  the  policy  at 
any  time."  Held,  an  ofl'er  to  repay  and 
rescind  could  not  be  allowed,  if  the  prop- 
erty was  threatened  by  an  approaching  fire. 
To  allow  insurer  to  cancel  at  that  time  would 

611 


1223 


RESCISSION  OR  CAKUELLATIOX. 


1224: 


What  quebtions  shall  not  be  submitted  to  the  jury  — Generally. 


render  policies  valueless.     Ilome  Inn.  Co.  v. 
Heck,  Of)  III.,  111. 

16.  The  policy  stipulated  that  the  contract 
might  be  at  any  time  terminated  at  the  option 
of  the  insurer  by  giving  notice  to  that  effect, 
and  refunding  a  ratable  proportion  of  the  pre- 
mium for  the  unexpired  terra.  The  insurers 
elected  to  cancel  the  policy,  unless  insured 
would  pay  an  additional  premium,  which  tiiey 
declined  to  do.  The  policy  was  forwarded 
from  Gadsion,  Ala.,  to  Rome,  Georgia,  for  can- 
cellation, January  15th,  and  was  received  by 
the  agents  of  insurer  at  Rome  on  the  17th  or 
18th,  who  notified  agents  of  insured  that  he 
was  ready  to  pay  the  unearned  premium ;  but 
he  did  not  in  fact  pay  it  till  February  27th,  at 
■which  time  the  goods  had  been  burned.  That 
fact  was  not  known  to  either  party  when  the 
money  was  received.  Held,  the  policy  was 
not  canceled  until  the  money  was  received  by 
tlie  agent  of  insured  (citing  t'eoria  Marine  and 
Fire  Ins.  Co.  v.  B(>tto,47  111.,  51C;  Hawthorne 
«.  Germania  Ids.  Co.,  55  Barb.,  28);  that  the 
return  premium  was  paid  and  received  in  ig- 
norance of  the  loss;  therefore  the  insurer  was 
not  released  from  his  liability  under  the  con- 
tract. HoUingsworth  v.  Gennania  Fire  Ins. 
Co.,  45  Ga.,  2!J4. 

17.  B.  instructed  his  broker  to  procure  iu- 
surauce  on  the  ship  for  £2,000,  for  a  specified 
time.  The  broker  made  the  requisite  appli- 
cation to  insurers'  agent,  a  policy  was  pre- 
pared, and  the  broker  debited  with  the  pre- 
mium. A  debit  note  was  sent  with  the  i)ol- 
icy  to  the  broker's  oflice;  but  his  clerk  told 
the  person  that  brought  it  tliat  there  had  been 
a  mistake,  that  the  policy  ought  not  to  have 
gone  forward,  and  that  there  was  no  premium 
due.  It  was  returned  to  insurers'  office,  and 
one  olMhe  broker's  clerks  there  repeated  what 
the  other  clerk  had  said,  and  requested  a  can- 
cellation, which  was  accordingly  granted,  and 
it  was  returned  to  the  broker  with  a  mem- 
orandum to  that  effect  indorsed,  to  enable 
Jiim  to  get  a  return  of  the  stamp  duty.  The 
broker's  clerks  acted  without  any  instructions 
from  the  insured,  and  subsequently  upon  dis- 
covering the  mistake,  requested  insurers  to  re- 
instate tiie  policy,  which  would  have  been 
done  but  for  the  fact  that  the  ship  was  then 
stranded.  She  was  subsequently  totally  lost. 
Held,  there  was  a  perfect  and  binding  con- 
tract when  the  policy  was  signed  and  sealed, 
notwithstanding  it  remained  in  possession  of 

613 


insurer;  that  it  was  not  necessary  for  tlie  in- 
sured to  formally  accept  or  take  away  the  pol- 
icy  iu  order  to  make  the  delivery  complete; 
that  the  alleged  cancellation  was  not  binding 
upon  insured,  because  lie  never  gave  the  broker 
authority  to  cancel,  and  it  was  no  part  of 
the  ordinary  duly  or  power  of  a  broker  to 
cancel  completed  agreements.  Xenos  v.  Wick- 
finm,  3  L.  R.  ling.  &  Ir.  App.,  296;  14  C.  B. 
(N.  S),  861;  16  L.  T.  (N.  S.),  800;  16  W.  R., 
38;  36  L.  J.  C.  P.,  313;  reversing  s.  c,  13  C.  B. 
(N.  S.),  381 ;  14  id.,  435;  9  Jur.  (N.  S.),  471 ;  10 
id.,  339;  11  W.  R.,  1067;  33  L.  J.  C.  P.,  13. 


III.   What  questions  shall  not  bb 

SUBJnTTED    TO    THE    JUEY. 

The  offer  to  cancel  and  refund  the  premium 
was  made  while  the  proiierty  was  threatened 
by  an  approaching  fire.  Held,  the  right  of 
insurers  to  return  the  premium  and  cancel 
the  policy'  could  not  be  made  to  depend  upon 
the  bona  fides  of  the  insurer's  agent,  because 
that  would  lake  away  from  the  jury  the  ques- 
tion of  threatened  and  imminent  danger  of  an 
approaching  fire.  Home  Inn.  Co.  ■».  Heck,  65 
111.,  111. 

IV.  Generally. 

1.  If  the  insurers  claim  the  right  to  rescind 
the  contract  general!}',  they  cannot  afterwards 
assign  a  specific  reason.  If  a  specific  re.asou 
is  assigned  they  are  bound  b)'  it  and  cannot 
be  allowed  to  show  any  other.  Cahill  B.  Ande» 
Ins.  Co.,  5  Biss.,  211. 

2.  If  the  party  who  has  been  guilty  of  the 
fraud  in  procuring  the  contract,  brings  au 
action  to  enforce  it,  the  other  party  is  nut 
obliged  to  return  what  he  has  received  tinder 
it,  but  maj-  set  up  the  fraud  as  a  ccuuplele  or 
partial  defense  to  the  whole  action,  without 
showing  that  on  discovering  the  fraud,  he 
offered  to  rescind.  Harris  v.  Equitable  Life 
Ass.  Soc,  3  Hun.  (N.  Y.),  734;  s.  c,  6  N.  Y.  S. 
C,  108. 

H.  Insurer  alleged  that  the  policy  had  been 
canceled  before  the  loss  occurred.  Held,  it 
was  not  necessary  to  aver  that  the  canccllaliou 
took  place  with  the  knowledge  and  consent 
of  insured,  f(U-  tliere  could  be  no  rescission  or 
cancellation  without  his  knowledge  and  con- 
sent; and  that  was  matter  of  proof  to  be  given 


1225 


RES  JUDICATA  — RETURN  PREMIUM. 


122G 


Miscellaneous. 


upon  the  Irial.  King  v.  Enterprise  Ins.  Co.,  45 
lad.,  4;!. 

4.  Stipulatpilr  "  If  (hiring  the  insurance  the 
risk  be  increased  by  the  erection  of  buildings, 
or  by  the  use  or  occupation  of  ncigliboring 
j)remisi!s,  or  otliervvise,  or  from  any  other 
cause,  if  the  company  shall  so  elect,  it  shall 
be  optional  with  the  company  to  tcnuinate 
the  insurance,  after  notice  is  given  to  the 
insured  or  his  representatives,  of  an  intention 
to  do  so,  in  vphioh  case  the  company  will 
refund  a  ratable  proportion  of  the  premium." 
Ifeld,  for  any  of  the  causes  mentioned  insurer 
had  tlie  right  to  cancel  the  policy.  Albany 
City  Ins.  Co.  v.  Keating,  46  111..  304. 

5.  The  court  instructed  the  jury,  that  al- 
though there  might  be  misrepresentation  in 
the  application,  insurers  could  not  avail  them- 
selves of  that  defense  without  first  tendering 
to  insured  the  premium  paid.  IleUl,  this  is 
undoubtedly  the  law  in  regard  to  the  rescission 
of  contracts;  but  it  had  no  application  to  the 
case  at  bar,  for  any  fraudulent  misrepresen- 
tation of  a  fact  material  to  the  risk  vitiated 
the  policy.  BIneser  v.  Milwaukee  MecJianica 
Mut.  Ins.  Co.,  37  Wis.,  31. 


RES  JUDICATA. 

I.  What  are. 

II.  NOT. 

I.  What  aee. 

The  defenders,  having  raised  an  action  to 
recover  for  a  total  loss,  were  defeated.  The 
pursuers  raised  this  action  to  recover  the  pre- 
mium. Held,  the  former  adjudication  was 
conclusive  upon  the  parties  upon  the  quest'on 
of  total  loss.  Smith  v.  Flemming,  13  C.  C.  S., 
138;  22  Scot.  Jur.,  7. 

II.   What  are  Stot. 

1.  The  record  of  a  court  of  general  juris- 
diction, showing  an  order  of  nonsuit  and  the 
action  discontinued,  is  no  bar  to  a  subsequent 
suit  for  the  same  cause  of  action.  Audubon 
■c.  Excelsior  Ins.  Co.,  27  N.  Y.,  210. 

2.  If  the  defendant  fails  to  file  a  setoff  judg- 
ment may  be  delayed,  that  lie  may  bring  a 


cross-action  without  prejudice  to  the  lien  of 
the  plaintift"'s  attorney  for  fees.  Rider  v.  Ocean, 
Ins.  Co.,  20  Pick.,  250. 

3.  Tbc  judgment  was  founded  upon  the  fact 
that  tbe  action  was  brought  in  the  name  of  » 
person  who  could  not  sue.  Held,  no  bar  to  aa 
action  brought  in  the  name  of  a  person  en- 
titled to  sue.  Fleming  v.  Insurance  Co.,  12 
Penn.  St.,  3'Jl. 

4.  $0,000  on  cargo  of  ice  contained  in  four 
ice  boats.  One  was  sunk  three  miles  below 
Pittsburg,  for  which  there  had  been  a  former 
recovery,  and  these  two  actions  were  brought 
to  recover  a  loss  on  the  others.  Held,  one 
action  of  covenant  is  no  bar  to  another  on  the 
same  instrument  claiming  for  another  breach. 
Merchants  Ins.  Co.  v.  Algeo.  31  Penn.  St.,  446. 

5.  A  former  appeal  of  this  case  was  dis- 
missed, because  a  statement  of  the  case  had 
not  been  settled  by  the  judge  who  tried  it. 
Held,  unless  the  appeal  was  dismissed  for  want 
of  prosecution,  or  upon  the  merits,  it  was  no 
bar.  Cooper  v.  Pacific  Mut.  Ins.  Co.,  7  Nev.,  118. 


RESPONDENTIA. 


(See  BoTTOHKT  and  Eespondentia.) 


RESTRICTION  OF  RESIDENCE. 

(See  Tebbitobiai,  Limits.) 


RETURN  PREMIUM. 

I.  When  it  shai..l  be  retiirned. 
II.  not  be  ketdkned. 

I.  "When  it  shall  be  retuened. 

1.  The  rule  that  the  right  to  the  premium 
is  indefeasible,  if  the  policy  attaches,  is  not 
without  exceptions;  for,  if  the  contract  of  in- 
surance was  legal  when  made,  and  the  per- 
formance of  the  voyage  insured  became  illegal 
by  a  subsequent  law,  then  both  parties  to  the 
contract  are  discharged  from  its  obligations. 
Gray  v.  Sims,S  Wash.  C.  C,  270. 

613 


122T 


RETURN  PREMIUM. 


1228 


When  it  sbaE  be  returned. 


2.  It  was  represented  that  lamps  .were  not 
used  in  the  building;  but  lamps  were  sus- 
pended and  occasionally  used,  and  their  use 
caused  the  loss.  Ueld,  the  policy  did  not  at- 
tach, and  there  must  be  a  return  of  premium. 
Clark  V.  Manvfacturers  Ins.  Co.,  2  W.  &  M., 
472;  s.  c,  8  How.,  235. 

3.  Where  the  policy  is  void  for  breach  of 
warranty,  the  insured  is  entitled  to  a  return 
of  the  premium  if  there  be  no  actual  fraud. 
Dclavigne  v.  United  Ins.  Co.,  1  Johns.  C,  310. 

4.  Policy  in  the  name  of  A.,  for  account  of 
B.,  as  interest  might  appear.  The  cargo  be- 
longed to  B.  and  four  others  who  were  not 
connected  in  trade  witliB.,  and  knew  nothing 
of  the  insurance.  Held,  B.  was  entitled  to  a 
return  of  premium  for  the  difference  between 
the  value  of  his  interest  in  the  cargo,  |13,000, 
and  the  whole  amount  at  risk,  $2.5,000.  Holmes 
i\  United  Ins.  Co..  2  John^.  C,  329. 

5.  Where  the  policy  never  attached,  there 
must  be  a  return  of  premium.  Forbes  v. 
ClMrch,  3  Johns.  C,  158. 

6.  For  return  of  premium,  upon  a  policy 
on  schooner,  at  and  from  the  port  of  Trinidad 
to  New  York,  purporting  to  be  made  by  the 
plaintifl",  for  himself  or  for  Peter  Malibrau,  or 
whoever  it  might  concern.  Malibran  pur- 
chased lier  at  Trinidad.  The  master  of  the 
ship  Albemarle  being  present  was  consulted 
as  to  liow  she  should  be  employed,  and  sug- 
gested that  she  should  be  sent  with  a  cargo  to 
New  York.  The  master  of  the  Albemarle  sailed 
for  New  York  without  having  any  positive 
knowledge  as  to  how  the  schooner  would  be 
employed.  The  plaintitf  effected  the  present 
insurance  without  anj-  instructions,  other  than 
the  information  which  the  master  of  the  Albe- 
marle conveyed  to  him.  Malibran  testified 
that  the  vessel  and  cargo  were  his  sole  prop- 
erty; that  he  never  gave  any  instructions  for 
insurance,  and  that  the  schooner  went  on  a 
voyage  from  Trinidad  to  Havana.  Held,  the 
premium  must  be  returned.  Steinback  v. 
Jihinelander,  3  Johns.  C,  268. 

7.  "A  wager  contract  is  void,  if  it  be  against 
the  principles  of  public  policy,  equallj'  as  if 
it  contravened  a  positive  law,"  and  if  the  con- 
tract is  declared  void  on  principles  of  public 
policy  it  would  be  unconscientious  for  the  in- 
surer to  retain  the  premium.  Mount  v.  Waite, 
7  Johns.,  434. 

8.  The  policy  provided  that  the  ship  might, 
for  an  additional  premium,  go  from  Teneride 

614 


to  the  Isle  of  May  and  Bona  Vista,  and  thence 
to  New  York,  one  per  cent,  to  be  returned  if 
she  should  uot  go  to  Bona  Vista,  and  the  riak 
end  safely.  She  was  not  permitted  to  enter 
Teueriffe,  unless  she  would  perform  quaran- 
tine for  forty  daj-s ;  refusing  to  do  so,  she  went 
,  to  Madeira,  thence  to  the  Isle  of  May,  not  to 
Bona  Vista.  Held,  the  voyage  from  Teneriffe 
to  the  Isle  of  Maj'  and  Bona  Vista  never  com- 
menced,  and  therefore  insured  was  entitled  to 
a  return  of  premium.  Robertson  v.  Columbian 
Ins.  Co.,  8  Johns.,  491. 

9.  From  Malta  to  St.  Petersburg.  Stipu- 
lated, for  a  return  of  fifteen  per  cent,  premium 
if  the  vessel  passed  the  Gut  of  Gibraltar  on  or 
before  June  20th,  and  the  risk  ended  without 
loss,  or  the  same,  if  the  risk  ended  in  safety  at 
Gottenburg.  In  the  Eaglish  Channel,  super- 
cargo received  information  which  induced 
him  to  abandon  the  voyage  and  go  to  London. 
Ueld,  the  insured  had  the  eleclion  of  termi- 
nating the  voj'age  at  Gottenburg,  and  if 
it  was  broken  off  before  the  voj-age  from  Got» 
tenburg  to  St.  Petersburg  commenced,  the 
policy  never  attached  to  that  part  of  the  voy- 
age, and  therefore  insured  was  entitled  to  a 
return  of  premium.  Ogden  v.  New  York  Fire- 
men''s  Ins.  Co.,  12  Johns.,  114. 

10.  If  the  policy  has  never  attached  and 
there  is  no  ground  to  presume  fraud  against 
the  insured,  the  judgment  must  be  for  a  return 
of  premium.  Fibers  v.  United  Ins.  Co.,  16 
Johns.,  129:  Waddingion  v.  United  Ins.  Co., 
17  id.,  23. 

11.  At  and  from  New  York  to  Montevideo 
and  Buenos  Ayres,  and  at  and  Irom  thence 
back  to  New  York,  one  and  three  quarters  per 
cent,  each  way,  one  half  per  cent,  to  be  re- 
turned if  Buenos  Ayres  is  not  used.  The  pol- 
icy  was  in  the  name  of  A.  and  B.,  for  account 
of  whom  it  might  concern,  the  legal  interest 
being  in  H.  A.  and  B.  gave  their  notes  for 
the  premium.  On  the  out  trip,  H.  and  the 
master  scuttled  and  fired  the  vessel.  She  be- 
came a  total  loss,  but  A.  and  B.  were  entirely 
innocent  of  any  intention  to  commit  the 
fraud.  Insurers  defended  upon  the  policy 
successfully,  and  this  action  was  brought  to 
recover  on  the  premium  note.  Held,  the 
plaintiffs  could  not  recover  the  whole  pre- 
mium, for  the  voyage  was  divisible;  it  was  in 
effect  a  separate  insurance  on  each  voyage  at 
one  and  three  quai-ters  per  cent.  Insured 
were  entitled  to  set  off  as  return  premium  one 


1229 


RETURN  PREMIUM. 


1230 


When  it  shall  be  returned. 


and  three  quarters  per  cent,  on  the  sum  in- 
frured,  and  half  per  cent,  tor  the  non-use  of 
]!ueuos  Ayres.     Waters  v.  Allen,  5  Hill,  421. 

12.  The  insured  is  entitled  to  a  return  of 
premium  when  he  insures  in  his  own  name 
and  pays  for  the  whole  insurance,  if  it  ap- 
pears that  he  is  entitled  to  recover  for  a  part 
only.    Finney  v.  Warren  Ins.  Co.,  1  Slot.,  10. 

13.  Insured  is  entitled  to  recover  premium 
if  p<ilicy  is  invalid,  and  he  was  not  guilty  of 
fraud  in  procuring  it.  Mutual  Ass.  Co.  v.  Ala- 
hon,a  Call,  517. 

14.  If  the  whole  risk  is  not  run,  the  insurer 
shall  have  only  a  proportionate  part  of  the 
premium.  Stevenson  v.  Snow,  3  Burr.,  1237;  1 
"\V.  B].,  315. 

15.  From  Hull  to  Bilboa.  "Warranted  to 
depart  from  England  with  convoy."  She 
sailed  from  Hull  to  Portsmouth,  thence  with 
convoy,  which  was  not  direct  for  Bilboa.  She 
was  afterwards  captured.  Held,  tliere  should 
l)e  an  api)ortionment  of  the  premium ;  that  the 
insurers  were  entitled  to  retain  so  much  of  it 
as  would  cover  that  portion  of  the  voy.age 
from  Hull  to  Portsmouth.  Ituthwell  e.  Cooke, 
1  B.  &  P.,  172. 

16.  Defendant  paid  money  into  court,  but 
-established  a  defense,  on  the  ground  that  the 
policy  never  attached.  Held,  the  plaintiff  was 
entitled  to  a  verdict  for  return  premium.  Pen- 
ton  V.Lee,  2  B.  &  P.,  330. 

17.  At  and  from  Oporto  to  Lima,  with  lib- 
erty to  touch  at  any  ports  on  the  coast  of  For- 
tugal,  to  join  convoy  at  Lisbon,  to  return  £6 
if  she  sailed  with  convoy  from  the  coast  of 
Portugal  and  arrive.  She  sailed  with  convoy 
for  Lisbon,  whence  she  was  to  proceed  with 
the  Lisbon  trade;  but  the  fleet  was  dispersed 
by  a  storm,  between  Oporto  and  Lisbon,  and 
she  ran  for  England  and  arrived.  Held,  she 
had  a  right  to  stay  at  anj'  of  the  ports  of  For- 
tugal  to  obtain  convoy,  or  to  sail  direct  tor 
England  without  one;  hence,  the  insured 
was  entitled  to  a  return  premium.  Audley  v. 
Duff,  2  B.  &  P.,  Ill ;  Em-ard  v.  Holliiigmrih, 
id.,  note. 

1 8.  If  no  risk  was  upon  the  insurer,  he  can 
not  retain  the  premium,  it  appearing  that  the 
plaintifT  contemplated  a  legal  and  not  an  ille- 
gal  voyage  (the  illegality  rested  upon  a  fact 
■contrary  to  the  reasonable  expectation  of  all 
parties).     Henty  v.  Stnniyiirth,  1  Stark.,  254. 

19.  The  insured  is  entitled  to  have  the  pre- 
mium returned  if  tlie  policy  was  avoided  by 


fraud. 


a    misrepresentation    made    witlioul 
Fei'se  V.  Parkinson,  4  Taunt.,  040. 

20.  The  policy  stipulated  to  return  part  of 
the  premium  "  if  she  sails  with  convoy  and 
arrives."  There  was  an  average  loss.  Held, 
insured  was  entitled  to  the  whole  return  pre- 
mium stipulated  in  the  policy.  Simond  v.  Boy- 
dell,  1  Doug.,  208. 

21.  "AVarranted  to  depart  with  convoy."  If 
the  warranty  was  not  satisfied,  the  insured  is 
entitled  to  recover  the  premium.  Long  v.  Al- 
lan, 4  Doug.,  277. 

22.  The  premium  shall  be  recovered  back 
when  both  parties  contemplated  the  procure- 
ment of  a  license,  but  which  was  afterwards 
declared  invalid.  Henry  v.  Staniforth,  4 
Camp.,  270. 

2.-5.  Insurance  made  in  Eugland  from  a  port 
in  Russia  to  London,  for  a  Russian  subject 
abroad,  before  knowledge  of  hostilities  had 
reached  either  party.  Held,  no  fault  was  im- 
putable to  either  for  entering  into  the  contract, 
notwithstanding  the  policy  was  void.  Oom  v. 
Bruce,  12  East,  225. 

24.  "  Warranted  free  from  capture  and  seiz- 
ure; to  return  seven  per  cent,  for  arrival."  She 
arrived  but  was  seized  and  condemned.  Held, 
the  insured  was  entitled  to  a  return  of  seven 
per  cent.     Dalgleish  v.  Brooke,  15  East,  295. 

25.  "  Warranted  to  sail  with  convoy."  Stip- 
ulated: "If  she  sails  with  convoy  and  ar- 
rives," certain  premium  shall  be  returned. 
She  sailed  with  convoy  and  arrived,  but  she 
had  been  captured  and  recaptured,  for  w-hich 
the  insurer  had  been  compelled  to  answer. 
Held,  the  insured  was  entitled  to  the  agreed 
amount  of  return  premium.  Aguilar  t.  liodgers, 
7  Term,  421. 

26.  Where  the  policy  never  attached,  the 
premium  must  be  returned.  Horneyer  v.  Lush- 
ington,  15  East,  46 ;  3  Camp.,  85. 

27.  Where  both  parties  contemplated  a  legal 
voyage  and  a  legal  contract,  but  they  are  mis- 
taken, the  insured  shall  recover  back  the  pre- 
mium. Hentig  v.  Staniforth,  5  Mau.  &  Scl., 
122. 

28.  Insurance  was  made  April  12th  by  five 
several  policies  on  a  cargo  of  cotton  then  at 
sea.  On  thefollowingday  news  of  the  vessel's 
safety  arrived,  and  further  insurance  was  made 
by  six  difl'erent  (xdicies,  the  hitter  added  to  the 
former,  exceeded  the  value  of  the  cotton;  but 
the  former  did  not.  Held,  insured  were  en- 
titled to  have  the  premium  returned  on  the 

G13 


1231 


RETURN  PREMIUM. 


1232 


'\\nien  it  shall  not  be  returned. 


amount  of  over  insurance  to  whicli  the  insur- 
ers of  tlie  13lli  must  contribute  in  projiortion 
as  tlie  sums  by  them  respectively  iusured 
should  bear  to  the  over  insurance;  but  that  no 
return  of  premium  should  be  allowed  aijainst 
the  policies  made  ou  the  12th.  Fiskv.  iJaster- 
man,  8,Mee.  &  W.,  165;  10  L.  J.  Ex.,  306. 

2!).  Though  the  policy  was  void  on  account 
of  the  fraud  of  the  insured  in  procuring  it,  the 
premium  must  be  returned.  Whittintjluun  v. 
riwrnhurgh,  3  Vern.,  200;  Pr.  in  Ch.,  20; 
Ba  Costa  v.  Scmidret,  3  P.  Wms.,  170:  over- 
ruled, 7^  Zero.  Ilern;  Chapman  v.  Frazer;  Park 
on  Ins.,  218,  3d  Lond.  Ed. ;  Marsh  on  Ins.,  653. 

30.  Policy  was  void  under  14  Geo.  Ill,  ch. 
48,  sec.  3,  because  the  name  of  the  person  in- 
terested was  not  inserted.  Held,  insurer  was 
liable  for  the  premiums  paid,  for  the  parties 
•were  not  in  pari  delicto.  Dowker  v.  Canada 
Life  Ins.  Co.,  24  U.  C.  Q.  B.,  591. 

II.  When  it  shaxl  not  be  RETUKNEn. 

1.  If  the  insured,  by  deception  and  false 
pretenses,  induces  his  insurer  to  accept  the 
risk,  which  he  would  have  refused  or  would 
have  been  taken  on  different  terms  had  the 
truth  been  disclosed,  it  is  such  a  fraud  as  de- 
feats the  right  to  a  return  of  premium.  Schwaris 
«.  United  States  Ins.  Co.,  3  Wash.  C.  C,  170. 

2.  Policy  provided  in  writing:  "To  return 
fifteen  per  cent,  in  case  insurance  has  been 
effected  in  Europe; "  also  if  the  insured  has 
made  any  other  prior  insurance,  this  insurer 
shall  be  answerable  only  for  so  much  as  the 
prior  insurance  shall  be  deficient,  etc.,  and 
sliall  return  the  premium,  etc.  Insurance  was 
afterwards  effected  on  same  goods  at  Ham- 
burg. Held,  no  return  premium  could  be 
allowed  in  consequence  nf  the  insurance  taken 
at  Hamburg.  New  York  Ins.  Co.  v.  Thomas, 
3  Johns.  C,  1. 

3.  On  goods  dated  December  31, 1808.  "At 
and  from  Bristol  to  New  York,  warranted  to 
have  sailed  between  October  20th  and  Decem- 
ber 1st."  The  cargo  was  all  in  before  Decem- 
ber 1st.  She  sailed  between  December  2d 
and  21st.  Held,  the  policy  attached  and  cov- 
ered the  goods  while  they  were  in  port;  that 
the  warranty  applied  to  the  sailing  and  did 
not  relieve  the  insurer  against  risk  in  port, 
hence  there  could  be  no  return  of  premium. 
Hendricks  v.  Commercial  Ins.  Co.,  8  .Johns.,  1. 

4.  The  insured  cannot,  by  giving  notice  of 
C16 


his  intention  to  do  sor  put  an  end.  to  the  con- 
tract of  insurance,  and  if  the  risk  commences, 
the  insurers  are  entitled  to  return  the  whole 
premium  or  recover  it.  New  York  Marin» 
and  Fire  Ins.  Co.  v.  Roberts,  i  Duer,  141. 

5.  A  fraudulent  concealment  of  any  fact 
material  to  the  risk  destroys  the  right  to  a  re- 
turn premium.    Ho^t  v.  Gilman,  8  Mass.,  335. 

6.  The  insured  cannot  have  a  return  of  pre- 
mium from  a  mutual  fire  insurance  company, 
because  by  force  of  the  policy  he  is  a  member 
of  the  company;  and  with  stronger  reason  no 
return  of  premium  can  be  allowed,  when  the 
policy  has  been  obtained  by  fraudulent  mis- 
representations. Friesmitli  v.  Agawam  Mutual 
Fire  Ins.  Co.,  10  Cush.,  587. 

7.  R.,  the  local  agent,  issued  a  pi.licy  on  the 
life  of  L.,  for  the  benefit  of  the  brother  of  L. 
By  a  secret  agreement  between  R.  and  the 
brother  of  L.,  R.  was  to  pay  the  premiums, 
which  were  to  be  refunded  whenever  tho 
money  should  lie  collected  on  the  policy,  to- 
gether with  $1,000  of  the  sum  insured  in  case 
L.  should  die  within  three  years.  L.  knevir 
nothing  of  the  existence  of  the  policy,  was" 
never  examined  for  it,  and  his  brother  had  no 
interest  in  his  life  except  that  which  existed 
by  relationship  between  them.  In  the  appli- 
cation made  for  the  policy,  insured  stated  that 
he  was  interested  to  the  full  amount  insured. 
The  first  premium,  |525,  was  paid  to  insurer, 
who  subsequently  canceled  the  policy,  and 
this  action  was  brought  to  recover  the  money 
back.  Held,  the  transaction  was  fraudulsnt; 
that  the  mere  relationship  between  the  insured 
and  L.  was  not  such  an  interest  as  would  sup- 
pcjrt  the  policy,  bitt  the  plaintiff  was  estopped 
to  show  a  want  of  interest  in  the  life  insured. 
Lewis  V.  Phanix  Mutual  Life  Ins.  Co.,  39  Conn., 
100. 

&.  At  and  from  Norfolk  to  Curacoa,  with 
liberty  of  going  to  any  other  island  in  the 
West  Indies,  or  any  one  port  on  the  Spanish 
JIain,  and  at  and  from  thence  back  to  Rich- 
mond. To  return  five  per  cent,  if  she  did  not 
proceed  to  another  port,  and  five  per  cent,  if 
no  loss  happened.  She  was  chased  by  an 
armed  vessel,  ran  into  St.  Thomas,  where  she 
sold  the  cargo,  and  took  return  freight  for  Nor- 
folk. ITeM,  no  return  premium  was  due.  Ma- 
rine Ins.  Co.  V.  Stras,  1  Mumf ,  408. 

9.  A  time  policy  for  one  j-ear  on  ship.  She 
was  captured  abuut  two  months  after  the  pol- 
icy was  made.    Held,  the  risk  was  entire,  aud 


1233 


RETURN  PREMIUM. 


1234- 


When  it  sliall  not  be  returned. 


there  could  be  no  return  of  premium.     TyrU 
V.  Fletcher,  Cowpcr,  GGG. 

10.  At  aud  from  Surinam  to  London.  Slie 
arrived  at  Surinam,  and  lay  there  for  some 
time,  during  which  she  took  in  a  cargo  val- 
ued at  .Wi,O00,  and  sailed  on  tiie  home  voyage, 
but  grounded  at  the  month  of  the  Surinam  and 
■was  lost.  It  was  admitted  that  slie  was  not  sea- 
worthy f(u-  the  voyage.  Held,  although  she 
was  not  seaworthy  for  the  voyage,  slie  was  sea- 
worthy for  ])ort;  tliat  the  policy  attached  in 
j-.ort,  and  tlierefore  there  could  be  no  return  of 
premium.    Anneii  v.  Woodman,  3  Taunt.,  299. 

1 1.  The  policy  was  altered  by  words  added 
whicli  materially  changed  the  instrument. 
Held,  there  could  be  no  return  premium. 
Luiiglu/rii  e.  Cvlognn,  4  Taunt.,  330. 

1 2.  On  a  Danish  ship  from  Bengal  to  Copen- 
hagen. She  loaded  at  Calcutta  contrary  to  the 
13  Car.  II,  ch.  18,  sec.  1.  The  policy  was  effected 
previous  to  the  passing  of  37  Geo.  III.  Held, 
the  trading  contravened  the  regulations  of  the 
former  statute,  and  the  insured  was  not  enti- 
tled to  a  return  of  premium,  because  the  con- 
tract was  illegal.     Morck  b.  Abel,  3  B.  &  P.,  35. 

13.  The  insured  is  not  entitled  to  a  return 
of  premium  if  the  contract  was  legal  when  the 
risk  commenced.  Furtado  ».  Rodgere,  3  B.  & 
P.,  101. 

14.  Insured  had  no  insurable  interest,  but 
the  ship  arrived  safely,  aud  he  brought  this 
action  to  recover  back  the  premium.  Held, 
the  court  would  not  interfere  to  assist  either 
party  for  pari  delicto,  etc.  Lowry  v.  Bordieu, 
2  Doug.,  468. 

15.  When  the  ship  is  insured  for  twelve 
months  at  the  rate  of  so  much  per  cent,  per 
month,  Ihoueh  the  policy  cease  at  the  end  of 
two  months,  there  shall  be  no  apportionment 
cor  return  of  premium.  Loraiiie  e.  Thomlin- 
son,  2  Doug.,  585. 

16.  On  ship  and  cargo  at  and  from  A.  toB. 
during  her  stay  and  trade  there,  thence  to  her 
port  or  ports  of  discharge  in  C.  and  at  and 
from  thence  back  to  A.  Held,  an  entire  con- 
tract. Bermon  v.  Woudbridye,  2  Doug.,  781. 
And  a  loss  happened  after  the  commencement 
of  the  risk.  Jield,  there  could  be  no  return  of 
premium.     Ibid. 

17.  "  On  ship  and  freight."  After  her  safe 
arrival,  plaintiff  learned  that  he  had  no  title 
to  the  ship.  Held,  after  the  risk  was  deter- 
mined  in  favor  of  the  insurers,  it  was  too  late 
to  claim  return  of  premium  on  the  ground  of 


no  insurable  interest.    McCuUochv.  Royal  Sx- 
clmnge  Ass.  Co.,  3  Camp.,  400. 

18.  If  the  policy  has  allaclied  there  shall  be 
no  return  of  premium.  Moses  v.  Pratt,  4 
Camp.,  207. 

19.  The  policy  stipulate  I  to  return  a  part 
of  the  premium  if  slie  should  be  sold  or  laid 
up  "  for  every  uncommenced  month."  Held, 
it  meant  laying  up  for  the  winter  or  seasi'm 
without  being  employed  again  during  tlie  cur- 
rent year.  Hunter  V.  Wright,  10  B.  it  C,  714; 
8  L.  J.  (K.  B.),  250. 

20.  Insurance  was  made  covering  a  voyage 
that  was  illegal.  Held,  there  could  be  no  re- 
turn of  premium.  Vandyck  v.  Hewitt,  1 
East,  96. 

21.  Captors  insured  a  ship  taken  as  prize, 
but  it  afterwards  turned  out  that  slie  was  no 
prize,  and  restitution  was  ordered.  Held,  they 
were  not  entitled  to  return  premium.  Bce7im> 
V.  Bell,  8  Term,  154. 

22.  She  was  without  a  license  from  the 
South  Sea  Company  at  the  commencement  of 
the  risk  and  up  to  the  time  of  the  loss;  but 
one  was  procured  before  insured  knew  of  the 
loss.  Held,  it  could  not  operate  retrospective- 
ly; that  the  goods  having  been  acquired 
within  a  district  proliibited,  except  by  license 
from  the  South  Sea  Company,  there  could  be 
no  return  of  premium.  Cowie  o.  Barber,  4 
Mau.  «&  Sel.,  16. 

23.  From  New  Orleans  and  Pensacola  to  a 
port  in  the  United  Kingdom.  Pensacola  was 
under  Spanish  dominion  aud  New  Orleans 
under  United  States.  The  latter  nation  and 
England  were  at  war.  Held,  the  insured 
could  not  recover  back  the  premium,  though 
no  cargo  was  put  ou  board  the  ship  named. 
Palyart  -o.  Leckie,  6  Ma-u.  &  Sel.,  290. 

24.  lu  consideration  of  40  guineas  for  .£100 
and  In  proportion  for  every  sura  greater  or 
lesser,  several  persons  each  for  themselves 
severally  agreed  to  pay  the  several  sums  set 
opposite  their  names,  provided,  Brazilian  min- 
ing shares  should  on  or  before  a  day  men- 
tioned "  be  done  "  at  or  above  £100  per  share. 
Held,  it  w.as  a  contract  of  insurance  aud  void 
under  Geo.  Ill,  ch.  48;  that  if  money  be  paid 
on  an  illegal  contract  to  receive  a  larger  suui 
upon  a  certain  event,  when  the  event  taki'S 
place,  the  contract  is  executed  and  the  premi- 
um paid  cannot  be  reclaimed,  and  that  hav- 
ing taken  place  in  this  case,  the  plaintiff  was 
not  entitled  even  to  a  return  of  the   premiuia 

017 


1235 


REVIVAL  OF  POLICy  — SAILING  OF  VESSEL. 


1236 


What  is. 


paid.    Fatersoii  v.  Powell,  2  L.  J.  (N.  S.),  (J.  P., 
13. 

2.5.  Vessel  insured  from  Liverpool  to  Phil- 
adelphia and  United  Kingdom.  Insurers  con- 
sented that  she  might  proceed  to  Baltimore 
instead  of  Philadelphia,  and  subsequently 
indorsed :  "  In  consideration  of  an  additional 
premium  of  f  per  cent.,  it  is  hereby  agreed  to 
allow  the  vessel  to  go  to  Antwerp."'  She  ar- 
rived there  January  1st,  was  ordered  by  tele- 
gram, on  the  3d,  to  sail  for  Leitli.  She  was 
Chen  in  the  outer  on  her  way  to  the  inner 
dock,  the  usual  place  of  discharge.  She 
sailed  on  the  7th  for  Leith,  and  was  lost  on 
the  voyage.  Held,  the  voyage  to  Leith  was 
not  covered,  and  whether  insured  could  re- 
cover back  the  additional  permium  must  de- 
pend upon  whether  the  voyage  had  come  to 
an  end  at  the  time  the  memorandum  was  in- 
dorsed, namely,  January  2d.  Held,  also,  the 
voyage  was  not  at  an  end  when  the  agreement 
was  made,  for  while  she  was  in  the  outer 
dock,  the  sailors  would  not  have  been  at  lib- 
erty to  leave  her,  though  employed  for  that 
voyage  only  (citing  Samuel  ji.  Royal  Exchange 
Ass.  Co.,  8  B.  &  C,  119.  Stone  ®.  Marine  Ins. 
Co.,  1  Ex.  D.,  81. 


REVIVAL  OP  POLICY. 

(See  Policy.) 


ROVERS  AND  ROBBERS. 

<See  Capthbe  akd  Seizure  ;  Theft  and  Eobeert.) 


SACRIFICE. 

(See  Genebai.  Atebagb.) 


SAFELY  LANDED. 

(See  Uhtil  Moobed  in  Good  Safety.) 
■«18 


SAILING  OF  VESSEL. 

I.  Wh.\t  is. 

II.  NOT. 

III.  Op  the  representation  as  to  time  of 

SAILING. 

IV.  Evidence  of. 


I.  What  is. 

1.  In  the  margin  of  the  policy  these  words 
were  written :  "  Sailed  early  in  October." 
Her  clearance  was  dated  September  loth,  at 
whicli  time  she  dropped  down  from  the  wharf 
at  Savannah  to  a  place  called  Five  Fathom 
Hole,  about  three  miles  from  the  town.'  She 
proceeded  to  Cockspur,  where,  according  to 
the  custom,  vessels  of  heavy  burden  finished 
their  lading  and  overhauled  their  rigging. 
The  master  was,  taken  sick;  she  remained 
there  sixteen  days,  and  sailed  on  the  first 
or  second  day  of  October.  Held,  the  words, 
sailing,  meant  going  to  sea  from  Cockspur. 
Dennis  v.  Ludlow,  2  Caines,  111. 

2.  "Where  a  ship  is  ready  for  sea,  and  it  is 
the  intention  of  the  master  to  proceed  to  sea, 
and  she  leaves  her  moorings  for  that  purpose 
and  afterwards  is  stopped  by  head  winds  and 
comes  to  anchor,  intending  to  proceed  so  soon 
as  wind  and  weather  will  permit;  this  is  sail- 
ing on  the  voyage.  Bovien  v.  Hope  Ins.  Co., 
20  Pick.,  275. 

3.  Warranted  to  have  sailed  on  or  before 
August  1st.  She  sailed  before  that  date  with 
all  her  cargo  and  clearance  on  board,  to  the 
usual  I'endezvous,  fur  the  sake  of  joining  con- 
voy there.  Held,  the  warrant)'  was  satisfied. 
Bond  V.  Nutt,  Cowper,  601 ;  1  Doug.,  367  n. 

4.  At  and  from  Leghorn  to  Jamaica,  thence 
to  Liverpool ;  warranted  to  sail  from  Jamaica 
on  or  before  August  1st  next.  She  took  her 
cargo  and  papers  and  set  sail  from  Savannah 
La  Mar  in  Jamaica,  August  1st,  for  Blueflelds, 
five  miles  distant,  the  general  rendezvous  for 
convoy ;  but  an  embargo  had  been  laid  July 
2oth  on  all  vessels  at  the  island.  The  master 
returned  in  a  boat  to  Savannah  La  Mar,  and 
made  protest  on  acc(mnt  of  the  embargo, 
which  was  not  taken  otf  till  August  9th. 
Held,  if  the  master  expected  to  find  convoy 
ready  that  day  at  Blueflelds  (which  was  a 
question  of  fact  for  the  jurj-),  the  warranty 
was  satisfied.    Earle  v.  Harris,  1  Doug.,  357. 


SAILING  OF  VESSEL. 


1238 


What  is  not. 


5.  Warnuited  to  sail  before  December 
81st.  She  look  all  her  cargo  aud  departed 
from  the  port  ot  loading  before  that  day  to 
another  pari  of  the  island,  in  the  direct 
course  of  her  voyage,  with  the  iulention  of 
joining  convoy  there.  She  came  to  auclior 
and  the  master  went  ashore.  Tho  governor 
(if  the  island  would  not  permit  him  to  depart, 
and  to  prevent  it,  took  his  ship'.s" papers  from 
him.  She  sailed  wltli  convoy  January  lOtli. 
Held,  lliere  was  a  lawful  bona  fide  sailing  with- 
in the  time  limited.  T/tcUussoii,  v.  Fergusson, 
I  Doug.,  3G0. 

C.  "  Warranted  to  sail  from  Portueuf  to 
London,  on  or  before  October  S8th,  aud  to  re- 
turn tliree  per  cent,  for  convoy."  It  was  sub- 
sequently modiljed  by  annulling  the  warranty, 
and  insurers  agreed  to  return  six  per  cent,  if 
Blie  should  sail  with  convoy  on  or  before  Oc- 
tober 31st.  She  completed  her  lading  aud 
Bailed  from  Portneuf,  October  20th.  All  ves- 
sels were  required  to  clear  from  Quebec.  She 
took  several  seamen  at  Quebec,  got  her  sailing 
instructions  on  the  2Tth  and  clearance  on  the 
20th.  On  the  28th,  the  convoy  dropped  down 
lifteen  leagues  below,  but  within  the  limits  of 
tlie  port  of  Quebec.  She  joined  couvoy  on 
the  30lh,  not  being  able  to  procure  pilot  be- 
fore. All  cleared  out  of  the  port  of  Quebec, 
■October  31st.  Held,  the  insured  was  entitled 
to  a  return  of  nine  per  cent.,  notwithstanding 
slie  was  totally  lost  on  the  voj'age.  llidsdale 
1'.  Shedden,  4  Camp.,  107. 

7.  "Warranted  to  sail  from  Demar.ara  on  or 
before  August  1st."  There  was  a  shoal  off  the 
coast  about  ten  miles,  and  large  ships  usually 
discharged  and  took  on  part  of  their  cargo 
outside  of  it.  She  completed  her  cargo  in  the 
liver  on  the  Isl  and  cleared,  but  came  to 
anchor  two  miles  from  the  shoal.  On  the  3d 
she  crossed  the  shoal,  and  was  lost  on  the  8lh. 
Jlcld,  the  warranty  was  satisfied.  Lang  v.  An- 
derdon,  3  B.  &  C,  495;  1  C.  &  P.,  171,  480;  8 
L.  J.  K.  B,  62;  5D.  &U.,  393. 

8.  Warranted  ta  sail  on  or  before  August 
1st.  She  sailed  from  her  hist  port  of  loading 
before  that  date,  ran  into  TortoUi  to  seek  con- 
voy, but  did  not  leave  there  till  some  days 
after.  Held,  the  warranty  was  satisfied. 
Wright  v.  Shiffner,  11  East,  515;  6.  c,  2 
C;-imp.,  247. 

9.  Waranted  not  to  sail  for  British  North 
America  after  August  1.5th.  She  was  then  in 
dock  at  Dublin,  ready  for  sea,  and  cleared  for 


Quebec.  She  was  hauled  out  into  the  LiHey 
as  early  in  the  afternoon  as  the  tide  allowed; 
but  a  strong  wind,  blowing  directly  up  the 
river,  prevented  the  setting  of  any  of  her  sails. 
She  was  warped  down  about  half  !i  mile.  The 
tide  fell  and  she  took  the  ground.  The  ne.\t 
day  she  was  warped  further  down;  when  the 
tide  fell  she  took  the  ground  again,  being  ten 
miles  from  the  mouth  of  the  harbor.  The 
wind  changed  on  the  17th,  she  set  sail,  put  to 
sea  and  was  lost  on  the  voyage.  Held,  she  was 
prosecuting  the  voyage  on  the  l-5th,  and  the 
warranty  was  satisfied  (affirming  s.  c,  3  L.  J. 
(N.  S.)  Ex.,  185.)  Fisher  v.  Cochran.  5  Tyrw., 
496;  s.  c,  4  id.,  424;  s.  c,  2  Cromp.  &  JI., 
581 ;  4  L.  J.  (N.  S.)  Ex.,  328;  1  Cromp.,  M.  &, 
E.,  809. 

10.  Warranted  to  sail  on  or  before  August 
15,  1801,  to  and  from  Lyons  to  Galalz.  It 
apjjeared  they  could  not  pass  down  the  Rhone 
to  Marseilles  with  her  masts  and  rigging 
standing.  Ueld,  sailing  from  Lyons  before 
August  15th,  in  a  condition  safe  for  the  river 
navigation,  with  an  intention  to  put  in  the 
masts  and  bend  the  sails  at  Marseilles  for  the 
sea  voy^age,  was  a  sailing  within  the  time  lim- 
ited. BouiUon  i).  Lupton,  15  C.  B.  (N.  S.),  113 ; 
s.  c,  10  Jur.  (N.  S.),422;  33  L.  J.  C.  P.,  37;  U 
W.  R,  966 ;  8  L.  T.  (N.  S.),  575 ;  3  F.  &  F.,  726. 

II.  "What  is  not. 

1.  Warranted  to  sail  on  or  before  July  26th. 
She  was  ready  and  would  have  sailed  before 
that  date,  but  was  detained  by  an  embargo; 
sailed  afterwards  and  was  lost.  Held,  the  war- 
ranty was  broken.  Hore  ti.  Whitnwe,  Cow- 
per,  784. 

2.  "  Warranted  to  sail  on  or  before  August; 
lOlh."  The  whole  of  her  cargo  and  passen- 
gers were  on  board  on  the  10th.  She  wa.s 
moored  by  two  anchors,  one  of  them  weighed, 
some  of  the  sails  set;  she  proceeded  about 
thirty  fathoms,  heaving  in  the  cable,  when  a 
very  heavy  swell  set  into  the  bay.  The  mas- 
ter being  afraid  to  depart  that  niglit,  noth- 
ing was  done  until  the  11th,  when  she  left 
port.  Ht'ld,  not  a  sailing;  that  the  insurers 
were  dischargi^d.  Nelson  v.  Salvador,  Moo.  & 
M.,  309 ;  Meyer  v.  Oreyson,  3  Doug.,  402. 

3.  Warranted  to  sail  on  or  before  October 
28th.  She  sailed,  but  without  a  sufficient 
crew,  and  was  obliged  to  stop  at  Quebec  to 
take  seamen  and  get  her  custom  house  clear- 

G19 


1239 


SAILING  OF  VESSEL. 


1210 


Of  the  representation  as  to  the  time  of  sailing  —  Evidence  of. 


Knee,  but  for  want  of  a  pilot  tliere  she  did  not 
leave  till  the  30th.  lleld,  not  a  sailing  on 
the  28th  because  she  had  not  then  a  comi)lcte 
crew  or  lier  clearances.  Ridsdale  v.  Newnkam, 
i  Camp.,  Ill;  3  Man.  &  Scl.,  456. 

4.  Warranted  to  depart  on  or  before  Sep- 
tember loth.  Held,  it  did  not  mean  merely  to 
break  ground  for  the  voyage,  but  that  she 
must  fiiirly  set  forward  upon  it;  that  where 
she  was  completely  ready  for  sea,  weighed 
anchor,  with  some  prospect  of  more  favora- 
ble weather,  and  was  beaten  back  in  half  an 
hour,  and  came  to  anchor  within  the  bar  half 
a  mile  nearer  sea  thaa  her  place  of  lading,  it 
was  not  a  compliance  with  the  warranty. 
JHoir  V.  Royal  Hxchauge  Ass.  Co.,  6  Taunt., 
241;  8.  c,  4  Camp.,  84;  1  Marsh.,  570;  3  Muu. 
&  Sel.,  461. 

5.  On  freight,  subject  to  certain  regula- 
tions, which  provided  that  vessels  insured 
should  not  sail  from  ports  in  Ireland  after 
September  1st;  that  the  time  of  clearing 
should  be  deemed  the  time  of  sailing,  "  pro- 
vided the  ship  was  ready  for  sea."  She  was 
at  Sligo,  and  dropped  down  the  river  before 
the  1st,  but  had  not  a  full  quantity  ot  ballast, 
because  she  could  not  cross  the  bar  with  all 
of  it.  Boats  were  waiting  outside  to  give  her 
the  balance,  and  while  crossing  the  bar  she 
stuck;  and,  for  the  jjurpose  of  ascertaining  the 
damage,  ran  into  an  adjacent  port  without  the 
balance  of  ballast,  which  was  subsequently 
taken,  and  she  sailed  four  days  afterwards. 
Held,  dropping  down  the  river  and  crossing 
the  bar  without  her  full  ballast,  was  not  sail- 
ing ;  and  until  she  had  it  on  board  she  was 
not  ready  for  sea.  Pettegrew  v.  Priiigle,  3  B.  & 
Ad.,  514. 

6.  Warranted,  "  Not  to  sail  after  September 
1st."  She  cleared  August  81st  with  an  incom- 
plete crew,  though  a  full  crew  was  engaged 
l>efore  she  cleared.  She  dropped  down  the 
Liffey  and  came  to  anchor  within  the  port  of 
Dublin,  and  there  remained  the  balaoco  of  the 
day,  during  which  the  whole  crew  came  on 
board.  She  proceeded  September  3d,  an  unfa- 
vorable wind  preventing  her  departure  sooner. 
Held,  she  was  not  ready  for  sea  at  the  time  of 
clearing,  because  the  whole  crew  was  not 
aboard,  and  she  did  not  sail  till  after  Septem- 
ber 1st,  which  discharged  the  insurer.  Gro- 
ham  v.  Barras,  5  B.  &  Ad.,  1011;  5  N.  &  M., 
125. 


III.    Of   toe   kepeesentation  as  to 

TIME   OF   SAILING. 

1 .  The  first  letter  represented  that  slie  would 
s:iil  August  12th.  The, second  represented 
that  she  would  not  sail  till  the  24th.  She 
sailed  the  16lh.  Witnesses  testified  that  the 
difference  in  time  of  sailing  was  material. 
Held,  the  insured  could  not  recover  (citing 
Fillis  D.  Brutton,  Marsh.  Ins.  I,  ch.  10,  sec.  2, 
p.  463;  Bowden  v.  Vaughan,  10  East,  415). 
Baxter  v.  New  England  Ins.  Co.,  3  Mason,  96. 

2.  The  insured  gave  an  order  for  insurance 
on  cargo,  and  in  it  stated :  "  Said  brig  will  sail 
from  La  Plata  in  the  course  of  this  month." 
Held,  an  emphatic  confident  statement  of  a 
matter  of  opinion,  but  not  a  representation 
that  she  would  sail  within  the  month  (citing 
Phillips  on  Ins..  83,  84;  Christie  v.  Secretan,  8 
Term,  192;  Hubbard  c.  Glover,  3  Camp.,  313; 
Bowden  v.  Vaughan,  10  East,  415;  Bryce  v. 
Featherstone,  4  Taunt.,  8H9 ;  Jend  wine  v.  Sladc, 
2  Esp.,  572 ;  Rice  t.  New  England  Marine  Ins. 
Co.,  4  Pick.,  439).  Allegre  v.  Maryland  Inn. 
Co.,  2  G.  &  J.,  136. 

3.  The  cause  was  submitted  to  a  jurj-,  who 
failed  to  agree.  It  was  then  submitted  to 
ten  persons  by  agreement  of  the  parties,  tho 
decision  of  seven  or  more  of  the  whole  num- 
ber to  have  the  force  and  effect  of  a  verdict. 
They  found  for  the  plaintiff.  It  appcai'ed  that 
insured  stated  to  Uie  secretary  of  the  company 
that  the  ship  had  been  at  sea  about  seventy- 
two  days;  that  she  had  sailed  between  October 
18th  and  25th,  but  not  before  the  18lh.  She 
sailed  October  6lh.  Held,  the  verdict  must  be 
set  aside.  Curell  v.  Mississippi  Fire  and 
Marine  Ins.  Co.,  3  La.  (O.  S.),  353.  This  case 
was  subsequently  submitted  to  the  court  with- 
out  the  intervention  of  a  jury,  who  found  for 
the  defendants,  and  it  was  affirmed,  s.  c,  9 
id.,  164. 

lY.  Evidence  of. 

A  minute  of  council  directed  a  license  to 
the  ship  to  carry  cargo  to  Leghorn.  Held, 
evidence  that  she  sailed  for  Leghorn.  Mar- 
shall  V.  Parker,  2  Camp.,  69. 


SALE. 

(See  AxiEXATioN ;  Shebiff's  Saxe  ;  Titli.) 


020 


1241 


SALVAGE  — SEAWORTHINESS. 


1242 


Miscellaneous. 


SALVAGE. 

(See  Abandoniient{  Master  op  Ship;  Total  Loss.) 


SEALED  INSTRUMENT. 

1.  The  policy  had  upon  it  a  printed  im- 
pression of  the  seal  of  the  corporation,  and 
assumpsit  was  brought  upon  it.  Held,  the 
proper  action,  for  the  instrument  was  not  un- 
der seal.  Mitchell  v.  Union  Life'  Ins.  Co.,  45 
Me.,  104. 

a.  The  seal  to  the  policy  was  an  impression 
upon  paper  at  the  left  hand  corner  of  the  pol- 
icy, without  wax  or  any  other  adhesive  sub- 
.stance,  and  without  any  scroll.  Held,  a  sealed 
instrument,  and  covenant  was  the  proper  ac- 
tion. Iloward  Fire  and  Marine  Ins.  Co.  v. 
Corniek,  24  111.,  45.'5. 

3.  The  policy  was  sealed  and  renewed  for 
another  year,  but  the  renewal  was  by  receipt 
for  the  premium,  not  sealed.  Ueld,  the  policy 
was  the  contract,  and  that  covenant  was  the 
proper  form  of  action.  Herron  v.  Peoria  Ma- 
rine and  Fire  Ins.  Co.,  28  111.,  23.5. 

4.  If  the  company  has  authority  to  issue 
the  policy,  a  failure  to  affix  the  common  seal 
of  the  Corporation  will  not  affect  its  validity 
unless  tlie  ch.arter  required  the  seal  to  be 
alfixed.  National  Banking  and  Ins.  Co.  v. 
Knaup,  55  Mo.,  154. 


SEAMEN. 

I.   WnO  ARE. 

II.  Op  their  rights. 

I.  Who  are. 

1.  Stipulated :  "The  boat  shall  be  manned 
with  a  competent  number  of  hands."  Ileld, 
.n  determining  whether  the  number  was  com- 
■letent,  the  cook  must  be  counted  in.  Grant  i\ 
Lexington  Ins.  Co.,  B  Ind.,  23. 

'i.  On  the  margin  of  the  policy  were  written 
hese  words :  "  Eight  nine-pounders  with  close 
.juarters,  sis  si.x-poundcrs  on  her  upper  decks, 
Jiirty  seamen  besides  passengers."    Held,  a 


warranty;  but  the  terra  "seamen"  included 
boys  as  well  as  men,  and  to  satisfy  it,  the 
insured  were  permitted  to  reckon  the  stew- 
ard, cook,  surgeon,  boys  and  apprentices, 
and  persons  described  as  learning  to  bo  sea- 
men. Bean  v.  Stupart,  1  Doug.,  11.  [See 
note  appended  to  this  case.] 

II.  Of  their  rights. 

The  contract  with  seamen  is  not  dissolved 
by  the  wreck  of  the  ship.  They  are  bound  to 
labor  for  the  preservation  of  ship  and  cargo; 
but  that  does  not  preclude  them  from  claim- 
ing salvage  on  the  property  saved,  to  be  paid 
by  the  insurers  if  the  ship  is  abandoned  to 
them.     Two  Catherines,  2  Mason,  319. 


SEAWORTHINESS. 

I.  Warranty  op. 

(a)  When  implied. 

(b)  not  implied. 
II.  Onus  trobandi. 

(a)  When  the  onvs  is  upon  insured. 

(b)  insurer. 

III.  When  the  vessel  is  seaworthy. 

IV.  NOT  seaworthy. 

V.  Op  unseaworthiness  subsequent  to 
attaching  op  policy  and  sailing  op 
vessel. 
VI.  Questions  for  the  jury. 
VITi  Op  plkadikgs. 
VIII.  Generally. 

I.  "Warrajs^ty  of. 

(a)  When  implied. 

1.  There  is  in  every  contract  of  insurance, 
whether  upon  ship  or  upon  cargo,  an  implied 
warranty  that  tlie  ship  shall  be  tight,  strong, 
and  in  all  other  respects  fit  for  the  intended 
voyage.    Barnewall  v.  Church,  1  Caines,  217. 

2.  There  is  an  implied  warranty  in  every 
contract  of  insurance,  whether  on  vessel  or 
goods,  that  sl\e  shall  be  seaworthy;  and  it 
makes  no  difl'erencc  that  she  was  surveyed  and 
pronounced  competent,  if  she  proves  not  so  in 
fact.  Warren  v.  United  Ins.  Co.,  2  Johns.  C, 
232. 

C3) 


1243 


SEAWORTHINESS. 


I24i 


Wiirranty  of. 


3.  Time  policy  on  ship,  commencing  Sep- 
tember 13,  1860,  at  noon,  dated  tlie  Utli.  On 
the  1st,  she  was  at  Bermuda  undergoing  re- 
pairs, which  were  not  completed  until  the  17th. 
She  sailed  to  Aspinwall,  thence  to  Kingston, 
thence  to  St.  Ann's  Bay  and  thence  for  Lon- 
don, July  25,  1861.  Shortly  after  she  sailed 
Irom  St.  Ann's  Bay,  she  sprung  a  leak,  the 
sugar  melted  rapidly,  she  listed  heavily,  fell 
over  and  s-unk.  Held,  on  the  day  the  risk  com- 
menced, she  was  seaworthy  for  the  port  in 
which  she  was,  hence,  the  policy  attached; 
hut  insured  impliedly  warranted  her  seawor- 
thy when  ."ihe  sailed  from  that  port.  Iloxsie  v. 
J'acifie  Mut.  Ins.  Co.,  7  Allen,  311. 

4.  Tliere  is  an  implied  warranty  of  sea- 
worthiness in  a  time  jiolicy.  Uoxie  v.  Home 
Jus.  Co.,  33  Conn.,  21 ;  Dallam  v.  Ins.  Co.,  6 
Phila.,  15. 

5.  On  a  floating  dock.  Held,  insured  war- 
ranted it  seaworthy ;  and  if  the  loss  happened 
without  any  known  or  apparent  cause,  the 
presumption  followed  that  the  dock  was  un- 
seawortli}',  yet  that  presumption  might  he 
rebutted  by  sutflcient  aflirmative  proof  that 
it  was  seaworthy  (citing  Snethen  v.  Mem- 
phis Ins.  Co.,  3  La.  An.,  474;  Kugely  s.  Sun 
Mut.  Ins.  Co.,  7  id.,  279).  Marcy  v.  Sun  Mut. 
l,is.  Co.,  11  La.  An.,  748. 

6.  "  Ou  salvage."  She  had  been  .abandoned, 
but  was  taken  by  salvors,  in  whose  interest 
this  policy  was  effected  from  Terceira  to  a 
final  port  of  discharge  in  the  U.  K.  Plea: 
she  was  not  seaworthy  when  she  set  sail  on  the 
voyage  mentioned.  Held,  a  good  defense. 
Kiiill  V.  Hooper,  3  H.  &  N.,  277;  2(5  L.  J.  Ex., 
377. 

7.  On  ship  for  twelve  months.  She  was 
then  on  the  plaintiff's  premises  in  London, 
undergoing  repairs.  She  sailed  February  3d 
for  Gottenburg  and  arrived  on  the  7t]i,  hut 
leaked  on  the  voyage  to  an  extent  not 
warranted  by  the  weather.  She  sailed  for 
Londim  February  11th,  encountered  very  bad 
weather,  made  a  great  deal  of  water  and 
finally  became  water  logged.  She  was  strand- 
ed on  the  English  coast  February  loth  and 
became  a  total  loss.  The  jury  fajled  to  agree 
as  to  wlietlier  she  was  unseaworthy  when  she 
sailed  from  London,  but  they  found,  that  if 
she  were,  insured  did  not  know  of  it,  nor 
could  they  agree  as  to  whether  the  unsea- 
worthiness was  the  cause  of  the  loss.  Held. 
by    a  majority  of  the  court,  there   was  an 

(i23 


implied  warranty  of  seaworthiness,  at  the  com- 
mencement  of  the  voyage,  and  if  she  was  not 
then  seaworthy  plaintiff  could  not  recover. 
Dudgeon  v.  Pembroke,  1  Q.  B.  D.,  Ex.  Ch., 
9G;  reversing  s.  c,  9  L.  R.  Q.  B.,  581 ;  43  L.  .L 
Q.  B.,  220;  33  W.  R.,  914;  31  L.  T.  (N.  S.),  31. 

(b)  WTien  not  implied. 

8.  The  insured  on  cargo  warrants  that  the 
ship  shall  be  seaworthy  at  the  lime  of  her 
sailing;  he  does  not  warrant  that  she  shall  be 
so  at  the  time  she  takes  cargo  on  board. 
Merchants  Ins.  Go.  v.  Clapp,  11  Pick.,  56. 

9.  Stipulated:  "This  insurance  is  declared 
to  be  one-half  the  value  of  all  sJiipments  to 
assured,  for  sale  or  in  which  they  have  an 
interest,  between  the  date  hereof  and  the  1st 
day  of  December  next,  on  board  all  steam- 
boats  or  vessels  approved  by  this  company." 
Held,  insurers  could  not  raise  the  want  of 
seaworthiness,  because  by  approving  her,  they 
admitted  that  she  was  seaworthy.  Marine 
Fire  Ins.  Go.  v.  Burnett.  29  Tex.,  433. 

10.  On  ship  from  September  35,  1843,  \u 
September  24,  1844,  lost  or  not  lost.  It  seems 
she  was  at  sea  when  the  policy  attached  in  a 
greatly  damaged  condition.  Held,  there  was 
no  implied  warranty  of  seaworthiness  at  the 
commencement  of  the  risk.  Small  v.  Gibs"n, 
IG  Q.  B.,  141 ;  20  L.  J.  Q.  B.,  153;  15  Jur.,  335 ; 
Mic/uiel  V.  Tredwin,  17  C.  B.,  551 ;  25  L.  J.  C. 
P.,  83 ;  Small  v.  Gibson,  16  Q.  B.,  141 ;  afiirmed, 
4  H.  L.  Cas.,  353;  orerruliug  Small  v.  Gibson, 
IG  Q.  B.,  128;  19  L.  J.  Q.  B.,  147;  14  Jur.,  368. 

11.  Time  policy  ou  ship.  Plea:  "  Th.at 
after  the  making  of  the  policy  and  before 
it  expired,  while  she  was  lying  safely  at 
anchor  in  Madras  roads,  she  became  unsea- 
wortlij',  not  by  reason  of  any  of  the  risks  or 
perils  covered  by  the  policy,  but  by  reason  of 
the  desertion  of  a  great  number  of  her  crew, 
and  not  otherwise;  that  without  any  neces- 
sity for  so  doing,  and  l)elore  a  fit  and  proper 
crew  were  prociu-ed,  wliich  might  havo 
been  procured,  she  jiroceeded  on  her  voy- 
age, and  by  reason  of  her  being  so  im- 
properly  manned  and  equipped,  she  went 
ashore  and  was  wholly  lost."  Held,  in  a  voy- 
age policy,  custom  and  decision  have  annexed 
to  that  contract  a  warranty  of  seaworthiness, 
that  there  is  no  custom  nor  decision  which 
warrants  the  court  in  saying,  that  in  a  time 
policy  any  such  warranty  attaches  (citing  Gib- 


1245 


SEAWORTHINESS. 


1246 


Onus  probandi. 


son  V.  Small,  4  II.  L.  Cas.,  353).  Jenkins  v. 
Jleycock,  8  Moore,  P.  C.  C,  351 ;  5  Moore  Intl. 
App.,  361. 

12.  Time  policy  "  On  ship  lying  in  the  port 
ol  Sunderland,"  where  plaintiffs  resided.  She 
■was  then  under  charter  to  carry  a  cargo  thence 
to  Constantinople.  Plea  stated,  that  plaintiffs 
sent  her  to  sea  in  an  .unseaworthy  condition, 
and  in  a  condition  not  fit  and  proper  to  safely 
go  to  sea,  and  while  she  was  in  that  condition 
she  was  lost.  Held,  no  defense  to  the  action, 
because  there  was  no  implied  warranty  of  sea- 
worthiness under  the  contract.  Anotlier  plea, 
in  addition  to  what  was  stated  in  the  first, 
alleged  that  the  plaintiffs  knowingly,  willfully 
and  wrongfully  sent  the  ship  to  sea  in  an 
unseaworthy  state.  Ileld,  also,  not  better  than 
the  first,  because  tliere  was  no  averment  in  it 
that  the  loss  was  the  result  of  her  unseaworthy 
condition.  Ueld,  also,  that  a  plea  which 
stated  that  the  insured  sent  her  to  sea  at  a 
time  when  it  was  dangerous  for  her  to  go  in 
the  state  and  condition  in  which  she  then  was, 
and  wrongfully  and  improperly  caused  and 
permitted  her  to  be  and  remain  at  sea  in  that 
state  and  condition,  and  witlumt  a  master  and 
proper  crew  to  navigate  her,  and  that  during 
that  time  and  by  reason  of  the  premises,  she 
was  wrecked  and  wholly  lost,  was  a  bar  to  the 
action,  not  because  she  was  unseaworthy  at 
the  time  the  policy  attached,  but  because  the 
loss  was  produced  by  the  wrongful  act  of  the 
insured.  Thompson  o.  II(>x>pei;  6  El.  &  Bl.,  173 ; 
25  L.  J.  Q.  B.,  240;  3  Jur.  (N.  S.),  608.  Upon 
the  trial,  the  court  did  not  leave  it  to  the  jury 
to  find  whether  or  not  the  moving  cause  of  the 
loss  was  the  sending  of  the  ship  to  sea  in  an  un- 
seaworthj'  condition  which  made  it  necessary 
to  detain  her  in  a  dangerous  condition  for  a 
considerable  time,  but  the  judge  directed  the 
jury  to  find  "  whether  or  not  the  loss  was  at- 
tributable to  any  or  all  the  particular  grounds 
of  unseaworthiness."  Held,  error.  The  jury 
must  be  directed  to  find,  not  only  whether 
the  loss  was  attributable  to  all  or  any  of  the 
alleged  causes  of  unseaworthiness,  but 
whether  the  loss  was,  in  the  opinion  of  the 
jury,  occasioned  by  any  wrongful  act  or  de- 
fault in  the  plea  alleged,  s.  c,  6  El.  &  Bl.,  937 ; 
8.  c,  3  Jur.  (N.  S.),  133;  26  L.  J.  Q.  B.,  18.  But 
upon  appeal  in  the  exchequer  chamber  the 
last  judgment  was  reversed,  and  it  was  held 
that  the  act  of  the  plaintiff  in  knowingly 
sending  the  ship  to  sea  could  not  relieve  the 


insurers  from  liability,  unless  that  was  the 
immediate  cause  of  the  loss.  8.  c.  El.  Bl.  & 
El.  (90  E.  C.  L.),  1038;  5  Jur.  (N.  S.),  93;  37  L. 
J.  Q.  B.,  441. 

13.  Time  policy  made  at  Liverpool  upon  a 
vessel  there  in  port.  She  sailed  in  an  unsea- 
worthy condition  and  encountered  nothing 
more  than  the  usual  and  ordinary  weather  on 
such  a  voyage;  she  was  compelled  to  put 
into  a  port  to  make  repairs.  Held,  the  policy- 
attached;  but  if  the  loss  was  not  the  result  of 
sea  perils  encountered  after  tlic  policy  attached, 
insurers  were  not  liable.  Fawcus  v.  Sargfield, 
6  El.  &  Bl.,  193;  s.  c,  3  Jur.  (N.  S),  665;  25 
L.  J.  Q.  B.,  249. 

14.  It  was  averred  in  the  declaration  that 
the  insurers  agreed  the  ship  was  seaworthy  for 
the  voyage.  Held,  the  admission  amounted 
to  a  dispensation  of  the  usual  warranty  of  sea- 
worthiness; that  if  she  had  foundered  in  a 
perfectly  calm  sea  from  a  leak  occasioned  by 
rottenness  the  day  after  the  policy  was  made, 
the  insurers  would  have  been  liable.  Parfitt 
1).  Thompson,  13  Mee.  &  "W.,  392;  14  L.  J. 
Ex.,  73. 

II.  Onus  PEOBAi^ni. 
(a)  WJien  the  onus  is  v/pon  insured. 

1.  When  it  is  shown  that  the  incapacity  of 
the  ship  to  proceed  is  (airly  attributuable  to 
sea  damage,  the  onus  probandi  is  cast  upon 
the  insurers  to  show  that  she  was  unseaworthy 
at  the  commencement  of  it.  Burnewall  v. 
Chunh.  1  Caines,  317.  But  the  law  presumes 
her  unseaworthy  if  she  becomes  incapable  to 
proceed  on  the  voyage,  unless  adequate  cause 
be  shown  to  occasion  the  damage;  and  then 
the  onus  probandi  is  shifted  upon  the  insured. 
Ibid. 

2.  Where  there  is  no  adequate  cause  shown 
to  produce  the  injury  which  led  to  the 
loss,  the  presumption  is  that  she  was  not 
seaworthy  at  the  commencement  of  the  voy- 
age. Talcot  i:  Commercial  Ins.  Co.,  3  Johns., 
124. 

3.  There  is  no  presumption  that  the  vessel 
is  seaworthy  when  she  commences  her  voy- 
age;  some  evidence  must  be  given  tending  to 
show  that  fact.  Moses  v.  Sun  Mut.  Ins.  Go.,  1 
Ducr,  159. 

4.  If  the  ship  sails  in  an  apparent  seawortliy 
condition,  and  was  never  heard  of,  the  law 
presumes  she  was  lost  by  a  peril  of  the  sea; 

623 


1247 


SEAWORTHINESS. 


1248 


Onus  proband!. 


but  it'  she  springs  a  leak  in  moderate  weather 
and  founders,  the  law  presumes  she  was  un- 
seaworthy,  and  casts  the  burdun  of  proof  upon 
the  int^uii'd  to  show  that  she  was  seaworthy  at 
the  comiueucemeut  of  the  voyage.  Paddock  v. 
Franklin  Ins.  Co.,  11  Piclv.,  227. 

5.  The  burden  of  proving  seaworthiness  lies 
on  the  insured;  but  if  it  appears  that  the  loss 
may  be  fairly  imputed  to  sea  damage  or  any 
other  misfortune,  and  the  insurer  defends  on 
the  ground  that  she  was  not  seaworthy,  the 
burden  is  then  tly-own  upon  him.  Brown  v. 
Girard,  i  Yeates,  115. 

6.  The  sheritt  levied  upon  her,  and  insured 
her  in  his  own  name  against  harbor  risks  in 
the  port  of  New  Orleans.  She  sank  about 
two  o'clock  in  the  night,  and  neither  party 
was  able  to  assign  the  specific  cause  of  the 
disaster.  Ileld,  the  presumption  followed  that 
she  was  not  seaworthy;  but  the  plaintiff  had 
the  right  to  rebut  this  presumption  by  proof. 
Parker  b.  Union  Int.  Co.,  15  La.  An.,  688. 

7.  On  cargo.  She  sprung  a  sudden  leak 
■while  in  port  during  fine  weather,  and  sank  at 
lier  moorings.  Evidence  was  given  tending 
to  show  that  she  had  recently  been  put  in 
thorough  repair,  that  careful  surveys  of  her 
had  been  made,  and  that  after  repairs  she  had 
made  her  last  voyage  without  exhibiting  any 
signs  of  unseaworthiness.  No  evidence  was 
given  to  account  for  the  leak.  Held,  the  (act 
that  she  sank  in  smooth  water,  without  any 
apparent  cause,  raised  an  irresistible  pre- 
sumption of  unseaworthiness;  but  that  might 
be  overcome  by  proof  of  the  condition  of  the 
ship,  and  then  all  of  the  evidence  must  be  left 
to  the  jury,  for  them  to  determine  whether  she 
was  seaworthy.  If  they  found  that  she  was, 
then  the  loss  mu.st  be  attributed  to  a  peril  of 
the  sea,  though  insured  were  unable  to  ascer- 
tain what  the  peril  was.  Anderson  v.  Morice, 
10  L.  K.  C.  P..  58;  affirmed,  id.,  GOO. 

(b)  When  the  onus  is  uj>on  insurer. 

8.  It  appeared  in  evidence  that  the  vessel 
was  e.\posed  on  the  voyage  to  severe  gales. 
Held,  the  burden  of  proof  was  cast  upon  the 
insurer  to  establish  her  unseaworthiness. 
Watton  1).  Insurance  Co.  of  North  America,  2 
Wash.  C.  C,  480. 

9.  If  the  vessel  is  seaworthy  at  the  com- 
mencement of  the  voyage,  the  presumption 
is  that  she  continues  so,  in  the  absence  of  any 

G24 


rebutting  evidence.     Martin  v.  Fiildng  Ins. 
Co.,  20  Pick.,  389. 

10.  If  the  vessel  is  seaworthy  at  the  com- 
mencement of  the  risk,  the  warranty  is  satis- 
fled,  though  she  becomes  unfit  for  the  sea  and 
goes  to  the  bottom  very  soon  afterwards ;  yet, 
if  she  sails,  and  within  a  short  time  becomes 
leaky,  founders,  or  is  obliged  to  return  to  port 
without  encountering  stress  of  weather,  or  any 
visible  or  adequate  cause  to  produce  that  effect, 
the  presumption  is  that  she  was  not  seaworthy 
when  she  sailed;  but  such  presumption  is  re- 
pelled by  affirmative  proof  that  she  was  sea- 
worthy when  she  left  port.  The  burden  of 
proof,  however,  is  on  the  insurer  to  establish 
the  fact  of  unseaworthiness,  for  the  law  pre- 
sumes that  she  was  seaworthy.  Stephenson  v. 
Piscataqua  Fire  and  Marine  Ins.  Co.,  54  Mc, 
55.  And  the  fact  that  the  efl'ects  of  certain 
perils  encountered  were  not  discovered  at  the 
time  of  encounter  is  not  conclusive  proof  that 
she  was  not  injured  by  them,  for  the  policy 
not  only  covers  losses  that  occur  by  injuries 
caused  bj'  extraordinary  perils  of  the  sea  im- 
mediately known,  but  also  losses  that  occur 
from  latent  injuries.    Ibid. 

11.  It  will  be  presumed  that  the  vessel  was 
seaworthy  at  the  commencement  of  the  voy- 
age, if  nothing  .appears  to  rejjel  that  presump- 
tion (citing  Taylor  v.  Lowell,  3  Mass.,  331 ; 
Paddock  v.  Franklin  Ins.  Co.,  11  Pick.,  226). 
Treat  v.  Union  Ins.  Co ,  56  Me.,  231. 

12.  Several  witnesses  testified  to  facts  tend- 
ing to  show  that  she  was  fit  for  sea  when  the 
voyage  commenced  at  New  Orleans.  She  was 
driven  into  the  island  of  St.  Thomas  in  a  dis- 
bled  condition,  and  there  surveyed,  when  her 
timbers  were  found  very  unsound.  Held,' this 
was  not  sufficient  to  overcome  the  prima  facie 
ease  of  seaworthiness  made  by  the  insured. 
Trimble's  Syndics  v.  New  Orleans  Ins.  Co.,  3 
Martin  (La.),  394. 

13.  On  cargo  on  a  barge  in  tow  of  a  steam, 
er,  from  St.  Louis  to  New  Orleans.  On  the 
second  day  out  from  St.  Louis  the  barge  sud- 
denly sprung  a  leak,  and  was  in  danger  of 
sinking;  the  steamer  turned  towards  the  shore, 
but  in  doing  so  the  barge  careened,  broke  her 
fastenings,  turned  over  and  sunk.  No  specific 
cause  could  be  assigned  for  the  leak,  as  that" 
she  struck  a  snag,  or  sandbar,  or  incurred  any 
other  casualty ;  but  the  evidence  given  to  show 
that  the  barge  was  seaworthy,  at  the  inception 
of  the  voyage,  was  extremely  full   and  con- 


1249 


SEAWOirmiNESS. 


1250 


When  the  vessel  is  seaworthy. 


Tiucing.  Ileld,  wlien  a  vessel  springs  a  leak 
fioon  after  the  risk  eoinmciines,  without  appar- 
ent cause  by  perils  withiu  the  policy,  then  uii- 
scawortliiness  is  presumed;  but  tliis  presump- 
tion is  overcome  by  proof  which  eslablishes 
the  good  c<indiIion  of  the  vessel;  and  then  tlie 
court  must  presume  that  some  unseen  peril, 
Jiot  specifically  ascertained  by  the  evidence, 
was  the  cause  of  the  loss.  Siietheiiv.  Memphis 
Jus.  Co.,  3  La.  An.,  474. 

14.  On  schooner,  lier  stores  and  passage 
money.  She  was  forced  to  enter  a  port  of 
safety,  and  was  there  unjustly  libeled  by  the 
passengers,  and  coudcraued  to  refund  the  pass- 
age money,  on  the  ground  that  she  was  un- 
seaworthy  when  the  voyage  commenced.  Slie 
was  sold  to  answer  the  decree.  Held,  the  de- 
cree of  the  court  of  admiralty  (U.  S.  District 
Court,  at  Key  West)  was  not  conclusive  of  her 
uuseaworlliiness,  nor  that  Die  warranty  of  sea- 
worlliiuess  at  the  commencement  of  the  voy- 
age was  broken.     Marks  v.  Nashville  Marine 

'  <iiid  Fire  Ins.  Co.,  6  La.  An.,  126. 

1 5.  She  foundered  at  sea  from  causes  un- 
known. Held,  no  presumption  that  she  was 
unseaworthy.  Smith  v.  Bissett,  Faculty  Dec. 
1808  to  181  J,  p.  G17. 

16.  She  sailed  from  Greenock  for  Kew  Or- 
leans. Soon  after  she  left,  the  weather  became 
thick  and  hazy,  she  lost  her  reckoning,  and  next 
morning  ran  ashore  in  Cusheudeau  Baj-.  Insur- 
ers claimed  tliat  the  compasses  were  defective. 
But  several  witnesses  testified  that  they  were  of 
excellent  quality.  Ildd,  theonifs  was  upon  the 
defenders,  to  make  out  that  the  vessel  was  un- 
seaworthy. M'Cloikie  i>.  Olasgow  and  Clyde 
Marine  Ins.  Co.,  6  C.  C.  S.,  2. 

III.   AVhen  the  vessel  is  seawoethy. 

1.  |2,000  on  brig  from  Fall  River  to  Ha- 
vana, thence  to  a  northern  port  in  tlie  United 
States,  valued  at  $3,000.  She  arrived  at  Ha- 
vana, took  cargo  of  molasses  and  sailed ;  but 
soon  after  she  met  a  cross  sea,  ordinarily  tlirown 
up  by  the  meeting  of  the  trade  wind  with  the 
current  of  the  gulf  stream,  in  which  she 
sprung  a  leak,  and  was  obliged  to  put  into 
Key  West,  where  she  was  hove  out,  examined, 
and  found  that  her  repairs  would  have  cost 
$3,000;  and  when  repaired  she  would  not  have 
been  worth  that  sum  ;  a  sale  was  recommended 
and  she  was  accordingly  sold.  Held,  tlie  jury 
were  bound  to  presume  that  she  was  scawor- 
40 


Ihy  at  tlie  commencement  of  tlie  voyage.    Bui 
lard  D.  lioyer  Williams  Ins.  Co.,  1  Curtis,  14S. 

2.  If  a  vessel  be  seawortliy  at  the  time  of 
sailing,  but  in  the  cour.se  of  the  voyage  sud- 
denly  springs  a  leak,  and  founders  before  sho 
encounters  any  extraordinary  peril,  it  is  a  loss 
by  perils  of  the  sea.  Patrick  v.  Hallet,!  Johns., 
241. 

3.  A  vessel  is  not  unseaworlhy  because  sho 
sails  without  her  proper  documents,  unless 
her  national  character  is  warranted  or  repre- 
sented, and  they  are  necessary  to  sustain  it. 
Elting  v.  Scott,  2  Johns.,  157. 

4.  At  and  from  Nortli  Carolina.  Held,  if 
she  was  seaworthy  when  slie  passed  the  boun- 
dary line  of  the  state,  the  insurer  was  liable; 
that  her  condition  prior  to  tliat  time  was  im- 
material. Treadwell  v.  Union  In.t.  Co.,  0  Cow., 
270. 

5.  6.  was  named  in  her  register  as  master. 
He  signed  the  shipping  articles,  also  a  bond 
to  the  collector  of  customs,  but  he  was  to  act 
as  purser  merely.  McNeil,  the  first  mate,  had 
the  whole  charge  of  navigating  the  sliip.  He 
was  an  experienced  and  skillful  seaman  and 
navigator.  Held,  it  was  no  part  of  the  contract 
of  insurance  that  the  name,  of  the  acting 
master  should  appear  in  the  register;  if  the 
owner  chooses  to  register  the  name  of  a  per- 
son as  master  who  has  no  nautical  skill  or  ex- 
perience, not  intended  to  act  as  master  or  take 
any  part  in  navigating  the  ship,  or  any  con- 
trol of  tlie  subordinate  officer?  or  mariners,  it 
is  a  matter  with  wliich  insurers  are  not  con- 
cerned, provided,  always,  she  is  in  fact  put 
under  the  command  of  a  competent  master. 
Draper  v.  Commercial  Ins.  Co.,  21  N.  T., 
378 ;  reversing  s.  c,  4  Duer,  234. 

6.  Slie  left  New  York  for  Liverpool  August 
22,  1862,  laden  with  grain.  On  the  morning 
of  the  26th  she  was  in  a  sinking  condition, 
with  nine  feet  of  water  in  her  hold  and  pumps 
clogged.  Officers  and  crew  abandoned  her, 
and  sho  went  down  an  hour  afterwards,  one 
hundred  and  twenty  miles  from  the  coast. 
There  was  conflicting  evidence  as  to  whether 
she  had  eucounleied  more  tlian  ordinary 
weather,  but  the  jury  found  she  was  sea- 
wortliy when  slie  left  port.  Held,  insured 
must  recover.  Walsh  v.  Washington  Marine 
Ins.  Co.,  32  N.  Y.,  427;  8.  c,  3  Rob.,  203. 

7.  She  encountered  severe  weather  in  cross- 
ing the  gulf  stream,  met  a  severe  gale  near 
Abaco,  which  compelled  her  to   lay  to  for 

625 


1251 


SEAWORTHIIiESS. 


1252 


When  the  vessel  is  seaworthy. 


twenty-four  hours,  and  again  a  norther  over- 
took her.  She  sprung  a  leak,  crew  worked 
until  they  were  exhausted,  and  then  took  to 
the  life  boat.  They  stayed  by  her  till  she 
went  down.  Held,  no  presumption  that  she 
was  uuseaworthy.  Sturm  n.  Atlantic  Mut. 
Ins.  Co.,  6  J.  &  Sp.,  281. 

8.  A  ship  is  seaworthy  notwithstanding  a 
failure  to  comply  with  the  law,  whicli  requires 
a  certain  quantity  of  water  shall  be  on  board 
and  well  secured  under  deck.  Warren  u. 
Mamifacturers  Ins.  Co.,  13  Pick.,  518. 

9.  If  the  vessel  becomes  unseaworthy  dur- 
ing the  voyage  and  the  defect  is  cured  before 
a  loss,  the  insurer  is  liable  for  a  loss  that  oc- 
curs afterwards.  Deblois  v.  Ocean  Ins.  Co.,  16 
Pick.,  303. 

10.  Stowing  on  deck  of  all  the  water  on 
board,  contrary  to  law,  does  not  make  the  ship 
unseaworthy,  nor  cast  upon  the  insured  the 
burden  of  proving  her  seaworthy.  Deshon  v. 
Merchants  Ins.  Co.,  11  Met.,  199. 

11.  "Upon  a  bark  building  at  Perry,  to 
take  eifcct  as  soon  as  waterborne,  at  and  from 
Perry  to  Calais,  and  to  stop  at  Eastport,  and 
thence  to  a  southern  port."  She  was  launched 
at  Perr}-,  towed  to  Eastport,  rigged  and 
equipped  for  sea,  and  sailed  thence  in  a  sea- 
worthy condition  for  New  York.  Held,  it  was 
not  necessary  to  show  that  she  was  seaworthy 
for  the  voj'age  to  New  York  when  she  left 
Perry;  it  was  sufficient  if  she  was  in  a  condi- 
tion to  be  towed  safely  from  Perry  to  East- 
port;  if  she  was  made  seaworthy  at  Eastport 
for  the  voyage  to  New  York,  the  implied  war- 
ranty was  satisfied.  Cobb  v.  New  England 
Mutual  Marine  Ins.  Co.,  6  Gray,  193. 

12.  At  aud  from  Cape  St.  Francois  to  Phila- 
delphia, Held,  the  policy  attached  when  the 
vessel  had  been  safely  moored  twenty-four 
hojrs  at  Cape  St.  Francois,  and  if  she  was 
then  seaworthy  the  warranty  was  satisfied. 
Garrigues  v.  Coxe,  1  Binn.,  592. 

13.  On  ship  from  Philadelphia  to  Charles- 
ton, thence  to  Madeira.  On  leaving  Charles- 
ton she  struck  tbe  bar,  but  proceeded  to  sea 
and  made  much  water.  Eight  days  afterwards 
she  reached  Norfolk  in  distress;  sailed  for 
Madeira,  leaving  the  Chesapeake  Bay  Novem- 
ber 25th;  but  commenced  to  leak  again,  and 
upon  search  made,  a  knot  hole  was  found 
which  had  been  enlarged  by  the  gnawing  of 
rats.  She  reached  the  roads  at  Funchal,  when 
she  was  again  obliged  to  put  to  sea  to  avoid 

626 


threatened  danger,  and  while  at  sea  she  came 

in  collision  with  another  vessel  and  received 
great  damage,  and  was  condemned  and  sold. 
Held,  if  she  was  seaworthy  when  she  com- 
menced the  voyage,  that  was  sufficient.  Peter* 
V.  Phcenix  Ins.  Co.,  3  S.  &  R.,  25. 

14.  She  departed  from  St.  Louis,  drawing 
six  and  a  half  feet  of  water.  The  water  in 
the  river  being  then  very  low,  she  could  not 
pass  some  of  the  bars  without  being  lightened, 
and  for  that  purpose  she  was  detained  three 
daj-s  at  Turke3'  Island,  her  draft  being  reduced 
one  foot.  She  touched  afterwards  upon  some 
of  the  bars  and  logs  in  the  river.  Her  pro- 
gress, owiug  to  her  deep  lading,  was  thereby 
rendered  verj'  slow.  Finally  she  ran  upon  a 
reef  of  stumps  and  logs,  and  was  lost.  Held, 
if  she  was  overloaded,  she  was  unseaworthy 
at  the  commencement  of  the  voyage,  and  in- 
surers were  released.  But  in  determining 
whether  she  was  overloaded,  the  inquiry  must 
be,  not  as  to  the  depth  of  water  over  which 
she  was  to  float,  but  as  to  her  carrying  capacity. 
For  if  she  was  not  loaded  beyond  her  carry- 
ing capacity,  then  she  was  not,  in  contem- 
plation of  law,  overloaded,  and  therefore  in 
that  respect  not  unseaworthy.  Cincinnati 
Ins.  Co.  D.  May,  20  Ohio,  211. 

15.  The  act  of  congress  required  a  special 
license  for  the  transportation  of  gunpowder, 
oil  of  turpentine,  caraphene,  and  other  burn- 
ing substances,  and  any  violation  of  the  law 
subjected  the  carrier  to  a  fine  of  §100.  Held, 
a  noncompliance  with  the  statute  did  not  make 
the  vessel,  per  se,  unseaworthy.  Sherlock  v. 
Globe  Ins.  Co..  1  Cin.  Sup.  Ct.,  198. 

16.  Iftlie  brig  was  in  good  order  and  fit 
for  sea  when  she  sailed,  that  was  sufficient. 
Miller  v.  Russell,  1  Bay,  309. 

17.  On  cargo.  New  Orleans  to  Brazos^ 
She  left  the  basin  August  2d,  but  owing  to  the 
difficulties  of  navigation  in  the  Bayou  St.  John 
she  did  not  get  over  the  bar  and  leave  the 
Pickets  on  her  voyage  until  the  6th  following. 
On  the  8th,  she  put  into  Bay  St.  Louis  to  ob- 
tain  water,  made  sail  on  the  9th,  and  three 
days  after  was  burned  off  Breton's  Island. 
While  she  lay  off  Bay  St.  Louis,  the  master 
left  her- to  visit  his  father-in-law,  in  the  Bay, 
and  went  aboard  twenty  miles  from  tliat  place, 
one  or  two  miles  from  the  Rigolcts,  and  find- 
ing she  was  short  of  water,  he  stopped  to  ob- 
tain it.  Held,  if  the  vessel  be  unseaworthy  at 
the  commencement  of  the  voyage,  and  the  de- 


3253 


SEAWORTHrNESS. 


1254 


When  the  vessel  is  seaworthy. 


feet  is  cured  before  a  loss  occurs,  the  insurer 
is  liable  (citing  American  Ins.  Co.  v.  Ogden, 
15  Wend.,  532;  20  id.,  287).  Tliat  the  tempo- 
rary absence  of  the  master  constituted  no  de- 
fense  to  the  action.  Lapene  v.  Sun  Mut.  Ins. 
Co.,  8  La.  An.,  1. 

18.  Change  of  command  was  proliibited,  un- 
Ics.s  consented  to  by  insurers.  She  was  seized 
by  tlie  sherift'  at  the  suit  of  a  creditor,  who 
took  her  into  custody,  and  tlie  master  and 
crew  were  excluded  from  possession.  Ileld, 
tills  was  neither  a  viol.ation  of  the  condititm 
recited,  nor  was  it  evidence  of  unseawortlii- 
ness  (citing  Bell  v.  Western'Marine  and  Fire 
Ins.  Co.,  5  Rob.  (La.),  446).  MarUjiiy  D.  Ilome 
Mut.  Ins.  Co.,  13  La.  An.,  338. 

1 9.  She  was  in  good  condition,  well  offi- 
cered and  provisioned  when  the  policies  at- 
tached February  25th,  — they  were  for  a 
term  of  si.\  months  till  July  3d  following. 
Between  1  and  2  o'clocli  in  the  morning  a  fire 
was  discovered  in  a  room  on  the  main  deck, 
where  carpenterter's  tools,  oils,  etc.,  were  kept, 
which  was  extinguished  in  an  hour  bv  very 
great  exertions ;  but  about  an  hour  and  a  half 
thereafter  slie  went  down  suddenly,  the  per- 
sons on  board  having  barely  time  to  save 
tlieir  lives.  Held,  the  presumption  of  unsea- 
worthiness did  not  arise,  the  loss  was  the  re- 
sult of  perils  insured  against.  Pointer  v.  Mer- 
elmnts  Mut.  Ins.  Co.,  20  La.  An.,  100. 

20.  Policy  dated  August  19,  1807,  to  attach 
from  August  1, 1806.  At  the  time  it  was  made 
she  was  not  comi)etent  to  pursue  all  tlie  pur- 
poses of  lier  voyage,  because  her  crew  had 
been  reduced  Ijy  death  and  desertion.  Held, 
if  tlie  crew  was  sufficient  when  the  policy  at- 
tached for  some  of  the  objects  of  the  venture, 
and  could  have  navigated  her  liome,  she  was 
seaworthy.    Ilucks  v.  Tliurnton,  Holt  N.  P.,  30. 

21.  On  ship  from  London  to  Bahia.  She 
was  overladen,  put  into  Ramsgate,  where,  with 
the  consent  of  insurers,  she  discliarged  part  of 
her  cargo,  and  sailed  on  the  voyage.  Jleld,  if 
she  was  properly  laden,  and  in  a  seaworthy 
condition  when  slie  departed  from  Kamsgatc, 
and  the  loss  was  not  in  any  degree  attributa- 
ble to  her  having  been  overladen  between 
London  and  Ramsgate,  insurers  were  liable. 
Weir  V.  Aberdeen,  3  B.  &  A.,  320. 

22.  On  sliip  and  freight  from  Sierre  Leone 
to  port  of  discharge  in  the  United  Kingdom. 
A  number  of  her  crew  died  and  tlie  remain- 
der were  much  below  tlie  proportion  of  tliree- 


fourths  the  limit  of  the  navigation  act,  C  Geo. 
IV,  ch.  109.  She  sailed  with  six  Englisli  sailors 
and  nine  or  ten  blacks  or  otlier  foreigners, 
being  unable  to  obtain  more  English  seamen. 
Held,  tlie  law  forces  no  man  to  impossibilities. 
Held,  also,  the  certiticate  of  a  consul  or  two 
British  merchants  retjuired  by  the  act,  setting 
fortli  that  the  due  proportion  of  British  sea- 
men could  not  be  procured,  was  satisfied,  if 
upon  the  trial  it  appeared  that  it  was  inad- 
vertently  omitted  or  could  not  have  been  ob- 
tained. Sunrt  V.  Powell,  1  B.  &  Ad.,  266;  8  L. 
J.  K.  B.,  391. 

23.  The  implied  warranty  of  seaworthiness 
is  satisfied  if  the  sliip  was  seaworthy  at  the 
commencement  of  tlie  risk,  and  there  is  no 
distinction  in  this  respect  between  voyage  or 
time  risks.  Hollingicorth  v.  Brodrick,  7  A.  & 
E.,  40;  8  L.  J.  (N.  S.)  Q.  B.,  80;  1  Jur.,  430;  3 
N.  &  P.,  608. 

24.  The  defendant  pleaded  that  there  was 
not,  at  tliR  time  the  ship  sailed  on  the  voyage 
or  at  any  other  time  before  or  after,  any  agree- 
ment in  writing  with  the  master  and  seamen, 
specifying  what  wages  the  seamen  were  to 
receive,  and  tlie  capacities  in  which  they  were 
to  act.  Held,  tliough  tlie  master  was  liable  to 
a  penalty  for  noncompliance  with  the  statute, 
the  failure  to  have  shipping  articles  did  not 
make  the  voyage  illegal  or  render  the  ship 
unseawortliy.  Eedmond  v.  Smith,  7  M.  &  G., 
4.57;  13  L.  J.  C.  P.,  159;  8  Scott  N.  R.,  250;  3 
-Jur.,  711. 

25.  On  three  steamers  intended  fiu-  the  nav. 
igation  of  tlic  Danube,  "  At  and  from  Lyons 
to  Galatz,  with  leave  to  call  at  all  ports  and 
places  in  tlie  Mediterranean,  for  all  or  any 
purpose,  beginning  the  adventure  at  Lyons, 
with  leave  to  proceed  to,  sail,  touch  and  stay 
at  any  ports,  etc.,  and  with  leave  to  tow  and 
be  towed ;  warranted  to  sail  on  or  before  Au- 
gust 15,  1861."  One  of  them  left  Lyons  July 
12th  and  arrived  at  Marsailles  tlie  30tli.  The 
others  left  Lyons  August  2d  and  arrived  at 
Marseilles  the  7th  and  8th.  They  were  all 
seaworthy  for  the  voyage  down  tlie  Rhone  to 
Marseilles,  but  from  the  nature  of  the  naviga- 
tion could  not  have  been  made  seawortliy  for 
that  portion  of  tlie  voyage  between  Marseilles 
and  Galatz.  They  were  properly  equipped  at 
Marseilles,  August  23d,  for  tlie  balance  of  the 
voyage.  One  of  tliem  miglit  have  been  made 
ready  for  sea  at  Marseilles  several  days  earlier, 
but  the  master  detained   her  that  the  three 

G27 


1255 


SEAWORTHINESS. 


1256 


When  the  vessel  is  not  seaworthy. 


might  sail  together.  Ileld,  though  the  vessels 
■were  not  complete  for  the  sea  vo3-age  when 
fliey  left  Lyons,  they  were  nevertlieless  sea- 
worthy. Bouillon  V.  Lupton,  15  C  B.  (N.  S.), 
113;  s.  c,  10  Jur.  (N.  S.),  422;  33  L.  J.  C.  P., 
37;  11  AV.  R.,  966:  8  L.  T.  (N.  S.),  57o;  3  F.  & 
_F.,  720. 

26.  She  was  constructed  for  navigating  the 
Indus,  and  on  this  account  was  unfit  for  gen- 
eral ocean  navigation.  But  insurers  wore  in- 
formed ot  her  construction  and  character,  and 
tlie  purposes  for  whicli  siie  was  constructed, 
and  were  told  tliat  she  was  being  strengthened 
to  make  her  fit  fur  the  voyage  from  Liverpool 
to  Calcutta.  Held,  she  was  seaworthy,  if  at 
the  commencement  of  the  risk  she  was  made 
as  capable  as  it  w.is  possible  to  make  her. 
Surges  v.  WickJtam.  3  B.  &  S.,  669 ;  s.  c,  33  L. 
J.  Q.  B.,  17;  Clapham  V.  Langton,  5  B.  &  S., 
729;  s.  c,  34  L.  J.  Q.  B.,  46;  12  W.  K.,  1011; 
10  L.  T.  (N.  S.),  875 ;  3  F.  &  F.,  626. 

27.  She  sailed  from  St.  Michaels  for  Tena- 
riflc  and  Lanzarotte,  with  specie  and  Euro- 
pean manufactured  goods.  She  appeared  sea- 
worthy at  the  time  of  sailing,  but  shortly  after 
sprung  aleak,  in  a  gale,  and  had  five  inches  of 
water  in  her  hold  the  second  day  out.  The 
sixth  day  she  lay  becalmed  ofl'  Madeira.  The 
gale  renewed  its  violence,  and  she  could  not 
bear  up,  and  so  she  ran  for  Lanyarotte.  When 
about  thirty  miles  from  it  the  crew  were 
obliged  to  abandon  her.  Held,  a  prima  facie 
case  of  seaworthiness  was  made  out.  Franco 
V.  Naiusch,  6  Tyrw.,  401. 

28.  The  damage  was  caused  by  water  flow- 
ing in  through  the  service  pipe,  the  valve 
having  been  negligently  left  open.  In  all 
other  respects,  she  was  a  perfectly  seaworthy 
vessel.  Htld,  the  cause  of  the  injury  could 
not  be  attributed  to  uuseaworthiue.ss.  Datid- 
soii  V.  BurnaiuU  4  L.  R.  C.  P.,  117;  38  L.  J.  C. 
P.,  73 ;  17  W.  R.,  121 ;  19  L.  T.  (oST.  S.),  782. 

29.  On  freight  from  London  to  Honduras. 
She  took  the  ground  September  3d,  and  was 
obliged  to  lie  in  that  condition  for  hours,  till 
the  tide  floated  her  off,  but  completed  her 
loading  on  the  22d.  She  took  the  ground 
again  October  11th,  and  remained  fast  for 
fourteen  hours.  She  made  two  and  a  half 
inches  of  water  i)er  hour  on  the  13th.  On  the 
14lh  she  took  the  ground,  and  sailed  on  the 
voyage  the  20th.  The  day  after  she  made  ti  n 
and  a  half  inches  of  water  per  hour.  The 
leak  iiicreascd  so  rapidly  she  was  compelled 

028 


to  run  for  a  port  of  distress,  wliere  she  waj 
surveyed  and  condemned.  Held,  she  was  sea- 
worthy when  the  policy  attached,  and  there- 
fore insurers  must  be  held  liable.  Potts  v. 
Bvgle,  Faculty  Dec.,  1808  to  1810,  p.  679. 

30.  It  was  alleged,  that  the  towing  ropes 
were  decayed  and  unfit  for  use.  Ueld,  not 
evidence  of  unseaworthiness.  Stone  v.  Aber- 
deen Marine  Ins.  Co.,  11  C.  C.  S.,  1041. 

IV.  When  'the  vessel  is  not  sea- 
worthy. 

1.  A  vessel  may  be  seaworthy  in  port  or  for 
temporary  purposes,  such  as  mere  change  of 
position  in  harbor,  or  proceeding  out  of  port, 
or  lying  in  the  ofiing,  and  yet  not  l)e  sea- 
worthy for  a  voyage.  M  'Lanahan  v.  Unitcmal 
Ins.  Co.,  1  Pet.,  170. 

2.  Time  policy  on  vessel.  She  was  in  her 
home  port  when  it  was  made  and  was  to  be 
employed  as  a  passenger  vessel  between  New 
York  and  Galveston.  She  entered  upon  her 
first  voyage  in  an  unseaworthy  condition,  and 
foundered  in  a  few  days.  Ueld,  the  insured 
could  not  recover.  Bouse  v.  Insurance  Co.,  3 
Wall.  Jr.,  367. 

3.  Ship  is  not  seaworthy  unless  she  is  in  a 
condition  to  carry  a  full  cargo.  Abbott  c. 
Broome,  1  Gaines,  292. 

4.  Ship  sailed  from  Wilmington  for  Fal- 
mouth with  a  crew  of  ten  persons,  intending 
to  touch  at  the  Hook  off  New  York  to  procure 
seamen.  Before  she  arrived  at  the  point 
dividing  the  direct  course  to  Falmouth,  autl 
the  course  to  New  York,  she  foundered.  Held, 
the  intention  to  stop  was  evidence  that  the 
crew  was  not  competent,  or  that  they  were  not. 
engaged  for  the  voyage.  SiUa  v.  Low.  1 
Johns.  C.   184. 

5.  On  ship  from  Turks  Island  to  New  York. 
About  one  o'clock  of  the  night  that  she  sailed, 
she  was  found  to  have  three  and  a  half  feet  of 
water  in  her  hold.  Held,  the  law  will  intend 
a  want  of  seaworthiness,  because  no  visible  or 
rational  cause,  other  than  a  latent  and  in- 
herent defect  in  the  vessel  can  be  assigned 
for  the  leak ;  that  insurers  do  not  insure 
against  latent  defects.  Patrick  o.  Hallet,  3 
Johns.  C,  76;  overruled,  s.  c,  1  Johns  ,  241. 

6.  A  ship  to  be  seawonhj'  must  be  pro- 
vided  with  all  necessary  stores  for  the  vo^-age, 
when  she  sails.  Funtaine  t.  Plicenix  Ins.  Co., 
10  Johns.,  58. 


1257 


SEAWORTHINESS. 


1258 


When  the  vessel  is  not  seaworthy. 


7.  The  insurer  miiy  defend  on  the  ground 
lliat  the  vessel  was  uiiseawortliy,  by  proving 
thiit  she  had  not  a  competent  crew,  captain  or 
pilot.    Treailwell  ».  Union  Ins.  Co.,  6  Cow.,  270. 

8.  On  goods  at  and  from  New  York  by 
steamer  or  steamers  to  Chagres,  at  and  from 
llience  by  tlie  usual  conveyances  across  the 
l.stlimus,  and  from  thence  by  steamer  or  steam, 
ers  to  San  Francisco.  Ilelil,  three  distinct  voy- 
ages; that  if  tlie  boat  which  took  them  at 
Chagres  was  not  seaworthy,  the  defendants 
were  discharged;  and  it  appearing  that  she 
did  not  encounter  any  peril  which  could  have 
caused  the  leak,  she  must  be  presumed  uusea- 
worthy  ;  hence,  insurers  were  not  liable.  Van. 
Valketibui-gh  v.  jUtor  Mul.  Ins.  Co.,  1  Bos.,  61. 

9.  She  .sailed  from  Uio  October  10th,  made 
sail  to  tlie  southward  ofl"  shore  by  the  wind, 
encountered  a  heavy  swell,  wind  and  sea  in- 
creased, she  labored  heavily,  took  in  sail, 
tried  the  pumps,  found  her  making  water, 
could  not  keep  her  free  until  all  sail  was 
taken  in  except  two  topsails.  When  twenty- 
live  or  thirty  miles  from  the  shore,  determined 
to  put  back  to  Uio.  Held,  the  court  must  pre- 
Bume  that  she  was  unseaworthy  when  she 
sailed,  notwithstanding  the  jury  found  speci-. 
iilly  contra.  Wright  v.  Orient  3Iut.  Ins.  Co.,  6 
Bos.,  269. 

10.  If  the  vessel  is  not  seaworthy  when  the 
voyage  commences  the  insurer  is  discharged, 
and  her  arrival  at  the  port  of  destination  docs 
not  mend  the  broken  warranty.  And  if  the 
master's  protest  shows  that  she  began  to  leak 
soon  after  she  sailed,  and  so  continued  until 
she  encountered  a  gale,  the  presumption  is, 
that  she  had  an  inherent  defect  at  the  lime  of 
sailing.  Prescott  v.  Union  Ins.  Co.,  1  Whart., 
398. 

11.  "On  the  iron  hull  stern  wheel  steamboat, 
Gov.  Morchead,  one  trip,  Philadelphia  to  Port 
Wa.sliingti)n,  N.  C."  She  was  new,  had  been 
built  in  Philadelphia  to  run  (Ui  the  Tar  river. 
Siie  left  Philadelphia  July  33d,  went  down 
the  Delaware  and  proceeded  up  Morris  river 
to  Leedsburgh,  but  the  machinery  failed  to 
work  properlj';  she,  therefore,  put  back  to 
Philadelphia,  where  she  arrived  on  the  2fith, 
and  while  in  her  berth  at  the  wharf  that  night, 
she  sunk  and  sustained  large  damage.  Held, 
she  was  unseaworthy  when  the  voyage  com- 
menced. Myers  v.  Girard  Ins.  Co.,  2G  Penn. 
St.,  192. 

12.  On  shij)  for  a  term  of  three  months,  lost 


or  not  lost.  At  the  date  of  the  policy  she  was 
lying  at  Annapolis,  out  of  repair,  and  drawn, 
up  on  a  marine  railway.  After  much  work 
was  done  to  her,  slie  was  floated  and  com- 
menced  to  leak.  She  was  again  put  on  tho 
railway  and  further  repairs  made.  She  sailed 
for  Baltimore,  where  she  arrived  and  remained 
for  several  weeks.  November  12lh,  she  cleared 
for  Washington  City,  and  left  port  on  the 
morning  of  the  19th.  At  I  o'clock  P.  M.  the 
valve-stem  broke  at  the  same  place  it  had 
broken  on  a  previous  occasion,  the  thread  of 
the  screw  being  so  much  worn  that  the  nuts 
would  not  hold.  There  was  no  suitable  tool 
on  board  to  repair  it,  but  by  the  use  of  a  file  a 
temporary  repair  was  ell'ected.  She  ran  dowu 
the  bay  for  some  hoiirs,  when  slie  commenced 
to  leak  badly,  the  water  rising  rapidly.  A 
plank  had  given  way  about  three  feet  below 
watermark.  She  w.as  abandoned.  She  hail 
encountered  no  heavy  weather,  nor  had  she 
run  upon  any  obstruction.  Held,  the  implied 
warranty  of  seaworthiness  was  broken.  Dal- 
lam  V.  Insurance  Co.,  G  Phila.,  15. 

1 3.  Where  there  was  no  proof  of  any  stress 
of  weather  to  occasion  a  leak,  and  the  goods 
were  damaged  by  sea  water,  the  presumption 
is  that  the  vessel  was  not  seaworthy.  Field  v. 
Insurance  Co.  of  North  America,  3  Md.,  244. 

1 4.  "  On  a  ferry  boat,  to  run  from  New  Or- 
leans to  the  opposite  side  of  the  river,  with 
liberty  to  tow  vessels  up  and  down  the  river," 
etc.  She  landed  her  passengers  on  the  oppo- 
site side,  and  was  properly  secured  at  the 
usual  landing  place;  the  evening  continued 
fine  and  calm;  at  the  usual  hour  the  hands 
went  to  rest,  with  the  exception  of  the  watch- 
man ;  about  half  past  nine  o'clock  a  le.ak  was 
discovered,  and  she  filled  very  rapidly;  and 
notwithstanding  great  efforts  were  made  to 
prevent  it,  she  sunk.  There  was  no  stress  of 
\yeather  before  or  at  the  time,  nor  any  acci. 
dent  or  circumstance  arising  from  the  perils 
insured  against.  Held,  if  she  had  been  lost  in 
consequence  of  some  of  the  perils  insured 
against,  the  presumption  would  have  been  in 
favor  of  her  seaworthiness,  and  the  onus 
would  have  been  upon  insurers  to  show  that 
she  was  not  seaworthy;  but  th.at  as  the  loss 
could  not  be  ascribed  to  stress  of  weather,  the  . 
fair  and  natural  presumptiim  was  th.at  she  was 
not  seaworthy.  Hiipcyre  v.  Western  Marine 
and  Fire  Ins.  Co.,  2  Rob.  (La.),  457. 

1  o.  On  cotton  from  Matagorda  to  New  Or- 

629 


1251) 


SEAWORTHINESS. 


1260 


When  tlie  vessel  is  not  seaworthy. 


leans.  She  kft  port  June  24lh,  returned  the 
26th  in  a  siuliing  condition,  and  was  beached 
for  tlie  purpose  of  saving  tlie  cargo.  She  had 
encountered  nothing  but  pleasant  weather 
from  the  time  she  left  port  until  the  time  she 
was  found  in  a  sinking  condition,  witli  tlie 
water  over  the  forecastle  deck.  Held,  there 
was  no  evidence  that  an  unknown  accident  or 
peril  of  the  sea  was  the  cause  of  the  leak,  and 
in  absence  of  testimony  to  show  what  her  con- 
dition was  at  the  time  she  commenced  the 
voyage,  the  court  was  bound  to  hold  that  she 
was  not  seaworthy.  Hugely  v.  Sun  Mut.  Ins. 
Co.,  7  La.  An.,  279. 

16.  She  sprung  a  leak  the  day  after  she  loft 
port,  and  made  so  much  water  that  it  became 
necessary  to  abandon  the  voyage.  She  had 
encountered  no  extraordinary  peril.  Held,  she 
was  not  seawortliy.  Wallace  v.  DePau,  1 
Brev.,  253;  Miller  v.  South  Carolina  Ins.  Co., 
3  MoCord,  336. 

17.  A  number  of  witnesses  testified:  "She 
was  rotten  at  the  commencement  of  the  voy- 
age;" but  thej^  admitted  she  might  have  per- 
formed it  with  good  weather.  Held,  she  was 
unseaworthy.  Hudson  c.  Williamson,  3  Brev., 
343. 

1 8.  She  had  been  lengthened,  but  the  exten- 
sion was  not  fastened  with  knees.  Soon  after 
she  left  harbor  several  things  necessary  for  the 
voyage  were  found  wanting,  and  she  put  into 
Dundee,  a  place  out  of  the  course,  for  fuel  and 
cordage.  The  old  rigging  was  not  suitable 
for  her  size,  and  she  sailed  so  heavilj'  that  she 
fell  behind  all  other  vessels  bound  to  the  Bal- 
tic.  She  was  very  leaky,  and  from  these 
causes,  as  well  as  the  want  of  ballast,  she  put 
into  Kettero,  on  the  coast  of  Norway,  also  at 
Elsineur  and  Copenhagen,  at  which  last  place 
she  procured  fuel,  candles  and  a  chart  of  the 
Baltic,  all  of  which  occasioned  considerable 
delay,  and  instead  of  going  to  Riga,  she  went 
direct  to  St.  Petersburg.  On  her  voyage  home 
she  was  lost.  Held,  slie  was  not  seaworthy 
(reversing  the  decision  of  the  court  of  session). 
Watt  V.  Morris,  1  Dow,  32. 

19.  She  sailed  in  ballast  from  Bristol  to 
Honduras,  where  she  remained  about  five 
montlis,  taking  in  a  cargo  of  mahogany  and 
logwood,  during  which  time  she  grounded 
two  or  three  times,  but  was  got  oflf  without  ap- 
parent material  damage.  She  sailed  October 
10,  1804,  and  next  day  commenced  leaking, 
which  greatly  increased,  and  on  the  27th,   she 

630 


made  three  and  a  half  feet  of  water  per  hour. 
On  the  31st,  she  bore  away  for  Montego  Bay, 
a  port  of  distress,  where  slie  was  surveyed. 
The  surveyors  reported :  "  We  find  her  copper 
slieathed  and  iron  fastened;  that  those  fasten, 
ings  are  decayed ;  that  three  of  her  beams  are 
broken,  the  main  beam  in  three  places;  that 
she  is  making  at  the  rate  of  eighteen  inches  of 
water  per  hour,  whicli  we  consider  docs  nut 
proceed  from  a  single  leak,  but  from  the  loose 
state  of  the  ship  throughout;  she  has  evidently 
spread,  and  that  she  lias  not  to  support  her 
lower  deck  any  knees,  either  fore  or  aft  or  oth- 
erwise, and  we  are  of  opinion  that  her  upper 
works  have  alone  kept  her  together.  We  are 
therefore  unanimously  of  opinion  that  the  said 
sliip  is  unfit  for  sea."  She  was  sold  for  £G43 
as  a  wreck ;  but  the  purchaser  repaired  her, 
and  surveyors  pronounced  her  competent  to 
carry  a  cargo  to  the  West  Indies.  She  took  a 
cargo  of  sugar,  and  sailed,  and  on  the  same 
day  she  made  water  rapidly,  three  feet  that 
day,  four  feet  the  following  day.  She  put  into 
St.  Lucia,  where  she  was  "hove  down,"  sur- 
veyed, and  there  condemned.  But  the  survey- 
ors reported:  "We  are  of  opinion  that  the  de- 
fective and  injiTred  condition  of  the  ship  has 
been  occasioned  by  a  great  strain  of  heaving 
down,  and  not  in  any  degree  of  decay  or  rot- 
tenness of  her  materials."  The  judge  admiral 
and  the  court  of  session  adjudged  her  sea- 
worthy, but  in  the  court  here,  it  was  held  that 
the  evidence  established  the  fact  that  she  was 
unseaworthy  wlieii  she  sailed  from  Honduras. 
Parker  v.  Potts,  3  Dow,  23. 

20.  On  a  voyage  from  Grangemouth,  in  the 
Frith  of  Forth,  to  Gottenburg,  thence  to  a 
port  of  discharge  in  the  Forth.  On  her  out 
voj'age  she  came  to  anchor  in  Leitli  roads,  a 
strong  breeze  sprang  up,  and  she  liegan  to 
drive:  She  was  then  riding  with  her  best 
bower,  but  soon  after  she  let  go  her  smaller 
bower,  and  its  cable  immediately  parted. 
Under  pretense  of.  running  into  Leith,  which  . 
it  was  then  impossible  to  do,  as  it  was 
then  not  more  than  two  hours  after  low 
water,  the  master  cut  both  cables,  and  she 
took  the  ground  near  Beacon  Rock,  and 
sustained  considerable  damage.  It  ap- 
peared that  the  small  bower  anchor  cable 
had  been  much  rubbed  and  injured,  and  in 
consequence  several  pieces  on  diflerent  occa- 
sions had  been  cut  off  prior  to  the  commence 
nieut  of  the  voyage,  and  the  best  bower  an- 


1201 


SEAWORTHINESS. 


1263 


When  the  vessel  is  not  seawortliy. 


clior  was  too  light,  and  too  short  in  the  shank 
for  a  vessel  of  her  tonnage.  Ilekl,  there  was 
an  implied  warranty  in  every  such  contract 
that  the  ship  was  seaworthy  at  the  commence- 
ment of  the  risk ;  also,  eveiy  ship  ought  to  be 
sufBciently  provided  with  cables  and  anchors; 
that  the  ship  itself  should  be  tiglit,  staunch, 
and  strong,  and  furnished  willi  sufficient 
^ground  tackle  to  encounter  tlie  ordinary  perils 
<if  the  sea;  that  the  courts  require  the  evidence 
in  tiiis  respect  to  be  clear  in  the  affirmative, 
and  that  the  evidence  in  this  case  made  it 
clear  she  had  not  been  so  provided.  Wilkie 
1).  Oeddes,  3  Dow,  57. 

21.  Slie  encoiiutercd  a  storm  soon  after  she 
sailed,  and  became  leaky,  put  back,  and  was 
found  upon  survey  materially  decayed  and 
damaged,  whicli  could  not  be  attributed  to 
the  eflectof  the  storm.  Held,  it  was  not  neces- 
sary to  inquire  whether  tlie  owners  acted  hon- 
estly and  fairly  in  the  transaction,  for  however 
just  and  honest  their  intention  and  conduct, 
yet  if  they  were  mistaken  as  to  the  fact  of  sea- 
worthiness,  and  tlie  vessel  was  in  fact  not  sea- 
worthy, the  underwriter  must  be  discharged. 
Tlio  facts  showed  her  timbers  were  decayed, 
and  her  iron  work  in  general  was  very  loose, 
therefore  she  was  not  seaworthy  (overruling 
the  decision  of  the  Court  of  Session).  Douglai 
e.  Seougall,  4  Dow,  209. 

22.  "On  propeller  West,  from  Moutreal  to 
Halifax,  against  perils  of  the  sea,  etc.,  except 
loss  from  rottenness,  inherent  defects,  and 
other  unseaworthiness."  She  was  disabled 
after  she  reached  the  Atlantic,  caused  by  a  de- 
fect in  her  boiler,  not  apparent  when  she  left 
port.  Slic  put  into  a  port  of  distress,  repairs 
were  made,  she  resumed  the  voyage  and  was 
lost.  Held,  in  all  voyage  policies  there  is  an 
implied  warranty  of  seaworthiness;  that  she 
■was  not  seaworthj'  at  the  commencement  of 
the  voyage,  and  the  insurers  were  not  liable. 
Quebec  Marine  Inn.  Co.  v.  Commercial  Bank  of 
Canada,  3  L.  R.  P.  C,  234;  7  Moore,  P.  C.  C. 
(N.  S.),  1:  39  L.  .1.  P.  C,  53;  18  W.  R,  709; 
•22  L.  T.  (N.  S.),  559. 

23.  An  American  ship  insured  from  Lon- 
don to  Riga.  She  sailed  under  a  British 
license;  she  was  taken  and  carried  into  a 
Danish  port,  libeled  and  condemned  as  prize. 
The  sentence  found  that  she  did  not  have  a 
sea  passport,  —  it  Iiad  been  deposited  with 
the  American  consul,  at  London.  Held,  she 
lought  to  have  had  the  documents  ncccssaiv  to 


prove  her  neutrality,  notwithstanding  their 
possession  would  have  been  a  ground  of  con- 
demnation by  the  French,  under  the  Berlin 
decree.    Steel  v.  Lacy,  3  Taunt.,  285. 

24.  The  master  was  very  ill,  and  continued 
so  while  in  the  port  of  lading.  She  set  sail 
on  the  homeward  voyage.  His  illness  in- 
creased, and  finding  himself  incompetent  to 
the  charge  of  the  vessel,  he  inquired  of  the 
two  males  wlietlier  they  could  manage  the 
voyage  to  England,  who  said  they  were  unable 
to  undertake  it.  She  was  therefore  put  back 
to  obtain  an  officer,  and  lost  before  she  reached 
port.  The  court  directed  tiie  jury  to  consider 
the  lengtli  and  circumstances  of  the  voyage,  and 
to  determine  whether  she  was  competent  for 
it.  The  jury  found  for  the  defendant.  Clif- 
ford V.  nunter,  1  Moo.  &  M.,  103 ;  3  C.  &  P.,  IC. 

25.  The  hull  of  the  ship  was  sufficient;  but 
her  sails  were  defective.  Held,  not  seaworthy. 
Wedderhurn  v.  Bell,  1  Camp.,  1. 

26.  Ship  sailed  from  Cuba  for  Liverpool 
with  ten  men,  two  t(3  be  put  on  shore  at  Ja. 
maica,  it  being  impossible  to  get  a  full  crew 
at  Cuba  for  Liverpool.  She  lauded  tlie  two  at 
Jamaica  and  took  on  others.  Held,  the  vessel 
was  not  seaworth)',  because  when  the  voyage 
G.>mmenced  she  did  not  have  a  full  crew.  For- 
shaw  V.  Chahert,  3  B.  &  B.,  158;  6  Moore,  309. 
And  that  the  taking  on  of  a  sufficient  number 
of  seamen  at  Jamaica  did  not  mend  the  war- 
rant}'.   Ibid. 

27.  At  and  from  St.  Lucas,  on  wine  in  casks, 
on  or  under  deck.  It  was  all  on  deck,  and 
was  jettisoned.  The  defendant  pleaded  that 
the  vessel  was  not  seawortli}-.  Held,  the  ex 
tent  and  effect  of  the  warranty  of  seaworthi- 
ness, as  to  a  policy  on  goods,  is  that  the  sliip 
will  be  safe  in  ordinary  weather,  without  be- 
ing compelled  to  sacrifice  the  cargo  insured; 
that  if  the  cargo  is  so  stowed  that  in  ordinary 
weather  it  must  be  jettisoned,  then  she  is  not 
seaworthy.    Daniels  v.  Harris,  10  L.  R.  C.  P.,  1. 

28.  The  rules  of  an  insuranoe  association 
prohibited  an  American  voyage,  auotlier  em- 
powered the  managing  underwriters  to  survey 
each  ship  once  a  year,  and  to  order  such  stores 
and  repairs  as  they  might  deem  necessary, 
and  tliat  these  must  be  procured  or  made, 
otherwise  the  ship  could  not  be  insured.  Held, 
a  noncompliance  with  tlie  order  requiring  re- 
pairs and  stores  to  be  made  and  provided, 
rendered  the  ship  unseaworthy  and  avoided 
thi;  policy ;  tliat  if  a  ship  starts  on  a  voyage  in 


1263 


SEAWORTHINESS 


12C4 


Of  unseaworthiness  subsequent  to  the  attaching  of  the  policy  and  sailing  of  the  vessel. 


an  unseawortli}-  state,  the  policy  is  then  at  an 
enil,  and  her  safe  arrival  does  not  revive  it. 
Stewart  V.  Wilson,  13  Mee.  &  W.,  11 ;  13  L.  J. 
Ex.,  27. 

29.  She  was  an  A 1  vessel,  but  sprang  a  leak 
twelve  hours  after  she  sailed ;  returned  to  port, 
where  it  was  discovered  the  leak  was  caused 
by  tlie  imperfect  fitting  of  an  old  tree  nail. 
Held,  iusurers  were  not  liable  for  damage  to 
the  cargo,  for  the  ship  was  not  seaworthy 
when  she  sailed.  M'Kellar  v.  Henderson,  Fac- 
ulty Dec,  1810  to  1813,  p.  15. 

30.  On  barque  Maria,  of  Tarmouth,  N.  S., 
from  the  Clyde  to  Havana.  Insured  pleaded 
that  she  had  but  one  suit  of  sails  and  one  spare 
main-topsail.  It  appeared  that  she  was  Nova 
Scotia  built.  Insured  was  allowed  to  prove 
that  it  was  not  usual  for  vessels  like  that  in- 
sured, built  at  Nova  Scotia,  to  have  more  than 
one  suit  of  sails.  Insurers  proved  that  in 
order  to  enable  a  vessel  such  as  that  insured 
to  cross  the  Atlantic  in  safety,  more  spare  sails 
than  those  were  necessary.  Held,  tlie  contract 
was  made  in  Scotland,  and  was  to  be  enforced 
there;  hence,  that  degree  of  seaworthiness 
which  the  custom  at  Greenock  imposed  must 
prevail.  Cook  v.  Greenock  Mut.  Ins.  Co.,  5  C. 
C.  S.,  246;  15  Scot.  Jur.,  611. 

31.  She  sailed  on  her  voyage,  and  in  a  few 
days  thereafter  became  so  leaky,  but  without 
adequate  cause,  that  the  master  was  compelled 
to  put  back  to  port,  and  while  so  doing  she 
struck  upon  a  reef,  and  was  lost.  Held,  she 
was  not  seaworthy.  Watson  v.  Clark,  1  Dow, 
336.  The  rule  is,  that  if  a  vessel,  without  any 
apparent  cause  of  injury  subsequent  to  her 
leaving  port,  is  found  incapable  to  proceed, 
and  is  obliged  to  put  back,  then  she  is  pre- 
sumed to  have  been  unseaworthy  at  the  com- 
mencement of  the  voyage.  And  this  is  the 
law,  whether  the  policy  be  upon  ship,  freight, 
or  cargo.    Ibid. 

V.  Of   unseaworthiness   subsequent 

TO    THE    ATTACHING     OF    THE    POLICY 
AND    SAILING    OF   THE   VESSEL. 

1.  In  order  to  entitle  the  insured  to  recover, 
the  vessel  must  have  been  seaworthy  for  such 
a  voyage  as  she  was  engaged  in  at  the  time  of 
the  disaster.  If  the  vessel  touched  at  an  inter- 
mediate port  and  she  was  discovered  in  a 
leaky  condition,  then,  if  a  prudent  and  dis- 
creet master,  of  competent  skill  and  judgment, 
633 


would  have  considered  it  necessary  to  repair 
the  leak  before  proceeding  on  the  vo^-agc,  a 
fadure  to  do  so  would  release  the  insurer,  if 
the  loss  was  occasioned  by  the  omission,  and 
would  not  otherwise  have  happened.  If  ,•» 
master  of  competent  skill  and  judgment  might 
reasonably  have  supposed  that  she  was  sea- 
worthy for  the  balance  of  the  voyage  in  which 
she  was  then  engaged,  and  on  that  account 
omitted  to  examine  and  repair,  the  omission 
was  no  defense  to  the  action.  Adderly  v. 
American  Mut.  Ins.  Co.,  Tan.  C.  C,  126. 

2.  Time  policy  on  ship.  Plea:  that  at  the 
commencement  of  the  Voyage  on  which  she 
was  lost,  she  was  unseaworth)',  defective,  and 
insufficient,  and  so  continued  to  be,  and  still 
was  at  the  time  of  the  loss.  Held,  in  order  ta 
make  the  plea  good,  it  must  state  such  facts 
and  circumstances  as  shall  show  either  that  at 
the  time  the  insurance  commenced,  the  ship 
was  in  her  original  port  of  departure,  ami 
commenced  her  vo3'age  in  an  unseaworthy 
condition  and  so  continued  till  the  time  of  her 
loss,  or,  that  having  come  into  a  dist;int  port 
in  a  damaged  condition,  before  or  after  the 
commencement  of  the  risk,  where  she  might 
and  ought  to  have  been  repaired,  and  that  the 
owner  or  his  agents  neglected  to  make  suck 
repairs,  and  that  she  was  lost  by  a  cause  at- 
tributable to  her  insufficiency  (citing  Small  v. 
Gibson,  4  H.  L.  Cas.,  353).  Jones  v.  Insurance 
Co.,  3  Wall.  Jr.,  278. 

3.  Seaworthiness  is  an  implied  warranty, 
but  it  is  confined  to  the  commencement  of  the 
risk,  and  if  not  satisfied  at  that  time,  the  in- 
surer is  discharged;  but  if  the  vessel  l)ecomei 
unseaworthy  after  the  commencement  of  the 
risk,  the  insurer  is  liable.  American  Ins.  Co. 
V.  Ogden,  15  Wend.,  533. 

4.  On  schooner  for  six  months  —  $1,800  — 
sailed  November  26th  from  New  York  for 
Charleston,  Norfolk  and  St  Thomas;  while 
going  over  the  bar  into  Charleston,  she  lost; 
her  small  bower  anchor.  She  discharged  her 
cargo,  remained  in  port  for  five  or  six  days 
and  sailed  for  Norfolk  without  replacing  it. 
On  her  arrival  there  the  master  sought,  but 
could  not  procure  one  of  suitable  size,  and 
after  remaining  there  ten  daj's,  in  which  she 
took  a  cargo,  he  set  sail  for  St.  Tliomas,  Jan- 
uary  7th.  She  encountered  very  heavy 
weather,  split  sails,  sprung  the  main- mast  and 
leaked  very  badlj-,  but  she  reached  St.  Thomas 
and     discharged   the    cargo.      Held,    though 


12G5 


SKAWORTHINESS. 


126« 


Of  unseaworthiness  subsequent  to  tlie  attaching  of  the  pohcy  and  sailing  of  the  vessel. 


the  loss  of  the  small  anchor  rendered  her  un- 
scaworthy  when  she  sailed  from  Charleston, 
that  would  not  discharge  the  insurer.  Amei'- 
iain  Ins.  Co.  v.  Ogden,  20  Wend.,  2S7. 

5.  On  cargo  from  La  Union  to  Panama. 
She  put  into  Golfo  Dolce  in  distress.  Held,  it 
she  left  the  latter  place  in  an  unseawurthy 
condition,  it  was  no  defense  to  the  action,  pro- 
vided she  was  seaworthy  when  she  com- 
menced the  voyage.  If  she  ran  into  port  and 
afterwards  by  an  improper  e.xercise  of  judg- 
ment  put  to  sea,  the  insured  was  not  respons- 
ible  for  it,  for  the  master  and  mariners  were 
not  his  servants  (citing  Redman  v.  Wilson,  14 
M.  &  W.,  470;  Waters  b.  Merchants  Ins.  Co., 
11  Pet.,  313;  Mathews  ».  Howard  Ins.  Co.,  11 
N.  Y.,  9).  Brioso  v.  Pacific  Ifut.  Ins.  Co.,  4 
Daly,  24G. 

6.  110,000  on  ship  v.ducd  at  .$20,000,  for 
one  year  from  March  22,  1854.  "  No  partial 
loss  or  particular  average  shall  in  any  case  be 
paid  unless  amounting  to  five  per  cent.,  each 
passage  subject  to  separate  average."  She 
sailed  from  Hong  Kong,  February  15,  1855, 
bound  for  Shanghai  and  back  to  Hong  Kong. 
She  put  into  Woo  Sung  in  distress,  dis- 
charged her  cargo,  made  partial  repairs,  and 
sailed  for  Hong  Kong,  M.arch  10th  in  ballast, 
for  the  purpose  of  making  necessary  repairs 
at  that  place,  and  to  enable  her  to  return  for 
her  cargo.  She  was  lost  between  Woo  Sung 
and  Hong  Kong.  Held,  if  she  was  seaworthy 
when  she  sailed  from  Hong  Kong,  insurers 
were  liable,  for  there  was  no  implied  warranty 
that  she  should  be  seaworth}-  when  .slie  left 
Woo  Sung.  It  was  sufficient  if,  when  she 
left  the  latter  place,  she  was  in  a  condition 
which  made  it  safe  for  her  to  undertake  the 
voyage.  Hathaway  v.  Svn  Mutual  Ins.  Co.,  8 
Bos.,  33. 

7.  On  cargo  from  New  York  to  Galwaj', 
Tin  Halifax.  She  was  seaworthy  when  she 
left  the  port  of  New  York.  The  cargo  was 
burned  to  generate  steam  after  she  left  Hali- 
fax. Held,  insurers  of  cargo  were  not  liable 
if  she  left  Halifax  in  an  unseaworthy  condi- 
tion ;  and  she  was  unseaworthy  if  she  had  not 
a  .sufficient  quantity  of  coal  for  the  voyage. 
Howard  v.  Orient  Mut.  Ins.  Co.,  2  Rob.  (N.  Y.), 
539. 

8.  Ship  insured  for  voyage  must  be  keiit 
seaworthy  during  the  vo3'age,  if  possible;  and, 
if  she  receives  sea  damage  on  the  voyage,  it 
must  be  repaired  with  reasonable  diligence; 


and,  if  a  loss  occurs,  in  consequence  of  a  fail- 
ure to  repair,  the  insurer  is  discharged.  J\id- 
dork  V.  Franklin  Ins.  Co.,  11  Pick.,  227. 

9.  If  a  vessel,  in  the  course  of  her  voyage, 
put  into  a  port  where  repairs  can  be  made, 
and  sails  with  a  defect  in  her  bottom,  pro- 
duced by  a  peril  of  the  sea,  during  the  voyage, 
and  it  causes  iter  to  founder,  the  insurer  is  li- 
able for  the  loss,  unless  the  master  had  reascn- 
able  cause  to  suspect  the  existence  of  the  de- 
fect when  the  vessel  was  in  port,  or  knowing 
of  it  had  reasonable  cause  to  believe  that  she 
could  not  proceed  safely  home  without  hav- 
ing it  repaired.  Starhuck  r>.  New  England 
Marine  Ins.  Co.,  19  Pick.,  198. 

10.  If  a  ship  sails  with  officers  and  crew 
competent  for  the  voyage,  aud  in  the  foreign 
port  the  master  becomes,  by  reason  of  intoxi- 
cation or  insanity,  incompetent  to  command 
the  vessel,  she  is  not  rendered  unseaworthy 
because  she  sails  from  such  port  under  his 
command;  and  the  insurer  is  liable  notwith- 
standing his  incapacity.  Copeland  v.  Neio 
England  Marine  Ins.  Co.,  2  Met.,  432.  And  al- 
though the  mate  has  a  right  to  resort  to  all 
lawful  means  to  take  command  of  the  vessel, 
in  case  the  master  becomes  incompetent,  yet 
if  from  want  of  judgment  or  even  from  cul- 
pable negligence  he  neglects  so  to  do,  and  she 
is  stranded  and  lost  while  the  master  is  in 
command,  the  insurers  are  liable.  Ibid.  If 
the  loss  arise  from  a  peril  insured  against, 
though  it  be  produced  or  increased  by  the 
negligence,  carelessness,  bad  seamanship,  or 
other  misconduct,  not  barratry,  of  the  master 
or  mariners,  the  insurers  are  liable.     Ibid. 

11.  Time  polic)'.  Held,  no  warranty  that 
she  shall  continue  seaworthj'  during  the  term, 
although  there  is  an  obligation  resting  upon 
the  insured  to  keep  her  tight,  staunch  and 
strong,  and  a  failure  to  do  so,  when  practic- 
able, would  iirevent  a  recoverj'.  Capen  v. 
Wa.«hinffton  Ins.  Co.,  12  Cush.,  517. 

12.  "On  catchings,  lost  or  not  lost,  com- 
mencing December  1, 1855,  at  noon."  On  that 
day  she  was  at  sea  leaking  badly,  from  pre- 
vious stress  of  weather,  and  she  was  then  un- 
seaworthy, and  was  compelled  to  jjUt  away  for 
a  port  of  distress.  She  reached  Tahiti  Decem- 
ber 9th,  there  she  repaired,  put  to  sea  Febru- 
ary 6,  1856,  and  on  the  following  daj'  com- 
menced leaking  badly.  She  put  back  to  Tahiti, 
arrived  on  the  10th,  was  surveyed  and  con- 
demned   because  repairs  would    have    been 

633 


12C7 


SEAWORTHINESS. 


12GS 


Of  unseaworthiness  subsequent  to  the  attaching  o£  the  policy  and  sailing  of  the  vessel. 


utterly  disproporlioned  to  her  value.  The 
■cargo  was  transhipped  and  lost  on  the  passage 
home.  Held,  no  implied  warranty  that  she 
was  seaworthy  when  the  policy  commenced; 
the  policy  attached,  notwithstanding  her  con- 
dition December  1st,  and  therefore  tlie  loss  was 
-within  the  policy.  Macy  v.  Mutual  Marine 
Ihk.  Co.,  12  Gray,  497. 

1 3.  Term  policy.  She  sustained  damage  by- 
perils  insured  against  while  on  a  voyage  from 
Pittsburgh  to  New  Orleans,  received  partial  re- 
pairs at  Louisville,  and  made  several  trips  be- 
fore complete  repairs  were  made.  Held,  insur- 
■ers  were  liable  for  the  damages  resulting  from 
the  peril  encountered.  The  fact  that  after  the 
accident,  she  was  navigated  in  an  unseaworlhy 
condition,  did  not  affect  the  right  of  insured  to 
recover  for  a  liability  fixed  while  she  was  sea- 
worthy. Gazzam  v.  Cincinnati  Ins.  Co.,  6 
Ohio,  71. 

14.  Upon  hay  on  a  flatboat.  Held,  "  if  she 
•was  not  seaworthy  at  the  commencement  of 
the  voyage,  the  insurers  were  not  liable ;  that 
if  she  was  reasonablj'  fit  to  carry  the  cargo  on 
the  voyage  insured,  she  was  seaworthy;  but  if 
she  became  unseaworthy  by  reason  of  any 
peril  for  which  the  insurer  was  liable,  and 
was  afterwards  with  reasonable  and  ordinary 
diligence  made  seaworthy,  that  was  all  the 
law  required  of  insured.  But  if  she  was  sea- 
worthy when  the  voyage  commenced,  and 
afterwards  in  the  course  of  the  voyage  became 
unseaworthy,  the  fact  that  she  was  not  made 
seaworthy  with  reasonable  diligence  w'as  no 
defense  to  the  .action,  unless  the  want  of  re- 
pairs caused  the  loss.  Franklin  Ins.  Co.  v. 
CoU,  2  Cin.  Sup.  Ct.,  87. 

15.  Policy  made  April  1,  1869,  upon  her 
hull,  tackle,  apparel,  and  other  furniture  for  a 
term  ending  November  30,  1869.  She  re- 
mained in  port  till  April  10th,  and  continued 
to  sail  between  Chicago  and  Muskegon  till 
October  8th,  at  which  time  she  was  destroj'cd 
by  fire.  Held,  there  was  no  implied  warranty 
that  she  was  seaworthy  when  she  sailed  on  her 
first  voyage  April  10th ;  it  was  sufficient  if  she 
was  seaworthy  when  the  risk  commenced. 
Merchants  Ins.  Co.  v.  Morrison.  62  111.,  243. 

1 6.  If  the  boat  was  seaworthy  when  leaving 
port,  it  was  immaterial  whether  the  peril  from 
wjiich  she  suflered  injur}-  was  an  ordinary 
one  or  one  which,  under  good  uiauagcinent, 
she  might  have  safely  encountered,  prnvidtd  it 
-was  one  of  the  perils  insured  against,  and  was 

634 


the  proximate  cause  of  the  loss.  Lockwood  «. 
Sangamo  Ins.  Co.,  46  Mo.,  71. 
•  17.  Plaintiff  was  owner  and  master.  Held, 
if  he  found  her  unseaworthy  in  the  course  of 
the  voyage,  and  neglected  to  have  her  made 
seaworthy,  and  the  loss  occurred  in  conse. 
quence  of  that  neglect,  insurer  was  discharged. 
Cudworth  V.  South  Carolina  Ins.  Co.,  4  Rich., 
416. 

18.  On  copper  ore,  valued  at  £25  per  ton, 
at  and  from  the  anchorages  at  Hondeklip  Bay 
and  Port  Nollith  to  Swansea.  She  sailed  from 
Table    Bay   November    29th,  for  the    places 
named,  for  the  purpose  of  taking  the  cargo. 
She  took  about  one  hundred  and  fifty  tons  at 
Hondeklip  Ba}-,  and  sailed  December  11, 1857, 
arrived  at  Port  Nollith  the  following  day, 
where  she   remained  till  the  29th,  when  she 
got  under  way  for  Swansea,  having  taken  two 
hundred  and  fifty  tons  at  the  latter  place.  The 
pumps  had  to  be  attended  from  December  21st 
to  26th,  at  which  time  she  -was  making  about 
one  and  a  quarter  inches  of  water  per  hour. 
On  the  28th  she  finished  loading;  the  leak  w.ts 
increasing,  and  when  she  sailed  it  was  still  in- 
creasing.   It  was  impossible  to  keep  her  free 
from  water  Januarj-  6th.    The  crew  became  ex- 
hausted, when  there  was  six  feet  of  water  in 
the  hold.    They  put  off  and  stayed  by  her  all 
night;  she  went  down  next  morning.    Held,  as 
to  the  goods  shipped  at  Hondeklip,  the  insurers 
were  liable,  because  she  was  seaworthy  when 
she  sailed  thence;  but  as  to  that  part  of  the 
cargo  ladeu  at  Port  Nollith,  insurers  -were  not 
liable,  because  she  -was   not  seaworthy  when 
she  sailed   thence.    Biccard  v.   Shephard,   14 
Moore,  P.  C.  C,  471;  10  W.R.,  136;  5  L.  T.  fN. 
S.),  504. 

1 9.  She  sailed  with  a  competent  crew,  was 
driven  into  port  in  the  Gulf  of  Finland,  where 
she  was  frozen  in  and  compelled  to  remain  for 
the  -winter.  The  master  discharged  the  crew 
and  left  her  in  care  of  the  mate,  while  he  pro- 
ceeded to  St.  Petersburg  to  settle  up  her  ac- 
counts. Held,  if  she  was  seaworthy  \vhen  she 
sailed  on  the  voyage,  that  was  sufficient.  The 
owner  did  not  undertake  for  the  conduct  of 
the  crew  during  the  subsequent  part  of  the 
voyage.  Busk  v.  Boyal  Exchange  Ass.  Co.,  2 
B.  &  A..  73. 

20.  She  sailed  from  St.  Andrew,  in  New 
Brunswick,  for  Valentia,  Ireland,  and  had  fair 
weather  for  four  or  five  days,  after  which  she 
enc'^uulcred  a  heavy  sea,  made  a  great  deal  ot 


12G9 


SEAWORTHINESS. 


1270 


Questions  for  the  jury —  Of  pleading. 


■water,  and  the  crew  abanclimed  her.  She  was 
insured  "  from  Belfast  to  British  America,  du- 
ring her  stay  there,  and  back  to  a  port  of  dis- 
charge in  the  United  Kingdom."  Held,  the 
policy  impliedly  warranted  her  seaworthy  at 
the  cumnicncement  of  the  voyage;  but  it  was 
di'ubiful  whether  the  warranty  could  be  ex- 
tended to  every  port  in  the  course  of  the  V03'- 
age.  Eolihworth  v.  Wise,  1  M.  &  R ,  673 ;  7  B. 
&p.,  794;6L.  J.K.  B.,  134. 

21.  Plea  that  before  the  loss  she  was  greatly 
broken,  damaged,  shattered,  loosened  and  un- 
seaworthj-,  which  with  reasonable  care  and 
diligence,  and  smal]  cost,  compared  with  the 
value  of  tlie  vessel,  might  have  been  repaired 
and  rendered  seaworthy ;  but  the  plaintilf  neg- 
lected and  refused  to  repair,  and  so  she  con- 
tinued unseaworthy  till  the  loss.  Held,  upon 
<lemurrer,  that  the  averment  "with  reasonable 
care  and  diligence  she  might  have  been  re- 
stored, etc.,"  does  not  show  there  was  gross 
negligence  in  omitting  to  repair.  Held,  also, 
the  pieawasbad  because  it  did  not  aver  that  the 
insured  knew  she  could  have  been  repaired  at 
small  cost.  /TcM,  a?so,  if  she  was  seaworthy  at 
the  commencement  of  the  voyage,  that  was 
sufficient.  Hollingsworth  v.  Brodridc,  7  A.  & 
E  ,  40;  8  L.  J.  (N.  S.)  Q.  B.,  80;  1  Jur.,  430;  2 
N.  &  P.,  G08. 

22.  On  goods  from  Liverpool  to  Melbourne, 
jnchiding  all  risk  to  and  from  ship.  Plea:  that 
after  she  arrived  at  Melbourne  the  goods  were 
discharged  from  the  ship  in  a  lighter,  for  the 
purpose  of  being  lauded ;  that  the  lighter  was 
not  seaworthj',  and  that  the  damage  was 
caused  solely  by  that  unseaworthiness.  Held, 
BO  defense  to  the  action.  Lane  v.  Nixoti,  1  L. 
R.  C.  P.,  412  ;s.  0.,  12  Jur.  (N.  S.),  392:  35  L.  J. 
C.  P.,  243;14W.  R.,  G41. 

V.   Questions  for  the  jukt. 

1.  She  was  repaired  in  1844,  aud  then  cut 
down  to  the  water's  edge.  New  timbers,  ceil- 
ing  and  outside,  from  the  bottom  to  the  rail, 
■were  put  in.  Everytliing  was  taken  out  ex- 
cept the  keel,  stern,  stern-post  and  a  few  floor 
timbers.  She  was  substantially  rebuilt,  reex- 
amined eighteen  months  prior  to  the  loss,  and 
then  found  in  good  condition,  except  that  her 
Btern-post  had  started.  She  sprung  a  leak  very 
soon  after  the  commencement  of  the  voyage, 
■without  any  apparent  cause.  The  jury  found 
tliat  she  was  seaworthy  at  the  commencement 


of  the  voyage.  Held,  the  court  would  not  un- 
dertake to  say  that  there  was  no  evidence  to 
sustain  the  finding,  therefore  to  interfere  with 
it  would  be  violating  a  principle  which  is  too 
well  established.  Sherwood  v.  Rugglia,  2 
Sandf ,  .55. 

2.  When  the  insurance  was  ordered,  one  of 
the  partners  knew  that  the  vessel  was  aground 
in  the  river,  that  the  river  was  falling  rapidly, 
and  that  some  of  the  cargo  had  been  thrown 
overboard.  Held,  it  was  for  the  jury  to  say 
whether  the  vessel  was  seaworthy  at  the  time 
in  question.  Jiosenheim  v.  America  Ins.  Co., 
33  Mo.,  230. 

3.  On  schooner  for  one  year,  beginning 
April  1,  1851.  She  left  Bailey's  harbor,  July 
24th,  and  was  capsized  in  a  squall.  She  had 
about  one-fourth  of  her  canvass  set,  no  cargo 
on  board,  and  but  three  or  four  tons  of  ballast. 
Held,  it  was  the  duty  of  tlie  insured  from  time 
to  time  to  keep  the  vessel  in  a  condition  proper 
for  the  service  in  which  she  was  engaged ;  and 
if  he  failed  to  do  ^o,  and  a  loss  h.appened 
which  was  attributed  to  that  cause,  the  in- 
sured, and  not  the  insurers,  must  bear  it;  that 
if  she  had  not  a  proper  amount  of  ballast  at 
the  time  she  left  port,  which  might  have  been 
procured  by  ordinary  care  and  prudence,  and 
n-as  capsized  for  want  of  it,  then  the  plaintiff 
could  not  recover;  but  this  was  a  question 
purely  for  the  jury.  Merchants  Mut.  Ins.  Co. 
V.  Sweet,  6  Wis.,  670. 

4.  She  left  Pensacola  on  the  morning  of  the 
19th,  and  crossed  the  bar  at  8  o'clock;  the 
weather  continued  fair  till  the  20th,  but  she 
commenced  to  leak  on  the  morning  of  the  21st. 
The  wind  was  blowing  fresh,  weather  dark 
and  cloudy,  and  vessel  laboring  very  much. 
Sixteen  heavy  pieces  of  timber  were  thrown 
overboard,  and  she  was  pumped  free  on  the 
23d.  Held,  the  question  of  seaworthiness  was 
one  of  fact  for  the  consideration  of  the  jury. 
Schuliz  V.  Pacific  Ins.  Co.,  14  Fla.,  78. 

VII.  Of  pleading. 

On  cargo,  at  and  from  any  port  or  place  in 
Cochin  China,  to  Marseilles.  The  defendant 
pleaded:  "Tlie  said  premises  so  insured  as 
aforesaid  were  not  seaworthy  for  the  voyage 
at  the  time  the  said  ship  departed  and  set  sail 
thereon."  Held,  it  is  no  answer  to  say  that 
the  goods  were  unfit  to  be  shipped,  unless  i( 
is  shown  that  the  loss  arose  from  that  unfitness, 

G35 


1271 


SEIZURE  — SENTENCE  OF  CONDEMNATION. 


1272 


When  conclusive. 


therefore  the  plea  was  no  answer  to  the  action. 
Koehel  V.  SriuiKler.i,  17  C.  B.  (N.  S.),  71 ;  s.  c, 
10  Jur.  (N.  S.),  920;  33  L.  J.  C.  P.,  310;  12  Vf. 
R,  HOC;  10  L.  T.  (N.  S.),  69.1. 

VIII.    Geneeailt. 

A  neeessity  to  repair  mere  wear  and  tear 
casts  no  presumption  against  the  vessel's  sea- 
worthiness at  the  commencement  of  the  voj- 
age.  Donnell  v.  Columbian,  Ins.  Co.  2  Snmn., 
366. 


SEIZURE. 

(See  Captuhe  and  Seizure.) 


SENTENCE  OF  CONDEMNATION. 

I.  When  conclusive. 

II.  NOr   CONCLUSITE. 

I.  When  coxclusite. 

1.  The  sentence  of  a  court  of  vice  admiralty 
for  attempting  a  breach  of  blockade  was  held 
conclusive  evidence  of  tlie  fact  stated  in  the 
sentence.     Croudson  v.  Leonard,  4  Cranch,  434. 

2.  The  sentence  of  a  foreign  court  of  ad- 
miralty, condemning  the  property  as  lawful 
prize,  is  conclusive  evidence  as  to  the  charac- 
ter of  tlie  property.  Vandenkeuvel  v.  United 
Ins.  Co.,  2  Jolins.  C,  127. 

3.  On  cargo.  "  Warranted  lawful,  and  ves- 
sel American  bottom."  Slie  was  captured. 
The  lords  commissioners  decreed  the  cargo 
good  and  lawful  prize.  Held,  there  was  no 
ambiguity  in  the  sentence,  hence  the  war- 
ranty was  faslitied.  Broicne  v.  Insurance  Co. 
of  Pennsylvania,  4  Yeates,  119. 

4.  Warranted  neutral.  She  had  been  con- 
demned by  a  foreign  court  of  admiralty,  on 
the  ground  that  slie  was  not  neutral.  Held, 
the  sentence  was  conclusive.  Blanque  v.  Pey- 
tavin,  4  Martin  (La.),  458. 

5.  Tlie  decree  of  a  foreign  court  of  admi- 
ralty condemning  a  cargo  ps  enemy's  prop, 
erty,  is  conclusive  evidence  that  the  cargo 
was  not  neutral  property.  Brown  v.  Union, 
Ins.  Co.,  4  Day,  17B. 

G36 


6.  "Warranted  against  loss  by  seizure  for 
or  on  account  of  illicit  or  proliibited  trade,  or 
trade  in  articles  contraband  of  war;  th.at  the 
judgment  of  a  foreign  colonial  court  sliall  not 
be  conclusive  of  the  fact."  Held,  the  judg- 
ment  of  such  a  court,  condemning  her  on  the 
ground  that  she  was  employed  in  the  Lopez 
expedition  against  the  island  of  Cuba,  was 
prima  facie  evidence  of  the  fact,  and  became 
conclusive  in  the  absence  of  proof  to  impeach 
it.    Decrow  v.  Waldo  Mut.  Ins.  Co.,  43  Me.,  460. 

7.  Warranted  American.  She  was  seized, 
libeled  and  condemned  for  not  having  docu- 
ments necessary  to  establish  her  neutral  char- 
acter, and  the  record  of  condemnation  by  the 
admiralty  court  was  offered  and  accepted. 
Held,  conclusive.  Zeno  v.  Louisiana  State 
Ins.  Co.,  2  La.  (O.  S.),  533. 

8.  Free  from  charge,  damage  or  loss  which 
may  arise  in  consequence  of  engaging  or  of 
having  been  engaged  in  illicit  or  prohibited 
trade  at  any  time  whatsoever.  Slie  was  con- 
demned on  tlie  ground  that  the  cargo  be- 
longed to  Spaniards,  that  it  was  the  produce 
of  Spain,  and  that  she  sailed  from  an  enemy's 
port.  Held,  the  sentence  showed  a  breach  of 
the  warranty,  for  it  states  that  the  goods  are 
enemy's  property.  Goicachea  v.  Louisiana 
State  Ins.  Co.,  18  Martin  (La.),  51. 

9.  The  policy  stated  that  llie  goods  be- 
longed to  American  citizens,  resident  in 
Charleston.  Tliey  were  condemned  as  the 
property  of  the  enemies  of  Great  Britain. 
Held,  the  statement  in  the  policy  amounted  to 
a  warranty  that  the  goods  were  neutral  prop, 
ertj',  heuce  the  sentence  of  condemnation  was 
conclusive  upon  that  question.  Walton  v.  Be- 
thune,  2  Brev.,  453. 

10.  "Warranted  Putch."  She  sailed  under 
a  Dutch  name  (but  it  was  her  Engiish  name 
translated),  with  a  Dutch  pass  or  sea  brief, 
was  captured  by  the  Frencli  and  condemned, 
as  Eugiisli  property.  The  sentence  did  not 
state  the  particular  grounds  of  condemnation. 
Held,  tlie  sentence  wliether  right  or  wrong, 
went  on  the  ground  that  she  was  not  Dutch. 
Barzillai  v.  Lewis,  3  Doug ,  126. 

1/.  Sentence  of  condemnation,  of  the 
French  court,  at  San  Domingo.  Held,  cou- 
chisive  evidence  of  the  fact.  Bariny  v.  Cla- 
gett,  3  B.  &  P.,  201. 

1 2.  "  Warranted  neutral  on  board  the  Thetis, 
a  Tuscan  ship."  Held,  the  sentence  of  con- 
demnation was  conclusive  evidence,  that  the 


1273 


SENTENCE  OF  CONDEMNATION. 


1274 


When  not  conclusive. 


goods   were   not   neutral,     b'alaucci  v.   Wood- 
mass,  3  Doug.,  345. 

I;5.  On  a  bottomry  bond,  on  the  Danish 
sliaw  "Frowana,"  from  Penzance  to  Genoa. 
f>lie  was  captured  by  a  French  privateer  and 
tiikeu  to  Malaga,  Spain,  where  she  was  con- 
demned before  tlie  French  consul,  on  the 
ground  tliat  "  she  was  enemy's  property,  and 
Uritish."  Ili'ld,  conclusive;  evidence  tliat  slie 
was  not  Danisli.     0<My  v.  Bovill,  2  East,  473. 

14.  Where  a  foreign  court  of  admiralty  has 
construed  a  treaty,  be  the  construction  never 
BO  iniquitous,  another  court  is  bound  by  the 
comity  of  nations  to  give  credit  to  the  adjudi- 
cation, if  the  foreign  court  of  aduiiralty  had 
juri.<diction.  Baring  v.  lioi/nl  Exchitnge  Ass. 
Co.,  5  East,  !)9. 

15.  "  Warranted  American."  She  was  con- 
<1emned  as  enemj-'s  property,  because  slie  had 
not  a  ?'«M  d'eguipdge,  as  required  by  a  marine 
oniinance  of  France.  HeM,  according  to  the 
treaty  of  commerce  between  France  aud 
America,  such  a  document  was  necessary,  and 
the  condemnation  for  want  of  it  was  conclu- 
sive evidence  that  she  was  not  American  prop- 
erty.    Oej/er  v.  Aguilar,  7  Term,  681. 

16.  The  sentence  of  a  foreign  court  of  ad- 
miralty is  conclusive  only  as  to  the  express 
ground  of  the  sentence.  Cristie  v.  Secretan,  8 
Term,  193. 

II.    AVlIEN  NOT  COXCLCSIVE. 

1.  On  ship,  warranted  American  propertj', 
from  Charleston  to  Cadiz,  captured  by  a  Brit- 
ish ship  of  war  .July  16,  1800,  carried  into 
Oibr.altar  and  condemned,  August  20th  follow- 
ing. The  cause  of  condemnation  was  set  forth 
in  the  sentence:  "That  she  cleared  out  for 
Cadiz,  a  port  actually  blockaded,  and  th.at  the 
master  persisted  in  his  intention  of  entering 
that  port  after  warning  from  the  blockading 
force  not  to  do  so,  in  direct  breacli  and  viola- 
tion of  tlic  blockade,  tliereby  notified."  Tlie 
jury  found  specially,  that  the  blockade  of 
Cadiz  was  not  known  at  Charleston  when  the 
vessel  sailed,  that  the  first  notice  the  master 
had  of  it  was  from  the  blockading  squadron, 
who  warned  him  not  to  proceed  nor  to  attempt 
to  enter,  and  so  indorsed  her  register.  She 
was  detained  for  eleven  days,  when  the  master 
Wiis  taken  to  the  admiral,  who  said  to  him: 
"  We  have  thoughts  of  setting  you  at  liberty, 
and  in  case  we  do,  wluit  course  will  you  steer, 


or  what  port  will  you  proceed  for!"  To  which 
he  replied,  th:it  "  If  he  got  no  new  orders,  he 
should  continue  to  steer  by  his  old  ones,"  to 
which  the  admiral  rejoined,  "That  will  be,  I 
suppose,  for  Cadiz?"  to  which  the  master  re- 
plied, "Certainly,  unless  I  have  new  orders." 
Thereupon  the  admiral  said,  "That  is  su(B- 
cicnt;  I  shall  send  you  to  Gibraltar  for  adju. 
dicalion;"  and  without  being  liberated,  she 
was  sent  to  Gibraltar,  and  condemned  on  the 
grounds  stated  in  the  sentence.  Held,  the  sen- 
tence  did  not  deny  that  she  was  American 
property,  and  the  fact  that  she  cleared  for  a 
blockaded  port  was  in  itself  innocent,  unless 
accompanied  with  knowledge  of  the  blockade, 
therefore  clearing  for  it  was  not  an  offense, 
for  it  cannot  be  said  tliat  a  person  attempts  to 
enter  a  blockaded  port,  unless  it  appears  that 
he  had  notice  of  the  blockade;  ;his  question 
was  regulated  by  treaty  between  the  United 
States  and  Great  Britain,  which  provides 
"  that  the  ship  may  be  turned  aw.ay,  but  she 
shall  not  be  detained  if  cargo  is  not  contra- 
band, nor  be  confiscated  unless  afternoticc  she 
shall  again  attempt  to  enter;"  that  no  attempt 
to  enter  the  port  was  stated  in  the  sentence, 
but  persisting  in  the  intention  after  being 
warned  not  to  enter,  it  was  alleged,  as  the 
cause  of  condemnation,  which  was  not  a  good 
cause  for  condemnation,  under  the  treaty. 
Held,  also,  as  the  facts  stated  in  the  sentence 
do  not  amount  in  themselves  to  a  justifiable 
cause  of  condemnation,  the  court  must  look 
into  the  special  verdict  which  might  explain 
what  was  uncertain  in  the  sentence;  that  the 
conversation  which  took  place  between  the 
master  and  the  admiral  must  be  termed  insidi- 
ous, since  its  object  was  to  trepan  the  master 
into  expressions  which  might  be  construed 
into  evidence  of  an  intention  to  s;xil  for  Cadiz 
should  he  be  liberated;  that  the  answers  of 
the  master,  liowever  indiscreet,  did  not  amount 
to  an  attempt  to  enter  the  port  of  Cadiz; 
that  the  seuteuce  of  the  vice  admiralty  court 
did  not  falsify  the  warranty,  therefore  insured 
was  entitled  to  recover.  Fitzsimmons  v.  Neui- 
port  Ins.  Go.,  4  Cranch,  18.1. 

2.  "Warranted  neutral,  proof  of  wliich  to 
be  made  in  the  United  States  only."  She  was 
condemned  in  a  foreign  court  of  admiralty  for 
a  breacli  of  blockade.  Held,  insured  had  the 
right,  upon  tlie  trial  of  this  cause,  to  give  cvi- 
dencc  tending  to  show  that  the  warranty  had 
been   satisfied,  therefore  the   sentence  of  tho 

C37 


1-275 


SENTENCE  OF  CONDEMNATION. 


l-TS 


When  not  conclusive. 


foreign  court  of  admiralty  was  not  conclusive. 
ilaryland  Ins.  Co.  v.  Woods,  6  Crancli,  29. 

2.  She  was  seized  by  the  Mexican  govern- 
nicut,  and  condemned  on  the  ground  of  a  vio- 
lation of  the  revenue  laws  of  Mexico;  and  to 
])ri)Vc  that,  insurers  produced  a  transcript  of 
the  proceedings  of  the  court  against  the  vessel. 
The  insured  denied  the  existence  of  the  alleged 
law,  or  that  any  breach  of  it  was  committed, 
denied  the  jurisdiction  of  the  Mexican  court, 
and  averred  that  the  record  was  false,  that  she 
was  confiscated  and  condemned  ;u-bitrarily 
and  unjustl}',  and  without  anj-  opportunity 
given  the  master,to  make  defense,  or  to  exam- 
ine witnesses.  Ileld.  the  sentence  of  a  court 
<if  admiralty,  and  prize  in  rem  is  in  general 
conclusive,  not  only  in  respect  to  the  parties 
in  interest,  but  also  for  collateral  purposes, 
and  in  collateral  suits,  not  onlj-  as  to  the  direct 
matter  of  property  and  title  embraced  in  the 
judgment,  but  also  as  to  the  facts  on  which 
the  sentence  professes  to  proceed  (citing 
Croudsou  V.  Leonard,  4  Cranch,  434 ;  Rose  ». 
Ilimely,  id.,  241 ;  Hudson  v.  Gucstier,  id.,  293; 
The  Mary,  9  id.,  126 ;  Gelston  v.  Hoyt,  3  Wheat., 
246j ;  but  before  the  sentence  of  a  foreign  court 
proceeding  in  rem  can  be  held  conclusive, 
it  must  appear  that  proper  judicial  proceed- 
ings were  the  foundation  of  the  decree,  and 
a  written  allegation  of  the  offense  charged, 
upon  which  the  forfeiture  is  sought  to  be  in- 
forced,  and  personal,  or  public  notice  of  the 
proceedings,  so  that  parties  interested  may 
know  what  is  the  offense  charged,  and  may 
have  an  opportunity  to  defend  and  disprove  it, 
none  of  which  had  been  done  In  this  case, 
therefore  the  sentence  was  not  conclusive. 
Bradstreei  v.  Neptune  Ins.  Co.,  3  Sumn.,  600. 

4.  The  policy  provided  that  proof  of  the 
national  character  of  the  property  should  be 
made,  if  required,  in  the  United  States  onlj'. 
Held,  the  sentence  of  a  foreign  court  condemn- 
ing the  vessel  on  the  ground  that  she  was  not 
of  the  national  character  warranted,  was  not 
C(5nclusivo.  Calhreath  ».  Gracy,  1  Wash.  C. 
C,  219. 

.5.  Warranted  American  property,  proof  to 
be  made  here.  She  was  condemned  as  enemy's 
property.  Held,  the  sentence  of  the  foreign 
court  of  admir.alty  was  not  conclusive  that 
the  warranty  could  be  vindicated  by  proof  in 
the  U.  S.  Sperry  v.  Delaware  Ins.  Co.,  3 
Wash.  C.  C,  243. 

6.  In  an  action  on  a  polic  y  of  insurance, 
638 


the  sentence  of  a  foreign  court  of  admiralty 
is  not  conclusive  evidence  as  to  the  character 
of  the  property  and  a  breach  of  the  warranty 
of  neutrality.  VandenJieueel  v.  United  Ins. 
Co.,  2  .Johns.  C,  453. 

7.  AVheie  the  sentence  of  a  vice  admiralty 
court  states  that  the  thing  was  condemned  as 
lawful  prize,  it  affords  no  necessarj-  inference 
that  it  was  enemy's  property,  and  is  not  con- 
elusive  evidence  of  that  fact  Goix  v.  Low,.i 
Johns.  C,  4S0. 

8.  Wiiere  the  sentence  of  an  admiralty  court 
rests  upon  the  bare  shipment  of  the  article, 
but  does  not  disclose  a  case  which  would  war- 
rant  the  conclusion,  the  sentence  is  not  con- 
elusive  evidence  of  the  condemnation,  if  a  de- 
tail  of  the  precise  grounds  on  which  it  was 
pronounced  repels  that  conclusion.  Johnston 
V.  Ludlow,  2  Johns.  C,  481 ;  Laing  v.  United 
Ins.  Co.,  id.,  487. 

9.  If  the  sentence  of  condemnation  pro- 
ceeds directly  on  the  ground  of  blockade,  it 
is  prima  facie  evidence  only  of  the  fact  of 
blockade.  Haddiffe  v.  United  Ins.  Co.,  9 
Johns.,  277. 

10.  The  sentence  of  condemnation,  pro- 
nounced by  a  foreign  court  of  admirall}-,  is 
prima  facie  evidence  of  the  facts  stated  in  it, 
and  the  grounds  upon  which  it  purports  to 
have  been  founded,  but  it  is  not  conclusive. 
New  York  Firemen  Ins.  Co.  t\  De  Wolf,  2  Cow., 
56 ;  affirming  s.  c,  20  Johns.,  214. 

11.  The  fact  that  the  insured  is  a  British 
subject,  and  tliat  his  vessel  has  been  con- 
demned by  a  court  of  his  own  nation,  is  no 
defense  to  his  action  against  his  insurer. 
Francis  v.  Ocean  Ins.  Co.,  6  Cow.,  404. 

12.  Courts  do  not  take  judicial  notice  of 
the  municipal  laws  of  foreign  counti-ies;  they 
must  be  proven  like  all  other  facts,  hence  where 
the  insurer  sets  up  a  breach  of  warranty 
founded  upon  an  illicit  trade  and  condemna- 
tion by  an  admiralty  court  acting  as  a  muni- 
cipal court,  the  onus  is  upon  the  insurer  to 
prove  the  existence  of  the  law  alleged  to  be 
violated,  and  the  fact  of  seizure  and  con- 
demnation are  not  enough  to  support  the 
breach  of  warranty.  Ocean  Ins.  Co.  v.  Francis, 
2  Wend.,  64;  affirming  s.  c,  C  Cow.,  404. 

\ii.  On  vessel  and  cargo.  Port  de  Pai.^  to 
Philadelphia.  Vessel  valued  at  .$8,000;  cargo 
at  §20,000,  against  capture  by  the  British  only. 
"AVarranted  American  property."  Insured, 
upon  being  asked  by  insurer  whether  she  hid 


1277 


SENTENCE  OF  CONDEMNATION. 


127R 


When  not  conclusive. 


been  captured,  rcplieil  lie  liad  just  received  a 
letter  from  the  master  informing  him  of  tlie 
fact,  and  wislied  to  be  insured.  Insurer 
agreed  to  insure  against  condemnation  only, 
at  a  premium  of  ten  per  cent.;  vessel  and 
cargo  were  sub.'^equeutly  condemned.  Tlie 
sentence  of  condemnation  was  ambiguous. 
Held,  the  court  had  a  right  to  examine  whetlier 
tlie  property  was  American,  and  being  salis- 
§ed  that  it  was,  except  a  trifling  matter  of 
liouschold  furniture  and  baggage,  belonging 
to  Frencli  soldiers,  the  warranty  was  satisfied. 
Vasse  V.  Ball,  3  Yeates,  178;  3  Dall.,  270. 

1 4.  "  On  cargo,  warranted  free  from  charge, 
damage  or  loss,  which  may  arise  in  conse- 
quence of  seizure  or  detention,  for  or  on  ac- 
count of  any  illicit  or  prohibited  trade."  The 
Berlin  decree  of  November  31,  1806,  prohib- 
ited trade  in  British  merchandise.  Aranjuez 
adopted  tliat  decree  February  19,  180i).  The 
goods  were  of  Britisli  manufacture.  She  was 
captured  about  a  league  from  La  Guira.  Pro- 
ceedings were  had  in  admiralty,  by  which  the 
goods  were  condemned,  but  the  cause  for  con- 
demuation  assigned  in  tlie  sentence  did  not 
negative  tlie  warranty.  Ileld,  unless  this  was 
clearly  expressed  or  fairly  to  be  drawn  from 
the  sentence,  the  insured  was  entitled  to  re- 
cover. Held,  also,  it  was  not  clearly  expressed 
nor  fairly  to  be  drawn  from  the  sentence. 
Faudel  V.  Phmnix  Ins.  Go.,  4  S.  &  R.,  29. 

15.  Tlie  decree  alleged  a  rescue,  and  then 
declared  that  for  such  cause  "  or  otherwise,  the 
vessel  is  liable  to  condemnation."  i/cM,  these 
words  do  not  amount  to  a  direct  allegation 
that  the  rescue  was  one  of  the  final  causes  of 
the  condemnation.  The  natural  construction 
is  that  as  the  vessel  had  been  rescued,  she  was 
liable  to  condemnation  for  that  or  some  other 
cause  not  stated.  Where  it  dnes-not  appear  by 
the  decree  itself  on  what  particular  ground  the 
condemnation  was  had,  the  case  is  open  to 
evidence  as  to  all  points  necessaiy,  to  all  par- 
ties in  interest  to  establish,  except  the  fact  of 
condemnation.  Robinson  v.  Jones,  8  .Mass.,  536. 

1 6.  Tlie  property  was  condemned  by  a  for- 
eign court  of  admiralty.  The  sentence  did 
not  state  that  the  condemnation  was  for  auj' 
violation  of  the  treaty  of  1735.  But  it  stated 
that  the  proof  of  property  in  the  cargo  was 
insufficient,  and  for  that  cause  it  was  con- 
demned. The  treaty  required  no  proof  of  any 
property,  except  of  the  vessel,  which,  without 
Buch  proof,  was  liable  to  coudcmniition;  but 


the  vessel  was  acquitted,  and  the  sentence 
did  not  in  terms  condemn  the  cargo  for  a 
violation  of  the  treaty,  nor  did  it  decide  any 
fact  whicii  amounted  to  such  violation.  Held, 
it  was  not  conclusive  evidence  for  the  insurer. 
Leey  v.  Merrill,  4  Me.,  180. 

17.  If  the  sentence  of  condemnation  is  ob- 
scure and  the  court  cannot  ascertain  from  it 
on  what  ground  the  decree  was  founded  it  i» 
not  proof  of  breach  of  warranty,  though  it 
purports  to  be  on  that  ground.  Gray  v.  Hwan, 
1  H.  &  J.,  142, 

18.  While  the  sentence  of  a  foreign  court 
of  admiralty  is  conclusive,  still  it  is  always 
proper  for  the  court  which  is  asked  to  adopt 
the  sentence  of  the  foreign  court  to  examine 
into  the  competency  of  the  tribunal  by  whose 
sentence  condemnation  was  pronounced.  It 
is  the  clear  right  of  every  court  to  examine 

whether  the  sentence  offered  to  it  emanates 

f 

from  an  authority  competent  by  tlie  law  of 
nations  to  judge  of  the  matters  on  which  it 
has  pronounced  (citing  Rose  v.  Himely,  4 
Cranch,  241 ;  The  Flad  Oyen,  1  Rob.  Wm., 
144;  The  Hendrick  and  Maria,  4  id.,  43). 
Cucullu  V.  Louisiana  State  Ins.  Co.,  17  Martin 
(La.),  464. 

19.  The  sentence  of  condemnation  proved 
that  the  ship  and  cargo  were  condemned  —  the 
ship  because  she  wanted  the  documents  neces- 
sary to  establish  lier  character — the  goods  be- 
cause they  were  about  to  be  introduced  in  vio- 
lation of  the  blockade;  but  the  sentence  also 
proved  that  an  appeal  had  been  taken,  and 
there  was  nothing  to  show  that  it  had  been 
adjudicated.  Held,  the  appeal  from  the  sen- 
tence prevented  it  from  having  the  force  of 
res  judicata,  consequently  it  does  not  prove 
that  the  warranties  were  falsified.  Zino  v. 
Louisiana  Ins.  Co.,  18  Martin  (La.),  63. 

20.  The  seuleiice  stated  that  tlie  master  per- 
sisted in  his  intention  to  enter  a  blockaded 
port.  The  evidence  showed  that  the  master 
was  carried  on  board  the  admiral's  ship,  and 
asked  by  the  commander  where  he  would  go 
in  case  he  was  released.  He  replied  into 
Cadiz.  Held,  the  decree  was  not  conclusive, 
because  it  stated  an  intention  to  enter  a  block- 
aded port,  and  a  condemnation  on  that  ground 
was  a  violation  of  tlie  law  of  nations.  Wil- 
liamson V.  Tunno,  1  Brev.,  151. 

21.  She  was  condemned  as  "good  and  law- 
ful prize;"  but  no  reasons  or  causes  were 
stated  in  the  sentence.    Held,  it  did  not  falsify 

639 


1279 


SENTENCE  OF  CONDEMNATION. 


1280 


When  not  conclusive. 


the  warrant}'  of  neutrality,  for  nouneutralilty 
is  not  always  the  only  ground  of  condemna- 
tion. Bailey  i:  South  Carolina  Ins.  Co.,  2 
Brev.,  354. 

22.  On  cargo.  Stipulated:  "  In  ease  of  cap- 
ture or  seizure,  insured  must  produce  i:)roof 
tliat  the  ship  was  American,  and  show  hy  bills 
of  lading  that  the  cargo  had  been  shipped  at 
risk  of  X.  B.,  upon  which  insurers  would  settle 
by  bills  at  four  months  for  amount  of  their 
subscription."  She  was  captured  by  a  French 
privateer  because  she  had  not  an  equipage 
roll,  and  was  condemned.  Held,  insured 
need  prove  only  that  she  was  American, 
and  that  the  cargo  had  been  shipped  for  ac- 
count and  risk  of  the  person  named.  Tliat 
the  sentence  of  the  French  court  did  not  pre- 
clude such  proof,  for  the  agreement  of  the 
parties  stipulated  that  such  should  be  made 
liotwithstanding  the  sentence.  Lothian  b. 
Uenderum,  H.  L.,  3  B.  &  P.,  490. 

23.  "  On  ship  from  Dantzic  to  Dublin,  war- 
ranted a  Dantzic  vessel."  Captured  by  a 
French  privateer  and  ultimately  restored;  but 
the  expense  incurred  in  legal  proceedings  and 
otherwise,  exceeded  the  amount  she  was  sold 
for,  in  admiralty,  under  a  bottomry  proceeding. 
The  sentence  of  restitution  refused  to  allow 
damages  and  costs,  because  she  was  not  docu- 
mented according  to  tlie  ordinances  of 
France  —  she  was  documented  according 
to  tlie  law  of  nations.  Held,  prize  or  no  ijrize 
ought  to  be  decided  by  the  law  of  nations; 
and,  that  law  must  be  collected  from  writers 
on  the  subject  and  treaties  between  nations; 
that  the  refusal  of  a  prize  court  to  allow  dam- 
ages and  costs  was  founded  on  two  private 
ordinances  of  France,  not  within  the  knowl- 
edge of  the  people  of  Dantzic,  and  was  there- 
fore no  ground  for  liolding  the  insurers  re- 
leased.    Siffken  v.  Lee,  5  B.  &  P.,  484. 

24.  The  sentence  of  condemnation  by  the 
foreign  court  did  not  state  precisely  on  what 
it  was  founded.  Held,  it  was  not  conclusive 
evidence  that  the  ship  was  not  neutral,  Ber- 
nardi  v.  Mutteux,  2  Doug.,  575. 

25.  The  grounds  of  the  sentence  and  de- 
cree of  tlie  foreign  court  of  admiralt}'  did  not 
appear;  but  the  decree  stated  tliat  slie  was 
"  lawful  prize."  Held,  not  conclusive  evidence 
that  she  was  not  neutral  property.  Salucci  v. 
Johnson,  4  Doug ,  234. 

26.  The  sentence  of  a  foreign  court  of  ad- 
miralty was  held  to  be  evidence  only  of  what 

ctb 


was  positively  and  .spicifically  affirmed  in  iho 
adjudicative  part  of  it;  but  not  of  anything 
that  might  be  gathered  by  inference.  FisJter 
V.  Ogle,  1  Camp.,  418. 

27.  The  sentence  of  a  court  of  admiralty 
sitting  under  a  commission  from  a  belligerent 
power,  in  a  neutral  country,  will  not  be  rec- 
ognized in  the  English  courts;  and  that  is  a 
neutral  country  in  which  the  forms  of  an  in- 
dependent  neutral  government  are  preserved, 
although  the  belligerent  may  have  such  a 
body  of  troops  at  hand  as  in  reality  to  pos- 
sess the  sovereign  authority.  Donaldson  v. 
Thompson,  1  Camp.,  429. 

28.  The  sentence  of  condemnation  staled, 
as  the  ground  of  condemnation,  that  she  had 
neither  a  register  nor  a  certificate  of  measure- 
ment; but  it  did  not  appear  that  by  treaty  be- 
tween Denmark  and  the  country  of  her  flag, 
such  a  register  was  required.  Eeld,  the  sen- 
tence was  not  conclusive  evidence  that  she 
was  not  documented  according  to  the  law  of 
nations.  Le  Cheminant  v.  Pearson,  4  Taunt., 
367. 

29.  "  Warranted  American  property."  She 
was  American  built,  manned  by  American 
sailors,  and  owned  by  an  American.  She  had 
all  the  necessary  documents  on  board,  des- 
tined from  London  to  Norfolk.  Stress  of 
weather  compelled  her  to  bear  away  for  port 
of  refuge ;  but  she  was  captured  before  she 
made  it,  by  a  French  privateer  and  con- 
demned. The  sentence  of  condemnation 
stated,  that  "  forasmuch  as  the  true  destina- 
tion of  the  vessel  was  for  the  English  islands, 
having  been  hired  and  loaded  at  London,  and 
having  on  board  eighty  barrels  of  gunpowder, 
declares  ship  and  cargo  good  prize."  Held, 
not  conclusive  evidence  against  the  warranlv 
of  neutrality.     Calvert  v.  Bocill,  7  Term,  523. 

30.  The  sentence  of  a  foreign  court  of  ad- 
miralty is  not  conclusive  as  to  the  grounds  of 
condemnation,  unless  those  are  explicitly  set 
forth  in  it,  hence  a  sentence  which  states: 
"That  the  ship  George  sailed  from  Liverpool, 
knowing  of  the  blockade  of  Buenos  Ayres  by 
the  emperor  of  Brazil,  from  a  short  distance 
of  which  port  slie  was  taken,  and  for  that  re:u 
son  ought  to  be  considered  as  violating  the 
blockade,  besides  which  it  was  notorious  the 
captured  had  endeavored  to  get  goods  into 
Buenos  Ayres,  as  was  clear  from  the  evasive 
answers  of  the  captain;  that  the  captured  had 
not  the  plausible  excuse  of  going  first  to  Mott 


12S1 


SERVICE  OF  PROCESS. 


1282 


Of  sei-vice  by  substitution  —  Valid  service. 


tcvidco,  and  llicifby  complying  with  tlio  pub- 
lishi-d  instnictions;  from  all  wliicli,  and  from 
what  the  docuunonts  slated,  the  ship  was  ad- 
judged good  prize."  /IcW,  tliis  was  not  a  .sen- 
(<.'nce  whicli  cxplicilly  stated  the  ground  of 
condemnation.  Dalgleinh  v.  Hodgson,  7  Bing., 
490 ;  9  L.  J.  C.  P.,  138 ;  5  M.  &  P.,  407. 

i{l."On  ship  and  cargo,  the  properly  of 
American  citizens."  (The  polic}'  was  made 
while  the  country  was  at  peace  with  France.) 
Slipuhited:  "In  case  of  capture,  insured,  be- 
fore chiimiug  loss,  shall  produce  proof  of  the 
ship  being  American  bottom,  and  by  bills  of 
lading  show  that  the  cargo  was  shipped  on  ac- 
count and  risk  of  (certain  persons  named) 
American  citizens."  She  was  captured  and 
condemned  by  the  prize  courts  of  the  French 
Rej'iublic  as  the  property  of  the  enemies  of 
the  French  Republic,  on  the  ground  that  the 
master  was  not  provided  with  the  papers 
necessary  to  establish  the  fact  that  she  was 
American  property.  Insured  ti-ansmitted  to 
insurers  bills  of  lading,  whicli  showed  that 
the  cargo  was  shipped  at  the  risk  and  for  ac- 
count of  the  proper  persons;  they  also  pro- 
<luced  proof  that  she  was  an  American  ship. 
Held,  insured  had  complied  witli  the  terras  of 
their  contract,  and  were  therefore  entitled  to 
recover,  notwithstanding  the  sentence  of  con- 
demnation. Henderson  ».  Lokian,  Faculty 
Dec,  17Ue  to  1801,  p.  428. 


SERVICE  OF  PROCESS. 

I.    Op   SERVICE  BY  SUBSTITOTION. 

II.  Valid  service. 
III.  Invalid  service. 

I.  Of  service  by  substitution. 

1.  It  appeared  that  the  contract  was  made 
in  Ireland,  but  the  defend.ant  was  an  English 
corporation.  Held,  the  defendant's  resident 
agent  must  appear  by  substitution,  and 
answer.    AJienrne  v.  Harnet/,   o  Irish  Kq.,  479. 

2.  Application  to  substitute  service  upon 
the  Dublin  agent  of  an  English  coinpanj'. 
Held,  unnecessary  to  show  that  the  whole 
cause  of  action  arose  in  Ireland.  It  w-as  suf- 
ticient  ifany  p.wt  of  it  arose  there.  Betlutm 
V.  Fernie,  4  Ir.  C.  L.  R.,  92 ;  Kelt  v.  Robinson, 
id.,  180. 

41 


II.  Valid  sekvice. 

1.  B.  had  a  written  contract  and  power  of 
attorney  signed  by  the  president  and  secretary 
of  the  defendant,  by  which  he  was  appointed 
their  agent  for  the  city  of  New  York,  to  effect 
insurance  for  them.  Held,  service  of  process 
upon  liim  was  valid.  Bnin  v.  Qlohe  Ins.  Co., 
9  How.  Pr.,  448. 

2.  The  defendant,  a  foreign  corporation,  was 
sued  by  a  citizen  of  this  state.  Held,  when 
the  corporation  established  a  business  in  the 
state  to  uwke  and  enforce  contracts  within  it,  it 
must  be  bound  to  take  notice  of  service  of  pro- 
cess upon  the  agent  to  whom  it  intrusts  its 
business,  and  service  being  made  upon  such  a 
person  is  valid.  Oibbs  v.  Queen  Fire  Ins.  Co., 
Ct.  of  App.  N.  Y.,  5  Ins.  L.  J.,  225. 

3.  Policy  made  by  a  Massachusetts  com- 
pany sued  in  Maine,  and  judgment  upon  it  in 
that  state.  The  writ  was  served  up<m  a  per- 
son who  had  ceased  to  be  the  agent,  but  he 
was  the  person  who  countersigned  the  policy. 
The  statute  authorizing  service  of  process,  in 
Maine,  provided,  "  Or  if  such  service  shall  be 
made  upon  the  person  being  an  inhabitant  of 
this  state,  who  signed  or  countersigned  the  pol- 
icy on  which  such  action  is  founded,  it 
shall  be  deemed  a  sufficient  service."  This 
suit  was  to  enforce  the  judgment.  Held,  de- 
fendants had  legal  notice  of  the  action  brought 
against  thein  in  Maine,  and  the  court  had  juris- 
diction of  the  parties  (citing  La  Fayette  Ins. 
Co.  •».  French,  18  How.,  407).  Gillespie  v. 
Commercial  Mutual  Marine  Ins.  Co.,  12  Gray, 
201. 

4.  Suit  was  instituted  October  14,  1852,  on  a 
policy  executed  at  New  Orleans  by  Johnson, 
as  agent  of  the  defendants,  a  foreign  com- 
panj',  domiciled  in  Tennessee.  The  petition 
and  citation  were  served  November  8,  1852. 
Johns(m  filed  an  exception,  stating  that  ho  was 
not  defendant's  agent  at  the  time  of  service, 
for  that  his  agency  had  been  withdrawn;  and, 
in  support  of  that,  he  exhibited  a  telegram, 
dated  Nashville  September  29,  1852,  with- 
drawing ^lis  agency.  Held,  the  defendant 
could  not  frustrate  tlie  plaintilf's  right  to  sue 
in  Louisiana  by  revoking  the  authority  of  the 
agent  on  the  eve  of  the  institution  of  the  suit. 
Micliael  v.  Mutual  Ins.  Co.,  10  La.  An.,  737. 

5.  Service  of  process  upon  a  company's 
agent  is  service  upon  the  corporation.  City 
Fire  Ins.  Co.  v.  Carrugi,  41  Ga.,  GOO. 

641 


1283 


SETOFF. 


1284 


When  allowed. 


III.  In\"alid  service. 

Return  of  process:  "Executed  on  D.  N. 
Barrows  and  George  A.  Smy,  the  agents,  per- 
sonally, and  copy  delivered  October  30,  1867." 
Held,  not  a  good  service,  and  no  warrant  for  a 
judgment  by  default,  because  it  did  not  ap- 
pear in  the  declaration  that  the  defendant  was 
a  foreign  insurance  company,  nor  that  D.  N. 
Barrows  was  the  duly  authorized  agent  of  the 
company.  Continental  Ins.  Go.  v.  Mansjieldy 
45  Miss.,  311. 


SETOFF. 

I.  When  allowed. 

II.  DENIED. 

III.  Of  pleading. 

I.  When  allowed. 

1.  The  policy  was  made  in  the  name  of  H., 
for  account  of  whom  it  may  concern,  loss,  if 
any,  payable  to  the  order  of  H.  A.  and  H. 
shipped  the  cargo  on  joint  account,  for  which 
A.  advanced  all  the  purchase  money,  and  the 
policy  was  deposited  with  him.  Held,  the  in- 
surer could  set  off  against  the  loss  the  pre- 
mium note,  which  was  unpaid;  but  as  to  any 
other  indebtedness  due  from  H.  to  the  insurer, 
r.o  setoff  could  be  allowed.  Aldrich  s.  Equit- 
(Me  Safety  Ins.  Co.,  1  W.  &  M.,  272. 

2.  Policy  to  Z.  "  for  E.  D.  H.  &  Co.,  for 
whom  it  concerns,  payable  to  E.  D.  H.  &  Co. 
in  sixty  days  after  proof  autl  adjustment,  the 
amount  of  the  premium  note,  if  unpaid,  and 
all  suras  due  to  the  company  from  the  insured 
when  the  loss  becomes  due  being  first  de- 
ducted." Held,  the  word  "  insured  "  applied,  not 
to  the  p.arty  who  procured  the  insurance,  but 
to  liim  for  whose  benefit  it  was  made;  hence, 
the  premium  note  was  to  be  deducted  from  the 
loss,  whether  made  by  the  agent  or  the  princi- 
pal.   Huiibert  v.  Pacific  Ins.  Co.,2  Sumn.,  471. 

3.  Insurers  sued  the  iudorser  of  a  note,  but 
before  commencement  of  the  suit,  became  lia- 
ble to  the  maker  for  a  return  of  premium  on 
the  risk.  Held,  the  return  of  premium  must 
be  deducted  from  the  note,  notwithstanding 
the  maker  was  indebted  to  the  insurers  for  pre- 
miums on  other  policies,  and  was  Insolyent. 
Phoenix  Ins.  Co.  v.  Piquet,  7  Johns.,  384. 

C13 


4.  Insurers  had  become  bankrupt  and  re- 
ceivers  were  appointed.  After  the  bankruptcy, 
a  general  average  was  adjusted,  which  gave 
defendant  the  right  to  claim  for  general  aver- 
age. Held,  defendant  could  set  ofl'  the  claim 
against  an  action  brought  upon  his  premium 
note.    Osgood  v.  He  Gi-oot,  36  N.  Y.,  348. 

5.  Insured  was  debtor  to  insurer  for  bor- 
rowed money,  secured  by  bond  and  mortgage, 
and  insurers  were  debtor  to  insured  for  a  loss 
by  fire  on  the  premises  mortgaged.  Held,  in- 
sured  could  set  off  the  loss  against  the  debt. 
If  the  receivers  refuse  to  adjust  the  claim,  a 
court  of  equity  will  compel  them.  In  such 
cases,  the  right  to  setoff  extends  to  all  mutual 
credits  ex  contractu.  In  re  Globe  Ins.  Co.  ex 
parte  Braine,  3  Edw.  Ch.,  625 ;  Holbrooke  v. 
American  Fire  Ins.  Co.,  6  Paige,  220. 

6.  Promissory  note  to  an  insurance  com- 
pany as  security  to  dealers.  Held,  the  pre- 
miums earned  and  paid  by  the  maker  being 
credited  against  the  note,  the  receiver  was  en- 
titled to  recover  only  the  balance.  Cruik. 
shank  v.  Bnnoer,  11  Barb.,  228. 

7.  The  premium  due  shall  be  set  off  against 
a  loss  ascertained.  •  Lieermore  v.  Neicburyport 
Marine  Ins.  Co.,  2  Mass.,  232. 

8.  Stipulated  :  "  In  case  of  loss,  it  shall  be 
paid  in  sixty  days  after  proof  and  adjustment, 
the  premium  note,  if  unpaid,  and  all  sums  due 
by  the  insured  to  the  company  when  such  losa 
becomes  due,  being  first  deducted."  Held, 
dfebts  not  due  by  insured  to  the  company 
when  the  loss  became  payable,  but  which  had 
become  due  before  judgment  was  rendered, 
must  be  allowed.  Warren  v.  Franklin  Ins.  Co., 
104  Mass.,  518. 

9.  The  property  of  insurers  was  sequestered 
and  placed  in  the  hands  of  receivers.  Insured 
was  indebted  to  insurers  for  monej'  borrowed, 
and  insurers  were  liable  to  insured  for  a  loss. 
Held,  iusured  could  set  off  the  claim  against 
the  debt,  though  it  was  secured.  Commonirealth 
n.  Shoe  and  Leather  Healers  Ins.  Co.,  112  Mass., 
131. 

10.  Policy  to  A.  for  account  of  whom  it 
concerns,  payable  to  order.  It  was  assigned 
to  a  mortgagee  of  the  vessel  insured.  Held, 
insurer  could  set  off  premiums  due  for  other 
policies,  provided  insurer  had  no  notice  of 
the  assignment  prior  to  the  time  the  mutual 
claims  became  due.  Cominonwealth  v.  Xational 
Ins.  Co.,  113  Mass.,  514. 

11.  Stipulated:  "Loss  shall  be  paid  in  sixty 


12S5 


SKTOFF. 


1286 


When  allowed. 


days  .after  proof  aad  adjustment  thereof;  the 
amount  of  the  premium  note,  if  unpaid,  and 
all  sums  due  to  the  company,  from  the  in- 
sured, when  such  loss  hecomes  due,  being 
first  deducted,  and  all  sums  becoming  due 
being  first  paid  or  secured  to  the  satisfaction 
of  the  said  company."  Held,  insured  could 
set  off  against  his  premium  note  a  loss  that 
liad  accrued  under  the  policy.  Columbian  Ins. 
Co.  V.  Bean,  113  Mass.,  541. 

12.  D.  procured  a  policy  of  insurance  on 
vessel,  and  judgment  was  rendered  in  favor 
of  D.'s  executors  upon  it ;  but  the  insurer  then 
licld  a  judgment  against  D.,  and  claimed  the 
right  to  set  ofi'this  against  the  other  judgment. 
O.  was  half  owner  of  the  vessel.  Held,  the  set 
off  must  be  allowed.  Darrah  v.  Bayard,  3 
Ycates,  153. 

13.  An  equitable  assignment  merely  com- 
pels the  suit  at  law  to  be  in  the  name  of  the 
assignor,  but  the  obligor  may  setoff  against 
the  assignee's  claim  any  demand  which  he 
had  against  the  assignor.  Oourdon  v.  Insur- 
ance Company  of  North  America,  3  Yeates,  327. 

14.  Insured  was  allowed  to  pay  the  annual 
premium  quarterly  on  or  before  the  28th  day 
of  November,  February,  May  and  August. 
The  first  was  paid  iu  August.  Held,  insurers 
were  entitled  to  credit  for  the  unpaid  quarterly 
premium  due  in  November,  February  and 
May.  Uesterberg  •;.  Equitable  Life  Ins.  Co.,  1 
Cin.  Sup.  Ct.,  483. 

15.  The  insured,  procured  G.  to  effect  seve- 
ral policies,  and  promised  thesliips  should  be 
consigned  to  bim;  that  he  should  receive  the 
freight  and  reimburse  himself  for  the  pre- 
miums. Insurers  gave  Q.  credit  for  the  pre- 
mium.s,  and  insured  remitted  to  G.  bills  on  T., 
which  were  liot  accepted,  but  T.  offered  to, 
and  did  accept  G/s  bills  for  the  amount  of 
those  refused,  on  the  security  of  the  policies 
which  G.  deposited  with  T.  Insured  con- 
signed the  ships  to  T.,  and  assigned  the 
freight  to  him.  A  loss  occurred.  Insured 
well  knew  that  G.  had  no  means  from  which 
he  could  pay  the  premiums.  Ueld;t]ie  insurer 
could  set  off  the  premium  against  the  loss, 
notwithstanding  the  policy  acknowledged  pay- 
ment thereof.     Foy  v.  Bell,  3  Taunt.,  493. 

16.  Insured  w.as  indebted  to  insurer  a 
balance  of  account,  and  became  bankrupt. 
A  loss  afterward-s  happened,  by  which  insurer 
became  liable  to  the  bankrupt,  and  the  assig- 
nee brought  suit  for  it.    Held,  insurer  could 


set  off  the  bankrupt's  indebtedness  to  him 
against  the  loss.  &ra/ian  v.  Bussell,  2  Marsh., 
501. 

17.  The  bankrupt  had  subscribed  a  policy, 
and  a  loss  accrued  under  it  amounting  to  £181 
10s.  8d.  The  defendant,  an  insurance  broker, 
was  indebted  to  the  bankrupt's  estate  for  pre- 
miums £177  6s.  Id.  The  goods,  upon  which 
the  loss  was  sustained,  were  the  property  of  T. 
&  Co.,  debtors  to  the  broker  £1,000.  The  pol- 
icy  was  effected  in  the  broker's  name.  Held, 
the  case  fell  expressly  within  the  principle  of 
Parker  v.  Beslcy;  the  policy  being  in  the 
broker's  name,  he  had  a  right  to  maintain  an 
action  in  his  own  name;  and,  as  he  had  a 
right  to  sue  on  the  policy,  he  had  a  lien  on 
the  goods  for  the  premium;  hence  he  might 
set  off  moneys  due  on  a  loss  under  the  policy 
against  a  claim  for  premiums  claimed  by  the 
assignee  of  the  bankrupt.  Davies  v.  Wilkin- 
son, 6  L.  J.  C.  P.,  121. 

18.  The  broker  is  the  common  agent  of  in- 
sured and  insurer;  and  if  he  receives  notice 
of  events  while  the  premium  remains  in  his 
liands  which  will  entitle  the  insured  to  a  re- 
turn of  a  portion  of  it,  he  is  authorized  to  de- 
duct that,  and  pay  only  the  difference  over  to 
the  insurer.    Sftee  B.  Clarkson,  12  East,  507. 

1 9.  Brokers  accepted  bills  on  account  of 
goods  consigned  to  them  and  insured  in  their 
own  names,  upon  which  a  loss  occurred;  and 
the  assignees  of  the  insurer  now  brought  suit 
for  premium  due  by  the  brokers  to  the  bank- 
rupt.  Held,  the  brokers  could  set  off  the  loss, 
ahhough  not  ailjusted.  Parker  v.  Beasley,  2 
Mau.  &  Sel.,  433. 

20.  The  broker  had  not  paid  the  premium 
when  insurer  became  bankrupt,  and  he  re- 
insured the  risks.  Held,  he  was  entitled  to 
set  off"  the  cost  of  reinsuring  against  the  claim 
of  the  bankrupt's  assignee.  Keith  v.  Thomso-n, 
Faculty  Dec,  1793  to  1796,  p.  428. 

21.  Insured  was  debtor  for  premiums  when 
insurer  became  bankrupt.  Held,  he  could  set 
them  off"  against  a  loss,  the  jiremium  for 
which  had  been  paid.  Kirkv.  Bennet,  Faculty 
Dec,  1812  to  1814,  p.  32. 

22.  F.  effected  a  policy  on  his  life  and  G. 
became  bound  for  the  payment  of  the  pre- 
mium. G.  paid  the  premium  for  several 
years.  The  estate  of  F.  was  sequestrated 
and  Thom.-.on  appointed  trustee.  The  pn-- 
mium  became  due  and  G.  applied  to  the 
Uustee  to  pay  it,  but  he  refused.    G.  paid  the 

043 


1287 


SETOFF. 


1288 


When  denied. 


premiums.  Held,  lie  was  entitled  to  all  his 
advances.  Thompson  v.  Shepperd,  7  S.  &  D.,' 
783;  Norwich  Ins.  Go.  v.  Thompson,  1  Scot. 
Jur.,  292. 

II.  "When  denied. 

1.  The  master  directed  B.,  his  agent,  to  pro- 
cure insurance  on  his  commissions,  as  master, 
and  a  broker  effected  the  policy  in  the  name 
of  B.,  on  the  commissions  of  the  master 
named  in  the  policy.  The  broker  received 
for  a  total  loss,  and  claimed  the  right  to  set 
off  a  debt  due  to  him  by  B.  Held,  the  setoff 
could  not  be  allowed.  Foster  v.  Hoyt,  2 
Johns.  C,  327. 

2.  A  member  of  a  mutual  marine  insurance 
company  cannot  set  off  a  loss  sustained  by 
him,  adjusted  and  payable  by  the  coinpanj', 
against  his  indebtedness  for  premiums  due 
upon  policies;  for  the  premiums  constitute 
the  fund,  which  is  for  the  benefit  of  all  cred- 
itors, and  to  allow  that  would  give  him  more 
than  a  pro  rata  dividend.  Lawrence  v.  Nelson, 
21  N.  Y.,  158;  s.  c,  4  Bos.,  240. 

3.  Policy  to  Ruger  Bros.,  "  On  account  of 
whom  it  may  concern ;  loss  payable  to  the 
Pacific  Mail  Steamship  Co.  Such  loss  to  be 
paid  within  thirty  daj'S  after  proof  of  loss  and 
proof  of  interest,  the  amount  of  any  note  or 
notes  given  this  company  for  premiums  if 
unpaid,  and  all  other  indebtedness  being  first 
deducted."  She  sailed  on  the  voyage  and  was 
never  heard  of.  The  defendant  claimed  the 
right  to  set  off  three  promissory  notes  due 
them  by  Ruger  Bros.,  amounting  to  a  sum 
e.\ceeding  the  claim.  Ruger  Bros,  did  not 
own  or  have  any  interest  in  the  property  in- 
sured;  it  was  the  property  of  the  plaiiitff. 
Held,  Ruger  Bros,  had  no  right  to  claim  or 
recover  anything  under  the  policy;  hence  the 
defendant's  claim  against  them  could  not  be 
set  off  against  the  plaintift''s.  Pacific  Mail 
Steamship  Co.  v.  Great  Western  Ins.  Go.  65 
Barb.,  334. 

4.  Tiie  owner  of  a  cargo,  who  makes  further 
insurance  upon  it,  because  the  vessel  has  devi- 
ated, cannot  recoup  or  set  off  the  premium 
paid  against  the  freight  earned.  Ni/e  d.  Ayres, 
1  E.  D.  Smith,  533. 

5.  Insured  assigned  his  poIicy,to  which  in- 
surer assented,  and  after  the  loss,  received  a 
negotiable  certificate  of  indebtedness,  and  in- 
dorsed it  to  the  assignee  of  the  policy.    Held. 

644 


insurer  could  not  be  allowed  to  set  off  the 
amount  of  Die  loss  against  a  debt  due  by  the 
insured  to  the  company.  Swords  v.  Blake,  3 
Edw.  Ch.,  113. 

6.  Certain  policies  were  issued  to  W.,  the 
plaintiff,  an  insurance  broker,  "  for  account  of 
whom  it  may  concern,  loss,  if  any,  payable  to 
S."  They  were  sent  by  W.  to  S.,  who  retained 
them  till  after  the  loss,  but  he  returned  them 
to  W.  for  collection.  The  vessels  were  owned 
by  B. ;  but  it  did  not  appear  that  W.  knew  that 
fact  when  the  insurance  was  effected.  When 
they  were  returned  to  him  for  collection  he 
was  full3-  informed.  S.  was  indebted  to  W. 
$1,782.17,  on  account  of  previous  dealings,  no 
part  of  whicii  had  been  paid;  but  it  did  not 
appear  that  this  indebtedness  was  due  when 
W.  first  parted  with  the  policies.  Held,  W. 
could  not  set  off  the  debt  of  S.  against  an  ac- 
tion brought  by  B.  to  require  him  to  account 
for  the  moneys  collected,  because  it  did  npt 
appear  that  when  he  sent  the  policies  to  S.,  he 
had  any  lien  upon  them,  nor  did  the  fact  that 
they  were  returned  to  him  for  collection  re- 
vive  any  lien  if  he  had  one,  for  when  they 
were  returned  to  him  thej'  came  as  the  prop- 
erty of  another  person,  affected  by  new  and  in- 
termediate  equities  (citing  Story  on  Agency, 
sec.  470).     Sharp  v.  Whipple,  1  Bos.,  557. 

7.  Policy  to  A.,  for  whom  it  might  con- 
cern.  Indorsed  that  "  it  was  understood  that 
the  insurance  attached  for  A.  B.  and  C,  each 
one-third,  loss  payable  to  A.,  all  sums  due  the 
insurers  from  the  insured,  being  first  deduct- 
ed." Held,  the  insurer  could  not  set  off,  in  an 
action  brought  by  A.  B.  and  C,  a  debt  due  to 
the  insurers  from  A.  alone.  Williamg  v.  Ocean 
Ins.  Co.,  2  Met.,  303. 

8.  Policy  to  M.  &  C,  payable  to  them  for 
account  of  whom  it  may  concern.  Plaintiffs 
were  owners  of  the  properly  insured,  and  the 
policy  was  intended  to  insure  them.  Held, 
insurers  could  not  set  off  against  the  claim, 
debts  due  them  by  M.  &  C.  (citing  William  v. 
Ocean  Ins.  Co.,  2  Met.,  303;  Hurlbert  !i.  Pa- 
cific Ins.  Co.,  2  Sumn.,  471).  Somes  v.  Equi- 
table Safety  Ins.  Co.,  13  Gray,  531. 

9.  Policies  to  6.  and  J.,  who  became  insol- 
vent, and  their  assignees  guarantied  the  pay- 
ment (jf  the  premium  note,  the  company 
agreeing  that  the  policy  should  continue  in 
force  for  the  b<?ncfit  of  the  assignees.  Held, 
insurers  could  not  set  off  against  the  loss 
claims  which  they  held  against  C.  and  J.,  not- 


1289 


SETOFF. 


1290 


Wlicn  denied. 


withstanding  a  stipulation  in  tlic  policy  that 
the  amount  of  the  premium  note,  if  unpaid, 
and  all  sums  due  the  compaii}'  from  insured 
shall  be  deducted  from  tlie  loss;  for  it  was  a 
new  agreement,  between  insurers  and  the  as- 
signees. Tripp  V.  Pacific  Mat.  Ins.  Go.,  7 
Allen,  2o0. 

10.  A.  procured  insurance  for  the  owner  of 
a  vessel,  giving  his  promissory  notes  for  the 
l)remium.  He  delivered  the  policy  to  his 
principal,  who  assigned  it  to  a  io/j^f /Ws  pur- 
chaser without  notice.  Held,  A.  had  not  any 
lien  upon  llie  policj',  nor  any  claim  against 
the  insurance  money,  nor  could  insurers  re- 
gard the  premium  .as  unpaid  for  the  purpose 
of  creating  a  right  to  set  k  off  against  the 
loss.  Cranston,  v.  Philaddphia  Ins.  Co.,  5 
r,inn.,538. 

11.  In  an  action  upon  a  premium  note,  de- 
fendant claimed  the  right  to  set  off  damages 
by  him  sustained  in  removing  his  goods  out 
of  the  way  of  a  conflagration.  Held,  the  set- 
off cannot  be  allowed,  because  it  would  enable 
a  debtor  who  stood  in  the  double  capacity  of 
debtor  and  creditor,  to  get  more  than  his 
share  of  the  funds  of  the  insolvent.  UiUier 
V.  Allegheny  County  Mut.  Ins.  Co.,  3  Penn.  St., 
470. 

12.  Action  in  the  name  of  covenantee,  upon 
a  policy  for  account  of  whom  it  might  con- 
cern, lleld,  a  setoff  against  the  covenantee 
could  not  be  allowed.  Stetson  v.  Insurance 
Co.,  4  Phi'la.,  8. 

13.  A  mutual  insurance  company  cannot 
retain  from  a  loss  ascertained  and  admitted, 

■  any  portion  of  it  to  answer  assessments  which 
may  thereafter  be  rightfully  made ;  but  they 
are  entitled  to  retain  all  such  sums  as  may 
liave  been  lawfully  assessed  upon  the  pre- 
mium note.  Swamscol  Machine  Co.  v.  Part- 
ridge, 23  N.  H.,  3G9. 

14.  Policy  made  to  F.  on  account  of  B.;  in 
case  of  loss,  payable  to  F.  F.  was  indebted 
10  the  insurer  when  the  loss  became  payable. 
Held,  the  debt  could  not  be  set  off  against  the 
loss,  for  F.  was  a  mere  agent.  Braden  v.  Lou- 
isiana State  Ins.  Co.,  1  La.  (O.  S.),  220. 

15.  Insurer  became  insolvent;  insured  al- 
lowed his  policy  to  lapse,  and  suit  was  brought 
upon  the  premium  note.  Held,  insured  cuuld 
not  set  off  the  cash  value  of  the  policy.  North 
Carolina  Life  Ins.  Co.  v.  Powell,  71  N.  C  ,  389. 

16.  The  plainlilf's  testator,  an  underwriter, 
died  before  certain  return  premiums  became 


due;  and  the  defendant,  a  broker,  claimed  the 
right  to  set  off  these  against  moneys  due  by 
him  to  the  testator.  Held,  a  broker  could  not 
be  an  agent  for  Ihe  underwriter  after  his  bank- 
ruptey,  nor  after  his  death.  Houttuun  v.Itob- 
ertsoii,  1  Holt  N.  P.,  88;  2  Marsh.,  138;  C 
Taunt.,  448;  4  Camp.,  342;  Houstoun  v.  Dor- 
denave,  0  Taunt.,  451 ;  2  Marsh.,  141. 

17.  A  broker  was  indebted  to  Ihe  assignees 
of  the  bankrupt  for  premiums  due  on  policies 
subscribed  by  the  bankrupt  before  his  bank- 
ruptcy; but  there  were  return  premiums  due 
upon  ships  which  arrived  after  the  bauk- 
ruptey.  Held,  the  latter  could  not  be  set  off 
against  the  former.  Goldschmidt  v.  Lyon,  4 
Taunt.,  534;  Minett  v.  Forrester,  id.,  541,  u.; 
Olennie  v.  Edmunds,  id.,  775. 

18.  The  party,  well  acquainted  with  the 
facts  of  his  own  case,  upon  a  full  knowledge 
of  them  for  a  long  time,  admitted  that  he  had 
no  claim;  after  lulling  the  other  paity  to 
sleep,  he  ought  not  to  be  permitted  to  establish 
a  setoff.  Baker  v.  Langliorn,  G  Taunt.,  519; 
8.  c,  4  Camp.,  390;  2  Marsh.,  215. 

19.  A  broker  was  indebted  for  premiums 
on  policies  subscribed  by  a  person  who  had 
since  become  bankrupt.  He  held  a  del  credere 
commission  on  one  of  the  policies  upon  which 
a  loss  happened  before  the  bankruptcy.  The 
broker  was  not  entrusted  with  the  custody, 
but  paid  a  loss  on  Mt  before  the  commission 
was  issued.  Held,  he  coul.i  not  set  off  that 
loss  against  the  premiums  which  were  due  to 
the  assignees  of  the  bankrupt.  Peek  v.  Nortlk- 
cote,  7  Taunt.,  478;  8.  c,  Moore,  178. 

20.  The  broker  is  entitled  to  receive  pay- 
ment  of  a  loss  from  the  insurer  in  money  and 
a  custom  to  set  off  a  general  balauce  due  from 
broker  to  insurer  is  illegal.  Todd  v.  Beid,  4 
B.  &  A.,  210. 

21.  B.  became  an  insurer  for  various  risks 
procured  by  A.  for  his  principals,  upon  which 
the  premiums  were  due  and  unpaid.  Held, 
A.  could  not  set  off  the  losses  or  the  return 
premiums  against  B.'s  assignee  in  bankrupt- 
cy, who  sued  for  the  premiums  due  the  bank- 
rupt.    Wilson  X.  Creighton,  3  Doug ,  132. 

2'i.  The  insurance  broker  had  notice  the 
policy  was  made  by  an  agent  for  an  undis- 
closeil  principal.  Held,  the  broker  could  not 
set  off  a  general  balance  which  lie  had  against 
the  agent,  against  a  loss  under  the  policy. 
Martnss  v.  Henderson,  1  East,  335;  Man  a 
Shiffner,  2  id.,  523. 

645 


1291 


SHIP  OR  SHIPS. 


1292 


Of  .shipments  by  "  ship  or  ships  "  —  Of  steamships. 


2.3.  The  executor  sued  the  broker  for  jire- 
miums.  Ilchl,  the  broker  could  not  sctotT  a 
loss  which  occurred  after  the  testator's  death. 
Beckicith  v.BuUcit,S  El.  &  BI.,  (583;  s.  c,  4 
Jur.  (N.  S.),  558;  27  L.  .J.  Q.  B ,  IG2.  But  the 
rule  is  ollicrwisc  where  tlie  underwriter  be- 
comes a  bankrupt.  Sec  Kostcr  v.  Eiison,  3 
Man.  &  Sel.,  113;  Lee  v.  Bulleii,  8  EI.  &  Bl., 
692  n.;  4  Jur.  (N.  S.),  5.57;  37  L.  J.  Q.  B.,  IGl. 

24.  Insured  h.id  executed  a  deed  of  inspec- 
torship under  the  bankrupt  act  of  18G1,  34 
and  2a  Vict.,  ch.  134,  sec.  1U3,  but  he  brought 
this  suit  on  behalf  of  third  persons,  who  had 
made  advances  upon  the  shipping  documents 
and  policy  of  insurance.  Tlie  nominal  plaint- 
ilf  was  indebted  to  the  defendants,  £47  1.5s.  lid., 
who  had  tixken  two  dividends  under  the  deed 
of  inspectorship.  Held,  in  respect  of  a  de- 
mand which  could  not  pass  to  the  assignee  in 
bankruptc}-,  a  plea  of  mutual  credit  would  be 
inapplicable,  hence  the  setoff  could  not  be  al- 
lowed. Be  Maltos  v.  Stninders,  7  L.  1{.  C.  P., 
570;  s.  c,  20  W.  R.,  801 ;  27  L.  T.  (N.  S.),  120. 

2.5.  A.  became  debtor  to  B.  He  assigned  a 
]>olicy  on  his  life  to  B.,  with  power  to  take  the 
money  and  account  for  whatever  he  might  re- 
cover beyond  the  amount  of  the  debt.  Sub- 
sequently A.  granted  B.  a  bond  for  another 
debt.  The  bond  did  not  refer  to  the  former 
transaction  nor  to  the  policy.  Held,  B.  could 
not  apply  an}-  of  the  monej'  to  the  extinguish- 
ment of  the  bond.  National  Bank  of  Scotland 
V.  Forbes,  21  C.  C.  S.,  79. 

20.  Action  was  brought  to  recover  the  pre- 
mium and  policy.  Insured  pleaded  a  loss 
against  the  same  company  upon  another  pol- 
icy. Held,  the  plea  must  be  disallowed.  Al- 
len V.  Hi/nd,  8  S.  &  D.,  012. 

III.    Of  rLE.\DING. 

1.  To  an  action  fiU'  unliquidated  d.amages, 
the  defendant  pleaded  setoll"  for  premiums. 
Held,  bad  plea.  CastelU  v.  Buddinrjton,  1  El. 
&  Bl.,  GG;  s.  c,  affirmed,  id.,  879;  Luckie  t. 
Bmhhy,  13  C.  B.,  804. 

2.  In  covenant  for  a  total  loss.  In  one 
count  the  interest  was  averred  In  the  plaintiff, 
and  in  another  in  himself  and  others.  Plea: 
Ih.at  the  plaintitf  was  indebted  to  the  defend- 
ants on  his  bond,  made  to  defendants  before 
tliey  had  notice  that  any  person  other  than  the 
plaintilf  had  an  interest  in  the  policy.  Held, 
the  plea  was  bad,  on  two  grounds :  first,  because 

G4G 


the  case  was  f(^r  unliquidated  damages;  sec- 
ond, because  there  was  no  mutuality  between 
the  policy  and  the  bond.  Grant  t.  Royal  Ex- 
cnange  Ass.  Co.,  5  Muu.  &  Sel.,  439;  Luckie  v. 
Bushby,  13  C.  B.,  862. 


SHIP  OR  SHIPS. 

I.  Op  snrp.MENTS  by  "  ship  or  ships.' 
II.  Of  steamships. 
III.  Of  the  eskollment. 

I.  Of  siiii'ments  by  "  ship  or  ships." 

1.  The  name  of  a  certain  ship  was  inserted 
in  the  policy,  and  following  "that  these  words 
were  inserted,  "or  by  whatever  other  name  the 
ship  shall  be  called."  Held,  they  were  intend- 
ed to  provide  for  a  mistake  in  the  name.  Le 
Mesurier  v.  Vauglian,  G  East,  382;  Hall  v.  Mol- 
ineux,  id.,  385  n. 

2.  Two  policies  were  made  for  ditferent  sums 
on  goods  on  "  ship  or  ships,"  for  the  same 
voyage.  Goods  were  laden  in  two  ships  of 
unequal  values,  but  in  the  aggregate  nearly 
tlie  sum  of  both  ])olicies.  One  ship  arrived 
safely,  but  the  other  was  lost.  Held,  insured 
might  apply  either  policy  to  the  ship  lost. 
Henchman  v.  Offlcy,  2  H.  B.,  345  note. 

3.  Policy  on  goods  to  be  therealter  declared 
by  ship  or  ships.  The  broker  by  mistake 
made  a  written  declaration  as  to  the  names  of 
certain  shijjs,  in  which  there  were  no  goods 
for  the  insured.  There  were  goods  by  another 
ship,  and  the  defendant  was  asked  to  correct 
the  mistake,  but  he  refused  to  do  so.  The 
g^jods  were  subsequently  lost.  Held,  the  de- 
claration of  interest  did  not  require  the  insur- 
ers' assent,  for  it  was  the  mere  exercise  of  a 
power  conferred  upon  the  insured.  Robinson 
■0.  Touvay,  3  Camp.,  loS;  1  Mau.  &  Sel.,  217. 

II.  Of  steamships.  - 

"  On  cargo  on  board  the  steamship  Indian 
Empire."  Held,  the  word  "steamship"  im- 
ports a  three  masted,  square  rigged  vessel, 
capable  of  being  propelled  by  sails  or  steam, 
or  either,  and  is  in  itself  a  warranty  that  she 
is  fully  and  adequately  equipped,  manned  and 
provisioned  as  a  steamer  and  as  a  sailing  ves- 
sel. Howard  v.  Orient  Mut.  Ins.  Co.,  3  RoU 
(N.  Y.),  539. 


1293 


SHIP  OWNER'S  LIABILITY -SICKNESS,  DISEASE.  Etc. 


1294 


Of  untrue  aiiswers  which  vitiate  the  policy. 


III.  Of  the  eneollment. 

Time  policy  on  the  "  Jlaiy."  She  was  to- 
tally lost.  She  hud  been  built  upon  the  keel, 
float  ami  naval  timbers  of  the  sloop  "So- 
phronia,"  the  size  of  which  was  enlarged 
nearly  twelve  tons,  and  the  name  of  "  Mary  " 
given  to  the  craft  after  she  was  so  enlarged. 
The  enrollment  of  the  "  Sophronia"  was  not 
surrendered  to  the  custom  house  before  the 
onrolhnent  of  the  "Mary"  was  procured. 
//('W,  although  her  register  was  obtained  with- 
out  conforming  to  the  laws  of  tlie  United 
States  relating  thereto,  that  did  not  vitiate  the 
contract  of  insurance.  Ocean  Ins.  Co.  v.  PoUeys, 
13  Pet.,  157. 


SHIP  OWNER'S  LIABILITY. 

On  ship  $18,000,  valued  at  $18,000,  voyage 
to   Havre.      She  came    in    collision  with   a 
barque.     Both  were  damaged.     She  arrived  at 
Havre,  delivered  cargo  and  received  freight 
^15,000.    An  adjustment  was  made  for  a  gen- 
eral average,  in  which  her  contributory  value 
was  placed  at  $6,000.     The  damages  by  coUis- 
siou  were  repaired  at  an  expense  of  |S,000. 
Insurers  paid  their  proportion  of  the  general 
and  particular  average.     On   her   arrival   in 
London  she  was  libeled  b}-  the  owners  of  the 
barque  and  condemned,  in  damages  and  costs 
of  defending  the  suit  paid  by  insured  amount- 
ing to  $10,000.  i/'gM,  the  ship  owner's  liability 
w.a3  not  to  be  measured  by  what  the  ship  was 
•worth  after  she  had,  b}-  the  misconduct  other 
agents,  committed  the  injury  which   had  re- 
duced her  value,  for  that  would  be  almost  an 
absolute  refusal  of  redress,  if  not  a  denial  of 
the  sufferer's  rights ;  that  the  rule  which  ex- 
isted prior  to  the  enactment  limiting  the  ship 
owner's  liability,  remains  unchanged  in  this 
respect;  and  that  liability  was   to  be  ascer- 
tained by  determining  the  value  of  the  ship 
at  the  point  of  time  immediately  preceding 
the  injury  upon  the  other  vessel;  and  insurer 
■was    liable    to    insured     for    the    aggregate 
amount  of  the  damages   which   insured   had 
paid  under  legal  compulsion.     Walker  v.  Bos- 
ton Ins.  Co.,  14  Gray,  388. 


SICKNESS,   DISEASE,  OR   EMPLOY- 
MENT OF  A  PHYSICIAN. 

I.  Op  untrue  answers,  ■which  vitiate 

THE  POI,ICT. 

II.  Of  volunteer  information,  which 

DOES  NOT  VITIATE  THE  POLICY. 
III.    OV  TE.MrOKARY  ILLNESS  AND  L^VTENT  DIS- 
EASE. 

IV.  What  must  be  disclosed. 
V.  need  not  be  disclosed. 

VI.  Questions  for  the  jury. 

I.    Of  DNTRITE  ANSWERS,  WHICH  VITIATE 
THE  POUCT. 

1.  The   applicant  w.as    asked  whetlicr  he 
ever  had  rupture,  or  certain  diseases  enumer- 
ated, to  which   he  answered;   "None."    The 
policy  referred  to  the  application,  and  stipu- 
lated that  if  any  of  the  answers  stated  in  it 
"  shall  be  found  in  any  respect  false  or  fraud, 
ulent,  this  policy  sh.all  be  null  and  void."  The 
defendant  claimed  that  the  applicant  was  af- 
fected   with   hernia   before    the    policy   was 
issued,  and  that  his  answer  in  that  respect  was 
false  and  untrue,  and  requested  the  court  to 
charge  that  if  the  answer  was  false  and  untrue, 
then  the  policy  was   void,  and  no  recoverj' 
could  be  had  upon  it.     But  the  court  qualified 
the  request  by  adding  the  word  "materially." 
Held,  error.     Defendants  were  entitled  to  the 
charge   without   any  qualification   whatever, 
for  the  parties  themselves  had  adjudged  and 
agreed  what  should  be  the  result  if  certain 
facts  existed.    The  only  questions  for  the  jury 
to  have  determined  were,  first.  Was  the  repre- 
sentation made?    Second,  Was  it  false?    U. 
S.  S.  C.    ^tna  Life  Ins.  Co.  v.  France,  8  Chi. 
Leg.  News,  202 ;  5  Ins.  L.  J.,  257. 

2.  The  application  provided  that  any  un- 
true  or  fraudulent  answers,  or  any  suppression 
of  facts,  should  render  the  policy  null.  This 
question  was  propounded;  "Have  you  ever 
had  paralysis?"  Answer:  "No."  He  had 
two  attacks  of  paralysis  prior  to  the  making 
of  the  application,  of  an  alarming  character, 
so  considered  by  his  physician,  his  neiglibors 
and  himself.  Held,  plaintiff  was  not  entitled 
to  recover.  Barteau  v.  Phmnix  Mutual  Life 
Ins.  Co.,  1  IIuu.  (N.  Y.),  430;  s.  c,  3  N.  Y.  8. 
C,  576;  Baker  v.  Home  Life  Ins.  Co.,  2  Hun. 
(N.  Y.),  402;  s.  C,  4  N.  Y.  S.  C,  583. 

f>47 


1205 


SICKNESS,  DISEASE,  Etc. 


1296 


Of  untiue  answei-s,  which  vitiate  the  policy. 


3.  Slipnlateil:  "  The  auswcrs  and  declara- 
tions  of  the  person  whose  life  is  insured 
shall  be  a  part  of  the  policj-,  and  if  tliey  shall 
he  found  in  any  respect  false  or  fraud  nlenf, 
tlie  policy  shall  be  void."  In  the  series  of 
printed  questions,  annexed  to  and  made  part 
of  the  policy,  he  was  asked  whether  he  ever 
had  spirting  of  blood  or  disease  of  the  lungs, 
to  which  he  answered,  "  No."  He  had  been 
wounded  twice  while  in  tlie  army,  and  on  his 
passage  from  New  York  to  California,  had  a 
slight  hemorrhage,  which  lasted,  on  and  off, 
for  two  days.  He  had  to  be  carried  on  a 
stretcher  from  the  steamer  to  the  cars  at  As- 
pinwall,  and  from  thence  at  Panama  to  the 
steamer,  on  tlie  Pacific  side.  He  again  had 
hemorrhage  al  the  barracks  in  California, 
which  lasted  nearly  ten  days,  during  which 
time  he  raised  blood  twice  a  day,  morning 
and  evening.  Held,  the  answ-ers  and  declara- 
tions were  warranties,  a  breach  of  which  pre- 
cluded the  plaintiff  from  any  recovery.  '  Foot 
V.  ^TJtna  Life  In».  Co.,  4  Daly,  285. 

4.  The  life  proposed  was  required,  to  state 
the  name  and  residence  of  his  usual  medical 
attendant.  He  answered,  "  Have  none."  Dr. 
B.  testified  that  he  was  his  family  physician; 
that  he  prescribed  for  his  family  in  1863,  at 
his  own  ofiice,  on  foiir  different  occasions; 
that  about  three  3"ears  thereafter  he  called  at 
the  house  of  the  insured,  who  then  liad  some 
trouble  with  his  bowels  in  the  form  of  culic; 
that  he  prescribed  again  when  lie  had  flatulent 
constipated  colic.  Meld,  no  recovery  could  be 
had,  for  the  policy  warranted  the  truth  of  the 
answers.  Monk  v.  Union  Mutual  Life  Ins.  Co., 
6  Rob.  (N.  T.),  455. 

5.  Insured  answered  th.at  lie  could  not  say 
he  was  afflicted  with  any  disease  or  disorder, 
but  that  lie  was  troubled  with  general  debility 
of  the  system.  The  fact  was  that  the  symp. 
toms  of  consumption  had  developed  them- 
selves five  months  before  to  such  an  extent  as 
to  induce  a  reasonable  belief  that  the  appli- 
cant had  consumption.  Bdd,  the  policy  was 
void,  and  it  was  immaterial  whether  his 
answer  was  intentionally  false  or  in  accord- 
ance with  his  belief.  Vose  v.  Eagle  Life  and 
Health  Ins.  Co.,  6  Cush.,  43. 

6.  The  applicant  was  asked  whether  he 
ever  had  bronchitis.  He  answered,  "No." 
Evidence  was  given  tending  to  show  he  had 
suffered  from  chronic  bronchitis,  and  had 
been  treated  for  that  disease  by  physicians, 

648 


prior  to  the  date  of  application.  Held,  tlie 
question  for  the  jury  to  determine  was,  wheth- 
er the  representations  were  substantially  un- 
true, for  if  the  insured  actually  had  either  of 
the  diseases  or  infirmities  mentioned,  tl^e  pol- 
icy was  void,  and  it  was  not  proper  to  sub- 
mit to  the  jury  any  question  of  materiality 
upon  them.  Campbell  v.  New  England  Mu- 
tual Life  Ins.  Co.,  98  Mass.,  381. 

7.  Stipulated:  "To  be  void  if  the  declara- 
tion and  answers  made  by  the  insured,  and 
upon  the  faith  of  which  this  agreement  is 
made,  shall  be  found  in  any  respect  untrue." 
Held,  the  answ-ers  referred  to  were  not  warran- 
ties, but  were  material  representations,  made 
material  by  the  agreement  of  the  parties; 
hence  their  truth  alone  was  the  only  question 
for  the  jury  to  consider;  and  though  they 
were  merely  untrue,  that  would  be  sufficient 
to  defeat  plaintiff's  action  (citing  Anderson  ts. 
Fitzgerald,  4  H.  of  L.  Gas.,  484;  Campbell  c. 
New  England  Ins.  Co.,  98  Mass.,  381).  Mxi- 
tual  Benefit  Life  Ins.  Co.  v.  Wise,  34  3Id.,  583. 

8.  Policy  made  September  3,  1869,  stipu- 
lated :  "  If  the  declai'ation  made  by  or  for  the 
assured,  upon  the'faith  of  which  the  contract 
is  made,  shall  be  in  any  respect  untrue,  the 
policy  shall  be  null  and  void,  and  the  answers 
stated  in  the  application  by  the  person  pro- 
posed, his  physician  and  friend  shall  be  the 
basis  of  the  agreement."  In  it  the  question 
occurred,  whether  he  had  spitting  of  blood,  or 
consumption ;  to  which  he  answered,  "  No." 
Another  question  was  propounded,  viz:  "  Has 
the  party  had  any  sickness  within  the  past  ten 
years ;  if  so,  what  ? "  Answer.  "  Yes,  scarlet 
fever,  eight  years  ago."  Another  question 
was  propounded:  "Has  the  party  now  any 
disease  or  disorder;  if  so,  what?"  Answer. 
"  No."  Two  months  prior  to  the  date  of  the 
policy,  thd  person  insured  had  bleeding  of  the 
lungs  several  times,  very  badly,  having  fre- 
quentl3''  spit  up  more  than  a  tumbler  full  of 
blood.  About  the  same  time  a  physician  ex- 
amined him  and  found  lie  had  tubercles  in 
one  of  his  lungs.  HeM,  it  was  the  duty  of  the 
jury  to  have  found  that  prior  to  the  issuing  of 
the  policy  the  deceased  had  spitting  of  blood, 
and  that  he  had  suSicient  reason  to  believe 
that  he  had  consumption*,  for  there  was  no 
conflicting  testimon}-  on  the  question.  Held, 
also,  any  untrue  statement  made  by  insured  in 
answer  to  the  questions  propounded  rendered 
the  policy  void,  and  it  was  unnecessary  to  iiv 


1207 


SICKNESS,  DISEASE,  Etc. 


129S 


Of  untrue  answers,  which  vitiate  the  policy. 


quire  wliethcr  they  were  or  not  matcriiil,  or 
wholhcr  at  the  time  they  were  made,  insured 
knew  that  they  were  untrue.  Mutual  Benijit 
Life  Ins.  Co.  v.  Miller,  39  Ind.,  475. 

i).  The  answers  made  by  insured,  to  inter- 
rogatories propounded  by  insurer  upon  the 
faith  of  whicli  the  policy  was  predicated, 
■were  warranties.  Held,  it  was  immaterial  to 
inquire  vvhetlier  tlie  insured  linew  that  they 
were  true  or  untrue,  and  that,  therefore,  inter- 
rogatories propounded  to  tlie  plaiutifl",  calling 
for  her  knowledge  on  the  subject,  were  prop- 
erly stricken  out.  Mutual  Benefit  Life  Ins.  Co. 
■c.  Cannon,  48  Ind.,  204. 

10.  The  applicant  stated  in  answer  to  a 
question  propounded  in  the  application,  that 
he  never  had  rheumatism.  The  evidence 
showed  that  he  had  subacute  rheumatism, 
and  plaintiff  was  permitted  to  prove  in  rebut- 
I.al,  that  subacute  rheumatism  did  not  shorten 
life.  Held,  error,  for  by  the  terms  of  the  con- 
tract, the  parties  agreed  that  the  questions  and 
answers  were  all  material.  Price  v.  Phanix 
Mutual  Life  Ins.  Co.,  17  Minn.,  497. 

1 1.  Among  the  questions  propounded  to 
insured,  was  the  lollowiug:  "Have  you  had 
any  serious  illness,  local  disease  or  personal 
injury,  and  if  so,  of  what  nature,  and  how 
long  since?"  The  answer  was,  "Not  any." 
There  was  evidence  tending  to  show  that  he 
had  consumption  or  tubercles  on  the  lungs 
and  tubercles  on  the  brain.  Held,  it  was  the 
duty  of  the  court  to  instruct  that  tubercular 
affection,  or  tubercles  upon  the  lungs,  or 
tubercles  on  the  brain,  or  consumption,  or 
either  of  them,  would  constitute  local  disease 
within  the  meaning  of  the  word  local.  Scales 
V.  Universal  Life  Ins.  Co.,  42  Cal.,  523. 

12.  F.  proposed  to  a  life  company  for  a  pol- 
icy  on  his  life.  lie  was  asked  these  questions : 
"  Did  any  of  the  partj-'s  near  relations  die  of 
consumption  or  any  other  pulmonary  com- 
plaint? Has  the  party's  life  been  accepted  or 
refused  at  any  office  ? "  To  each  of  them  he 
replied:  "No."  And  it  was  agreed  by  both 
parties  that  the  particulars  mentioned  in  the 
above  proposal  should  form  the  basis  of  the 
contract.  The  policy  provided  that  if  any- 
thing warranted  shall  be  untrue,  or  if  any 
circumstance  material  to  this  iusurance  shall 
not  have  been  truly  staled,  the  policy  shall  be 
void,  and  the  moneys  paid  forfeited.  The 
policy  stated  that  several  matters  were  war- 
ranties; but  as  to  the  two  questions  above 


mentioned  they  were  not  included  in  the  war- 
ranty. Two  sisters  of  the  insufeJ  died  of 
consumption  at  the  ages  respectively  of  sixtj'. 
five  and  si.\ty-seven  years.  Held,  it  was  sufH- 
cienl  for  defendant  to  prove  that  the  answers 
given  to  the  two  questions  were  untrue;  that 
whether  they  were  material  or  not,  was  not  a 
necessary  inquiry.  Anderson  v.  Fitzgerald,  4 
H.  L.  Cas.,  484;  17  Jur.,  995;  8.  C,  3  Ir.  C.  L. 
Rep.,  475;  reversing  a.  c,  1  id.,  251. 

1  .S.  A  declaration  was  signed  by  the  insured, 
in  which  it  was  agreed:  "If  any  untrue  aver- 
ment is  contained  herein,  or  if  any  of  the 
facts  required  to  be  set  forth  in  the  above  pro- 
posal are  not  truly  stated,  the  premiums  shall 
be  forfeited  and  the  policy  void."  The  life 
insured,  at  the  time  the  policy  was  made,  had 
a  disease  tending  to  shorten  life,  of  which  in- 
sured seemed  to  have  had  no  knowledge. 
Ileld,  the  facts  set  forth  in  the  declaration, 
were  not  truly  staled ;  that  a  statement  is  not 
less  untrue  because  the  party  making  it  was 
not  apprised  of  its  untruth;  hence  the  policy 
was  void  and  the  premiums  forfeited.  Duckett 
V.  Williams,  4  Tyrw.,  240;  8.  c,  2  Cromp.  & 
M.,  348;  3  L.  J.  (N.  S.)  Ex.,  141. 

14.  Stipulated:  "In  case  any  untrue  or 
fraudulent  statement  is  contained  in  any  of 
the  documents  addressed  lo  or  deposited  with 
the  company,  in  relation  to  the  within  insur- 
ance, whether  by  the  payee,  the  assured,  or 
any  referee  or  other  person,  then  the  policy 
shall  be  void."  Insured  was  asked  whether 
he  had  since  infancy  any  or  what  other  dis- 
eases requiring  confinement,  to  which  he  an- 
swered, "  No."  He  was  also  asked,  "  How 
often  has  medical  attendance  been  required;" 
to  which  he  replied,  "Two  years  ago;  that  it 
continued  about  one  week  for  a  disordered 
stomach ;  that  he  \>  as  confined  to  the  house  or 
bed  a  week,  and  that  it  occurred  about  one 
year  prior  to  the  application,  which  was  dated 
January  (i,  1857.  On  being  asked  to  give  the 
name  of  the  medical  attendant,  he  stated  Dr. 
Roper.  It  appeared  that  Dr.  R.  attended  him 
in  December,  1855;  that  in  January  following 
he  was  at  Birmingham,  had  a  rehqise,  and 
was  attended  by  Dr.  C. ;  that  his  illness  there 
was  so  severe  that  three  physicians  in  attend, 
ance  despaired  of  his  life.  Ileld,  the  pi>licy 
was  void,  notwithstanding  the  jury  found 
specially  that  the  information  withheld  was 
not  material,  and  that  there  was  no  inten- 
tional  fraud.     Cazenove  v.  British  Equitable- 

C49 


1299 


SICKNESS,  DISEASE,  Etc. 


1300 


Of  volunteer  information,  etc.  —  Of  temporary  illness  and  latent  disease. 


Ass.  Co.,  6  C.  B.  (X.  S.),  437;  5  Jur.  (N.  S.), 
1309;  38  L.  J.  C.  P.,  259;  affiraied,  29  L.  J.  C. 
P.,  100;  6  Jur.  (N.  S.),  82G;  8  W.  R.,  343. 

15.  The  poliiy  recited  that  the  insured  had 
signed  a  declaration  setting  forth  that  the  age 
■of  insured  did  not  exceed  fifty  years;  that  he 
was  then  in  a  state  of  perfectly  good  liealth, 
and  not  subject  to  any  disease  which  tended 
to  shorten  life,  except  a  tendency  to  weak 
bowels  only;  that  his  habits  of  living  were 
then,  and  always  had  been,  active  and  strictly 
temperate,  and  that  said  declaratioa  was  re- 
ceived as  the  basis  and  condition  of  the  con- 
tract, and  that  in  case  any  untrue  or  fraudu- 
lent allegations  were  contained  in  said  de- 
claration or  that  information  respecting  the 
past  health  or  habits  of  the  life  of  insured,  or 
any  material  fact  connected  with  the  health 
or  habits  of  tlie  insured,  or  other  circumstance 
important  for  the  insurers  to  know,  had  been 
withheld  from  them,  then  the  policy  should 
be  void."  lie  was  asked  in  the  declaration 
mentioned  to  give  a  reference  to  his  usual 
medical  attendant,  or  the  medical  attendant 
of  his  family,  to  which  he  replied  that  he 
never  had  a  medical  attendant  until  Dr.  L. 
dressed  his  leg  when  it  was  scalded,  whose 
certificate  accompanied  the  declaration.  The 
defendants  called  Dr.  C,  who  testified  that 
about  eighteen  mouths  before  the  declaration 
was  made,  he  attended  insured,  who  then  had 
influenza;  that  about  a  year  thereafter  he  at- 
tended him  for  some  uneasiness  of  the  bowels, 
and  again  about  a  montli  before  the  declara- 
tion was  signed,  he  gave  him  a  prescription 
for  a  severe  contusion  on  the  shoulder, 
accompanied  bj-  febrile  sj-mptoms.  Held, 
the  failure  to  state  the  fact  that  he  had  been 
attended  by  Dr.  C.  was  not  of  itself  enough  to 
vitiate  tlie  policy;  that  in  order  to  defeat  the 
plaintifi^s  right  to  recover  it  must  appear  that 
the  facts  not  communicated  were  material, 
because  only  the  matters  contained  in  the  dec- 
lurntion  and  recited  in  the  policj'  were  to  be 
regarded  as  warranties;  that  as  to  matters 
stated  in  the  declaration  not  recited  in  the 
policy  tliey  were  to  be  taken  into  considera- 
tion only  so  far  as  they  were  material.  Sain- 
hiii  J).  Sceals,  5  Ir.  L.,  139.  But  this  was  re- 
versed in  the  Exeh.  Cham.,  and  it  was  tliere 
held  that  all  tlie  matters  stated  in  the  declara- 
tion were  warranties,  and  that  it  was  imma- 
terial to  inquire  whether  the  facts  suppressed 
>were  fraudulently  withheld,  s.  c,  6  id.,  367. 
650 


Upon  the  third  trial  the  court  held  that  it  was 
a  question  for  the  jurj-  to  determine  whether 
the  deceased  had  been  attended  by  Dr.  C,  and 
they  having  found  that  issue  against  the  de 
fendant,  the  court  would  not  disturb  their 
finding,    s.  c,  13  id.,  71. 

16.  The  declaration  stated  that  the  life  pro. 
posed  was  in  perfect  health,  and  that  the  gen- 
eral  state  of  his  health  had  been  always  good. 
Held,  an  express  warranty  as  to  the  matters 
stated.  Forbes  v.  Edinburg  Life  Ass.  Co.,  10 
S.  &  D.,  451 ;  4  Scot.  Jur.,  385. 

II.    Of  VOLTJIfTEEE  IXF0E1IA.TI0X  WHICH 
DOES  KOT  ^TflATE  TUE  POLICY. 

By  express  stipulation  answers  to  the  ques- 
tions propounded  in  the  application  were 
made  warranties,  the  policy  to  be  void  in  case 
any  of  them  "  Be  not  in  all  respects  true  and 
correctly  stated."  Among  the  questions  pro- 
pounded was  the  following:  "Has  father, 
mother,  brother  or  sister  of  the  party  died  or 
been  afflicted  with  consutnption  or  any  dis- 
ease of  the  lungs,  or  insanity  ?  If  so,  state 
full  particulars  of  each  case."  Answer:  "No. 
Father  died  from  exposure  in  water,  aged  58. 
Mother  living,  aged  50."  Defendant  pleaded 
that  the  father  did  not  die  of  the  age  of  58; 
that  he  died  before  he  was  thirty  years  old, 
wherefore  said  policy  was  and  is  void.  Held, 
upon  demurrer  to  the  jjlea,  the  age  at  which 
the  father  died  was  not  called  for  by  the  ques- 
tion. The  word  "  no  "  was  a  complete  answer 
to  it.  That  the  remainder  of  the  answer  was 
a  volunteer  statement  and  irrelevant.  Where 
the  answers  are  responsive  to  direct  questions, 
they  are  to  be  regarded  as  warranties;  where 
they  are  not  responsive,  but  volunteered,  they 
must  be  construed  as  mere  representations 
whix;li  constitute  no  defense  to  the  action  un- 
less they  were  material  to  the  risk.  Demurrer 
sustained  (S.  D.  of  Ohio).  Buell  t>.  Connecti- 
cut Mutual  Life  Ins.  Co.,  8  Chi.  Leg.  News, 
203 ;  5  Ins.  L.  J.,  274  (see  Hartford  Protection 
Ins.  Co.  t).  Harmer,  2  Ohio  St.,  452) 

III.     Of   TEilPOEAEY    ILLXESS    AXD    LA- 
TEST  DISEASE. 

1.  The  person  proposed  stated  in  the  appli- 
cation, that  during  seven  years  preceding,  he 
had  not  any  sicknes  or  disease;  but  the  evi- 
dence showed  that  he  had  been  attended  with 


1301 


SICKNESS,  DISEASE,  Etc. 


1302 


Of  teiuporaiy  illness  and  latent  disease. 


iu  that  time  for  indigestion,  torpid  liver,  colic 
and  cramps  in  the  stomach.  Held,  it  was 
proper  to  tell  tlie  jury  that  it  was  for  them  to 
tletermine  whether  the  person  whose  life  was 
insured  had  any  affliction  llnvt  could  prop- 
erly be  called  a  sickness  or  disease;  that  a 
man  might  have  a  slight  cold  iu  tlie  head  or 
lieadache,  which  in  no  way  seriously  affected 
liis  health  or  interfered  with  his  usual  avoca- 
tions, which  might  be  of  so  trifling  a  character 
as  not  to  constitute  sickness  or  disease  within 
the  meaning  of  the  term;  that  he  might  have 
u  cold  or  headache  of  so  serious  a  character 
as  to  be  a  sickness  within  the  meaning  of  the 
tirm.  Life  Insurance  Co.  v.  Francisco,  17 
"Wall.,  672. 

2.  The  application,  part  of  the  contract, 
contained  this  question:  "Has  the  party  had, 
during  the  last  seven  years,  any  severe  sick- 
ness or  disease?  If  so,  state  the  particulars, 
1he  name  of  the  attending  physician,  or  who 
was  consulted  and  prescribed."  Answer. 
"  Xo."  It  appeared  that  a  physician  attended 
deceased  within  the  period  mentioned,  for 
diarrhea  or  aflection  of  the  bowels,  for  a 
period  of  two  months,  when  she  recovered. 
Tlie  witness  stated  that  if  it  lasted  only  a  few 
weeks  it  could  not  be  called  chronic.  Emi- 
nent medical  witnesses  were  uncertain  .as  to 
what  might  be  called  chronic  disease  of  the 
bowels.  Held,  tlie  question  and  aiiswer  did 
not  refer  to  the  ordinary  diseases  of  the  coun- 
try which  readily  yield  to  medical  treatment, 
and  leave  no  permanent  injury  to  the  physical 
system,  but  to  severe  attacks  which  often 
leave  a  permanent  injury  and  tend  to  shorten 
life.  Holloman  v.  Life  Ins.  Co.,  1  Woods,  G74; 
Southern  Life  Ins.  Co.  v.  Wilkinson,  53  Ga., 
535. 

3.  Tlie  premium  was  not  paid  according  to 
the  stipulation  mentioned  in  the  policy,  but 
the  defendants  accepted  it  seven  days  thereaf 
ler,  giving  a  receipt  for  it  upon  condition 
■'  that  he  is  now  in  good  health,  proof  of  which, 
in  case  of  death,  to  be  furnished  the  company." 
Held,  the  word  "  good  "  is  comparative ;  it 
does  not  mean  absolute  perfection ;  that  good 
health  does  not  necessaril3'  mean  that  the  per- 
son is  absolutely  free  from  all  the  ills  that  flesh 
is  heir  to;  that  if  the  insured  was  in  the  same 
sanitary  condition  at  the  lime  the  policy  was 
renewed,  that  he  was  represented  to  be  when 
the  policy  was  made,  he  was  in  good  health 
within  the  meaning  of  the  condition.    Peacock 


V.  Keio  York  Life  Ins.  Co.,  30  N.  Y.,  293 ;  s.  c,  1 
Bos.,  3.38. 

4.  The  person  wliose  life  was  insured  had 
been  iu  the  habit  of  taking  applications  for 
the  defendants,  whose  president  had  cautioned 
deceased  against  taking  applications  from  in- 
sane  persons,  or  persons  who  were  in  the  habit 
of  drinking  to  excess.  Deceased  made  his 
own  application;  but  twenty  years  prior,  he 
was  ill  with  fever,  and  more  or  less  insane; 
and  sixteen  years  tliereafter  he  was  again  in- 
sane, but  from  what  cause  did  not  appear. 
These  facts  were  not  disclosed  to  the  insurers. 
Held,  no  evidence  of  a  fraudulent  concealment. 
Malhry  v.  Tnivelers  Ins.  Co.,  47  N.  Y.,  53. 

5.  Among  the  printed  questions  was  this: 
"  Are  the  functions  of  the  brain,  the  muscular 
and  nervous  system,  in  a  healthy  state?"  The 
company's  meiUcal  cx.aniiner  wrote  the  answer 
affirmative])-,  and  testified  that  he  put  the 
question  as  follows:  "  Have  you  ever  had  any 
difficulty  with  j-our  liead  or  brain?"  to 
whicli  the  applicant  answered,  "No."  Held, 
the  question  as  put  was  not  intended  to  in- 
clude a  temporary  or  occasional  physical  dis- 
turbance, the  result  of  accidental  causes.  Hig- 
bie  «.  Guardian  Mutual  Life  Ins.  Co,  53  N.  Y., 
60;?. 

6.  The  application  stated  that  insured  never 
had  any  illness  or  local  disease,  and  that  he 
had  never  been  attended  by  a  physician;  that 
his  vocation  was  that  of  a  traveling  agent. 
The  policj'  stipulated  that  the  statements  in 
the  applicatitni  were  warranted  as  true.  Some 
years  prior  to  the  makingof  it  he  had  a  slight 
disease  of  the  eyes,  known  as  conjunctitis; 
that  he  had  been  attended  by  a  physician  from 
November  7th  to  December  1st ;  that  he  was  a 
painter  by  ti'ade,  and  worked  at  it  till  he  went 
into  the  army.  Held,  the  question  was  proji- 
erly  one  of  fact,  for  the  jury  to  determine, 
whether  insured  h:id  such  sickness  or  dise;ise, 
which  ought  to  have  been  communicated  to 
insurers.  Keversing  s.  C,  2  N.  Y.  S.  C,  247, 
and  directing  judgment  to  be  entered  upon  the 
verdict  for  the  plaintiff.  Fitch  v.  American 
Popular  Life  Ins.  Co.,  59  N.  Y.,  557. 

7.  The  life  of  F.  was  insured  for  W.  Dec- 
laration signed  by  F.  stated  that  he  had  not 
been  afflicted  with  spitting  of  blood,  and  was 
not  then  afflicted  with  anj-  disorder  which 
tended  to  shorten  life.  AV.  also  signed  a  state- 
ment  in  which  he  declared  that  to  his  knowl- 
edge  F.  had  not  been  afflicted  with  spitting  of 

Col 


1303 


SICKNESS,  DISEASE,  Etc. 


1304 


Of  temporary  illness  and  latent  disease. 


blood,  and  that  he  was  not  then  afflicted  with 
any  disorder  which  tended  to  shorten  life.  Tlie 
policy  stipulated  that  if  the  declaration  thus 
made  by  W.  should  in  any  respect  be  found 
uniriie.  the  policy  should  be  null  and  void.  In 
this  action  to  recover  back  the  money  paid 
under  the  policy,  the  court  charged:  "  If  the 
person  whose  life  was  insured  had  at  anytime 
on  or  before  the  date  of  the  policy,  eitl^er  spit- 
ting of  blood  within  the  meaning  of  the  pol- 
icy, or  any  disease  which  tended  to  shorten 
life,  and  the  defendant  knew  it  when  the  pol- 
icy was  effected,  then  the  plaintiffs  are  enti- 
tled to  recover  all  the  money  paid  by  them,  to- 
gether with  interest;  but  if  the  person  insured 
luid  none  of  the  diseases,  or  if  he  had  either  of 
them  and  W.  did  not  know  it,  then  the  plaint- 
iffs could  not  recover.  Held,  no  error,  ilu- 
tunl  Life  Ins.  Co.  v.  Wager,  27  Barb.,  8.')4. 

8.  The  applicant  was  asked  whether  he  had 
any  disease  of  certain  organs,  to  which  he  an- 
swered negative!)'.  Held,  he  did  not  warrant 
himself  sound  as  to  those  organs;  and  it  was 
satisfied  if  he  was  in  the  enjoyment  of  such 
health  and  strength  as  to  warrant  the  belief 
that  his  vital  organs  were  all  sound.  Horn  v. 
Amicable  Mutual  Life  Ins.  Co.,  64  Barb.,  81. 

9.  Insured,  being  asked  whether  he  had 
been  afflicted  with  certain  diseases  specifically 
mentioned,  answered,  "no."  He  was  t'-en 
asked  whether  he  had  any  sickness  within  ten 
years,  to  which  he  answered,  "  no."  There 
was  evidence  that  he  had  pharyngitis,  an  in- 
flammation of  the  throat,  when  slight,  not 
called  a  sickness,  nor  likely  to  .shorten  life. 
The  policy  provided  that  it  should  be  void  if 
any  of  the  answers  to  the  questions  propound- 
ed in  the  application  were  untrue.  Held,  if, 
as  matter  of  law,  policies  are  to  be  avoided 
because  insured  failed  to  make  known  that  he 
had  inflammation  of  the  throat  within  ten 
years  anterior  to  the  making  of  the  policy, 
then  they  are  mere  devices  by  which  insur- 
ance companies  obtain  money  w-ithout  be- 
coming liable.  It  was  a  question  for  the 
jury  to  determine,  whether  inflammation  of 
the  throat  was  a  sickness  contemplated  \>y  the 
parties  when  the  question  was  propounded 
and  the  answer  given.  Mutual  Benefit  Life 
Ins.  Co.  r.  Wise.  34  Md.,  582. 

10.  The  following  questions  and  answers 
occurred  in  the  application:  "Is  the  party 
subject  to  dispepsia.  dysentery,  diarrhcea?" 
Answer,  "No."    "Is  the  party  now  afflicted 

C53 


with  any  disorder  or  disease,  and  if  so,  what?" 
Answer,  "  None."  "  Has  the  party  emphiyed 
or  consulted  individually  any  physician? 
Please  answer  this  yes  or  no.  When  yes, 
give  name  or  names  and  residence."  Answer, 
"None."  The  application  was  made  Decern- 
ber  16,  1872,  and  he  died  January  2.5,  1873. 
The  attending  physician  testified  that  the 
cause  of  death  was  severe  intermittent  fever. 
He  had  known  deceased  for  two  years;  th;it 
he  was  not  a  very  healthy  person;  looked 
rather  thin,  and  somewhere  between  six  and 
eighteen  months  prior  to  his  death,  he  had  an 
abscess  under  his  arm,  for  which  witness  at- 
tended him  four  or  five  times.  Two  physi- 
cians who  heard  this  witness  relate  all  the 
symptoms,  testified  that  he  died  of  pyaemia, 
caused  by  the  absorption  of  purulent  matter 
in  the  blood.  Held,  the  fact  that  the  insured 
employed  a  physician  within  six  mouths  or  a 
year  before  making  the  application  did  not 
render  the  policy  void,  for  the  question  in  that 
respect  was  not  definite  as  to  time,  and  it  could 
not  be  construed  to  cover  the  whole  period  of 
the  life  of  the  deceased.  111.  S.  C.  World 
Mut.  Life  Ins.  Co.  v.  Schultz,  5  Ins.  L.  J.,  34. 

1 1.  On  the  life  of  a  slave,  made  June  21st. 
"Warranted  that  he  had  no  chronic  disease 
at  the  time  it  was  made."  He  died  October 
23d  following,  and  a  post  mortem  examination 
was  made  fifteen  hours  after  death.  The  phy- 
sicians were  of  opinion  that  he  died  of  inflam- 
mation of  the  intestines,  and  that  it  was  of 
long  standing.  Held,  the  proof  did  not  show 
the  disease  existed  when  the  insurance  was 
effected.  Murpliy  v.  Mutual  Benefit  Life  and 
Fire  Ins.  Co.,  6  La.  An.,  518. 

12.  Stipulated:  "  If  the  answers  to  the  ques- 
tipns  contained  in  the  application  shall  be 
fcm'nd  in  any  respect  untrue,  the  policy  shall 
be  void."  One  of  the  questions  was  whether 
the  party  had  ever  met  with  an  accidental  or 
serious  injury,  to  which  it  was  answered, 
"no."  The  jury  found  that  the  insured  had 
fallen  from  a  tree;  that  the  injury  was  tem- 
porary and  pa.sscd  away  without  affecting  the 
health  of  the  assured.  Held,  it  did  not  pre- 
vent  a  recovery.  Wilkinson  c.  Connecticut 
Mutual  Life  Ins.  Co.,  30  Iowa,  119. 

13.  The  applicant  stated  that  he  never  li.id 
rheumatism,  but  there  was  evideuce  lendin<' 
to  show  that  he  had  subacute  rheumatism. 
Held,  any  rheumatic  affection,  not  amounting 
to  the  disease  of  rheumatism,  was  not  withia 


1305 


SICKNESS,  DISEASE,  Etc. 


130C 


What  must  be  disclosed. 


Uic  term,  no  more  tlian  the  spitting  of  blood, 
ocCiiiioned  by  a  wound  of  the  tongue  or  the 
cxliacling  of  a  tootli,  is  the  disease  of  spitting 
blood.  Price  V.  Phasnix  Mulwil  Life  Ins.  Co., 
V,  Minn.,  497. 

14.  Policy  on  life.  "Warranted  then  a 
goiid  life."  It  appeared  that  be  had  received 
H  wound  at  tlie  battle  of  La  Feldt,  whiclt  oc- 
casioned partial  rela.xation  or  palsy,  so  that  he 
could  not  retain  his  urine  or  fieces,  but  this 
was  not  mentioned  to  insurers,  lie  died  of 
malignant  fever  within  the  year  insured.  Ueld, 
if  it  appeared  that  the  consequences  of  the 
wounrt  were  inconvenient  Onlj-,  and  not  dan- 
gerous to  life,  the  plaintift'  was  entitled  to  re- 
cover.   Rons  v.  BradsUaw,  1  W.  Bl.,512. 

15.  This  claim  was  resisted  on  the  ground 
that  the  life  insured  had  a  disorder  tending  to 
shorten  life  when  the  policy  was  eflected,  not 
disclosed  to  the  insurer.  The  disease  might 
Iiave  proceeded  from  either  of  two  causes,  a 
defect  of  some  of  the  internal  organs,  or  a 
mere  dyspepsia.  The  first  would  tend  to 
shorten  life;  the  second  would  not,  unless  it 
existed  to  an  excessive  degree.  Held,  it  was 
proper  to  leave  the  question  to  the  jury  whether 
the  disorder  was  organic,  or  by  its  excess  tend- 
ed to  shorten  life.  Held,  also,  Ihough  all  dis- 
orders have  a  tendency  to  shorten  life,  the  par- 
ties did  not  intend  to  include  all,  for  such  a 
construction  would  render  all  lives  uninsura- 
ble.    Wotson  V.  Mainwnring,  4  Taunt.,  763. 

Ifi.  In  the  proposal  delivered  to  insurers 
it  was  stated,  "  insured  is  now  in  a  sound  and 
perfect  state  of  health,  and  has  not  been 
aftiicled  with,  nor  is  subject  to  gout,  vertigo, 
(its,  hemorrhage,"  etc.  It  appeared  that  he 
had  an  epileptic  fit  caused  by  an  accident. 
Held,  that  did  not  vitiate  the  contract,  for  the 
warranty  did  not  assert  that  the  party  never 
accidentally  had  a  fit,  but  that  he  was  not  at 
the  time  of  the  insurance,  a  persou  habitually 
or  constitutionally  subject  to  fits.  ChaUock  v. 
iShawe,  I  M.  &  Rob.,  4!)8. 

1 7.  The  declaration  or  proposal,  the  basis 
of  the  contract,  stated  that  his  age  did  not  ex- 
ceed 29  years ;  that  he  was  then  in  good  health ; 
tli.itrhe  was  not  aware  of  any  disorder  or  cir- 
cumstance tending  to  shorten  his  life,  or  to 
render  an  insurance  on  it  more  tlian  usually 
hazardous.  It  appeared  Ih.U  two  years  prior 
he  had  two  severe  bilious  attacks,  but  the 
physician  who  attended  him  testified  they  did 
uot  tend  to  shorten  his  life  or  render  it  less 


insurable.  Two  other  medical  men  gave  it  as 
their  opinion  that  those  attacks  did  tend  to 
shorten  his  life,  and  render  him  ineligible  for 
insurance.  Held,  if  the  insured  honestly  be- 
lieved, when  lie  made  the  declaration,  that  the 
bilious  attacks  had  no  eflect  upon  his  health, 
and  that  they  did  not  tend  to  shorten  his  life 
or  to  render  au  insurance  upon  it  more  than 
usually  hazardous,  tlie  fact  that  he  had  them 
could  uot  defeat  the  policy.  Jones  v.  Provin- 
cial Ins.  Co.,  3  C.  B.  (N.  S.),  65;  s.  c,  3  Jur. 
(N.  .S.),  1004;  26  L.  J.  C.  P.,  273 

lY.    WuAT  MUST  BE  DISCLOSED. 

1.  The  person  insured  died  of  pleura  pneu- 
monia three  months  after  the  delivery  of  the 
policy.  He  had  raised  blood  for  two  years 
and  a  half  prior  to  his  death  ;  a  physician  had 
been  consulted,  and  had  prescribed  for  him; 
but  no  disclosure  of  these  facts  was  made  to 
insurer.  Held,  fatal  to  the  plaintifTs  right. 
Smith  v.  .^tna  Life  Ins.  Co.,  49  N.  Y.,  211. 

2.  The  applicant  was  asked  to  state  the 
name  of  the  phj'sician  usually  employed  by 
him,  and  if  he  had  ncme,  to  name  another  to 
whom  application  could  be  made  for  inform- 
ation as  to  the  state  of  his  health.  He  replied, 
"  None."  It  appeared  that  during  ISGl  and  1868 
he  had  a  severe  cough,  with  shortness  of  breath 
and  profuse  expectoration,  for  which  he  occa- 
sionally applied  to  Dr.  N.,  who  prescribed  for 
him.  He  had  also  applied  to  another  insur. 
ance  company  for  a  policy,  and  had  been  ex- 
amined by  their  physician  who  refused  his  ap- 
plication. Held,  a  fraudulent  concealment. 
Horn  V.  Amicable  Mutual  Life  Ins.  Co.,  64 
Barb.,  81. 

3.  In  answer  to  questions  propounded,  the 
life  insured  said  he  had  no  medical  attendant 
except  Mr.  Guy,  of  Chichester;  that  he  had 
never  had  an}'  serious  illness.  Mr.  Guy,  on 
being  referred  to,  certified  that  tlie  life  was  in- 
surable. It  was  proved  that  Mr.  Guy  had  not 
been  called  to  attend  him  for  three  years  prior 
to  the  date  of  his  opinion,  and  that  two  mouths 
prior  Vietch,  a  pln'sician,  and  Jordan,  a  sur- 
geon, had  attended  him  fir  inflammation  of 
the  liver,  a  fever,  and  determin-ition  of  blood 
to  the  head ;  that  he  was  dangerously  sick, 
and  required  active  medicines,  and  sometimes 
sixteen  leeches  a  day  applied;  and  that  they 
would  uot  have  certified  him  in  good  health 
till  the  end  of  May,  which  would  have  been 

653 


1307 


SICKNESS,  DISEASE,  Ere. 


1309 


What  must  be  disclosed. 


about  two  weeks  after  the  first  policy  was 
issued.  The  di.?ease  of  which  lie  died  was  in 
no  way  connected  with  his  previous  illness. 
lIcM,  the  policies  were  void.  MayrMrd  n. 
Jihodc,  1  C.  &  P.,  360;  3  L.  J.  K.  B.,  64.  And 
iliis  defense  was  valid  as  against  the  person 
for  whose  benefit  the  insurance  was  made, 
tliough  an  entire  stranger  to  the  answers  given 
ill  llie  application.    Ihid. 

4.  It  was  represented  to  the  insurer,  before 
the  policy  was  effected,  that  the  life  proposed 
never  had  gout,  asthma,  apoplexy,  epilepsy, 
etc. ;  that  he  was  free  from  disease  and  symp- 
toms of  disease.  It  appeared  that  he  ha  1  been 
afflicted  with  an  almost  total  loss  of  speech  for 
quite  a  long  time,  which  continued  to  his  death, 
and  which  was  attributed  to  local  paralysis; 
that  he  had  catarrhal  affections,  accompanied 
by  fever,  and  was  almost  imbecile  before  the 
policy  was  made.  The  immediate  cause  of 
his  death  was  water  on  the  brain,  produced  by 
inflammation.  His  head  was  cut  open,  and  a 
tumor,  more  than  six  inches  long,  two  broad 
and  one  deep,  was  found  inside  the  skull,  press- 
iug  upon  the  brain  and  depressing  the  skull  at 
its  base.  Medical  witnesses  inferred  that  the 
tumor  had  formed  before  birth  or  in  very  early 
infancy.  iTeW,  the  policy  was  void.  VonLin- 
denau  v.  D-eshorough,  3  C.  &  P.,  353 ;  7  L.  J.  K. 
B.,  43;  3  M.  &  R.,  45;  8  B.  &  C,  58G. 

5.  E.  held  leasehoM  property-,  determinable 
on  the  life  of  11.,  and  was  asked  by  an  agent 
of  insurer  to  insure  the  life  of  H.  E.  had 
never  seen  H.,  but  he  told  the  agent  to  make 
the  proper  inquiries  and  do  all  that  was  re. 
quired  in  the  business.  The  agent  saw  H., 
who  had  all  the  external  evidences  of  health, 
and  was  told  by  him  that  he  never  had  occa- 
sion for  a  doctoi-,  that  "  Mr.  Vicary,  of  War- 
minster, knows  as  much  of  me  as  any  man." 
Mr.  V.  had  never  attended  II.  professionallj', 
but  be  stated  that  he  never  had  seen  a  stronger 
or  healthier  man.  E.  signed  a  paper  in  which 
it  was  stated  that  H.  had  had  small  pox,  had 
not  had  gout,  and  that  he  was  not  afflicted 
with  any  disorder  tending  to  shorten  life.  It 
was  proved  that  H.  had  indulged  in  extraor- 
dinary fits  of  into.xication,  in  some  of  which 
he  had  been  drunk  ten  days  to  three  weeks 
incessantl}',  swallowing  anything  he  could  get 
into  his  mouth,  and  that  he  had  one  of  these 
drunken  fits  a  short  time  before  the  policy 
was  made,  from  which  he  recovered,  but  died 
suddenly   a  few  days  thereafter,     lldd,  the 

634 


plaintiff  could  not  recover.  Everett  v.  Dea- 
borouffh,  0  Bing.,  .503;  3  M.  &  P.,  190;  7  L.  J. 
C.  P.,  223. 

6.  About  four  years  before  the  policy  was 
effected,  the  person  insured  had  spit  blood, 
and  had  subsequently  exhibited  symptoms 
usual  in  consumptive  subjects.  He  died  three 
years  after  the  policy  was  made.  Eeld,  al- 
though the  mere  fact  that  he  had  spit  blood 
would  not  vitiate  the  policy,  he  was  still 
bound  to  have  stated  that  fact  to  the  company, 
that  they  might  have  ascertained  whether  it 
was  the  result  of  the  disease  called  "spitting 
of  blood."  Geach  v.  Ingall,  14  Mce.  &  W.,  95 ; 
15  L.J.  Ex.,  37;  9  Jur.,  691. 

7.  In  July,  1863,  A.  negotiated  an  insuranpe 
on  his  life,  and  made  a  written  declaration  as 
to  his.  health  and  habits,  and  referred  to  Ids 
usual  medical  attendants,  who  certified  that 
he  was  in  good  health.  The  company's  ph)-- 
sician  examined  and  passed  him  as  a  first. 
class  life,  but  at  an  advanced  rate  of  premium, 
because  of  his  excessive  corpulence.  Pending 
the  completion  of  the  contract,  A.  consulted 
a  physician,  who  discovered  that  he  suffered 
from  disease  of  the  kidneys,  and  warned  him 
that  care  and  abstinence  from  stimulants  were 
necessary.  He  completed  the  insurance  by 
paying  the  premium  and  accepting  the  policy 
without  communicating  what  his  phj-siciati 
had  said  to  him.  Held,  the  policy  was  void. 
British  Equitable  Ins.  Co.  v.  Great  WeUern 
Raihcay  Co.,  38  L.  J.  Ch.,  132,  314;  17  W.  R., 
43;  19  L.  T.  fN.  S.),  476;  20  id.,  422. 

8.  Stipulated  :  "  In  case  any  untrue  or 
fraudulent  allegation  is  contained  in  the 
declaration  delivered  at  the  office  of  the  com- 
pany, the  policy  shall  be  void."  Dated  De- 
cember 10,  1825.  Tlie  medical  attendant  to 
whom  the  insured  referred  was  asked  :  "  Has 
he,  to  your  knowledge  or  belief,  been  afiJicted 
with  gout,  fits,  asthma,  liernia  or  anj-  other 
disorder  which  has  a  tendency  to  shorten 
life?"  Answer:  "He  had  fever  in  the  year 
1823,  from  which  he  recovered,  and  has  no 
disease  which  can  tend  to  shorten  life,  in  my 
opinion."  It  appeared  that  he  had  been  at- 
tended in  July,  1823,  from  lime  to  time,-  till 
December  29th,  for  an  irritative  fever,  that  an 
anthrax  had  formed  on  the  lower  part  of  the 
back  of  the  patient  and  was  opened;  that 
in  January,  1824,  the  witness  attended  him 
from  time  to  time  till  August  in  the  same 
year  for  the  same  kind  of  fever,  during  which 


1309 


SICKNESS,  DISEASE,  Etc. 


1310 


What  need  not  be  disclosed  —  Questions  for  the  jury. 


time  a  tumor  appeared  under  the  left  scapuhi, 
uud  extended  towards  the  os  sacrum,  until  it 
attained  the  size  of  a  man's  head.  This  tumor 
was  opened.  Among  his  papers,  after  death, 
uas  found  a  certificate  signed  by  .Tames 
Dempster,  M.  D.,  referring  to  the  tumor  and 
fever.  Held,  insured  was  responsible  for  the 
truth  of  his  answers.  If  they  were  actually 
false  though  morally  true,  the  action  must 
fail,  because  the  questions  and  answers  were 
part  of  the  terms  on  which  the  company  con- 
tracted; that  the  innocent  omission  to  men- 
tion facts  not  within  the  range  of  questions 
propounded  ought  not  to  avoid  the  contract, 
but  tlie  insured  was  bound  to  state  every 
material  circumstance,  and  the  fact  that  he 
liad  such  a  tumor  was  a  material  circum- 
stance which  it  was  his  duty  to  have  dis- 
closed.   Abbott  V.  lluward,  Hayes,  381. 

9.  The  creditor  etlecled  insurance  on  the 
life  of  his  debtor,  who  subscribed  a  declara- 
tion, that  he  was  then  in  perfect  health,  and 
thai  his  general  healtli  had  beeu  good,  lie 
also  X'eferred  to  Dr.  Wood,  of  Edingurg.  but 
Dr.  Wood  knew  nothing  about  his  health, 
and  stated  in  the  reference  papers,  that  he 
had  never  attended  him  professionally.  The 
debtor  had  beeu  in  the  habit  of  eating  opium, 
and  using  laudanum  and  spirituous  liquors 
to  a  dangerous  extent.  Udd,  it  was  tlie  duty 
of  the  court  to  have  instructed  the  jury,  that 
abandonment  or  waiver  of  reference  to  a  per- 
son who  had  attended  deceased  professionally 
did  not  relieve  him  from  the  necessity  of 
making  a  full  disclosure  of  every  fact  ma- 
terial to  be  made  known  to  insurers.  Forbes 
V.  Ediiiburg  Life  Ass.  Co.,  10  S.  &  D.,  451 ;  4 
Scot.  Jur.,  385. 

10.  The  declaration  subscribed  by  the  de- 
ceased imported  that  she  was  in  perfect  health 
■when  she  signed  it,  December  3,  1833.  Eleven 
months  thereafter,  she  died  of  apoplexy.  It 
appeared  that  within  a  period  of  three  months 
immediately  preceding  its  execution,  she  had 
received  constant  medical  attendance,  had 
been  blooded  and  blistered  repeatedly,  emet- 
ics had  been  administered  and  her  head  shav- 
ed. Between  the  3d  and  10th  December  med- 
ical attendance  had  been  continued,  and  she 
was  again  blooded  on  the  hist  date.  Held,  the 
policy  was  obtained  by  concealment  and  mis- 
representation. Bothwick  B.  Langmuir,  15  S.  & 
D.,  1305 ;  S.  C,  Ralston  v.  North  British  Ins.  Co., 
10  Scot.  Jur.,  53. 


V.  What  need  not  be  disclosed. 

1.  Insdrers  relied  upon  the  fact  that  a 
renewal  receipt  issued  after  the  policy 
had  lapsed  for  nonpayment  of  premium, 
expressed  upon  its  face,  that  il  was  made 
upon  condition  that  the  insured  was  in  good 
health  at  the  time  it  was  delivered.  HeUi, 
proper  to  prove  that  this  receiiit  and  the  con- 
dition named  was  concealed  from  insured 
on  account  of  his  critical  condition;  that  as 
soon  as  he  knew  of  it  he  refused  to  accept  it, 
sent  it  back  and  requested  a  receipt  without 
condition,  or  the  return  of  his  money.  Heldy 
also,  it  was  unnecessary  to  disclose  to  the  com- 
pany his  condition,  unless  the  company  made 
inquiry  upon  that  point.  Rockwell  i>.  Mutual 
Life  Ins.  Co.,  27  Wis.,  373. 

'd.  The  plaintili''s  decharation  stated  that 
plaintilT  liad  made  declaration  to  insurer  that 
the  pers'm  insured  had  not  any  disorder  that 
tended  to  shorten  life,  and  that  she  had  led 
and  continued  to  lead  a  temperate  life;  that 
the  policy  was  made  upoH  condition  that  if 
anything  stated  in  that  declaration  should  not 
be  true,  it  should  be  null  and  void,  and  the 
premiums  forfeited.  Several  questions  were 
put  and  answers  given,  when  the  insurance 
was  proposed,  but  none  of  them  apprised  the 
insurer  that  the  person  proposed  was  afflicted 
with  delirium  tremens,  or  erysipelas  in  the  legs. 
Held,  the  wife  was  not  the  agent  of  the  hus- 
band lor  the  purpose  of  effecting  the  policy ; 
that  she  was  his  agent  to  answer  such  particu- 
lar questions  as  the  company  might  choose  to 
ask  her,  and  was  to  answer  only  such  ques- 
tions as  were  put.  Huckman  i).  Fernie,  3  Mee. 
&W.,  505;  7  L.  J.  (N.  S.)  Ex.  163;  2  Jur., 
444. 

VI.  Questions  foe  the  jury. 

1.  The  mere  fact  that  shortly  after  the  pol- 
icy was  made  insured  was  stricken  with  dis- 
ease, from  which  death  resulted,  is  not  of  it- 
self evidence  that  he  was  not  in  good  health  at 
the  time  the  policy  was  effected.  Eclectic 
Life  Ins.  Co.  Fahrenknig,  G8  111.,  463. 

a.  Represented  in  December,  1823,  that  the 
life  proposed  was  in  a  good  state  of  iieallli, 
which  was  repeated  in  Jlarch  following;  and 
an  insurance  effected  April  following.  Be- 
tween  December  1833  and  March  1823,  she 
liad   been   ill  with  a  pulmonary  attack,  and 

055 


1311 


SPECIAL  FINDINGS. 


1312 


Miscellaneous. 


M-as  atlciuk'd  b)'  a  physician.  Slie  died  of 
pulmouary  disease  April  1824.  Ileld,  tlie  jury 
should  have  been  directed  to  consider  the  at- 
tendance of  the  physician  aud  the  cause  for 
it.  Morrison  v.  Muspratt,  4  Biug.,  59 ;  5  L.  J. 
C.  P.,  G3;  12  Moore,  231. 

3.  The  person  proposed  was  aslied  whether 
he  had  been  afflicted  with  gout,  asthma,  fits, 
or  any  other  disorder  tending  to  shorten  human 
life;  he  replied:  "Neither;  occasional  indi- 
gestion only."  He  was  in  a  state  of  ap- 
parent  good  health,  but  had  been  subject  to 
determination  of  blood  to  the  liead,  and  about 
four  years  before  the  policy  was  made,  his 
spirits  were  greatlj'  depressed,  and  he  then 
labored  under  delusions  as  to  the  .supposed 
falling  oflF  of  his  business,  and  to  the  conduct 
of  the  bench  and  bar  toward  him.  Held, 
there  were  l>ut  two  questions  for  the. jury: 
Jirst,  whether  he  represented  truly  the  state  of 
his  health;  second,  if  he  did  not,  then  did  he 
know  tlie  state  of  it,  so  as  to  be  able  to  fur- 
nish  a  proper  answer  to  the  question.  Swete 
«.FairUe,6C.&P.,  1. 


SPECIAL  FINDINGS. 

1.  The  cause  was  tried  by  the  court,  pursu- 
ant to  the  statute,  March  3,  1865.  The  court 
refused  to  make  any  special  findings  of  fact. 
Held,  the  court  had  the  right,  under  the 
statute,  to  find  specially  or  generally,  and 
the  findings  being  general,  nothing  was  open 
to  reexamination,  except  tlie  rulings  of  the 
court  made  in  the  progress  of  the  trial  and 
properly  presented  by  bill  of  exceptions; 
affirming  s.  c,  8  Blatch.,  170;  U  id.,  201;  I/t- 
surarice  Co.  v.  Folsom,  18  Wall.,  23T. 

2.  The  jury  found  specially  that  an  ahan- 
donment  was  made,  but  they  did  not  find 
■whether  it  was  in  due  time  or  otherwise. 
Meld,  an  abandonment  must  be  made  in  a 
reasonable  time,  and  the  finding  of  the  jury 
being  defective  in  that  respect,  the  judgment 
must  be  reversed.  Clusnpcake  Ins.  Co.  v.  Stark, 
6  Cranch,  268. 

3.  If  the  jury  find  that  which  amounts  to  a 
conclusion  of  law,  the  finding  does  not  con- 
elude  the  court.  King  v.  Delaware  Ins.  Co., 
«  Crauch,  71 ;  s.  c,  3  Wash.  C.  C,  300. 

4.  The  submission  of  special  questions  of 
656 


fact  to  the  jury  is  wholly  within  the  discretion 
of  the  court  (citing  Taylor  v.  Ketchum,  5  Uob. 
(N.  Y.),  507;  Hackford  v.  New  York  Central 
K.  R.,  53  N.  Y.,  654.  Sturm  v.  Atlantic  Mut. 
Ins.  Co.,  6  J.  i  Si).  (N.  Y.),  281. 

5.  The  jury  may  be  required  to  state  the 
items  of  damage  which  make  up  or  exceed 
one  half  the  sum  insured.  Orrok  v.  Common- 
wealth Ins.  Co.,  21  Pick.,  456. 

6.  It  is  within  the  discretion  of  the  court  to 
require  the  jury  to  find  specially.  Graves  v. 
Washington  Marine  Ins.  Co.,  12  Allen,  391. 

7. -When  a  case  at  law  or  equity  is  referred 
to  an  auditor,  his  report  is  prima  facie  evi- 
dence imly,  aud  his  findings  are  subject  to  re- 
vision, if  the  evidence  is  properly  brought  be- 
fore  the  court;  but  his  findings  have  tho 
weight  of  a  verdict,  and  when  they  are  the  re- 
sult of  conflicting  testimony,  they  are  not  to 
be  set  aside  unless  clearly  erroneous  (citing 
Dounell  v.  Columbian  Ins.  Co.,  2  Sumn.,  366; 
Tabor  o.  Jenny,  1  Sprague,  315;  Fisk  v.  Gray, 
100  Mass.,  191;  Dean  v.  Emerson,  102  id., 
480).  Paddock  v.  Commercial  Ins.  Co.,  104 
Mass.,  521. 

8.  The  jury  returned  a  general  verdict  for 
the  plaintiff  with  several  special  findings  in 
answer  to  particular  questions.  The  court, 
deeming  the  special  findings  not  consistent 
with  the  general  verdict,  disregarded  the 
latter  and  entered  judgment  against  the 
plaintiff.  Nothing  but  the  pleadings,  findings 
and  judgment  were  taken  up  in  the  record. 
Held,  every  intendment  must  be  in  favor  of  the 
judgment.  The  onus  was  upon  tlie  party 
complainiug  to  manifest  by  the  record  the 
error  alleged.  Whether  the  general  verdict 
is  inconsistent  with  the  special  findings 
cannot  always  be  tested  by  comparing  the 
special  with  the  general  findings.  Hence 
without  an  examination  of  the  facts,  it  would 
be  impossible  for  the  court,  in  many  cases,  to 
say  whether  the  general  was  inconsistent  with 
the  special  findings,  therefore  the  court  can- 
not  say  that  the  court  below  erred  in  deciding 
that  the  findings  were  inconsistent.  Oilbert 
e.  American  Ins.  Co.,  30  Mich.,  400. 

9.  The  defendant  required  the  jury  to  re- 
spond to  the  following  question:  "Was  the 
loss  of  the  property  described  in  the  bill  of 
lading  caused  by  a  peril  of  river  navigation  ? " 
Held,  an  improper  request,  because  it  was  re- 
quiring  a  conclusion  to  be  drawn  from  many 
facts,  and  this  is  not  contemplated  by  the  Re- 


1313 


STAMPS  (REVENUE;. 


1314 


When  the  instrument  is  void  for  want  of  —  When  not  void  for  want  of. 


vision,  sec.  .3079.  Home  Ins.  Co.  v.  Norlhwent- 
ern  Packet  Co.,  32  Iowa,  223. 

10.  The  special  fiadiugs  of  a  juiy  cannot 
defeat  a  general  verdict,  unless  they  are  in- 
con.sistcnt,  and  the  inconsistency  will  not  he 
jirestimed  ;  it  must  appear  adn'matively.  Boii- 
hiim  V.  Iowa  Central  Ins.  Co.,  2.5  Iowa,  32S ; 
Mershon  v.  National  Ins.  Co.,  34  id.,  87. 

1  I.  The  court  is  not  bound  to  submit  to  the 
jury  all  special  interrogatories  asked  liy 
counsel ;  they  maj'  be  changed  or  rejected  altj- 
gelher  if  immaterial.  Mickey  v.  Burlington 
Ins.  Co.,  35  Iowa,  174. 

12.  The  special  verdict  was  silent  as  to 
whether  the  owner  would  have  repaired  her  if 
Le  had  been  at  the  place  where  she  was  re- 
paired. Ileld,  the  court  could  not  infer  that 
lie  would  not  have  repaired  her  if  he  had  been 
there.  Benson  v.  Chapman,  3  fl.  of  L.  Cas., 
696. 


STAMPS  (REVENUE). 

I.  When   the   instrument    is   void  fok 

■WANT  OF. 

II.  INSTKUMENT      IS    NOT     VOID 

FOR  WANT   OF. 

I.  When  the  instrument  is  void 

FOE   WANT    OF. 

1.  A  policj'  on  ship  and  outfit  cannot  he  al- 
tei'ed  after  the  ship  sails  and  the  risk  attaches 
to  "ship  and  goods,"  unless  a  new  stamp  is 
affixed.  Uillv.  Patten,  8  East,  373;  1  Camp., 
72;  French  v.  Patten,  9  East,  3.51. 

2.  The  statute,  35  Geo.  Ill,  ch.  03,  sec.  1, 
imposes  upon  every  policy  of  insurance  a 
stamp  of  2s.  Gd.  for  every  £100  progressively, 
and  the  like  duty  for  every  fractional  part  of 
£100;  and  sec.  14  avoids  every  contract  un- 
less properly  stamped;  and  the  48  Geo.  Ill, 
ch.  14,  sec.  9.  schedule  article  policy  of  insur- 
ance,  provides,  if  separate  interests  of  two 
or  more  distinct  persons  he  insured  by  one 
policy,  the  duty  shall  he  charged  thereon 
in  respect  of  each  and  everj'  fractional  part  of 


£100  as  well  as  in  respect  of  every  full  sum  of 

£100.    liapp  V.  Allnutt,  15  East,  GDI. 

II.  "Whion  the  instrument  is  not 

VOID    KOK   WANT   OF. 

1.  A  policy  was  made,  limiting  the  time  of 
sailing  to  a  certain  day;  but  a  memorandum 
was  indorsed,  extending  the  time.  Held,  it 
did  not  requii'e  a  new  stamp.  Kmsington  v. 
Inglis,  8  East,  273. 

2.  An  instrument  is  not  invalid  for  want  of 
the  proper  stamp,  unless  it  was  omitted  with 
intent  to  defraud  the  government  (citing 
Campbell  v.  Wilcox,  10  Wall.,  421).  Mitdiell 
t).  Home  Ins.  Co.,  32  Iowa,  421. 

S.  Warranted  to  sail  August  20.  I5y  in- 
dorsement on  the  policy  and  for  additional 
premium,  the  agreement  was  modified  by 
withdrawing  the  warranty.  Held,  no  new 
stamp  was  needed.  Hubbard  «.  Jackson, 
4  Taunt.,  169. 

4.  It  was  hold  in  this  case  that  the  contract 
may  be  modified  by  agreement  of  parties  with- 
out restamping.  Ridsdale  v.  Shedden,  4 
Camp.,  107. 

5.  The  policy  was  made  to  Swinemunde. 
It  was  altered  by  consent,  by  inserting 
Konisberg  or  Memel  after  Swinemunde. 
Held,  a  new  stamp  was  not  required.  Uam^ 
Strom  v.  Bell,  5  3Iau.  &  Sel.,  2G7. 

6.  A  power  of  attorney  executed  by  the 
members  of  an  insurance  club  to  the  mem- 
bers of  a  committee  authorized  them  to  sub- 
scribe policies  on  ships  admitted  to  the  club. 
There  was  but  one  stamp  on  it.  Held,  sepa- 
rate  stamps  were  not  necessary,  one  was  suf- 
ficient.   Allen  V.  Morrison,  3  M.  &  11.,  70. 

7.  A  policy  of  iusnrance  on  the  lives  of 
cattle  is  an  insurance  on  lives,  within  55  Geo. 
Ill,  ch.  184;  but  such  an  instrument  is  liable 
only  to  a  penalty  of  £5  for  want  of  a  stamp 
under  10  Anne,  ch.  26.  The  penalty  of  £500 
under  85  Geo.  Ill,  ch.  63,  sec.  17,  applied  to 
marine  insurance  only.  Altorney  General  v. 
Clcobury,  4  Exchr.,  G5;  18  L.  J.  Ex.,  395. 

8.  An  assignment  of  a  policy  ot  insurance 
as  security  for  a  debt,  with  a  proviso  for  re- 
demption on  payment,  is  a  mortgage,  within 
the  55  Geo.  Ill,  ch.  184,  schedule,  part  1,  and 
therefore,  it  requires  an  adcalorem  stamp. 
Caldwell  v.  Dawson,  5  Exchr.,  1 ;  14  Jur.,  316. 


42 


057 


1315 


STATUTES. 


i3ie 


Of  the  appointment  of  agents. 


STATUTES. 

I.  Op  the  appointmekt  of  agents. 

(a)  When  noncompliance  vitiates  t?ie 

contract. 

(b)  does  not  vitiate  the  contract. 
II.  Repealing. 

III.  Conflicting  statutes. 

IV.  Consteuction  op. 

V.  Statutes  op  limitations. 
VI.  Statute  op  frauds. 
VII.  Void  statutes. 

I.  Of  the  appointment  of  agents. 

(a)    When  noncompliance  vitiates  the 
contract. 

1.  The  statute  of  Indiana  declares  that 
agents  of  foreign  corporations,  before  entering, 
upon  the  duties  of  their  agency  shall  deposit 
in  the  clerk's  office  of  the  county  where  they 
propose  doing  business,  the  commission,  or 
other  authority  by  virtue  of  which  they  act  as 
agents,  and  in  the  office  of  the  clerk  of  the 
circuit  court,  a  duly  authenticated  order  or 
resolution  of  the  board  of  directors,  authoriz- 
ing citizens  having  demands  against  the  com- 
pany arising  out  of  any  transaction  in  that 
state,  to  sue  for  and  maintain  an  action  for  the 
fcamc,  in  any  court  of  competent  jurisdiction 
in  that  state,  and  authorizing  service  of  pro- 
cess to  be  made  upon  such  agent;  and  that  for- 
eign corporations  shall  not  be  permitted  to 
enforce,  in  any  courts  of  that  state,  anj'  con- 
tracts made  by  their  agents  prior  to  compli- 
ance witl>  the  provisions  of  that  statute.  The 
assignee  of  the  bankrupt  brought  suit  on  a 
premium  note,  and  the  maker  pleaded  non- 
compliance with  the  terms  of  the  statute, 
to  wliich  there  was  a  general  demurrer.  Reld, 
the  plea  was  good.  U.  S.  D.  C,  District  of  Ind. 
Gresham,  .1.  Larnb  v.  Lamb,  7  Chi.  Leg.  News, 
411. 

2.  The  omission  of  an  agent  of  a  foreign 
mutual  insurance  company  to  comply  with 
the  provisions  of  the  statute  respecting  the  ap- 
pointment of  agents,  will  bar  an  action 
brought  by  the  company  on  the  premium  note. 
WaMn'jton  County  Mutual  Fire  Ins.  Co.  v. 
Datoes,  6  Gray,  376 ;  Williams  v.  Cheney,  8  Gray, 
206. 

3.  The  indorsee  received  the  premium  note  I 
638 


as  collateral  security  for  a  debt  paid  by  the 
indorser  since  the  commencement  of  the  ac- 
tion. It  Wiis  given  as  the  consideration  of  the 
two  policies  of  insurance,  but  the  company 
had  not  complied  with  the  requisitions  of  the 
statutes  concerning  foreign  insurance  compa- 
nies doing  business  in  Massachusetts.  Held, 
the  action  was  for  the  benefit  of  the  company, 
to  recover  a  premium,  and  it  could  not  bo 
maintained.    Roche  v.  Ladd,  1  Allen,  436. 

4.  The  defendant  made  a  premium  note  ia 
favor  of  a  Massachusetts  Ins.  Co.,  as  a  consid- 
eration for  the  company's  policy  upon  prop- 
erty in  the  state  of  N.  H.  The  Ins.  Co.  never 
complied  with  the  laws  of  the  state  in  respect 
to  doing  business.  Held,  the  contract  of  in- 
surance was  invalid,  hence  the  note  was  with- 
out consideration,  and  the  action  could  not  be 
maintained.  Haverhill  Ins.  Co.  v.  Prescott,  42 
N.  H.,  547. 

5.  The  statute  of  Pennsylvania,  April  11, 
1868,  regulating  the  appointment  of  agents  by 
foreign  companies,  had  not  been  complied 
with.  Held,  an  action  founded  on  a  transac- 
tion prohibited  bj-  the  statute  could  not  be 
maintained.  S.  C.  Penn.  Thorne  v.  Tracelerg- 
Ins.  Co.,  0  Ins.  L.  J.,  169. 

6.  Stipulated  that  other  insurance  should 
not  be  made  without  consent.  Insured  aver- 
red that  the  company  who  made  the  other  in- 
surance was  a  foreign  corporation,  organized 
"by  the  laws  of  the  state  of  Pennsylvania;  that 
one  Ferry  held  himself  out  as  the  agent  of  the 
corporation,  but  he  had  wholly  failed  to  cf)m- 
ply  with  the  requirements  of  the  statute  regu- 
lating foreign  corporations  and  their  agents  ia 
this  state,  and  said  policy  was  for  that  reason 
wholly  null  and  void.  Held,  the  second  pol- 
icy was  void  because  the  foreign  corporation 
had  not  power  to  make  the  contract  until  the 
requirements  of  the  statute  were  satisfied,  and 
therefore  it  was  not  other  insurance  within 
the  meaning  of  the  policy.  Eising  Sun  Ins. 
Co.  V.  Slaughter,  20  Ind.,  520. 

7.  The  company  had  not  complied  with  the 
statute  regul.iting  the  appointment  of  agents, 
hut  liad  made  a  policy,  and  this  action  was 
brought  to  recover  back  the  premium.  Held., 
the  policy  was  invalid,  and  that  the  party 
paying  the  premium  was  not  so  far  particeps 
criminis,  as  to  preclude  him  from  recovering 
it  back.  Union  Central  Life  Ins.  Co.  v. 
Thomas,  46  Ind.,  44. 

8.  A  premium  note  was  given  as  the  coo- 


131T 


STATUTES. 


131S 


Of  the  appointment  of  agents. 


I 


siileration  for  a  policy  of  insurance.  The  com- 
pany had  not  complied  with  the  law  reglating 
the  appoinlment  of  agents  and  no  ccrtificale 
hiid  been  issued  to  the  agent  by  the  state  au- 
ditor. Held,  the  note  was  void,  for  the  statute 
declares  the  "  contract  "  unlawful.  The  court 
declines  to  say  whether  the  policy  was  in- 
valid, because  that  question  was  not  in  the 
case.  Ilofman,  v.  Banks,  41  Ind.,  1 ;  Farmers 
and  Merchants  Ins.  Co.  v.  Ilarroh,  47  id.,  230. 

9.  The  statute  of  Indiana  required  all 
foreign  insurance  companies  to  comi)ly  with 
its  provisions  prior  to  the  making  of  any  con- 
tracts in  that  state.  A  person  acting  in  be- 
half of  certain  insurance  companies,  corpora- 
tions of  the  state  of  Ohio,  procured  them  to 
issue  policies  upon  certain  steamboats  in  the 
state  Indiana,  the  consideration  for  which 
was  certain  promissory  notes,  executed  in  the 
state  of  Indiana.  Held,  as  neither  party  was 
bound  until  the  delivery  of  the  premium 
notes,  and  as  this  was  done  at  New  Albany, 
Indiana,  the  contracts  were  not  contracts  of 
Ohio,  but  ot  the  state  of  Indiana.  They  were 
illegal  by  the  law  of  the  place  where  they 
were  made.  This  court  would  not  enl\>rce  them. 
Ford  i\  Buckeye  Stale  Ins.  Co.,  G  Bush.,  133. 

10.  A  contract  of  insurance  made  in  Ken- 
tucky by  a  foreign  insurance  company,  which 
lias  failed  to  comply  with  the  conditions  re- 
quired by  the  statute,  as  precedent  to  the 
transaction  of  business,  is  void,  and  no  recov- 
ery can  be  had  upon  it.  Franklin  Ins.  Co.  v. 
Louisville  and  Arkansas  Packet  Co.,  0  Bush., 
5'JO. 

1 1.  Action  upon  a  note  given  for  premium, 
which  was  taken,  and  the  policy  issued  by  an 
agent  of  the  payee,  who  had  never  filed  a 
statement  of  the  company's  affairs  in  the  of- 
fice of  tlie  secretary  of  state  as  by  law  re- 
quired. Held,  no  action  could  be  maintained 
upon  the  note.  uStna  Ins.  Co.  v.  Harvey,  11 
AV'is.,  394 ;  Cincinnati  Mut.  Ass.  Co.  v.  Rosen- 
thal, 55  111.,  85. 

(b)    llV/d/i    noncompliance    does  not 
'Vitiate  the  contract. 

12.  Tlie  carrier  defended  on  the  ground 
that  insurer  had  not  authority  to  contract, 
not  having  complied  with  the  state  statute  in 
respect  to  the  appointment  of  agents.  Held, 
DO  defense  to  the  action.  The  Manistee,  5 
Biss.,  381 . 


1-9.  M.  was  authorized  by  the  company  to 
make  surveys  and  receive  application  for  in- 
surance, bnt  the  company  was  a  mutual  in. 
surance  company,  created  by  the  laws  of  the 
stale  of  Xew  York.  M.  transmitti'd  an  appli- 
cation to  the  company,  who  sent  the  policy 
by  mail  to  the  insured  in  the  state  of  Pennsyl- 
vania, where  the  property  insured  was 
situated.  Held,  the  statutes  of  Pennsylvania 
prohibiting  insurance  companies  of  other 
sl.ates  from  contr.acling  to  insure  properly  in 
tliat  state,  except  upon  compliance  with  cer- 
tain conditions,  had  no  application,  for  the 
contract  was  made  in  the  state  of  New  York. 
Euntley  «.  Merrill,  32  Barb.,  6^6 ;  Hoyt  v.  Good- 
now,  8  N.  Y.,  26G. 

14.  The  omission  of  a  foreign  insurance 
company  to  appoint  a  general  agent,  or  the  fact 
that  its  capital  is  less  than  the  sum  required  by 
the  statute,  is  no  defense  to  an  action  trought 
upon  a  premium  note.  Provincial  Ins.  Co.  v. 
Lapsley,  15  Gray,  362;  Atlantic  .Mutual  Fire 
Ins.  Co.  V.  Conclin,  6  id.,  73. 

15.  The  failure  of  an  insurance  company  to 
comply  with  the  requisitions  of  the  statute  in 
respect  to  the  appointment  of  agents  does  not 
render  tlieir  contract  invalid.  Hartford  Live 
Stock  Ins.  Co  V.  Matthnvs,  102  Mass.,  221. 

1(5.  PlaintifTs,  citizens  of  Ohio,  sent  an 
agent  into  Pennsylvania  to  solicit  insurance, 
and  to  receive  applications.  They  issued  a 
policy  on  the  defendant's  factory,  and  received 
defemiant's  promissory  note  for  the  jiremium, 
payable  in  such  portions,  and  at  such  times  as 
the  directors  of  said  company  may,  agreeably 
to  their  act  of  incorporation,  require.  The 
statute  of  Pennsylvania  required  a  comjiliance 
with  its  provisions  on  the  part  of  all  foreign 
insurance  companies.  Held,  the  act  did  not 
apply  to  mere  transient  or  traveling  agents 
who  invited  applications  to  be  sent  to  the 
company  iu  Ohio.  Thornton  v.  Western  Re- 
serve Fire  Ins.  Co.,  .31  Penn.  St.,  .■529. 

17.  Insurer,  a  foreign  corporation,  at  the 
time  of  issuing  the  policj',  had  failed  to  com- 
ply with  the  requirements  of  the  statute  of 
April  16,  1867,  for  the  incorporation  and  regu- 
lation of  life  insurance  companies,  by  which 
it  was  made  unlawful  for  any  agent  or  corpora, 
tion  to  take  risks,  collect  premiums,  or  in  any 
manner  transact  the  business  or  life  insurance, 
until  the  provisions  of  the  st.atute  should  be 
complied  with;  and  any  party  violating  the 
act,  was  by  it  subjected  to  a  penalty  of  $500 

659 


1319 


STATUTES. 


1320 


Repealing  —  Conflicting  —  Construction  of  —  Statutes  of  limitation. 


lor  each  violation.  Held,  the  failure  to  com- 
jily  with  the  statute  was  no  defense  to  the  ac- 
tion upon  the  policy.  Union  Mutual  Life  Ins. 
C'o.v.  iWcJ/illen,  2-4  Ohio  St.,  67. 

1 8.  A  foreign,  corporation  may  maintain  or 
defend  a  suit,  notwithstanding  it  has  failed  to 
procure  a  license  according  to  law.  Columbus 
Ins.  Co.  V.  Walsh,  IS  Mo^  229. 

19.  The  failure  of  a  foreign  insurance  com- 
pany to  comply  with  the  statute  in  relation  to 
cstablisliing  agencies  in  the  slate  docs  not 
avoid  promises  made  by  persons  insured  to 
pay  premiums  for  insurance.  Clark  v.  Middle- 
ton,  t9  Mo.,  53. 

20.  The  insurers  cannot  defend  on  the 
ground  that  they  had  not  authority  under  the 
laws  of  Micliigau  to  transact  business  in  the 
state.  The  statute  regulating  the  transaction 
of  business  by  foreign  confpanics  in  Michigan 
does  not  affect  policies  executed  out  of  the 
state,  upon  property  in  Micliigan.  Clay  Fire 
and  Marine  Ins.  Co.  v.  Huron  Salt  and  Lumber 
Co.,  31  Mich.,  346. 

II.  Repealing. 

1.  The  act  of  incorporation  provided:  "In 
tease  of  loss  by  fire  the  insured  shall  give  no- 
tice thereof  in  writing  to  the  directors  within 
thirty  days,  who  shall  ascertain  and  determine 
the  amount  of  it,  and  if  the  insured  is  not  sat- 
isfied with  such  determination,  he  may  bring 
an  action  against  said  company  for  said  loss 
at  the  next  court  to  be  holden  in  and  for  the 
county  where  said  company  is  established,  and 
not  afterwards."  Held,  neither  an  express  nor 
an  implied  repeal  of  sec.  6.  ch.  31  of  revised 
statutes,  which  authorized  the  plaintiff  to  sue 
in  the  county  where  he  resided.  Martin  ti. 
Penobscot  Mutual  Fire  Ins.  Co.,  53  Me.,  419. 

2.  If  a  statute  confers  a  right,  and  it  is  re- 
pealed before  the  right  becomes  vested,  the 
right  falls  with  the  repealed  statute,  and  no 
enforcement  of  the  right  can  be  made.  Yan 
Imca/jcn  v.  City  of  Chicago,  61  111.,  31. 

'i.  The  statute,  approved  March  14,  1870,  al- 
lowed  certain  damages  beyond  the  amount 
named  in  the  contract.  The  trial  was  had, 
and  verdict  rendered,  with  interest  for  the  sum 
actually  due  on  the  policy  March  10th,  but  no 
assessment  of  the  statutory  damages  was  made 
till  the  23d.  The  statute  which  conferred  tiie 
right  to  them  was  repealed  on  the  22d.  Held, 
the  plaintiff  could  take  nothing  but  the  dam- 

coo 


ages  due  under  the  contract. 
Ins.  Co.,  29  Wis.,  270. 


Pryee  v.  Security 


III.  Conflicting  statutes. 

1.  The  company  was  chartered  in  1852. 
Held,  so  far  as  the  revised  statutes  of  1841  were 
inconsistent  with  tlie  cliarter  they  were  of  uo 
effect.  Yorlc  County  Mutual  Fire  Ins.  Co.  v. 
Knight,  48  Me.,  75. 

2.  If  the  constitution  of  the  United  States 
confers  the  right  upon  congress  to  legislate  ou 
a  particular  subject,  the  state  law  on  that  sub- 
ject becomes  inoperative  whenever  congress 
exercises  the  right.  Caldwell  v.  St.  Louig  Per- 
petual Ins.  Co.,  1  La.  An.,  85. 

IV.  Construction  of. 

1 .  In  construing  a  statute,  regard  must  be 
had  to  the  intention  of  the  makers  of  it,  and 
this  is  to  be  collected  from  the  occasion  or  the 
necessity  for  it.  Dutton  v.  Vermont  Mutual 
Fire  Ins.  Co.,  17  Vt.,  369. 

2.  The  statute  law  of  1834  provides  that  any 
accident  except  such  as  are  impossible  to  be 
foreseen  and  avoided,  that  may  happen  from 
racing,  carrying  higher  steam  than  may  ap- 
pear from  the  certificate  to  bs  consistent  with 
safety,  running  into  or  afoul  of  another  boat, 
etc.,  shall  subject  the  owner  to  a  foi-feiture  of 
his  insurance.  Held,  the  impossibilities 
spoken  of  in  the  statute  must  be  considered 
an  impossibility  by  reasonable  intendment,  ac- 
cording to  all  the  circumstances  of  each  par- 
ticular case.  Caldwell  v.  St.  Louis  Perpetual 
Ins.  Co.,  1  La.  An.,  85. 

3.  The  act  of  6  Geo.  I.,  ch.  18,  giving  theriglit 
to  the  London  Assurance  Co.  and  the  Royal 
Exchange  Insurance  Co.,  did  not  extend  to 
Scotland.  It  was  intended  to  apply  to  in- 
surances made  in  England  only.  Pattison  v. 
Mills,  2  Bli.  (N.  R.;,  519;  1  Dow.  &  C,  342, 

4.  49  Geo.  III.  sanctions  every  importa- 
tion  of  goods  under  auj'  order  of  council 
which  would  have  been  authorized  by  48 
Geo.  III.  Schroeder  v.  Vaux,  15  East,  53;  3 
Camp,,  81,  n 

Y.  Statutes  of  limitations. 

1.  If  the  defendant  intends  to  rely  on  the 
statute  of  limilations,  he  must  plead  it.  He 
cannot  demur  on  the  ground  that  it  appears 
on  the  face  of  the  complaint  that  Ihe  cause  of 


1321 


STATUTES. 


1322 


Statute  of  frauds  —  Void. 


action  is  barred  by  lapse  of  lime.    Sands  v. 
St.  John,  30  Barb.,  628. 

2.  The  statute  of  limitations  does  not  begin 
to  run  on  a  deposit  note  until  an  assessment 
is  laid  ;  for  the  agreement  is  to  paj'  the  amount 
when  required.  Bigelow  v.  Libby,  117  Mass., 
359. 

3.  The  person  insured  died  in  September, 
1863.  Proofs  of  loss  were  furnished  October, 
1872,  and  this  actiini  was  commenced  Febru- 
ary 17,  1873.  Defendant  was  a  corporation  of 
the  state  of  New  Jersey.  The  policy  required 
insured  to  give  notice  to  insurer  of  the  death 
of  the  person  insured.  Hdd,  the  Kentucky 
statute  of  limitation  commenced  to  run  March 
2,  1860.  hence  the  action  was  barred  by  lapse 
of  time  March  2,  1871.  Insurer  was  a  foreign 
debtor  and  was  therefore  excluded  from  the 
operation  of  the  Virginia  statute  of  March  2, 
1860,  depriving  creditors  of  the  right  to  en- 
force the  payment  of  debts  until  January  1, 
1808.  Kentucky  Ct.  App.  Spratley  v.  Mutual 
Benefit  Life  Ins.  Co.,  7  Chi.  Leg.  News,  51. 

4.  The  defense  was,  that  the  action  was  not 
brought  within  six  years  after  the  loss  oc- 
curred. Held,  the  action  did  not  accrue  until 
the  loss  was  complete;  that  a  barratrous 
abandonment  of  the  voyage  did  not  complete 
it;  that  it  w'as  not  complete  till  the  master  di- 
vested himself  of  possession  of  the  ship. 
Hibbert  v.  Martin,  1  Camp.,  538. 

5.  The  defendant  pleaded  the  statute  of 
limitations  and  the  plaintilf  replied  that  be- 
fore the  sis  years  had  elapsed,  one  J.  B. 
claimed  an  equitable  lien  on  the  policy,  and 
filed  a  cause  petition  in  the  court  of  chancery 
to  enforce  payment  of  it;  that  at  the  hearing 
before  the  master,  defendants  insisted  that  the 
policy  had  lapsed  for  nonpayment  of  pre- 
mium, and  was  not  then  a  subsisting  contract; 
that  the  master  directed  this  action  to  be 
brought  to  try  that  question,  and  retained  the 
petition.  Held,  a  good  answer  to  the  plea. 
Supple  V.  Cann,  9  Ir.  C.  L.  R.,  1. 

VI.  Statute  of  frauds. 

1.  The  Massachusetts  statute  of  frauds  does 
not  aft'ect  a  contract  of  insurance :  the  rights 
of  the  parties  must  be  determined  by  the  com- 
mon law,  and  a  promise,  for  a  valuable  con- 
sideration, to  make  a  policy  need  not  be  in 


writing.  Commercial  Mutual  Marine  Tm.  Co. 
V.  Union  MutualTns.  Co.,  19  How., 318;  2  Cur- 
tis, 524. 

2.  The  plainliff  oflered  to  prove  that  while 
the  policy  was  in  force  during  the  first  year, 
plaintiff  and  defendant  agreed  verbally  that 
until  notice  to  the  contrary  be  given  by  one 
party  to  the  other,  defendant  should  renew 
the  contract  from  year  to  year  without  further 
notice,  and  deliver  a  certificate  of  renewal, 
and  that  the  plaintiff  should  pay  the  premium 
therefor  on  demand;  that  it  wjis  the  usage  of 
defendant  to  make  such  verbal  agreements 
and  to  pay  losses  in  pursuance  thereof;  that 
the  defendant  renewed  the  policy  in  pursuance 
of  that  verbal  agreement  for  the  years  1848 
and  1847,  and  that  plaintiff  paid  the  premium 
within  a  few  days  after  the  renewals  were  de^ 
livered.  Held,  n  valid  agreement;  if  the  con- 
tract is  not,  by  its  very  terms  or  necessary 
construction,  to  endure  for  a  longer  period 
than  one  year,  it  is  not  within  the  statute  of 
frauds,  though  it  may  be  continued  for  au 
indefinite  period.  First  Baptist  Church  v. 
Brooklyn  Fire  Ins.  Co.,  19  N.  Y.,  305;  s.  c,  18 
Barb.,  09. 

S.  Part  performance  of  contracts  in  respect 
of  lands  supplies  the  lack  of  written  agree- 
ment (citing  Young  v.  Peachey,  3  Atk.,  257; 
Caldwell  v.  Carrington,  9  Pet.,  86;  Ryan  v. 
Bos,  34  N.  Y.,  307;.  Bedfield  v.  Holland  Pur- 
chase  Ins.  Co.,  50  N.  Y.,  354. 

4.  An  agreement  to  answer  for  the  default 
or  miscarriage  of  another,  and  to  answer  for 
loss  by  fire.  Held,  it  was  divisible,  and  so  far 
as  it  was  an  agreement  to  insure  against  loss 
by  fire,  it  was  valid ;  so  far  as  it  was  an  agree- 
ment to  answer  for  the  default  or  miscarriage 
of  another,  it  was  invalid,  because  it  was  not 
in  writing.  Mobile  Marine  and  Hock  Ins.  Co. 
V.  McMillan,  31  Ala.,  711. 

YII.  Void. 

Sec.  36  of  an  iict,  entitled  "  An  act  for  the  in. 
corporaticm  of  insurance  ccunpanies,"  defining 
their  powers  and  prescribing  their  iluties(l  G. 
&  H.,  398)  is  unconstitutional,  because  the 
subject  of  the  section  is  not  embraced  in  the 
title  of  the  act,  and  is  not  matter  properly  con. 
nected  with  the  subject  expressed  in  the  title. 
Grubbs  V.  The  State  of  Indiana,  24  Ind.,  295. 


661 


1323 


STORING  —  STRANDING. 


132i 


What  13. 


STORING. 

<8ee  Keeping  and  Storing.) 


STRANDING. 

I.  Wfat  is. 

II.  NOT. 

I.  "What  is. 

1.  On  salt.  "Warranted  corn,  fish,  salt,  etc., 
free  from  average,  unless  general  or  the  ship 
be  stranded.  She  got  abreast  of  the  roads  at 
Loch  Strangford,  but  the  tide  ran  so  high 
that  she  could  not  get  into  them.  The 
pilot  made  too  free  with  the  shore,  and  she 
got  aground  on  tlie  lee  shore.  She  was  got  off 
and  remained  live  days  at  Strangford  without 
showing  signs  of  damage;  but  on  going  to 
sea  it  blew  heavy  and  she  made  much  water. 
She  was  obliged  to  run  for  Lochindale  in  dis- 
tress, and  on  making  port  she  took  the  ground 
forward  and  swung  round  on  her  lieel,  wliile 
she  remained  there  she  pounded  heavily  and 
made  much  water,  in  consequence  of  which 
tlie  salt  was  greatly  damaged.  Held,  a  loss  by 
stranding,  and,  therefore,  insurers  were  not 
within  the  exemption.  Mitchell  v.  Gray,  1  3. 
&  D.,  298. 

2.  The  wind  suddenly  took  her  ahead,  aud 
slie  went  ashore  stern  foremost,  where  she 
remained  fast  for  two  hours,  till  the  tide  flow- 
ed. Held,  it  was  a  stranding.  Uarman  v. 
Vaux,  3  Camp.,  429. 

H.  Ship  struck  upon  a  rock,  remained  on  it 
lifteen  or  twenty  minutes,  and,  in  consequence, 
sustained  injury  and  leaked  ver}-  badly.  Held, 
if  she  was  fixed  for  the  time  named  it  was 
stranding  within  the  policy.  Baker  v.  Towry, 
1  Starkie,  436. 

4.  "  On  ship  from  Wisbeach  to  Leeds  or 
Wakefield,  warranted  free  from  average,  unless 
general,  or  the  ship  is  stranded."  She  h.ad 
proceeded  beyond  Selby  towards  Wakefield, 
and  arrived  at  Beal  Lock,  when  it  became 
necessary  to  draw  off  the  water  to  repair  tlie 
navigation.  She  was  placed  in  the  most 
secure  place  that  cuukl  be  found,  along  sidj 
602 


four  other  vessels.  The  water  being  drawn 
off,  she  grounded  on  piles  not  known  to  bo 
there,  and  the  cargo  was  badly  damaged.  Held, 
slie  was  stranded;  that  the  exception  would 
apply  wlien  the  ship  must  go  on  the  striind 
in  tlie  ordinary  course  of  the  voyage,  for  then 
that  is  not  stranding;  but  where  it  arises  from 
an  accident,  out  of  the  ordinary  course,  that  is 
a  stranding  within  the  meaning  of  the  policy. 
Rayner  v.  Goodmond,  5  B.  &  A.,  225. 

5.  "  Warranted  free  from  average  unless  the 
ship  be  stranded."  She  was  forced  to  take 
shelter  in  a  harbor,  and  in  entering  it,  ran 
upon  an  anchor.  Wlien  brought  to  her  moor- 
ings, she  was  found  leaky  and  in  danger  of 
sinking,  and  to  prevent  that  she  was  warped 
higher  up,  where  she  took  the  ground,  and  re- 
mained fast  for  half  an  hour.  -Held,  a  loss  by 
stranding.  Barrow  v.  Bell,  i  B.  &  C,  736;  7 
D.  &  R.,  244. 

6.  "Warranted  free  from  average,  unless 
general,  or  the  ship  be  stranded."  She  was 
obliged  to  put  into  a  tide  harbor,  where  she 
was  moored  alongside  a  quay,  in  the  usual 
place  for  ships  of  her  burden.  It  was  neces- 
sary to  make  her  fast  to  tackle  posts  on  the 
shore  to  prevent  her  falling  over.  When  the 
tide  was  out,  one  of  the  ropes,  being  insuffi- 
cient, broke;  slie  fell  over  and  was  greatly 
injured.  Held,  a  loss  by  stranding.  Bishop 
V.  Pentland,  7  B.  &  C,  219 ;  1  M.  &  K,  49. 

7.  She  arrived  in  a  tide  harbor,  and  at  high 
water,  moored  alongside  the  quay  to  avoid 
grounding  on  a  bank  at  low  water.  Slie  was 
hauled  ofi'  at  tide  falling  by  a  rope  from  her 
head  hove  tight,  and  her  stern  fastened  by  a 
rojie  to  the  quay.  When  the  tide  fell  she 
changed  her  position,  got  nearer  the  quay  with 
her  fore  foot  on  the  bank  caused  by  the  force 
of  the  wind  stretching  the  rope.  She  then 
grounded  in  a  place  where  she  was  not  meant 
to  be.  Held,  a  stranding  within  the  meauing 
of  the  policy.    WelU  v.  Hopwood,  3  B.  &  Ad.,  20. 

8.  She  was  under  the  conduct  of  a  pilot 
proceeding  up  the  river  to  Liverpool,  who 
made  her  fast  to  the  pier  of  the  dock  basin ; 
she  took  the  ground  when  the  tide  left,  fell 
over  and  bilged,  and  when  the  tide  flowed, 
filled  with  water,  aud  the  goods  were  damaged. 
Held,  she  was  stranded.  Carruthers  v.  Syde- 
bvthfim,  4  Mau.  &  Sel.,  77. 

9.  "AVarranted  free  from  average  unless 
general  or  tlie  ship  be  stranded."  She  was 
driven  by  stress  of  weather  into  the  bay  of 


1325 


STR.>ND1NG. 


1326 


What  is  not. 


Talfiis,  commenced  dragging  her  anchors,  and, 
for  tlic  preservation  of  all  on  board,  her  chains 
were  slipped  and  she -entered  Sanzon,  a  tidal 
liarbor,  and  took  the  ground,  it  then  being  low 
water.  IHd,  she  was  stranded,  for  she  took 
the  ground  not  in  the  ordinary  course  of  man- 
agement, but  from  an  unusual  state  of  things. 
Coroiran  ®.  Ourney,  1  El.  &  Bl.,  450. 

10.  "Warranted  free  from  average  unless 
general,  or  the  ship  be  stranded."  She  struck 
upon  a  sunken  rock,  several  of  her  planks 
were  started,  the  w.ater  flowed  into  her  hold 
and  over  her  cargo.  The  pilot  came  on  board 
and  stranded  her  upon  the  beach  to  save  .ship 
and  cargo.  Held,  the  insurers  were  liable  for 
an  average  loss.  Burnett  e.  Kennngton,  7 
Term,  210;  1  Esp.,  416;  Dowring  c.  Elmsley, 
id.,  21G  n. 

1 1.  She  put  into  the  bay  of  Palais,  let  go 
her  bower  anchors  and  chains,  commenced  to 
drag  the  large  anchor;  for  the  preservation  of 
all  on  board,  particularly  to  prevent  her  going 
ashore,  her  cables  were  slipped,  she  was  got 
under  sail,  and  entered  the  tidal  harbor  of  San- 
zon at  low  water.  She  took  the  ground,  and 
during  a  month  floated  about  eight  daj-s,  and 
then  only  at  the  height  of  spring  tide.  She  put 
to  sea,  made  much  water,  and  in  consequence 
of  her  previous  strain,  the  cargo  was  damaged. 
Held,  a  stranding  within  the  meaning  of  the 
memorandum.  Corcoran  v.  Ourney,  22  L.  J. 
■Q.  B.,  113;  1  El.  &  Bl.,  450;  17  Jur.,  1152. 

1 2.  "  On  salt,  warranted  free  from  average, 
tmless  general,  or  the  ship  be  stranded."  She 
lost  both  anchors,  had  her  masts  cut  away,  was 
taken  in  tow  by  salvors,  and  placed  on  a  bank 
out  of  the  ordinary  course  of  the  voyage, 
where  she  lay  on  her  port  side  for  several  tides, 
nnd  sufl'ered  further  damage.  The  salt  was 
landed  in  a  damaged  condition,  and  the  ship 
repaired  at  an  expense  exceeding  her  value. 
About  one-fifth  of  the  salt  might  have  been 
niaile  saleable  at  the  port  of  destination,  but 
would  not  have  sold  for  more  than  the  import 
duty.  The  salvors  instituted  suits  in  admi- 
ralty, and  it  was  sold  by  order  of  court,  not 
realizing  enough  to  pay  salvage  and  costs. 
Held,  not  a  total  loss,  for  the  proceedings  in 
admiralty  were  not  a  necessary  consequence 
•of  a  peril  insured  against,  but  the  insurers 
were  liable  for  a  partial  loss,  for  the  ship  was 
stranded.  HeMattos  v.  Saunders  7  L.  K.  C.  P., 
oTO;  s.  c,  20  W.  R.,  801;  27  L,  T.  (N.  S.), 
120. 


II.  What  is  not. 

1.  Stipulated:  "  Insurers  arc  not  to  be  liable 
for  partial  lo.ss  on  grain,  unless  caused  by 
stranding  or  bilging.  She  was  thrown  on  her 
beam  ends,  and  in  excessive  straining,  her 
scams  opened.  Held,  this  was  not  bilging 
within  the  meaning  of  the  policy.  Ellery  v. 
Merchants  Ins.  Co.,  R  Pick.,  46.- 

2.  Stipulated:  "Not  liable  for  an}' partial 
loss  on  salt,  grain,  fruit,  fish,  hides,  skins,  or 
other  goods  perishable  in  their  own  nature, 
unless  it  amount  to  seven  per  cent,  on  the 
whole  aggregate  value  of  such'  articles,  and 
happen  by  stranding."  She  struck  a  rock  or 
stump,  which  made  a  hole  in  her  bottom  four 
feet  long  and  two  feet  wide.  The  water  ])our- 
ing  in  very  rapidly,  she  was  run  upon  the  tow 
path  for  the  purpose  of  preventing  sinking. 
On  opening  the  hatches  she  was  found  nearly 
full  of  water.  The  net  proceeds  of  the  wheat 
amounted  to  $1,291.  Its  prime  value  was 
|4,200.  Held,  not  a  loss  within  the  policy,  for 
there  was  no  stranding.  Lake  v.  Columbus 
Ins.  Co.,  13  Ohio,  48. 

3.  The  vessel  struck  and  remained  for  a 
minute  and  a  half  on  the  rock.  Held,  not  a 
stranding,  though  her  loss  was  the  conse- 
quence of  the  injury  there  received.  Mac- 
dougle  v.  Royal  Excluinge  Ass.  Co.,  1  Stark.,  130 ; 
s.  C,  4  Camp.,  283;  4  Mau.  &  Sel.,  503. 

4.  A  vessel,  under  control  of  a  pilot,  ground- 
ed, while  going  into  harbor  in  the  ordi- 
nary course  of  navigation,  and  was  after- 
wards moored  at  the  quay;  but  took  the 
gi-ound  at  ebb  tide,  fell  over  on  her  side,  and 
ship  and  cargo  were  damaged.  Held,  no 
stranding.  Hearne  v.  Edmunds,  1  B.  &  B., 
388 ;  4  Moore,  15. 

5.  When  the  tide  ebbed  she  took  the  groun  J 
in  a  tide  harbor,  where  it  was  intended  she 
should  take  it;  but  in  doing  that,  she  settled 
upon  some  hard  substance  which  made  two 
holes  in  her  bottom,  and  damaged  the  cargo. 
Held,  not  a  stranding;  and,  as  the  policy  war- 
ranted the  cargo  free  from  average  unless 
general,  or  the  ship  be  stranded,  the  insurers 
were  not  liable.  Kingsford  v.  Marshall,  8 
Bing.,  458;  1  M.  &  Scott,  657. 

6.  "  Free  from  average,  unless  general,  or 
the  ship  be  stranded,  including  risk  of  craft 
to  and  from  ship."  A  lighter,  conveying 
goods  from  ship  to  shore,  was  stranded  and  a 
loss  sustained.    Held,  the  contract  limited  • 

063 


1327 


SUBROGATION. 


1328 


When  allowed. 


particular  average  to  a  loss  caused  by  the 
stranding  of  the  ship  only.  Hofmitn  v.  Mar- 
ghall,  2  Ring.  (N.  C),  383;  5  L.J.  (N.  S.)  0.  P., 
70 ;  2  Scott,  559. 

7.  If  the  ship,  upon  the  falling  of  the  tide, 
takes  the  ground  in  a  tide  harbor  at  a  place 
■where  she  is  properly  put  for  the  purpose  of 
unloading,  it  is  not  a  stranding.  Marjnus  v. 
Bultemer,  U  C.  B.,  876;  21  L.  J.  C.  P.,  119;  10 
Jur.,  480. 

8.  If  stranding  is  made  the  condition  of 
letting  in  au  average  loss,  it  must  take  place 
after  the  adventure  has  commenced  and  before 
it  has  terminated;  so  if  the  ship  was  stranded 
in  a  part  of  the  voyage  described,  but  after  the 
goods  at  risk,  and  to  whicli  the  restriction  was 
applicable,  had  been  landed,  it  does  not  attect 
the  rights  of  the  parties.  Roux  v.  SaUador,  1 
Bing.  (N.  C),  530;  1  Scott,  491;  1  Hodges,  49; 
4  L.  J.  (N.  S.)  C.  P.,  156;  s.  c,  3  Bing.  (N.  C), 
260;  4  Scott,  1;  2  Hodges,  209-  7  L.J.  (N.  S.) 
Ex.,  32S. 

9.  "  Warranted  free  from  average,  unless 
general,  or  the  ship  be  stranded."  She  sprang 
a  leak  while  laboring  in  a  gale.  A  quantity  of 
the  cargo  (wheat)  was  pumped  out  with  the 
water.  She  reached  port  in  the  niglit.got  foul 
of  another  vessel,  got  clear  of  her,  and  ground. 
ed,  but  got  off  very  quickly.  Held,  not  a  strand- 
ing. Craig  n.  Spence,  Faculty  Dec,  1792  to 
1796,  p.  207. 

10.  Warranted  free  from  average,  unless 
general  or  the  ship  be  stranded.  She  took  the 
ground  while  descending  a  tidal  river,  and  the 
cargo  was  thereby  damaged.  Held,  not  a 
stranding.  Thomson  v.  Miirison,  0  C.  C.  S., 
1130;  16  Scot.  Jur.,  491. 


SUBROGATION. 

I.  When  allowed. 

II.  DENIKD. 

I.   "When  allowed. 

1.  The  insurance  company  paid  the  claim, 
though  not  legally  bound  so  to  do.  Hdd,  they 
could  recover  of  the  wrong  doer  (citing  Mon- 
ticello  1).  Mollison,  17  How.  152).  Insurance 
Co.  V.  The  C.  1>.  Jr.,  1  Woods,  72. 

2.  Total  loss  by  tliieves,  for  wdiich  judg- 
664 


ment  was  rendered.  The  insured  surrendered 
tlie  bill  of  lading  to  tlie  carrier,  assigned  the 
policy  and  all  claims  thereon  to  B.,  for  the 
benefit  of  the  carrier.  Held,  insurers  were 
entitled  to  credit  against  the  judgment  for 
the  amount  for  which  the  carrier  was  liable. 
Atlantic  Ins.  Co.  v.  Utorrow,  1  Edw.  Ch.,  621; 
s.  C.  affirmed,  5  Paige  Ch.,  285. 

3.  Tlie  insured  having  right  to  abandon  for 
a  total  loss,  claimed  for  it,  and  oflered  to 
abandon,  which  was  contested.  Insured  and 
insurers  agreed  to  refer  the  matter  to  certain 
persons.  The  referees  awarded  a  certain  sum 
to  be  paid  by  insurers,  and  the  policies  to  be 
canceled.  That  sum  was  paid,  and  by  com- 
putation  the  award  appeared  to  have  been  as 
for  a  total  loss.  Held,  insurers  were  entitled 
to  indemnity  under  the  French  treaty,  and 
that  neither  assignment  nor  cession  from  the 
insured  w^as  necessary.  Raddiff  v.  Coster, 
Hoff.  Ch.,  98.  ■     . 

4.  Insurers  paid  a  loss  caused  by  rioters. 
Held,  they  could  maintain  an  action  in  the 
name  of  the  insured  against  the  wrong  doer. 
Mason  v.  Sainshiiry,  3  Doug.,  61.  And  the  in- 
sured cannot  release  the  wrong  doer.  Hart  v. 
Western  Railroad  Co.,  13  Met.,  99. 

5.  A.  borrowed  money  of  B.,  gave  his  note 
for  double  the  amcmnt,  with  the  premium  for 
a  policy  on  his  life,  which  was  made  in  favor 
of  the  lender.  He  also  agreed  to  pay  the 
pi-eniiums  as  they  should  come  due.  A.  died 
and  B.  received  the  amount  insured.  Held,^ 
he  must  account  for  all  except  the  money 
legally  due  on  the  note.  Coon  v.  Swan,  30  Vt.,  6. 

6.  When  the  action  w-as  commenced,  the 
account  between  insured  (the  mortgagee)  and 
mortgagor,  showed  a  debt  of  .$4,457.24,  due  to 
mortgagee.  Held,  if  mortgagee  had  a  lien 
upon  other  property  for  any  portion  of  this 
debt,  the  company,  upon  payment  of  the  loss, 
was  entitled  to  be  subrogated  to  mortgagee's 
rights.  Sussex  County  Mut.  Ins.  Co.  v.  Wood- 
ruff, 20  N.  J..  541. 

7.  The  complainant  insured  the  house  of  H. 
It  was  burned  by  the  negligence  of  the  Cam- 
den and  Amboy  Railroad  Company,  withia 
the  term  insured,  and  the  complainant  paid 
the  loss.  The  property  destroyed  was  wortli 
a  sum  largely  in  excess  of  the  sum  insured. 
The  railroad  company  paid  insured  $2,000  in 
satisfaction  of  the  damages,  for  which  H. 
receipted,  and  this  action  was  brought  against 
insured   and    the   railroad    company  jointly. 


1329 


SUBROGATION. 


1330 


When  allowed. 


Jhld,  the  release  made  by  H.  was  no  defense 
to  the  suit  of  insufers,  or  if  the  railroad  com- 
pany paid  the  damages,  knowing  that  H.  had 
received  the  amount  insured  from  the  com- 
plainants, it  would  still  be  liable  to  the  com- 
idainants  in  a  suit  at  law  in  the  name  of  II.; 
that  tlie  settlement  by  the  railroad  company 
Willi  II.,  after  lliey  knew  that  he  had  been  paid 
by  the  complainants,  was  fraudulent,  and, 
therefore,  void.  Moivnouth  Ooaiity  Fire  Ins. 
Co.  V.  Hutchinson,  21  X.  J.  Eq.,  107. 

8.  Policy  to  a  mortgasee.  After  the  fire, 
some  of  tlie  proper!}'  saved  was  sold.  Held, 
insurers  were  entitled  to  credit  for  the  amount 
localized  from  the  sale.  Harris  v.  Oaspee  Fire 
and  Marine  Ins.  Co.,  9  K.  I.,  207. 

!).  The  America  came  in  collision  with  the 
United  States,  both  vessels  being  owned  by 
tlie  same  person.  In  an  action  to  recover  for 
the  loss  of  the  United  States.  Held,  if  the  in- 
jury was  caused  by  the  willful  wrong  or 
fraudulent  act  of  tlie  officers  and  crew  of  the 
America,  it  was  available  as  matter  of  defense 
to  an  action  on  the  policy,  for  insured  was  in 
effect  the  wrong  doer.  Qlohe  Ins.  Co.  v.  Sher- 
lock, 25  Ohio  St.,  50. 

10.  An  insolvent  debtor  insured  his  life  for 
the  benefit  of  his  brother,  to  secure  the  pay- 
ment of  certain  indebtedness  to  him  and  also 
lo  indemnify  him  as  surety  on  debts  due  other 
creditors.  The  premiums  were  paid  by  the 
insolvent  debtor.  Held,  the  brother's  debt 
and  the  debts  for  which  he  was  surety  were  to 
be  deducted  from  the  proceeds  of  the  policy 
and  the  brother  must  account  to  the  estate  for 
the  balance.     Stokes  v.  Coffey,  8  Bush,  533. 

1 1.  H.  executed  his  note  to  R.  E.  &  W.,  for 
$3,140.50,  and  deposited  with  them  74  barrels 
of  whisivy  as  collateral  security.  R.  E.  &  W. 
insured  it  at  their  own  expense,  in  their  own 
name,  and  without  the  knowdedge  or  authority 
of  H.  The  whisky  being  subsequently  des- 
troyed by  fire,  insurers  paid  claim  to  It. 
E.  &  W.,  first  requiring  au  assignment  of  the 
note.  Insurers  brought  this  suit  to  recover 
from  the  maker  of  the  note.  Held,  when  in- 
surers paid  the  claim  they  were  entitled  to  be 
subrogated  to  the  rights  of  insured;  the  maker 
of  the  note,  having  had  no  connection  with  the 
insurance,  could  not  claim  its  benefits;  that 
the  payment  of  the  mortgagee's  policy  did  not 
discharge  the  mortgagor's  debt  to  the  mort- 
gagee. Honore  v.  Lamar  Fire  Ins.  Co.,  51  111., 
109. 


12.- Produce  was  being  transported  dowr: 
the  Mississippi,  aud  was  damaged  while  in 
the  custody  of  the  carrier.  Insured  com- 
menced an  action  against  his  insurer  to  re- 
cover for  the  loss,  but  they  agreed  to  a  settle- 
ment, insurers  taking  an  assignment  of  the 
claim  of  insured  against  the  carrier.  Held. 
insurers  had  a  right  to  maintain  llie  acliim 
in  their  own  names,  and  to  recover  the 
whole  damage  sustained  by  the  properly,  not- 
withstanding it  exceeded  the  sum  insured. 
Held,  also,  insurer's  attempt  to  defend  the 
claim  of  insured,  on  the  ground  tliat  the  vessel 
was  unscawortlij',  and  that  the  policy  did  not 
attach,  could  not  affect  their  rights  under  the 
assignment.  Home  Ins.  Co.  v.  Northwestern, 
Packet  Co.,  33  Iowa,  223. 

13.  Appellants  insured  certain  churcli 
property  at  Boucherville,  Canada,  which  was 
destroyed  by  a  fire  kindled  by  sparks  from  Ihi*- 
boiler  chimneys  of  the  steamer  St.  Louis.  In- 
surers paid  less  than  the  sum  insured,  and  very 
much  less  than  the  loss  sustained  by  insured. 
The  insured  executed  au  instrument  subrug.at- 
iug  insurers  to  their  rights  against  the  steam- 
boat and  the  owners  thereof;  but  it  was  ob- 
jected that  insurers  had  no  right  to  be  subro- 
gated, that  the  pretended  subrogation  was  in- 
valid. Held,  under  the  old  law  of  France,  in 
force  iu  Canada,  au  insurer  may,  on  payment 
of  the  loss,  demand  subrogation,  which  may 
be  maile  after  the  insurer  has  c;;mpletely  ex- 
tinguished his  debt  to  the  insured;  and  it  is 
immaterial  whether  the  term  subrogation  or 
cession  is  used  in  the  instrument;  that  the 
payment  of  the  loss  to  the  insured  does  nol 
extinguish  any  right  of  action  which  exists 
against  the  person  who  has  caused  the  loss,  or 
who  is  liable  to  make  it  good.  Quebec  Fire 
Ass.  Co.  V.  St.  Louis,  7  Moore  P.  C.  C,  286. 

14.  Two  stacks  of  oats  and  three  stacks  of 
hay  were  burned  by  persons  unknown.  The 
owner  was  insured.  Insurers  paid  the  loss 
and  brought  this  action  in  his  name  for  their 
benefit.  Held,  insurers  must  be  considered  as 
having  paid  without  prejudice,  hence  the 
jdaintiff  was  entitled  to  recover.  Clark  v. 
BlytJiing,  3  L.  J.  K.  B.,  7;  3  D.  &R.,  480;  3 
B.  &  C,  254. 

1.5.  The  king  granted  letters  of  reprisal 
against  the  Spaniards,  for  the  benefit  of  his- 
subjects,  in  consideration  of  losses  they  had 
sustained  by  unjust  captures.  The  commis. 
sioners  would  not  permit   insurers  to  ol.iinj. 

065 


1331 


SUBROGATION. 


1332 


Wlieu  alio  wed. 


any  part  of  the  prizes,  but  allowed  the  right 
to  the  owuers  onlj-.  Htld,  after  satisfaction 
made  to  the  owner  by  the  insurer,  the  insured 
thenceforth  stands  as  trustee  for  the  insurer 
in  respect  to  the  amount  paid  him  by  his  in- 
surer.   Randall  v.  Cockran,  1  Vos.,  98. 

16.  Isaac  supplied  goods  on  credit  to  W., 
and  effected  a  policy  upon  the  life  of  W.,  in 
Isaac's  name.  Isaac  debited  "W.  with  the  pre- 
mium, and  rendered  an  account  for  it.  W. 
died,  and  Isaac  received  the  sum  insured. 
Held,  as  W.  was  bound  to  pay  the  premiums, 
his  estate  was  entitled  to  credit  for  the  policy, 
and  that  insured  had  the  right  to  retain  his 
debt,  but  no  more.  Morlatid  v.  Isaac,  20  Beav., 
389;  1  Jur.  (N.  S.),  989;  24  L.  J.  Ch.,  753. 

17.  Richardson,  the  trustee  of  Emma, 
plaintiff's  deceased  wife,  insured  her  life  in  the 
Britannia  OflBce.  Before  the  first  premium 
was  paid  it  was  suggested  that  the  insurer 
would  not  recognize  an  insurance  by  a  h-ustee, 
who  had  no  insurable  interest  ia  the  life  in- 
sured, and  a  second  proposal  was  signed  by 
Richardson.  The  policy  recited  that  he  had 
agreed  to  eifect  an  insurance  for  the  amount 
stated  on  the  life  of  the  wife  of  the  plaintiff. 
The  policy  was  delivered  to  Emma;  after  her 
death  plaintiff  filed  this  bill  against  Morrison, 
the  managing  director  of  the  company,  and 
Richardson,  praying  the  court  to  declare 
that  the  insurance  was  effected  by  Emma 
through  the  defendant  Richardson  as  her 
trustee,  for  her  separate  use  for  life,  and  that 
the  polic}'  ought  to  be  considered  as  effected  ac- 
cordingly, and  for  the  amount  to  be  paid  to  the 
plaintiff.  The  proof  showed  that  the  proposal 
was  signed,  "  Mrs.  Emma  Collett,  by  W.  J. 
Richardson,  her  trustee,"  and  it  was  annexed  to 
the  second  proj^osal,  which  latter  was  never 
submitted  to  the  directors.  Seld,  the  com- 
pany must  be  treated  as  having  accepted  the 
first  proposal  wholly,  and  not  in  part  only; 
that  when  the  policy  was  issued  the  agree- 
ment made  with  the  directors,  by  the  accept- 
ance  of  the  tirst  proposal,  remained  in  force. 
-CoUett  V.  Morrison,  21  L.  J.  Ch.,  878;  9  Hare, 

162. 

18.  W.,  ou  the  retirement  of  his  partner, 
agreed  to  pay  him  a  certain  sum  of-  money, 
and  to  grant  him  an  annuity  during  his  life, 
to  be  secured  by  the  bond  of  W.  and  of  H. 
W.  borrowed  £300,  lor  wliicli  AV.  and  H.  gave 
a  joint  promissory  noie,  anit  a  policy  was 
•effected  upon  the  life  of  W.  for  the  brnetit  of 

666 


H.  W.  appointed  II.  his  sole  c.'tccutor,  who 
received  the  money  due  upon  the  policy. 
Held,  the  policy  was  made  for  the  purpose  of 
securing  the  note,  and  the  monej'  received  by 
H.  should  be  made  good  to  the  estate.  Lea  v. 
Einton,  19  Beav.,  324 ;  s.  c,  5  De  G.,  M.  &  G., 
823. 

19.  A.  deposited  the  policy  with  B.,  his 
creditor,  to  secure  a  debt.  Afterwards  A.  gave 
surety  for  the  payment  of  the  debt,  and  B.  ex 
ecuted  a  deed  of  counter  security  to  the  surety 
The  surety  did  not  know  of  the  deposit  of  the 
policy.  Subsequent])'  A.  assigned  the  policy 
to  B.  Held,  the  surety-  was  entitled  to  the  pol- 
icy on  paj-ment  of  the  debt  of  A.  Lake  v.  Brat- 
ion,  8  De  G.,  M.  &  G.,  440;  2  Jur.  (X.  S.),  839; 
25  L.  J.  Oh.,  842. 

20.  The  debtor  gave  bond  with  surety  for 
the  payment  of  a  debt  by  installments,  and  for 
effecting  and  sustaining  a  policy  on  the  debt- 
or's life,  in  the  name  of  the  creditor.  The 
debtor  and  his  surety'  neglected  to  pay  the  pre- 
miums, though  required  to  do  so  by  the  cred- 
itor, who  paid  them  and  kept  the  policy  in 
force.  The  debtor  died.  Held,  the  surety  was 
entitled  to  the  money  received  from  the  in- 
surers, on  repayment  to  the  creditor  of  his 
debt,  and  advances  with  interest;  for  the  mere 
nonpayment  by  a  mortgagor  of  a  charge  at- 
tributable to  the  mortgaged  property,  canno! 
have  the  effect  of  a  foreclosure.  Drysdale  v. 
Piggott,  8  De  G.,  M.  &  G.,  546,  2  Jur.  (N.  S.), 
1078 ;  25  L.  J.  Ch.,  878. 

21.  The  policy  was  effected  by  the  creditor 
as  a  securitj-  for  the  debt,  the  debtor  to  pro. 
vide  money  to  pay  the  premiums.  Held, 
when  the  debt  was  satisfied,  the  debtor  was  en- 
titled to  the  policy.  Courtenay  z.  Wright,  2 
Giff.,  337;  6  Jur.  (N.  S.),  1283;  9  W.  R.,  153. 

22.  Policy  on  the  life  of  th^  debtor  of  A. 
It  appeared  that  the  premiums  had  been  reg- 
ularly  charged  in  account  to  the  debtor,  and 
that  he  had  paid  all  to  K.,  except  the  last. 
Held;  the  representatives  of  the  debtor  were 
entitled  to  the  avails  of  the  policy,  less  the 
last  premium.    Holland  v.  Smith,  6  Esp.,  11. 

23.  A  creditor  effected  insurance  on  the  life 
of  his  debtor,  and  paid  the  premiums;  but 
the  debtor  repaid  the  premiums  to  the  credit- 
or, and  this  bill  was  brought  against  the  exec- 
utors of  the  creditor ;  the  complainants  offered 
to  pay  the  debt  and  interest,  and  demanded  a 
transfer  of  the  policy  to  them.  Held,  the  evi- 
dence was  sufficient  to  show  that  the  policy 


SUBROGATION. 


1334 


When  denied. 


•was  tlie  debtor's  insuiiince  and  not  tlie 
creditor's,  therefore,  the  prayer  was  grant- 
ed. Simpson  v.  Walker,  2  L.  J.  (N.  8.) 
Ch.,  55. 

24.  Policy  deposited  to  secure  a  simple  con- 
tract debt,  without  any  agreement  as  to  inter- 
est. The  creditor  paid  the  premiums  up  to 
the  death  of  the  debtor.  Held,  he  was  enti- 
tled to  the  original  debt,  the  premiums  paid, 
and  interest  added  on  both  sums.  In  re 
Kerr's  Policy,  38  L.  J.  Ch.,  539 ;  17  W.  H., 
989;   8  L.  R.  Eq.,  331. 

25.  Tlie  plaintiff  paid  the  defendant  a  total 
loss,  but  he  subsequentlj'  recovered  the  goods. 
The  plaintiff  now  sought  to  recover  of  the  de- 
fendant the  whole  of  the  net  proceeds.  Held, 
he  could  recover  onl}'  iu  proportion  fts  his 
subscription  bore  to  the  net  value  of  the  pro- 
ceeds.   Da  Costa  v.  Firth,  4  Burr.,  196G. 

26.  Defendant's  clerk  insured  his  own  life, 
and  assigned  the  policy  to  tlie  defendant,  in 
consideration  that  the  defendant  should  pay 
the  premium  and  give  him  an  increase  of 
salary,  amounting  to  five  shillings  weekly, 
while  he  should  remain  in  defendant's  em- 
ployment. Defendant  shortly  after  discharged 
him  for  cause.  Held,  tlie  executor  of  the  de- 
ceased was  entitled  to  the  avails  of  the  policy 
less  the  premiums  paid.  Scott  b.  lioose,  3  Ir. 
Eq.,  170. 

27.  A.  borrowed  £29,980,  and  granted  the 
lender  a  heritable  annuity  over  his  entailed 
estate,  and  assigned  certain  policies  on  his 
life,  reserving  the  power  to  redeem.  A.  died 
without  redeeming.  Profits  accrued  on  the 
policies.  The  money  that  became  due  on 
them  exceeded  the  debt.  Held,  the  represen- 
tatives of  A.  were  entitled  to  the  excess.  Mar- 
quis of  Queen shtry  v.  Scottish  Union  Ins.  Co.,  1 
C.  C.  S.,  1213. 

28.  Two  brothers  made  their  joint  bond  to 
an  insurance  company  for  £500.  The  elder 
insured  the  life  of  the  younger  for  £1,000. 
The  younger  remitted  the  money  to  pay  tlie 
]iremiums.  They  were  paid  in  the  name  of 
tlie  elder.  Held,  the  representatives  of  the 
jounger  were  entitled  to  the  sum  insured  less 
the  amount  of  the  bond.  Lindsay  «.  Barm- 
cotte,  13  C.  C.  S.,  718;  23  Scot.  Jur.,  315. 

29.  A.  b(M'rowed  £5,000  and  granted  a  re- 
deemable annuity,  making  it  large  enough  to 
pay  interest  -on  the  amount  advanced  and 
premiums  on  two  policies  on  liis  life  as 
security  for  the  debt.    Held,  the  borrower  was 


entitled  to  the  bonuses  which  accrued  on  the 
policy.  Shand  v.  Blackie,  21  C.  C.  S.,  878;  31 
Scot.  Jur.,  480. 

30.  Policy  to  mortgagee  for  his  own  bene- 
fit; but  his  debt  was  only  £184  5s.  lOd.  He 
insured  £500.  and  liad  a  verdict  for  that 
sum.  Held,  he  could  not  have  judgment  for 
more  than  his  debt.  Ogden  v.  Montreal  Ins. 
Co.,  4  U.  C.  C.  P.,  497. 

II.    WuEN  DENIED. 

1.  Collision.  She  was  insured  for  the  ben- 
efit of  her  owners,  and  was  damaged  by  col- 
lision. Insurers  paid  the  loss,  and  the  owners 
brought  this  action  to  recover  from  the  wrong 
doer.  Held,  the  contract  with  the  insurer  was 
ill  the  nature  of  a  wager  between  third  parties, 
with  which  the  trespasser  had  no  concern. 
Insurer  does  not  stand  iu  the  relation  of  a 
joint  trespasser,  hence  satisfaction  accepted 
from  him  is  not  a  release  of  the  wrong  doer. 
Propeller  Monticello  v.  Mollision,  17  How.,  152. 

2.  Mortgagee.  There  is  no  principle  either 
in  law  or  equity  which  confers  upon  the  mort- 
gagee a  right  to  claim  the  benefits  of  a  policy 
made  for  the  moi'tgagor.  It  is  strictly  a  per- 
sonal contract,  to  which  the  mortgagee  has  no 
more  title  than  any  otlier  creditor.  Columbian 
Ins.  Co.  V.  Lawrence,  10  Pet.,  507;  Vandegraff 
V.  Medlock,  3  Porter  (Ala.),  389. 

3.  Collision.  The  owner,  who  was  insured, 
had  aliandoned  to  his  insurer,  and  this  action 
was  to  recover  for  a  loss  caused  by  collision. 
Held,  the  relative  equities  of  the  parties  were 
not  to  be  considered ;  the  respondent,  if  in 
fault,  was  bound  to  make  satisfaction  for  the 
injury;  that  when  once  made,  he  could  not 
be  liable  in  another  suit  at  the  instance  of  any 
merely  equitable  claimant  (citing  Prop.  Com- 
merce, 1  Black,  574;  The  Monticello  v.  Mol- 
lision, 17  How.,  152).  Newell  v.  Norton,  3 
Wall.,  257. 

4.  —  One  of  the  insurers  of  cargo  prose- 
cuted the  wrong  doer  in  admiralty,  and  ob- 
tained a  decree  against  the  oflending  vessel. 
Other  insurers  on  the  same  subject  refused  to 
incur  any  expense,  or  take  any  part  in  the 
risk  of  i)rosecution,  until  after  the  district 
court  had  entered  a  decree  of  condemnation 
in  favor  of  the  prosecution.  Then  the  other 
insurers  intervened,  and  claimecl  a  share  of 
the  proceeds.  Held,  they  could  not  be  per- 
mitted to  do  so  (citing  The  Saracen,  6  Moore 

COT 


1335 


SUBROGATION. 


13:3(> 


When  denied. 


P.  C.  C,  uG ;  The  Chira,  1  Swab.'y,  1).     Wood- 
icorth  V.  Insurance  Go.,  5  Wall.,  87. 

5.  Payee  of  bill.  Tlie  owner  of  forty-two 
bales  of  cotton  consigned  it  to  B.  &  S.,  and 
drew  on  them  for  an  amount  less  than  its 
value.  Complainant  discounted  the  draft;  B. 
&  S  accepted  it,  procured  insurance  on  the 
cotton  to  an  amount  exceeding  the  draft  about 
$600,  and,  before  the  acceptance  matured,  be- 
came insolvent.  The  complainant,  who  had 
advanced  the  money  on  the  draft,  brought  this 
bill  to  restrain  the  acceptors  from  claiming 
the  insurance  money,  and  to  declare  the  same 
for  their  beneiit.  Held,  there  was  no  privity 
between  the  parties;  that  the  consignees  had 
a  right  to  insure  the  property  for  their  own 
beneiit,  with  which  the  party  who  made  the 
advance  could  not  interfere,  or  claim  any  of 
its  benefits.  Bank  of  South  Carolina  v.  Bick- 
iicU,  1  Cliff.,  85. 

6.  Payments  by  other  insurers.  Stipu- 
lated: "In  case  of  any  other  insurance  on  the 
property  insured,  whether  prior  or  subsequent 
to  this  policy,  insured  shall  not  be  entitled  to 
any  greater  portion  of  the  loss  than  the  amount 
hereby  insured  shall  bear  to  the  whole  amount 
insured  on  the  property.  Held,  the  rights  of 
the  parties  were  to  be  governed  by  the  terms 
of  their  contract;  and  in  assessing  the  dam- 
ages in  this  case  the  jury  were  not  to  take  into 
consideration  payments  made  by  other  com- 
panies, provided  it  appeared  that  the  other 
companies  knew  of  the  existence  of  all  poli- 
cies that  were  in  force  at  the  time  of  the  loss. 
Lucas  V.  Jefferson  Ins.  Co.,  6  Cow.,  635. 

7.  Mortgaft'ee.  The  insured  assigned  the 
policy  to  his  mortgagee  as  additional  security, 
who  brought  his  action  in  the  mortgagor's 
name,  and  obtained  judgmeiit.  Subsequently 
he  proceeded  to  foreclose  the  mortgage.  Held, 
the  mortgagee  could  enforce  the  j  udgment,  and 
insurers  had  no  right  to  subrogation.  Robert 
V.  Traders  Ins.  Co.  17  Wend.,  H'.il ;  reversing, 
Traders  Ins.  Co.  v.  Robert,  9  id.,  404. 

8. —  The  insured  claimed  of  insurer  |15,000 
for  loss  by  capture,  but  compromised  it  for 
$5,000.  No  cession  or  assignment  of  insured's 
right  to  claim  indemnity  from  the  wrong  doer 
was  made.  The  commissioners,  appointed  by 
the  United  Stales  and  the  king  of  France, 
agreed  that  the  insurers  had  paid  $5,000  upon 
the  loss,  for  which  a  certificate  was  awarded 
them.  Held,  the  insured  were  entitled  to  re- 
liover  from  the  insurers  the  $5,000  by  them 
6G8 


received  under  the  French  treaty ;  that  by  their 
refusal  to  accept  an  abandonment,  and  pay  as 
for  a  total  loss,  they  voluntarily  renounced  all 
participation  in  the  spes  recuperandi  (New 
York  Ins.  Co.  v.  Roulet,  'iA  Wend.,  005),  and, 
though  an  action  at  law  might  have  been  sus- 
tained against  them  for  money  had  and  re- 
ceived, a  bill  in  equity  was  the  proper  mode 
of  procedure.  Ibid.  Afhrming,  Varet  v.  Neui 
York  Ins.  Co.,  7  Paige' Ch.,  560. 

9.  Vendee.  B.  procured  a  policy  in  his 
own  name,  as  agent  of  the  owners,  on  property 
on  which  he  held  a  mortgage,  of  which  inter- 
est insurers  were  notified  He  afterwards  o))- 
tained  title  by  foreclosure,  and  agreed  to  con- 
vey to  A.  Insurers  consented  that  the  policy 
should  remain  valid  until  the  title  should  be 
perfected.  Held,  plaintiff  was  legal  owner, 
and  was  entitled  to  recover  the  sum  insured; 
that  insurers  were  not  entitled  to  subrogation, 
for  the  benefits  of  the  contract  must  inure  to 
the  vendee  as'well  as  to  the  person  insured. 
Benjamin  v.  Saratoga  County  Mutual  Fire  Ins. 
Co.,  17  N.  T.,  415. 

1 0.  Mortgagee.  In  an  action  by  a  mortga- 
gee, he  may  prove  that  the  mortgagor  agreed 
to  pay  the  premiums,  for  that  does  not  vary 
the  writing  between  insured  and  insurer;  sucU 
evidence  is  material,  because  it  shows  who  is 
entitled  to  the  avails  of  the  policj-,  and  if  an 
agreement  exists  between  the  mortgagor  and 
mortgagee  to  that  effect,  insurers  have  no  right 
to  subrogation.  Kernochan  v.  Ifew  York  Bow- 
ery Ins.  Co.,  17  N.  Y.,  428 ;  s.  c,  5  Duer,  1. 

11.  — The  defendants  were  common  car- 
riers; and  in  their  bills  of  lading,  given  to  tlie 
shippers,  they  stipulated:  '"In  case  of  loss  or 
damage,  for  which  the  carriers  may  be  liable, 
they  shall  have  the  benefit  of  any  insurance 
by  .Dr  for  account  of  the  shippers."  The  goods 
were  damaged  and  an  abandonment  made  to 
insurers,  who  paid  total  loss,  and  claimed 
dam;iges  of  the  carrier.  Held,  insurers  had 
only  such  rights  against  the  carriers  as  in- 
sured had;  th.at  so  long  as  the  contract  be- 
tween the  shipper  and  the  carrier  was  without 
fraud  and  fairly  made,  it  was  valid  and  bind- 
ing between  them.  Mercantile  Mut.  Ins.  Co.  v. 
Calebs,  20  N.  Y.,  173. 

12.  Passage  money.  "Onaccount  of  whom 
it  may  concern,  on  all  passage  money  received 
by  A.  T.  &  Co.,  Liverpool  to  N.  Y."'  The 
jiiissage  money  was  paid  in  advance.  She 
sailed  from  Liverpool  Februarj-  13,  1856,  and 


133T 


SUBROGATIOX. 


1338 


When  denied. 


liail  not  been  beard  of  at  the  comnieucemeiit 
of  liiis  suit,  more  than  twelve  months  after 
ehe  had  sailed,  lleld,  tlic  fact  that  the  passage 
iii>)ney  was  paid  in  advance  was  no  defense  to 
tlie  action.  Ogden  v.  Mut.  Ins.  Co.,  35  N.  Y., 
418;  8.  c,  4  Bos.,  447;  8  id.,  248. 

1 15.  Vendee.  Before  the  contract  of  sale 
couhl  be  consummated,  the  property  was  con- 
sumed ;  and  after  that  event  anotlier  contract 
was  entered  into,  between  tlie  vendor  and  ven- 
dee, by  whicli  the  latter  was  to  pay  a  cer- 
tain sum  for  the  property,  the  claims  against 
tlie  insurers,  and  the  benefit  of  the  policies  for 
the  unexpired  terra.  He  was  to  keep  the 
properly  insured  to  secure  unpaid  purchase 
money.  Held,  the  vendee  was  entitled  to  the 
benefit  of  the  policies;  that  insurers  were  not 
entitled  to  subrogation.  Clinton  v.  Hope  Jns. 
Co..  45  N.  Y.,  454;  s.  c,  51  Barb.,  647. 

14.  Reinsurance.  The  C.  L.  A.  Co.  made 
three  policies,  eacli  $5,000,  upon  tlic  life  of 
H.,  paj-able  to.plaintitJs.  The  H.  Mutual  Life 
Ins.  Co.  agreed  with  tlie  C.  L.  A.  Co.  to  assume 
all  risks  taken  by  the  latter,  and  to  pay  all 
claimants  sucli  sums  as  the  latter  might  be- 
come liable  to  pay;  hut  prior  to  this  agree- 
ment the  C.  L.  A.  Co.  procured  two  other  com- 
panies to  reinsure  it,  $5,000  each.  II.  died, 
and  the  C.  L.  A.  Co.  collected  the  reinsurance. 
PlaintitV  now  brought  this  action  to  recover 
against  the  H.  Mutual  Life  Ins.  Co.,  upon 
their  agreement.  Held,  the  plaintiffs  were 
entitled  to  recover,  and  tlieir  rights  were  uu- 
ati'ected  b3'  the  contracts  of  reinsurance,  or  by 
the  payment  of  the  money  under  them  (citing 
Blackstone  v.  Allemania  Fire  Ins.  Co.,  56  N. 
Y.,  104).  Glen  v.  Ilope  Mutual  Life  Ins.  Co., 
56  N.  Y.,  379;  s.  c ,  1  N.  Y.  8.  C,  463. 

15. — The  policy  w-as  made  to  P.,  general 
owner,  loss,  if  any,  payable  to  C,  the  plaintitT, 
wlio  had  realized  the  whole  or  a  larger  part 
of  his  Interest  in  the  property  at  the  time  suit 
was  brought.  i/eW,  the  policy  was  an  insur- 
ance to  P.,  hence  there  was  no  equity  which 
would  permit  in.^urcrsto  succeed  to  the  rights 
of  C,  nor  to  make  inquiry  into  the  state  of  the 
debits  and  credits  between  P.  and  C.  Gone  v. 
Niiignra  Fire  Ins.  Co.,  60  N.  Y.,  619;  s.  c,  3 
N.  Y.  S.  C,  33. 

16.  Freight.  "$6,000  on  one-fifth  of  the 
freight  of  the  .ship  Mastiff,  lost  or  not  lost, 
one  year  from  September  10,  1859,  at  noon,  the 
whole  freight  valued  at  §30,000."  She  sailed 
from  San  Frauciseo  September  10,  1859,  with 


freight  $1,876.75,  and  passengers  who  occupied 
the  hold  between  decks.  When  live  days  out 
she  took  fire  and  was  totally  destroyed.  'Ifeld, 
the  valuation  was  conclusive,  nor  could  the 
defendants  claim  an  allowance  for  the  passage 
money  which  had  been  prepaid  by  the  pas- 
seiigers  to  the  insured,  for  that  was  recoverable 
by  the  passengers  from  the  ship  owners,  if 
they  chose  lo  seek  it  (citing  Bonsteel  v.  Van- 
derbilt,  21  Barb.,  26).  Delano  v.  American.  Ins. 
Co.,  42  Barb.,  142. 

17.  The  .sheriir  levied  upon  property  in 
which  B.  had  an  insurable  interest,  and  which 
B.  insured.  The  property  was  destroyed  by 
fire,  and  B.'s  insurers  paid  his  claim.  Held, 
the  sherifl'  had  no  right  or  interest  or  claim  as 
against  the  money  so  paid.  Perkins  v.  Proud, 
62  Barb.,  420. 

18.  3Iortgagee.  P.  being  the  owner  of  a 
mortgage,  procured  insurance  on  the  buildings 
raorlgaged,  "  On  her  interest  as  mortg.igee." 
Stipulated:  "In  case  of  loss  the  assured  shall 
assign  to  this  company  an  interest  in  said 
mortgage  equal  to  the  amount  of  loss  paid. 
The  policy  was  for  $4,000.  The  property  be- 
ing injured  by  fire  exceeding  the  amount  in- 
sured, insurers  paid  the  mortgagee  the  amount 
of  her  debt,  $7,044,  and  took  an  assignment  of 
it.  The  mortgage  contained  the  usual  cove- 
nant for  insurance  on  the  part  of  the  mort- 
gagor, and  in  case  he  should  fail  to  procure  it 
the  mortgagee  might  do  so,  and  the  premium 
should  be  a  lien  upon  the  premises.  Held, 
the  insurance  effected  by  the  mortgagee  was 
made  under  the  authority  conferred  by  the 
mortgage.  The  mortgagor  was  liable  for  the 
premium  and  was  entitled  to  the  benefit  of  the 
policy,  the  words  of  the  policy  to  the  contrary 
notwithstanding,  hence  the  mortgagor  was  en- 
titled to  credit  for  the  amount  insured.  Foster 
V.  Van  Reed,  5  Ilun.  (S.  Y.),  321. 

19.  Wrong  doer.  Action  to  recover  the 
value  of  properly  destroyed  by  fire,  caused  hy 
the  negligence  of  the  defendant.  Defendant 
offered  to  show  that  the  plaintifl"  had  protected 
himself  by  insurance  and  had  received  the 
sum  insured.  Held,  no  defense  to  the  .action 
(citing  Merrick  v.  Brainard,  38  Barb.,  574;  8. 
c.  affirmed,  34  N.  Y.,  208).  CoHim  v.  New 
York  Central  R.  R..  5  Hun.  (N.  Y.),  503. 
■  20.  Vendee.  Insured  agreed  to  sell  the 
premises,  received  a  portion  of  the  purchase 
money,  and  surrendered  possession.  After  the 
lo>;   purchaser   paid   the   balance.     Held,  in- 

669 


1339 


SUBROCJATION. 


13ia 


When  denied. 


surer  was  not  entitled  to  credit  for  it,  it  ap- 
pearing tliat  iiisuied  laad  agreed  to  licep  the 
liicniiscs  insured  for  the  purchaser.  Slwtwell 
c.  Ji'ffei-son  Ins.  Co.,  3  Bos.,  247. 

21.  Bottomry.  Time  policj'  on  liull,  one 
year,  valued  at  $4,500.  She  met  with  a  disas- 
ter and  put  into  Matanzas.  A  survey  was 
called,  and  it  was  deemed  advisable  to  malce 
repairs.  Owners  had  funds  in  the  hands  of 
tlieir  correspondents  there,  which  were  used 
to  make  repairs,  Ijut  these  being  insufficient 
the  master  borrowed  $1,700  on  a  bottomry 
bond,  payable  ten  days  after  her  arrival  at 
New  Vork.  She  received  further  damage  and 
put  into  Savannah,  where  repairs  to  a  small 
amount  were  made.  She  set  sail  for  New 
York,  but  was  totally  lost  ofl'  Cape  Hatteras. 
The  lenders  insured  their  bottomry  interest, 
aiid  were  paid  the  whole  amount  of  their 
claim.  Ueld,  insurers  could  not  avail  them- 
bolves  of  the  fact  that  some  of  the  money  to 
make  repairs  was  borrowed  upon  bottomry, 
for  they  were  strangers  to  that  contract.  liead 
t).  Mutual  Sufety  Ins.  Co.,  3  Sandf ,  54. 

22.  —  The  insured  proceeded  first  against  a 
municipal  corporation  for  loss  of  property 
caused  by  blowing  it  up  to  stay  a  conflagra- 
tion, and  recovered  less  than  the  sum  insured. 
Held,  insurer  was  still  liable  for  the  residue. 
Pentz  V.  Seceivers  of  ^tna  Ins.  Co.,  9  Paige, 
5C8;  SEdw.  Ch.,  341. 

23.  The  judgment  creditor  of  a  corpora- 
tion insured  its  real  estate  in  the  joint  names 
of  himself  and  the  corporation.  It  was  after- 
wards sold  under  his  judgment,  bid  in  by  him, 
and  afterwards  partially  destroyed  by  tire. 
Held,  he  was  entitled  to  the  insurance  money. 
But  if  the  loss  had  happened  before  the  sale, 
or  if  the  debtor  had  redeemed,  the  insurance 
money  would  have  belonged  to  the  judgment 
debtor.  Mickles  v.  Rochester  City  Bank,  11 
Paige  Ch.,  118. 

24.  If  the  assignee  is  to  have  the  full  ben- 
etit'of  the  insurance,  he  ought  to  pay  the  pre- 
mium,  which  is  the  price  of  it.  Cleveland  v. 
Clap,  5  JIass.,  201. 

25.  Mortgagee.  B.  P.  &  C.  owned  certain 
lands,  buildings  and  machinery,  subject  to  a 
mortgage  made  by  C.  to  A.  &  G.,  covering  his 
undivided  one-third,  to  secure  $5,000,  and  to  a 
second  mortgage  made  by  B.  &  P.  of  their 
own  undivided  two-thirds,  to  secure  $1,721  to 
"W.  — B.,  P.  &  C.  procured  insurance  to  the 
amount  of  $2,700,  payable,  iu  case  of  loss,  to 

G70 


H.  &  H.,  who  held  a  third  mortgage  on  tha 
machinery.  Suljsequently  plaintilf  bouglit  all 
of  the  interest  which  B.,  P.  &,  C.  had  in  the 
propertj%  subject  to  all  of  the  incumbrancer 
mentioned.  It  was  destroyed  by  fire,  and  H. 
&  H.  received  from  insurers  the  sum  insured. 
D.  was  subsequentlj'  appointed  assignee  of  the 
firm  of  B.,  P.  &  C,  and  recovered  from  H.  <fc 
II.,  $626.21,  the  excess  of  their  debt,  wliicU 
tliey  had  received  from  the  jnsurance  com- 
pany. The  plaintilf  procured  W.  to  assign 
his  mortgage  to  him,  and  A.  &  G.  to  assign 
theirs.  He  then  brought  this  suit  to  recover 
the  sum  of  $626.21,  claiming  it  as  assignee  of 
the  mortgagees.  Held,  their  was  no  privitj^  in 
fact  or  in  law  between  the  mortgagees  and  the 
mortgagors.     Wilson  v.  Hill,  3  Met.,  66. 

26.  The  mortgagee  procured  insurance  for 
his  own  protection,  without  consulting  the 
mortgagor.  The  buildings  were  destroj-ed,  and 
insurer  paid  the  claim.  The  mortgagee  en- 
tered for  condition  broken,  and  this  bill  was 
brought  for  the  purpose  of  compelling  the 
mortgagee  to  credit  against  the  debt  the 
money  received  from  his  insurers.  Held, 
there  was  no  privity  in  fact  or  in  law  between 
the  plaintiffs  and  defendants  in  respect  to  the 
policy  of  insurance,  and  the  principal  upon 
which  the  mortg.igor  sought  to  maintain  this 
right  was  unknown  in  law  or  cquitj-.  White  p. 
Brown,  2  Cush.,  412. 

27.  — A.,  the  owner  of  buildings,  mort- 
gaged the  whole  estate  to  B.,  and  assigned 
the  insurance  to  him.  He  assigned  the  mort- 
^age  and  the  polic}-  to  C,  to  whicfli  insurer 
assented.  Insured  sold  the  estate  to  D.,  who 
agreed  to  pay  off  the  outstanding  mortgage, 
which  he  did;  but  the  policy  was  never  as- 
signed to  D.  Held,  the  return  premium  paid 
to  C.  was  for  the  use  of  A.  Felton  v.  Brooht, 
4  Cush.,  208. 

28.  — A  mortgagee  insured  his  interest  at 
his  own  expense.  Held,  he  was  entitled  bo- 
fore  payment  of  the  mortgage,  to  recover  of 
his  insurer  to  his  own  use,  without  first  as- 
signing to  his  insurer,  any  part  of  his  mort- 
gage. King  v.  State  Mutual  Fire  Ins.  Co.,  ^ 
Cush.,  1. 

29.  — The  purchaser  of  an  equity  of  re- 
demption repaired  the  damage.  Held,  no  de- 
fense to  the  mortgagee's  claim  against  his  in- 
surei-.  Foster  v.  EquitaWe  Mut.  Ins.  Co.,  3 
Gray,  216. 

30.  On  the  charter  of  the  barque  "  'Wyan, 


1341 


SUBROGATION. 


is-ta- 


When  dciiiod. 


dotte."  Tlie  cliarlcroi's  agreed  to  pay  for 
tlie  ivliole  capacity  of  the  vessel  $5,000  on  dis- 
cliargc  of  the  cargo  at  port  of  destination,  and, 
advanced  |500  to  tlie  master,  which  they 
never  formally  demanded.  She  was  lost  on 
tlie  voyage.  Hehl,  insurers  were  not  entitled 
to  credit  for  the  amount  advanced  hy  the 
charterers.  Beiinerv.  Equitable  Safety  Ins.  Co., 
G  Allen,  223. 

31.  Mortgaj^eo.  Policy  to  amortgagee  up- 
on his  interest  as  mortgagee,  stipulated: 
"  The  assured  shall  assign  all  his  rights  to  re- 
cover satisfaction  therefor  from  any  other 
person  or  corporation."  Insurers  paid  the 
claim  and  lirouglit  this  bill  to  compel  an  as- 
signment of  the  mortgagee's  debt  against  the 
mortgagor.  Held,  they  were  not  entitled  to  it 
(reaffirming  King  v.  State  Mul.  Ins.  Co.,  7 
Cush.,  1).  Svffolk  Firi  Ins.  Co.  v.  Boydeii,  0 
Allen,  123. 

32.  — Stipulated:  "No  sale  of  the  prop- 
erty sliall  aflect  the  mortgagee's  right  to  re- 
cover a  loss  under  this  polic}'."  P.  owned 
the  premises  subject  to  a  mortgage  in  favor  of 
B.,  which  provided  that  they  should  be  in- 
sured for  the  benefit  of  B.  F.  conveyed  to  P., 
who  insured  at  his  own  expense  payable  in 
case  of  loss  to  B.  P.  sold  to  C,  but  as  the 
deed  of  F.  to  P.  had  never  been  recorded,  F. 
executed  a  new  deed  directly  to  C.  Defend- 
fendants  paid  the  claim  and  took  an  assign- 
ment of  the  mortgage  and  of  B.'s  right  to  re- 
ceive  the  avails  of  the  policy.  C.  subsequent- 
ly conveyed  to  the  plaintiff.  UeUU  tlie  policy 
was  on  the  iuterest  of  the  mortgagor  which 
he  might  enforce  for  his  benefit  or  for  the  bene- 
fit of  his  assignees ;  that  as  defendants  now  held 
the  relation  of  assignees  of  the  mortgage  and 
also  that  of  debtors  under  the  policy  to  l)e 
paid  to  B.  in  discharge  of  the  mortgage  debt, 
the  law  will  treat  it  as  paid,  for  the  band 
■which  was  entitled  to  receive,  was  bound  to 
pay.  Craves  v.  Hampden  Fire  Ins.  Co.,  10 
Allen,  281. 

33.  Wronjj  doer.  Insured  were  holders  of  a 
bill  of  sale  absolute  on  its  face;  but  it  was 
given  to  secure  certain  indebtedness.  The 
master  of  the  ship  barratrously  sold  her  and 
insured  abondoned  to  insurers  and  were  paid 
a  total  loss.  Insured  brouglit  this  action 
against  the  purchasers.  Held,  an  abandon- 
ment to  their  insurers  and  paj-mcnt  for  a 
total  loss  was  no  defense  to  this  action  (citing 
Yates    V.  White,  4  Biug.   N.   C,  272).     The 


question,  whether  the  damages  recovered  will 
belong  to  the  plaintifis  or  the  insurers,  is  not 
the  defendants'  concern.  Clark  v.  Wilson, 
103  Mass.,  219. 

34.  Action  against  a  WTong  doer  for 
burning  plaintiff's  house.  It  was  insured  and 
the  insurers  had  paid  the  claim  of  the  in- 
sured. Held,  the  transaction  between  the  in- 
surers and  the  owners  of  the  properly  did 
not  concern  the  wrong  doer' nor  did  they 
affect  the  measure  of  his  liability.  Ilii/wani 
V.  Cain,  105  Mass.,  213. 

35.  Warehousemen  made  insurance  for  the 
benefit  of  carriers,  on  goods,  by  them  depos- 
ited in  warehouse,  a  part  of  which  was  cotton. 
In  the  bills  of  lading  given  for  it,  dangers 
of  navigation  and  fire  were  excepted.  The 
consignees,  without  request  from  consignors, 
had  previously  eflected  insurance  on  other 
property  of  the  same  kind,  but  none  on  the  lot 
last  received,  aportion  of  which  was  consumed 
by  fire  before  consignee  knew  of  its  arrival. 
Held,  insurance  made  for  the  benefit  of  the 
carrier  did  not  inure  to  the  benefit  of  the  own- 
ers of  the  cotton.  Steele  v.  Franklin  Ins.  Co., 
17  Penn.  St.,  200. 

36.  Vendee.  Where  the  insurance  is  upon 
the  building  and  not  upon  the  purchase  money 
due,  the  insurer  cannot  claim  a  cession  of  tlie 
insurer's  title  to  the  lot,  nor  to  his  claim 
against  the  vendee.  Insurance  Co.  v.  Updegraff, 
21  Penn.  St.,  513. 

37.  —  The  insured  mortgaged  the  property 
and  assigned  the  policy  to  W.,  who  assigned 
to  E.  Subsequently  insured  conveyed  the 
l)roperty  to  C,  and  assigned  the  policy  to  him, 
but  insurers  refused  their  assent;  W.  assigned 
his  mortgage  to  E.,  and  the  company  insured 
his  interest  as  mortgagee.  The  property  be- 
ing consumed  the  companj'  paid  the  claim  to 
E.  Held,  insurers  had  the  right  to  recover  the 
mortgage  debt.  Thornton  v.  Enterprise  Ins. 
Co.,  71  Penn.  St.,  234. 

38.  Life.  The  plaintiff  had  been  compelled 
to  pay  a  policy  on  the  life  of  a  person  whose 
death  was  caused  by  the  negligence  of  the  de- 
fendant. Hrld,  the  plaintiff  could  not  recover 
(citing  Rockingham  Mutual  Fire  Ins.  Co.  v. 
Bosher,  39  'Me.,  253).  Connecticut  Mutual  Life 
Ins.  Co.  J).  N.  r.  and  JV.  //.  li.  It  Co.,  25  Conn., 
205. 

39.  AVrong  doer.  The  property  insured 
w.as  burned  by  tlie  negligence  of  defendant, 
and  plaintiff's  insurers  paid  insured  the  amou  nt 

071 


1343 


SUBROGATION. 


1344 


When  denied. 


of  loss.  This  action  was  brouglit  by  liim  to 
recover  of  the  wrong  doer.  Ileld,  piiyment  by 
insurer  could  not  alTect  plaintiff's  right  of  ac- 
tion. Weber  v.  Morris  and  Essex  R.  R.,  35  N. 
J.,  409. 

40.  A  purchaser  of  an  equity  of  redemp- 
tion may  insure  it  for  his  own  benefit,  and  lie 
is  entitled  to  retain  the  insurance  money.  Tlie 
mortgagor  in  a  proceeding  to  redeem  is  not 
entitled  to  any  of  the  benefits  arising  from  the 
mortgagee's  contract  with  the  insurers.  Gush- 
ing v.  Thompson,  34  Me.,  496. 

41.  Wrongdoer.  Insurer  paid  insured  the 
amount  of  his  claim  and  sought  to  recover  of 
•the  defendant,  on  the  ground  that  the  fire  was 
the  willful  and  malicious  act  of  defendant, 
■done  for  the  purpose  of  injuring  insured  and 
insurer,  to  which  there  was  a  demurrer.  Ileld, 
insurer  had  no  right  of  action,  for  the  common 
law  gave  him  none,  and  the  statute  law  of  the 
state  gave  none;  and  payment  by  insurer  to 
the  owner  did  not  bar  the  owner's  riglit  of  ac- 
tion against  the  party  originally  liable  for  the 
loss,  and  therefore  insurer  could  not  in  his  own 
name  maintain  the  action.  Rockingham  Mu- 
tual Fire  Ins.  Go.  v.  Bosher,  39  Me.,  253. 

42.  The  mortgagee  made  insurance  upon 
the  preniises.  He  stated  his  interest  was  that 
of  a  mortgagee  for  a  debt  secured  by  mortgage ; 
subseciuently  he  advertised  a  foreclosure  of 
the  mortgage,  and  a  loss  afterwards  occurred. 
He  assigned  the  debt  to  his  insurers,  who 
sought  to  recover  possession  of  the  mortgaged 
premises.  Held,  when  the  mortgagee  insures 
his  own  interest  without  any  agreement  be- 
tween him  and  the  mortgagor  therefor,  and  a 
loss  occurs,  the  mortgagor  is  not  entitled  to 
any  allowance  against  the  loss  in  reduction  or 
discharge  of  his  debt  (citing  White  ».  Brown, 
3  Cush.,  413 ;  King  v.  State  Fire  Ins.  Co.,  7  id., 
1 ;  Gushing  v.  Thompson,  34  Me.,  496).  Con- 
cord Union  Mutual  Fire  Ins.  Co.  v.  Woodbury, 
45  Me.,  447. 

4.S.  Mortgagee.  Plainiift"  held  the  legal 
title  to  the  property,  at  the  time  of  the  loss,  by 
deed  absolute,  but  it  was  intended  as  a  mere 
security  for  a  debt  of  $600  due  by  the  grantor 
to  the  grantee.  The  plaintiff  procured  insur- 
ance and  insurer  paid  the  sum  insured,  taking 
from  insured  an  assignment  of  his  claim.  The 
action  was  commenced  in  the  name  of  insured 
for  a  loss  caused  by  tlie  defendant,  aud  sub- 
sequently insurer's  name  was  indorsed  on  the 
writ  as  assignee,  llekl,  he  was  entitled  to 
(373 


recover  the  whole  value  of  the  inoperty ;  tliat 
as  to  the  division  of  the  money  paid  on  the 
judgment  the  defendants  h.id  no  concern. 
Bean  v.  Atlantic  and  St.  L.  R.  Co.,  83  Me. 

44.  Freight.  On  cargo  damaged  by  a  jieru 
insured  against,  and  the  voyage  abandoned 
by  the  carrier.  Held,  insurers  were  not  en- 
titled to  have  credit  for  tlie  freight  which  waa 
not  paid  to  the  carrier  and  saved  by  the  ship- 
per, for  the  insurers  of  cargo  had  no  concern 
with  the  contract  of  aS'reightmeht.  Ports- 
mouth  Ins.  Go.  v.  Brazee,  16  Oliio,  81. 

43.  Mortgagee.  The  owner  mortgaged 
and  then  effected  insurance  upon  his  interest 
as  mortgagor.  Held,  the  mortgagee  had  no 
rights  or  interest  in  tlic  contract  of  insurance 
(citing  Wilson  v.  Hill,  3  Met.,  66  ;  Powell  e. 
Innes,  11  M.  «&  W.,  10;  Columbia  Ins.  Co.  c. 
Lawrence,  10  Pet.,  507;  Carpenter  v.  Provi- 
dence Washington  Ins.  Co.,  16  Pet.,  495;  Han- 
cox  V.  Fishing  Ins.  Co.,  3  Sumn.,  132).  Mc- 
Donald V.  Black,  20  Ohio,  185. 

46.  Wrong  doer.  The  vessel  insured  was 
damaged  by  collision,  and  the  insured  re. 
covered  from  the  wrong  doer.  The  insurers 
refused  to  prosecute  the  wrong  doer  or  to 
contribute  in  any  respect  to  that  prosecution, 
but  paid  insured  the  claim  in  full.  Held, 
insurers  were  not  entitled  to  any  part  of  the 
money  recovered,  because  they  refused  to 
hazard  the  costs  of  recovery.  Neweomb  ». 
Cincinnati  Ins.  Go.,  22  Ohio  St.,  383. 

47.  Rebuilding.  S.  was  insured  npou 
property  on  leased  land,  which  was  burned. 
F.  had  an  agreement  to  purcliase  of  S.,  aud 
rebuilt  the  premises.  Held,  insurers  could 
not  claim  to  be  released  on  the  ground  that  P. 
had  rebuilt,  nor  could  they  claim  any  rights 
of  subrog.ation  until  they  had  made  full  pay- 
ment to  the  insured.  People's  Ins  Go.  v.  Straehle, 
3  Cin.  Sup.  Ct.,  186. 

48.  Co-insurers.  Three  policies  by  dif- 
fcrent  companies  upon  one  ship.  One  com- 
pany  paid  the  whole  loss  and  insured  brought 
suit  against  another,  for  the  use  of  the  first, 
for  a  pro  rata  share  of  the  loss.  Held,  tlie 
several  underwriters  were  staugers  to  each 
other;  that  each  was  liable  on  its  separate 
contract  for  its  just  proportion  of  the  loss, 
and  it  would  be  manifest  injustice  to  allow 
one  to  escape  payment  of  its  own  just  debt 
because  another  debtor,  an  entire  stranger, 
had  paid  to  the  creditor  more  than  he  was 
justly  entitled  to  claim;  that  such  a  payment 


1345 


SUBROGATION. 


13i6 


^V^l^,'n  denied. 


does  not  necessarily  discharge  the  debtor,  and 
cannot  be  taken  advantage  of  by  him  unless 
lie  sliows  it  was  intended  by  the  payer  and 
rec(!iver  to  operate  as  a  di.-cliaige  (citing  Mer- 
nuian  t.  The  State,  5  H.  &  J.,  42:i).  Whiting 
«.  Independent  Mvt.  Ins.  Co.,  V>  Md.,  207. 

49.  The  nioi'tKa;?ors  iirocmed  insurance 
and  agreed  to  convey  the  property.  Before 
the  conveyance  was  made,  a  loss  occurred. 
iSubsequently  the  parties  completed  their 
agreement,  the  conveyance  being  delivered, 
the  vendee  to  have  the  benefit  of  the  in- 
surance monej'.  Held,  insurers  had  no  right 
to  subrogation.  Washington  Fire  Ins.  Co.  s. 
Kelly,  32  Md.,  421. 

50.  Wrong  doer.  The  defendant  took  pos- 
session of  goods,  and  this  action  was  brought 
to  recover  them.  They  were  destroyed  by 
fire  while  in  the  defendant's  custody;  but 
were  insured  for  their  full  value  and  insurers 
liad  paid  the  sum  insured  to  the  plaiutitf. 
Held,  the  defendants  had  no  concern  with  any 
contract  the  plaintitf  may  have  had  witli  any 
other  party  in  regard  to  the  goods;  his  rights 
or  liabilities  could  neither  be  increased  nor 
diminished  by  tlie  fact  that  such  a  contract 
t'.\isted  (citing  Merrick  v.  Brainard,  38  Barb., 
574).     Perrott  c.  Shearer,  17  Jlicli.,  48. 

51.  —  The  contract  of  insurance  is  personal 
and  does  not  pass  with  tiie  title  of  the  prop- 
erty insured  (citing  Ellis  on  Ins.,  72;  Phillips 
on  Ins.,  27;  Sadler's  Co.  r.  Badcock,  2  Atk., 
.'554).  Oisbrow  v.  Jones,  Harring.  (Mich.)  Ch., 
48. 

52.  Mortgagee.  The  policj'  was  made  to 
A.  His  interest  was  that  of  mortgagee,  but  it 
was  not  disclo-sed.  The  mortgagors  paid  the 
debt  to  the  mortgagee.  Held,  the  mortgagee 
was,  notwithstanding  the  payment  of  the  debt, 
entitled  to  recover  of  the  insurer;  the  right  of 
subrogation  did  not  arise  in  the  case,  because 
the  insurer  had  not  paid  the  claim  of  the  in- 
sured; had  the  insurer  paid  the  claim,  then 
the  right  of  subrogation  would  have  been 
complete.  Norwich  Fire  Ins.  Co.  v.  Boomer, 
52  111.,  442. 

5S.  D.  demised  to  E.,  who  covenanted  to  keep 
the  |ircmiscs  in  repair  at  liis  own  expense  and 
to  deliver  them  to  the  lessor  at  the  end  of  the 
term  in  as  good  order  and  condition  as  they 
were  w  hen  he  entered.  D.  procured  insurance 
on  the  buildings,  which  were  consumed  by 
fire  within  tlie  term.  E.  rebuilt  and  brought 
this  bill  to  compel  the  lessor  to  account  to 
43 


him  for  the  money  received  of  the  insurance 
companies.  Held,  the  bill  must  be  dismis.sed, 
for  the  insurance  money  was  the  property  of 
D.  (ciiing  King  ®.  State  Fire  Ins.  Co.,  7  Cush., 
10;  Leeds  v.  Cheatham,  1  Sim.,  146).  Ely  v. 
Ely,  (111.  S.  C),  8  Chi.  Leg.  News,  161. 

54.  Carriers.  The  owner  brought  suit 
against  the  carriers  upon  a  contract  of  af- 
freightmeut  to  carry  the  goods  from  Louis- 
ville to  New  York.  The  carriers  relied  upon 
a  provision  in  the  contract  of  afireightment 
entitling  them,  in  the  event  of  their  liabilily 
fur  damage,  to  recover  from  or  take  to  them- 
selves the  benefits  of  the  owner's  contract  of 
insurauce.  Held,  the  carriers  were  properly 
remitted  to  their  independent  action^  in  which 
must  be  decided  whether  any  agreement  be- 
tween carrier  and  insured  can  make  the  un- 
derwriter liable  to  the  carrier;  and  without  a 
special  agreement  the  carrier  would  not  be 
entitled,  even  after  payment  of  the  damages,  to 
substitution  against  the  underwriter  (citing 
2  Arnold  on  Ins.,  1178;  3d  ed.  Phillips  on 
Ins.,  1707 ;  Clark  v.  Blything,  2  Barn.  &  Cres., 
254;  Yates  v.  Whyte,  4  Bing.,  N.  C,  272). 
Cincinnati,  Hamilton  and  Dayton  R.  R.  Co.  v. 
Spratt,  2  Duvall,  4. 

55.  Vendee.  Insured  agreed  to  sell  the 
premises  and  assign  the  policy  to  the  vendee, 
and  to  take  back  a  mortgage  as  collateral  se- 
curity. After  the  flre  the  sale  was  perfected. 
Held,  insured  was  entitled  to  recover  the 
whole  amount  of  loss.  Fire  and  Marine  Ins. 
Co.  of  Wheeling  v.  Morrison,  11  Leigh,  354. 

56.  —  Against  loss  or  damage  by  fire,  $1,500 
on  a  two  story  frame  house ;  .$900  on  another 
building  in  the  rear  thereof,  and  $600  on  sta- 
ble and  sheds.  Insured  was  not  owner,  but 
held  a  conventional  and  judicial  mortgage 
against  the  property.  Held,  the  plaintitf  was 
entitled  to  recover  to  the  extent  of  the  loss; 
for  it  did  not  appear  that  he  had  collected 
anything  from  his  debtor,  nor  did  it  appear 
that  insurer  had  tendered  the  amount  of  the 
loss,  and  demanded  subrogation  pro  tanto. 
Kellar  v.  Merchants  Ins.  Co.,  7  La.  An.,  29. 

57.  The  vendee  purchased  a  plantation 
subject  to  a  lease,  and  at  that  time  the  vendor 
had  an  insurance  upon  the  cotton  gin  on  the 
plantation  for  the  sum  of  $5,000.  The  policy 
was  not  transferred  to  the  purchaser,  nor  was 
there  any  agreement  to  transfer  it.  The  cot- 
ton  gin  was  burned  nearly  two  months  after 
the  sale  took  place.    Insurers  compromised 

C73 


1347 


SUBROGATION. 


1348 


When  denied. 


the  vendor's  claim  and  paid  him  $3,440.  Held, 
the  vendee  was  entitled  to  none  of  it,  for  the 
sale  did  not  operate  as  an  assignment  of  the 
policy;  the  contract  of  insurance  is  strictl}' 
personal,  and  is  not  an  incident  to  the  subject 
insured  (citing  3  Duer  on  Insurance,  53 ;  1st 
Phillips  on  Insurance,  sec.  86  and  87) ;  and 
it  was  irrelevant  to  inquire  whether  the 
vendor  was  or  was  not  entitled  to  recover 
from  his  insurers.  King  v.  Preston,  11  La. 
An.,  95. 

58.  Carrier.  The  goods  were  insured 
against  loss  by  fire.  They  were  burned  while 
in  transit.  Insurer  paid  the  loss  and  brought 
suit  in  the  name  of  the  insured,  against  the 
carrier.  Held,  there  was  no  contract  existing 
between  the  carrier  and  insurer,  and  unless 
there  was  a  conventional  subrogation  from 
insured  to  insurers  no  obligation  existed  as 
between  the  insurer  and  the  carrier.  (Three 
judges  concurring  and  two  dissenting).  Car- 
roll v.  New  Orleans,  J.  &  G.  W.  R.  R.  Co.,  26 
La.  An.,  447. 

59.  Life.  A.  procured  insurance  upon  her 
life  for  the  benefit  of  her  infant  child,  in- 
tendingit  as  a  voluntary  provision  forthe  child. 
B.  advanced  the  money  required  to  pay  the 
premiums  for  several  years,  then  A.  agreed 
with  B.  that  he  should  take  the  policy  as  his 
own,  and  release  her  from  the  repayment  of  all 
moneys  by  him  paid  tliereon,  to  whicli  insurers 
assented,  and  B.  continued  to  pay  the  pn  mi- 
urns  until  A.  died.  He  received  the  money 
due  on  the  policy,  and  signed  for  it  as  guardian, 
in  order  that  it  might  agree  with  the  terms  of 
the  policy.  Held,  the  person  insured  might, 
with  the  consent  of  the  company,  transfer  the 
policy  to  B.,  to  be  by  him  held  for  his  sole  use 
and  benefit,  and  that  the  person  beneficially 
named  in  the  policy,  could  not  require  B.  to 
account  for  the  money  received.  Clark  v.  Du- 
rand,  12  Wis.,  223. 

BO.  Co-insurers.  Stipulated:  "In  case  of 
any  otlier  insurance  upon  the  propertv,  the 
insured  shall  not  be  entitled  to  receive  of  this 
company  any  greater  proportion  of  the  loss 
t^ian  the  amount  herebj'  insured  shall  bear  to 
the  whole  amount  insured."  The  defendant 
answered  that  the  actual  loss  did  not  exceed 
$2,700.  the  whole  of  which  had  been  paid  by 
other  insurers.  Held,  a  demurrer  to  tliis  an- 
swer was  properly  sustained,  for  if  other  com- 
panies had  paid  more  than  their  ratable  por- 
tion of  the  loss,  that  was  a  matter  solely  be- 
674 


tween  them  and  the  insured.    Fitzsimmons  ». 
City  Fire  Ins.  Co.,  18  Wis.,  234. 

61.  AVrong  doer.  The  defendant  was  em. 
ployed  to  tow  the  plaintifTs  schooner  across 
the  bar;  the  hawser  by  which  she  was  attached 
to  the  tug  parted,  and  the  schooner  was  lost. 
The  plaintiff  was  insured  to  the  extent  of  one- 
half  of  the  schooner's  value;  and  insurer  paid 
the  claim.  This  action  was  brought  in  the 
plaintiff's  name,  and  so  far  as  tlie  record  dis. 
closed,  insurer  was  not  interested  in  the  sui'j 
Held,  the  plaintiff  could  maintain  the  action 
in  his  own  name  for  the  whole  amount  of  dam- 
ages; the  question  of  insurance  was  not  mate, 
rial  (citing  Prop.  Mouticello  n.  Mollison,  17 
How.,  152).  White  v.  Steam  Tug  Mary  Anne,  <> 
Cal.,  463. 

62.  Collision.  The  defendant  was  sued  for 
damages  done  by  his  .ship  to  the  plaintifTs. 
The  case  was  referred  to  an  arbitrator  to  ascer- 
tain  the  damage,  who  found  that  the  plaintiff 
liad  received  from  his  insurers  of  the  ship  the 
amount  of  a  particular  average,  and  from  the 
consignees  of  the  cargo  i£45,  both  sums  being 
in  respect  of  the  damages  sued  for.  The  arbi- 
trator also  found  the  action  was  commenced 
and  carried  on  by  the  plaintiff  for  his  own  use 
and  benefit,  and  was  neither  commenced  noi 
carried  on  by  the  authority  of  the  insurers. 
Held,  a  recovery  upon  a  contract  with  the  in- 
surer.s  was  no  bar  to  the  plaintifTs  action. 
Per  BosANQUET,  J.:  "The  contract  witli  the 
uflice  strictly  taken  is  a  wager,  liberally  it  is 
an  indemnity,  but  on  the  words,  it  is  only  a 
wager,  of  which  third  persons  shall  not  avail 
themselves."  Tales  v.Wliyte,  4Bing.  N.  C.,272; 
"i,  L.  J.  (X.  S.)  C.  P.,  116. 

63.  Wrong  doer.  Action  brought  by  in- 
sured against  the  wrong  doer.  Held,  proof 
that  insurers  had  paid  for  the  loss  was  no  de- 
fense to  the  action.  Mason  v.  Sainsbury,  3 
Doug.,  61 ;  Hart  v.  Western  Railroad  Co.,  13 
Met.roO. 

64.  The  charter  party  stipulated,  in  case 
she  sliall  be  lost,  the  charterer  shall  pay  the 
owner  a  sum  of  money  named,  as  the  value  of 
the  ship.  Held,  the  owner  was  not  bound  to 
trust  exclusively  to  the  credit  of  the  charterer, 
but  miglit  protect  himself  b}'  insurance.  Hobbs 
V.  Hannam,  3  Camp.,  93. 

65.  Mortgagee.  The  defendant  was  mort- 
gagee of  the  ship  for  £900.  He  insured  her 
with  the  plaintiff  for  £2,000,  valued  at  £3,000. 
lie    had    prior    insurance    £1,700,  valued  ut 


1349 


SUBROGATION. 


1350 


When  denied. 


£3,000.  Ilcld,  it  was  a  question  for  tlie  jurj'  to 
determine,  wliether  he  intended  to  insure  his 
own  interest  only.  If  lie  intended  to  insure 
the  whole  value  of  the  ship,  then  he  was  enti- 
tled to  recover  and  retain  botli  sums  insured, 
for  the  benefit  of  himself  and  the  mortgagor. 
Ining  v.  Richardson,  3  B.  &  Ad.,  193;  1  M.  & 
Rob.,  153. 

66.  One  who  fraiuliilently  recovers  from 
his  insurer  on  a  policy  by  him  effected  to  pro- 
tect a  pretended  interest,  is  not  liable  over  to 
the  real  owner.  The  wrongful  receipt  of  the 
money  does  not  convert  the  party  taking  it 
into  a  trustee  of  the  true  owner.  Grant  v.  Uill, 
4  Taunt.,  380. 

67.  An  irredeemable  annuity  was  granted 
to  B.,  and  the  grantor  assigned  to  the  grantee 
a  policy  on  his  life  for  her  to  hold  as  her  prop- 
erly forever.  It  was  stipulated  between  the 
grantor  and  grantee  that  as  soon  as  the  grantor 
sliould  give  unexceptionable  security  for  the 
payment  of  the  annuity,  it  should  be  reduced 
£14  19s.  2d.,  the  annual  premium  paid  upon 
the  policy.  Security  was  never  given.  The 
grantee  died,  having  been  paid  all  the  arrears 
of  the  annuity;  then  the  grantor  died.  Ileldy 
the  representatives  of  the  grantee  were  entitled 
to  all  the  benetits  of  the  policy,  notwithstand- 
ing several  annual  premiums  were  voluntarily- 
paid  by  the  grantor  after  the  death  of  the 
grantee.  Kavanagh  ».  Waldron,  3  .Jo.  &  Lat., 
314. 

68.  Annuity.  G.  granted  an  annuity  to  B., 
with  right  to  redeem  by  payment  of  a  sum 
certain ;  and  the  grantee  efl'ected  insurance 
on  the  life  of  G.,  but  G.  hound  himself  to  pay 
the  premiums,  and  subsequent!}'  elected  to  re- 
deem. The  grantee  refused  to  deliver  up  the 
policy.  Held,  it  belonged  to  the  grantee.  As 
a  general  rule,  if  the  grantee  of  an  annuity  in- 
sures the  life  of  the  grantor  the  policy  belongs 
to  the  grantee;  but  there  may  be  special  cir- 
cumstances, amounting  to  a  contract,  which 
would  afl'ect  that  general  rule  and  cast  the 
right  to  the  policy  upon  the  grantor.  Oott- 
lieb  ».  Granch,  4  De  G.,  M.  &  G.,  440;  23  L.  J. 
Ch.,913;  17  Jur.,  704. 

69.  -^  debtor,  at  the  request  and  expense 
of  liis  creditor,  insured  Ids  life  for  £400,  which 
was  less  than  the  debt,  and  nominated  the 
creditor  as  his  person  to  receive  the  money. 
Afterwards  the  debt  was  reduced  below  the 
sum  insured,  and  the  debtor  died.  The  cred- 
itor received  the    sum    insured.     Udd,  the 


debtor's  administrator  had  no  right  to  the 
difference  between  the  balance  of  the  debt 
and  the  sum  insured.  Brown  v.  Freeman,  4 
De  Q.  &  S.,  444. 

70.  The  si'iintee  of  an  annuity  effected 
a  policy  on  the  lives  for  which  the  annuity 
was  granted,  without  any  agreement  between 
him  and  the  grantor.  Held,  the  policy  was 
the  property  of  the  grantee  as  much  so  as  any. 
thing  else  which  he  might  have  purchased. 
In  re  Jacob,  4  De.  G.  &  S.,  524. 

71.  Compromise.  Ship  was  captured  by 
the  Brazilian  government.  Ship  and  cargo 
were  condemned  for  an  attempted  breach  of 
blockade.  Insurer  refused  the  offer  of  aban- 
donment, and,  after  some  negotiation,  paid  to 
insured  thirty  five  per  cent,  on  the  sum  in- 
sured,  and  the  policy  was  delivered  up  and 
canceled.  Some  years  after,  the  Brazilian 
government  awarded  compensation  to  the 
British  government  for  this  and  other  cap- 
tures, and  a  claim  was  preferred  by  the  in- 
surer for  this  capture.  Beld,  neither  party 
contemplated  the  settling  of  a  total  loss;  th.at 
the  sum  paid. absolved  insurer  from  all  further 
claims,  and  in  like  manner  released  insured  in 
respect  of  all  demands  in  favor  of  insurer; 
therefore,  insurer  could  not  be  permitted  to 
claim  any  part  of  the  money  awarded  by  the 
Brazilian  government..  Brooks  v.  MacDonncU, 
1  You.  &  Coll.,  500. 

72.  8nieide.  "To  be  void  if  be  should  die 
by  bis  own  act,  whether  felonious  or  not,  or 
by  the  hands  of  justice;  except  to  the  extent 
of  any  interest  acquired  therein  by  actual  as- 
signment, by  deed,  for  a  valuable  considera- 
tion,  or  as  security  or  indemnity,  or  by  virtue 
of  any  legal  or  equitable  lien  as  security  for 
money."  Insured  borrowed  money  from  R., 
for  the  repayment  of  wliich  he  pledged  the 
policy  and  certain  freehold  and  copyhold 
estates.  The  mortgage  debt  exceeded  fho 
sum  insured,  but  the  sum  insured  and  the 
estates  greatly  exceeded  the  debt.  Insured 
died  by  his  own  act,  and  an  action  at  law  was 
brought,  which  did  not  proceed  to  trial,  the 
insurers  having  paid  to  U.  tlie  sums  insured. 
Tiiis  bill  was  filed  to  have  the  mortgage  debt 
thrown  primarily  on  the  real  estate,  or  to  have 
it  apportioned  npon  the  moneys  paid  under 
the  policy,  and  the  value  of  the  real  estate, 
and  to  repay  out  of  the  real  estate  the  moneys 
paid  by  the  insurers.    Held,  the  insurers  had 

'  no  equities  against  the  freehold  and  copyhold 

673 


1351 


SUBROGATION. 


1352 


When  denied. 


estates,  aud  were  therefore  not  entitled  to  be 
refunded  any  of  the  money.  Solicitors  General 
Life  Am.  iSoc.  v.  Lamb,  3  De  G.,  J.  «fc  S.,  251 ; 
10  Jur.  (N.  S.),  739;  33  L.  J.  Ch.,  43G;  12  W. 
R.,  941 ;  10  L.  T.  (N.  S.),  703. 

73.  Bottomry.  A.  loaned  £250  on  bottom- 
ry, and  insured  the  same  on  the  ship.  She  was 
lost,  and  he  received  the  money  insured  from 
bis  insurers,  "and  also  put  the  bottomry 
bond  in  suit.  The  obligee  brought  tliis  bill 
insisting  that  A.  ought  not  to  have  a  double 
satisfaction.  Held,  the  defendant  having  paid 
the  premium  was  entitled  to  the  benefit  of  the 
policy ;  that  the  complainanl;  had  no  right  to 
the  money  recovered  on  the  policy.  Harman 
V.  VanhMton,  2  Vern.,  717. 

74.  A  debtor  and  his  wife  assigned  her 
chose  in  action  to  debtor's  creditor  to  secure 
£300,  and  the  creditor  insured  the  life  of  the 
■wife  for  £300.  The  wife  died  before  the 
chose  was  reduced  to  possession.  The  in- 
surer paid  tlie  sum  insured,  and  the  debtor 
sought  to  redeem,  and  claimed  that  the  money 
received  of  the  insurer  ought  to  be  setoff 
against  the  debt,  aud  the  security  discharged 
upon  payment  of  the  balance.  It  appears  that 
the  debtor  was  whollj'  ignorant  that  the  pol- 
icy had  been  effected.  Ueld,  the  debtor  was 
entitled  to  a  decree  for  redemption ;  but  he  was 
not  entitled  to  have  the  monej^  paid  by  the 
insurer  to  the  creditor  applied  to  the  reduction 
of  the  debt.  Hemon  v.  Blackwell,  4  Hare,  434 ; 
14  L.  J.,  Ch.,  329. 

75.  ^  J.  effected  a  policy  on  the  life  of  S., 
his  brother,  which  recited  that  J.  had  depos- 
ited a  declaration  of  a  certain  date,  setting 
forth  the  age  of  S.,  etc.,  and  that  J.  had  an  in- 
terest in  the  life  of  S.  to  the  extent  of  the  in- 
surance. The  policy  recited  that  the  heirs, 
executors  aud  assigns  of  J.  should  be  entitled 
to  receive,  etc.  S.  died  and  J.  became  bis  ad- 
ministrator. The  first  three  premiums  were 
paid  by  S.  Held,  the  form  and  declaration  of 
the  policy  made  it  prima  facie  the  property  of 
J.,  and  there  was  not  suflicient  evidence  to  re- 
but that  presumption.  Tristan  v.  Uardey,  14 
Beav.,  232. 

76.  Annuity.  The  policy  was  effected  and 
the  premiums  were  paid  by  the  grantee  of  an 
annuity,  who  agreed  to  assign  the  policy 
whenever  the  annuity  should  be  redeemed.  It 
was  never  redeemed.  Held,  the  representatives 
of  the  grantor  were  not  entitled  to  the  avails 
of  the  policy.    Bashfordv.  Caiin,  33  Beav.,  109. 

67G 


77.  Compromise.  The  ship  was  insured  by 
B.  for  18,000  guilders,  and  by  K.  for  £1,500.  She 
was  seized  by  the  Spauisli,  carried  into  Ha- 
vana and  condemned.  B.  jiaid  the  sum  in- 
sured, aud  H.  compromised  and  renounced  sal- 
vage. A  sum  of  £20,050  18s.  6d.  awarded  by 
the  commissioners  for  the  distribution  of 
prizes,  was  paid  to  the  executors  ot  the  iusured. 
Held,  the  executors  took  the  money  in  trust 
for  the  benefit  of  the  insurers,  who  had  made 
satisfaction  to  the  insured ;  that  B.  was  enti- 
tled to  the  whole  amount  by  him  paid  on  the 
loss,  and  that  K.  was  entitled  to  notliing,  be- 
cause he  had  renounced  all  benefit  of  salvage. 
Dlnauwpot  V.  Da  Costa,  1  Eden,  130;  Handall 
V.  Cochrane,  1  Yes.,  98. 

78.  P.  mortgaged  property  insured,  with 
file  policies  thereon,  aud  sold  hiis  equity  of 
redemption.  The  policies  lapsed,  and  an  as- 
signee of  the  purchaser,  without  the  knowl- 
edge of  the  mortgagor,  substituted  another  pol- 
icy on  the  mortgagor's  life,  in  the  same  com- 
pany, and  assigned  it  as  security  for  the  debt. 
The  assignee  of  the  purchaser  paid  the  debt, 
and  continued  to  pay  the  premiums  on  that 
policy.  Held,  the  insurance  money  belonged 
to  the  person  who,  without  any  obligation  to 
do  so,  paid  Uie  premiums  at  his  own  risk  and 
expense.  Neshitt  v.  Berridge,  9  L.  T.  (N.  S.),  588. 

79.  Creditor.  D.,  to  secure  himself  a  bal- 
ance due  from  B.,  an  Indian  officer,  insured 
the  life  of  B.,  paid  the  premiums,  and  debited 
them  in  the  account  of  B.  He  drew  for  the 
balance  and  premiums,  but  the  draft  was  dis- 
honored. B.  died,  and  insured  received  tlie 
sum  insured.  Held,  he  was  not  bound  to  ac- 
count for  it  to  the  estate.  -  Reversing  s.  c,  8  L. 
R.  Eq.,  430;  Bruce  v.  Garden,  5  L.  R.  Oh.,  33; 
39  L.  J.  Ch.,  334;  18  W.  R.,  384. 

80.  Vendee.  The  house  was  insured 
against  loss  by  fire  in  the  name  of  a  trustee 
who  had  contracted  to  sell  it ;  but  it  was  burned 
before  the  sale  was  completed.  The  trustee, 
in  settling  with  the  purchaser,  deducted  from 
the  jiurchase  price  the  money  received  from 
the  insurance  company.  The  trustee  having 
become  bankrupt,  this  bill  was  filed  against 
the  purchaser.  Held,  the  cestuis  que  trust  were 
entitled  to  a  lien  upon  the  property  for  the 
amotmt  deducted  as  unpaid  purchase  money. 
Poole  V.  Adams,  33  L.  J.  Ch.,  639;  12  W.  li., 
683;  10  L.  T.  (N.  S.),  287. 

81.  The  grantee  of  an  aniinity  insured  the 
life  of  the  grautor,  the  annuity  having  been 


1353 


SUBROGATION. 


1354 


Wlien  denied. 


c.-ilcul;ited  so  as  lo   incUule  the  preiiiiuin  and 
iiUorc.sl  luoDcy.     The   grantor  covenanted  lo 
repay  to  the  grantee  any  additional  premium 
he  niiglit  be  required  to  pay  by  rea.son  of  the 
grantor's   traveling   beyond   the   limits  men- 
tioned in  the  policy.     The  grantor  h.aving  the 
right  to  repurchase,  discharged  the  annuity. 
Held,   the   policy   belonged   to    the    grantee. 
Knox  V.  Turner,  39  L.  J.  Ch.,  207,  750;  9  L. 
K.  Eq.,  155;  21  L.  T.  (N.  S.),  701 ;  5  L.  R.  Ch., 
515 ;  28  L.  T.  (N.  8.),  227 :  18  W.  R ,  270,  873. 
82.  Vendee.    Defendant  agreed  to  buy  of 
the  plaintlfi'  four  fillings  of  sugar,  each  con- 
sisting of  from  two  to  three  hundred  loaves  or 
tillers,  payment  prompt  at  one  mouth,  goods  at 
seller's  risk  for  two  months,  the  proiupt  day 
being  the  Saturday  next  after  the  expiration  of 
one  month  from   the  day  of  sale.    Defendant 
had  paid  on  all  delivered  a  sum'  approximat- 
ing the  amount;  and  there  remained  April  24, 
1870,  907  titlers  not   weighed,  932  of  which 
were  destroyed  by  fire  that  day,  value  being 
£743  2s.     The  plaintifl's  had   insurance  up- 
on their  stock  £30,200,  "  on  goods  manufac- 
tured and  unmanufactured,  sold  or  contracted 
to  be  sold,  but  not  delivered."    The  insurance 
companies  paid  £29,877  los. ;  there  was  salv- 
age £2,733  10s.     The  whole  slock  at  the  time 
of  the  fire  was  worth  £35,117  7s.  6d.   The  time 
liad  expired  for  which  the  goods  were  to  be 
al  seller's  risk.     Held,  the  purchaser  was  not 
entitled  to  credit  for  auy  of  the  moneys  paid 
by-  the  insurance  companies.    Martiiieau  v. 
KitcUng,  7  L.  R.  Q.  B.,  436;  41  L.  J.  Q.  B.  227. 

83.  The  grautee  of  a  redeemable  annuity 
made  insurance  upon  the  life  of  the  grantor 
and  paid  all  the  premiums.  At  the  expiration 
of  five  years  the  grantor  oflered  to  redeem, 
but  demanded  an  assignment  of  the  policy. 
Hfld,  the  grantor  was  not  entitled  to  it.  Law 
t>.  Warren,  Drury,  31 ;  s.  c,  6  Jr.  Eq.,  299. 

84.  Creditor.  H.  obtained  judgment  for 
£3,000  against  L.  on  a  bond  conditioned  for 
the  payment  of  i'l,.50O  and  costs,  which  judg- 
ment was  assigned  to  I.;  and  L.  executed  his 
bond  to  I.  for  the  payment  of  £800  with  inter- 
est,  on  which  judgment  was  entered,  Trinity 
term,  1826.  "Whilst  I.  was  entitled  to  said 
suras,  he  insured  the  life  of  L.  for  £909  198., 
and  he  also  insured  in  the  name  of  IT.  a  further 
sum  on  the  life  of  L.,  £999.  At  the  time  tliese 
were  eftecled  there  was  more  than  £2,000  due 
1.  under  the  indebtedness.  I.  paid  the  ))re- 
miums,    and     received    upon    both    policies 


£1,908  19s.  The  question  was,  whether  insur- 
ances made  by  the  creditor  on  the  life  of  his 
debtor,  and  which,  since  the  death  of  the 
debtor,  had  been  discharged  by  the  insurer, 
were  to  be  considered  as  between  the  creditor 
and  the  debt(jr  a  discharge  pro  tanto  of  the 
ilelit.  Held,  the  contracts  of  insurance  were 
between  persons  Willi  whom  the  debtor  had 
no  concern  or  privity;  he  must  pay  his  debt 
wilhont  reference  to  the  contracts  of  insurance. 
Humphrey  «.  Arahin,  L.  &  G.  temp.  Plunk.,  31$. 

85. —  Policy  was  eftected  as  a  security  for 
the  return  of  certain  money  advanced.  There 
was  no  contract  on  the  part  of  the  grantee  to 
keep  the  policy  in  force,  but  he  kept  it  in 
force  by  paying  the  premiums.  Held,  the 
court  would  not  give  the  avails  of  the  policy 
to  a  person  who  had  not  paid  the  premiums; 
that  the  person  who  paid  the  premium  was 
entitled  to  the  money,  ililliken  v.  Eidd,  5 
Ir.  i;q.,  396. 

86. — A  policy  was  efl'ected  on  the  life  of  the 
mortgagor's  surety.  The  mortgagee  took  pos- 
session of  the  mortgaged  premises,  and  paid 
the  premium  to  keep  the  policy  in  force. 
Held,  the  mortgagor  was  not  entitled  to  be 
credited  with  the  money  received  on  the  pol- 
icy.    Bell  V.  Ahearne,  12  Ir.  Eq.,  576. 

87.  Annuity.  G.  granted  a  redeemable 
bond  of  annuity,  £321,  to  K.  Nothing  was 
said  about  making  insurance,  but  K.  insured 
the  life  of  G.  for  the  amount  paid,  namely 
£2,200.  G.  availed  hiinself  of  the  right  to  re- 
deem, and  K.  sold  the  policy  of  insurance  to 
the  company.  Held,  G.  had  no  right  to  the 
avails  of  the  policy.  Lyon  v.  M'Klew,  1  C.  C. 
S.,  47. 

88.  Creditor.  A.  being  a  creditor  of  B.  to 
the  extent  of  £40,  interfered  to  procure  the 
other  creditors  to  accept  a  composition  of  ten 
shillings  in  the  pound.  B.  conveyed  all  his 
property  to  A.  in  trust,  and  A.  insured  B.'s  life 
for  £300.  Htld,  the  avails  of  the  policy  was 
the  property  of  A.  Stevenson,  v.  Cotton,  8  C. 
C.  S.,  872;  18  Scot.  .Jur.,  405. 

89.  Collision.  The  defenders  were  liable 
for  damages  caused  by  collision,  which  the 
jury  fixed  at  £556;  but  they  appended  to  their 
verdict  the  further  finding,  "The  pursuers 
have  already  been  paid  £350  by  the  insurers 
of  ship  in  respect  of  the  same  damages," 
The  sum  had  been  taken  as  a  compromise  be- 
tween insured  and  insurers.  Held,  insured 
was  entitled  to  judgment  for  the  whole  ver. 

677 


1355 


SUICIDE,  OR  "  DEATH  BY  HIS  OWN  HAND." 


1356 


What  is  not. 


diet.     Morriion  v.  Bartolomeo,  5  C.  C.  3.,  3d 
ser.,  848.  ■ 


SUBSCRIPTION  OF  POLICY. 

(See  Contract  VI.) 


SUICIDE  OR  "DEATH  BY  HIS   OWN 
HAND." 

I.  What  is  not. 

II.  NOT  EVIDENCE   OP 

III.  IS. 

IV.  Onus  probandi. 
V.  Presumptions. 

VI.  Construction. 

I.  What  is  not. 

1.  Stipulated:  "If  insured  sliall  die  bj' his 
own  liaud,  this  policy  shall  be  null  and  void." 
He  died  from  the  effects  of  poison  adminis- 
tered by  his  own  hand.  Held,  although  de- 
ceased had  the  capacity  to  know  that  he  was 
about  to  take  poison,  and  that  his  death  would 
be  the  result,  yet  it  he  was  impelled  by  an  in- 
sane impulse  which  he  was  not  able  to  resist, 
he  was  not  responsible.for  his  conduct,  and  it 
was  not  death  by  his  own  hand  (citing  Easta- 
brook  V.  Union  Ins.  Co.,  54  Me.,  224;  Breasted 
■(.Farmers  Loan  and  Trust  Co.,  4  Hill.,  73; 
s.  c,  8  N.  T.,  299;  Gay  v.  Union  Mutual  Life 
Ins.  Co.,  9  Blatch.,  142;  alfirming  s.  c,  1  Dil. 
Cir.  Ct.,  403).  Life  Ins.  Co.  •».  Terry,  15  Wall., 
580. 

2.  Stipulated:  "If  the  person  whose  life  is 
insured  shall  die  by  suicide,  this  policy  sliall 
be  null  and  void."  He  killed  himself  with  a 
pistol.  Held,  if  at  the  time  he  fired  the  pistol 
lie  was  conscious  of  the  act  he  committed,  in- 
tended to  take  his  own  life,  and  was  capable 
of  understanding  the  nature  and  consequences 
of  the  act,  insurers  were  not  liable;  and, 
whether  he  was  capable  of  understanding  its 
moral  aspects,  or  of  distinguishing  between 
right  and  wrong,  was  immaterial ;  but,  if  he 
was  not  thus  conscious,  or  had  no  such  capa- 
city, but  acted  under  an  insane  delusion  over- 
powering his  understanding  and  will,  or  was 
impelled  by  an  uacontrolable  impulse,  which 

678 


neither  understanding  nor  will  could  resist, 
then  the  insurers  were  liable;  but  the  onus  of 
proof  was  upou  the  plaintiff  to  make  out  that 
when  he  committed  the  act  he  was  in  the  con- 
dition staled  iu  the  rule.  Oay  v.  Union  Mutual 
Life  Ins.  Co.,  9  Blatch.,  142. 

3.  Stipulated :  "  In  case  the  insured  shall 
die  by  his  own  hand,  or  in  consequence  of  a 
duel,  or  by  the  hands  of  justice,  it  shall  be 
void."  The  person  whose  life'  was  insured 
threw  himself  into  the  Hudson  river  and  was 
drowned.  Held,  self  destruction  in  a  fit  of  in- 
sanity was  not  "death  by  his  own  hand." 
Breasted  v.  Farmers  Loan  and  Trust  Co.,  4  Hill, 
73;  affirmed,  8  N.  T.,  299. 

4.  Stipulated:  Insurers  shall  not  be  liable 
if  insured  shall  die  iu  the  known  violation  of 
the  law  of  any  state.  Held,  suicide  was  not 
within  the  exception ;  and  there  being  no  stip- 
ulation exempting  insurers  from  suicide,  there 
was  no  defense  to  the  action  (citing  Fitch  v. 
American  Popular  Life  Ins.  11  Alb.  Law 
Jour.,  91 ;  s.  c,  2  N.  T.  S  C,  247).  Patrick  v. 
Excelsior  Life  Ins.  Co.,  4  Hun.  (N.  T.),  263. 

5.  "To  be  void  in  case  he  shall  die  by  his 
own  hands."  He  committed  suicide.  Held, 
to  take  the  case  out  of  the  exception,  it  must 
appear  that  the  deceased  was  insane  to  such  a 
degree  as  to  render  him  unable  to  determine 
that  the  act  would  cause  his  death,  or  that  he 
committed  it  under  the  influence  cf  an  insane 
impulse  which  he  could  not  resist.  But  it  was 
not  sufficient  that  his  moral  sense  was  so  iju- 
paired  as  to  take  from  the  act  all  of  its  crimi- 
nal character;  his  mind  must  have  been  so  far 
overthrown  that  it  did  not  move  him  '.o  the 
act.  The  words  of  the  exception  are  different 
to  those  in  the  case  of  Breasted  v.  Farmers 
Loan  and  Trust  Co.,  4  Hill,  73;  8  N.  T.,299. 
Van  Zandt  v.  Mutual  Benefit  Life  Ins.  Co.,  55 
N.  Y.,  169. 

6.  Stipulated:  "In  case  the  insured  shall 
die  by  his  own  hand,  or  in  consequence  of  a 
duel,  or  the  violation  of  any  state,  national  or 
provincial  law,  or  by  the  hands  of  justice,  this 
policy  shall  be  null,  void  and  of  no  effect." 
Held;  it  dixl  not  include  suicide  committed  by 
a  person  who  was  insane,  for  "  die  by  his  own 
hand  "  does  not  embrace  all  kinds  of  death  by 
one's  own  hand.  It  would  not  include  death 
caused  by  the  taking  of  poison,  the  person  not 
being  aware  that  there  was  poison  in  the 
draught;  nor  bj' discharging  a  loaded  pistol, 
if  the  person  was  ignorant  that  it  was  loaded; 


1357 


SUICIDE,  OR  "  DEATH  BY  HIS  OWN  HAND.' 


135S 


What  is  not. 


nor  by  leaping  from  a  window  in  tlie  delirium 
of  fever;  none  of  tliese  would  be  his  own 
act.  Eastahruok  v.  Union  Mutual  Life  Int.  Co., 
64  Me.,  224. 

7.  Stipulated:  "  Insurer  shall  not  be  liable 
if  the  person  whose  life  is  insured  shall  die 
by  his  own  hands."  Held,  it  was  intended  to 
fsempt  the  company  from  liability  caused  by 
the  voluntarj-  self  destruction  of  insured;  but 
if  the  deceased  was  insane  at  the  time  the  act 
was  committed,  tlie  destruction  was  not  volun- 
tai'v.  Phillips  «.  Louisiana  Equitable  Life 
Ins.  Co.,  2G  La.  An.,  404. 

8.  Insurer  stipulated  against  liability :  "If 
he  shall  die  by  suicide,  or  by  his  own  hands." 
Held,  the  words  "By  his  own  hands "  were 
merely  explanatory  of  that  which  preceded, 
namely  "suicide,"  both  terms  being  synony- 
mous  (citing  Hartman  a.  Keystone  Ins.  Co.,  21 
Penn.,  466;  Braestead  v.  Farmers  Loan  and 
Trust  Co.,  4  Hill,  74;.  Held,  also,  if  deceased 
had  not  mind  enough  to  understand  the  moral 
nature  of  the  act  of  self  destruction ;  if  he 
was  incapable  of  distinguishing  between  rig)>t 
and  wrong,  his  death  was  not  by  suicide, 
though  he  killed  himself.  Pliadealiauer  i>. 
Germania  Life  Ins.  Co.,  7  Heiskell,  507. 

9.  Stipulated:  "Not  liable  in  case  the  in- 
sured shall  die  by  suicide,  felonious  or  other- 
wise, sane  or  insane."  The  deceased  was  found 
•dead  in  his  bed  in  his  room  in  a  hotel  in  St. 
Louis,  with  a  pistol  shot  wound  directly  over 
his  heart,  a  pistol  lying  by  his  side  discharged. 
Held,  insurers  were  discharged  if  death  was 
caused  by  the  voluntary  and  willful  act  of  the 
deceased,  and  he  had  ai  the  time  sufficient  pow- 
ers of  mind  and  reason  to  understand  the 
physical  nature  and  consequences  of  such 
jict,  and  a  purpose  and  intention  to  cause  his 
own  death  by  that  act;  that  the  question 
whether  he  was  cap.able  of  understanding  and 
appreciating  the  moral  nature  and  quality  of 
his  purpose  at  the  time  was  not  relevant  fur- 
ther than  as  it  might  help  to  illustrate  the  ex- 
tent of  his  capacity  to  understand  the  phys- 
ical character  of  the  act  itself;  that  the  stip- 
ulation did  not  relieve  the  company  if  the 
death  was  caused  by  accident,  though  brought 
about  by  his  own  hands,  or  by  some  dan- 
gerous and  destructive  instrument  held  in 
them.  Pierce  V.  Trawlers  Life  Ins.  Co.,  34 
Wis.,  389. 

10.  The  policy  exempted  the  company  from 
Jiability  in  case  insured  should  come  to  liis 


death  by  his  own  liand.  Plaintiff  admitted 
that  insured  came  to  his  death  by  his  own 
hand.  Held,  the  onus  of  proof  w'as  upon 
plaintill'  to  show  that  the  act  of  self  destruc- 
tion was  the  consequence  of  insanity,  and  to 
establish  this  it  must  appear  that  the  mind  of 
the  decedent  was  so  far  deranged  as  to  have 
made  him  incapable  of  using  rational  judg- 
ment in  regard  to  the  act.  If  he  was  impelled 
by  an  insane  impulse  which  he  was  not  able 
to  resist,  or  if  his  reasoning  powers  were  so 
far  overthrown  by  his  mental  condition  that 
he  could  not  exercise  his- reasoning  faculties 
on  the  act,  the  company  was  liable;  but  if  he 
formed  the  determination  to  take  his  own  life, 
because  he  preferred  death  to  life,  then  he 
died  by  his  own  hand,  and  the  fact  that  he 
was  exciteil,  or  angry,  or  distressed  in  mind 
when  he  formed  the  determination  to  take  his 
own  life  was  not  evidence  of  an  insane  im- 
pulse. U.  S.  Cir.  Ct.,  N.  D.  of  111.  (per  Hop- 
kins, J.)  Jaivis  Connecticut  Mutual  Life  Ins. 
Co.,  8  Chi.  Leg.  News,  227. 

11.  Slipuhited:  "If  the  said  person  whose 
life  is  insured  shall  die  by  his  own  hand,  by 
delirium  tremens,  or  by  the  use  of  opium,  or 
in  consequence  of  a  duel,  the  policy  shall  be 
null  and  void."  Held,  the  object  of  the  policy 
was  to  insure  against  involuntary  death  not 
the  fault  of  insured;  that  inevitable  suicide  ac- 
cidental or  otherwise,  against  the  free  will  of 
a  rational  mind  was  within  the  categorj-  of 
natural  death  from  ordinary  causes,  because 
mental  insanity  is  disease;  the  policy  insured 
against  death  by  disease  of  any  sort  which 
ordinary  prudence  could  not  avoid;  death  by 
insanity  is  death  by  disease;  death  by  opium 
meant  not  accidental  or  involuntarj',  but  the 
rational  and  voluntary  use  of  opium;  death 
by  delirium  tremens  means  death  by  voluntary 
and  habitual  drunkenness;  death  by  duelling 
is  a  voluntary  act  which  might  and  ought  to 
be  avoided,  and  so,  for  the  same  reason,  death 
by  his  own  hand  means  death  premeditated  by 
a  sound  mind  perpetrated  by  a  free  will,  for 
all  the  words  of  exception  must  be  taken  ejus- 
dem  generis  (citing  Braested  v.  Farmers  Loan 
and  Trust  Co., 4  Hill,  74;  Eastabrook  c.  Union 
Mutual  Life  Ins.  Co.,  54  Me.,  225).  If  a  par. 
oxysm  of  moral  insauitj-  caused  the  death,  the 
suicidal  act  was  involuntary  and  at  the  instant 
unavoid:iblc,  even  though  the  suicide  knew  its 
illeg:dity  and  all  its  consequences,  for  such 
knowledge  is  consistent  with  that  form  of  in- 

079 


1359 


SUICIDE,  OR  "  DEATH  BY  HIS  OWN  HAND.' 


1360 


What  is  not  evidence  of  —  What  is  —  Onus  probandi  — Presumptions 


sanity.  St.  Louis  Mutual  Life  Ins.  Co.  v.  Gravee, 

6  Bush,  268. 

12.  Life  policy,  death  by  suicide,  etc.,  was 
not  excepted.  Held,  no  defense  to  the  ;iction, 
if  the  act  of  self  destruction  was  committed 
while  lie  was  temporarily  insane.  Horn  v.  An- 
glo Australian  Life  Ins.  Co.,  30  L.  J.  C'ii.,  511 ; 

7  Jur.  (N.  S.),  673;  9  W.  R.,  339;  4  L.  T.  (N. 
S.),  143. 

II.  What  is  noteyidej^ce  of. 

On  the  life  of  the  husband.  Stipulated: 
"Insurer  shall  not  be  liable  if  insured  shall 
die  by  his  hands.'  He  retired  to  his  room  at 
bed  time,  and  about  one  o'clock  at  night  the 
report  of  a  pistol  was  heard.  On  entering  the 
room  he  was  found  in  a  reclining  posture  on 
the  sofa,  and  a  pistol  lying  on  the  floor  near 
by.  The  ball  had  entered  his  mouth.  Held, 
the  evidence  was  not  suflicient  to  establish  the 
fact  tliat  he  died  by  his  own  hands;  that  as  it 
was  circumstantial  only,  it  proved  nothing, 
because  it  did  not  exclude  every  other  reason- 
able h3'pothcsis.  Phillips  v.  Louisiana  Equi- 
table Life  Ins.  Co.,  26  La.  An.,  404. 

III.  What  is. 

1.  Stipulated:  "  To  be  void  in  case  the  per- 
son insured  shall  die  bj-  his  own  hand."  He 
cut  his  throat  with  a  razor.  Held,  the  policy 
was  void ;  and  that  he  was  impelled  to  the  act 
by  insanity  was  irrelevant.  Dean  v.  American 
Mutual  Life  Ins.  Co.,  4  Allen,  96. 

2.  Stipulated:  "To  be  void,  if  the  person 
whose  life  is  insured  shall  die  by  suicide." 
Held,  plaintiff  could  not  be  permitted  to  show 
thai  at  the  time  he  killed  himself  he  was  in- 
sane, and  was  impelled  to  the  act  by  insanity. 
Cooper  D.  Massachusetts  Life  Ins.  Co.,  102 
Mass.,  227. 

3.  Stipulated:  "In  case  insured  shall  die 
by  his  own  hands,  or  by  the  hands  of  justice, 
or  in  consequence  of  a  duel,  it  shall  be  void. 
Insured  threw  himself  into  the  Tliames  and 
was  drowned.  The  jury  found  specially  that 
he  voluntarily  threw  himself  from  the  bridge 
with  the  intention  of  destroying  his  life,  but 
at  the  time  of  committing  the  act  he  was  not 
capable  of  judging  between  right  and  wrong. 
Held,  the  insurer  was  released.  Borradaile  c. 
Hunter,  5  M.  &  G.,  689;  12  L.  J.  (N.  S.)  C.  P., 
235;  7  Jur.,  443;  5  Scott  N.  R,  418. 

4.  Stipulated;    "That  every  policy  effected 
680 


by  a  person  on  his  or  lier  own  life  shall  be 
void  if  such  person  shall  commit  suicide,  or 
die  by  duelling  or  the  hands  of  justice."  The 
insured  died  from  the  effects  of  sulphuric 
acid  voluntarily'  taken  for  the  purpose  of  pro- 
ducing death;  but  there  was  evidence  to  show^ 
that  he  was  of  unsound  mind  at  that  time. 
Held,  the  insurers  were  discharged.  This  case 
proceeded  no  further.  Insurers  returned  the 
premium  with  interest  at  four  per  cent.,  which 
amounted  to  £967.  9s.  7d.,  and  paid  their  own 
costs.  Tlie  sum  named  in  the  policy  was 
£999.  Clift  V.  Schwuhe,  3  C.  B.,  437;  s.  c,  3 
C.  &K.,  134;  17  L.J.  C.  P.,  2. 

5.  Defendant  pleaded  death  l)y  suicide, 
which  was  excepted  iu  the  policy;  and  put  in 
plaintifl''s  deposition  made  before  the  coroner, 
in  wliich  she  stated:  "  I  heard  screams  from 
the  children,  ran,  and  found  him  hanging  by 
the  legs  over  the  rail  of  the  landing.  In  the 
evening  he  was  walking  about  the  bed  room, 
and  I  saw  him  in  the  act  of  falling  out  of  an 
open  window."  The  jury  found  the  issue  fur 
the  defendant.  Held,  the  court  would  not  dis- 
turb the  finding.  Stormont  v.  Waterloo  Life 
and  Casualty  Ms.  Co.,  1  F.  &  F.,  22. 

TV.    OsrS  PEOBAJNDI. 

Stipulated:  "Insurers  shall  not  be  liable  if 
the  person  whose  life  is  insured  shall  die  bv 
Ills  own  hand."  Held,  insurers  were  bound  to 
prove  that  he  was  the  willful  destroyer  of  his 
own  life;  and  that  being  proven,  the  burden 
was  cast  upon  plaintiff  to  prove  that  he  was 
insane  when  he  committed  the  act,  for  the 
presumption  is,  that  he  was  sane;  that  in 
determiniug  the  question,  whether  he  was 
or  was  not  sane,  the  jury  must  consider  the 
state  of  his  mind,  and  to  what  extent  it  affected 
his  will ;  that  if  lie  intended  to  destroy  his  life, 
and  comprehended  the  physical  nature  and 
consequences  of  his  act,  the  insurers  were  U'A 
liable.  Nimick  v.  Mutual  Benefit  Life  Ins.  Co.., 
3  Brewster,  503. 

V.  Peescaiptioxs. 

1.  The  court  instructed  the  jury,  that  they 
must  presume  that  the  deceased,  when  he 
took  his  life,  was  not  in  a  sound  state  of 
mind,  and  that  the  burden  was  upon  the 
defendant  to  remove  that  presumption.  HciA, 
error,  for  every  man  is  presumed  sane  until 
tlie  contrary  appears.   Coffey  t.  Home  Life  Ins, 


13G1 


SURVEY  —  TAXATION. 


1362 


Miscellaneous. 


Co.,  3  J.  &  Sp.  (N.  Y.),  314;  s.  c,  44  IIow.  Pr., 
481 ;  Weed  v. Mutual  Deiajit  Life  Jus.  Co.,  3  J. 
&Sp.  (N.Y.),  y««. 

a.  Tlic  dentil  was  the  result  of  acciilental 
injuries  or  suicide.  Held,  the  presumption  of 
law  was  against  the  latter.  Mallorn  v.  Travelers 
Ins.  Co.,  47  N.  Y.,  52. 

VI.    CONSTKUCTION. 

1.  Stipulated:  "To  be  void  in  case  insured 
shall  die  by  his  own  hand  or  act  voluntarily 
or  otherwise."  Insured  was  found  at  five 
o'clock  in  the  morning,  frozen  to  death,  under 
a  tree  in  the  open  grounds  adjacent  to  the 
S-mitlisonian  Institute  at  Washington.  The 
court  instructed,  that  in  order  to  sustain  the 
defendant's  case  the  jury  must  believe  that  the 
insured  inteulioQally  lay  down  where  he  was 
found  dead  for  the  purpose  of  ending  his  life. 
Ueld,  the  word  "otherwise"  could  not  be 
construed  to  embrace  every  species  of  self  de- 
struction whether  intentionally  or  accident- 
ally caused  by  the  hand  of  the  insured. 
Hence  the  iustruction  was  correct.  Jacobs  ». 
National  Life  Ins.  Co.,  1  MacArthur,  683. 

2.  The  defendant  was  to  be  exempt  from 
claim  if  the  person  insured  should  become  so 
far  intemperate  as  to  impair  his  health,  or  if 
he  should  commit  suicide.  Held,  if  the  in- 
sanity which  produced  the  act  of  self  destruc- 
tion was  caused  by  intemperance,  the  defend- 
ant was  not  liable.  N.  D.  111.,  per  Hopkins, 
J.  Jarvis  d.  Connecticut  Mutual  Life  Ins.  Co., 
8  Clii.  Leg.  News,  227. 

S.  Stipulated:  "To  be  void  if  the  party  die 
by  his  own  hand,  or  in  consequence  of  a  duel. 
Held,  swallowing  arsenic,  which  produced 
death,  was  within  the  exception.  In  constru- 
ing if,  the  words  "die  by  his  own  hand" 
must  be  disconnected  from  those  which  fol- 
low. Hartman  v.  Keystone  Ins.  Co.,  21  Penn. 
St.,  40(5. 

4.  Stipulated  :  "  In  case  of  the  death  of  the 
said  insured  by  his  or  her  own  act  or  inten- 
tion, whether  sane  or  insane,  the  company 
shall  not  be  liable  for  the  sum  insured." 
Plea:  that  death  mentiimed  in  the  declaration 
was  caused  by  his  own  act  and  intention  by 
a  pistol  shot  fired  by  the  said  C.  into  the  face 
of  him  the  said  C.  with  the  intention  and  for 
the  purpose  of  then  and  there  causing  liis 
own  death.  Replication :  That  when  the 
said  C.  came  to  his  death  he  was  mentally  in- 


sane,  and  in  consequence  and  by  reason  of 
such  mental  insanity,  was  wholly  incapable 
of  exercising  any  intention  in  reference  to  the 
act  which  caused  his  death ;  that  said  act  was 
wholly  the  result  of  his  mental  insanity;  that 
he  was  impelled  thereto  without  any  volition 
of  his  own  by  an  insane  impulse  which  his 
mental  and  physical  faculties  were  unable  to 
resist;  that  he  was  wholly  unable  from  hia 
mental  condition  to  comprehend  the  natu-ral 
character,  effect  and  consequence  of  the 
act  which  resulted  in  his  death.  Demurrer  to 
•replication.  Held,  tlie  contract  exempted  the 
del'endaut  from  liabilily,  because  the  act  of  the 
insured  resulted  in  his  death  ihougli  commit- 
ted in  a  state  of  insanity.  The  replication  ad- 
mits that  C.  came  to  his  death  by  his  own  act 
when  in  a  slate  of  insanity;  but  claims  that 
because  his  insanity  was  so  extreme  and  com- 
plete, overthrowing  his  moral  and  mental  fac- 
culties,  the  defendant  is  not  exempt.  Tlie 
degree  of  insanity  was  immaterial.  It  was 
sufficient,  as  admitted  by  the  pleadings,  that 
C.  took  his  own  life.  Per  Blodgett,  J.,  N.  D. 
of  111.  Chapman  v.  licpuhlic  Life  Ins.  Co.,  7 
Chi.Leg.  News,  186. 


SURVEY. 

(See  Condemned  fob  Being  Unsound.) 


SUSPENSION  OF  POLICY, 

(See  Policy,  XVI.) 


TAXATION. 

1.  The  difTerent  sources  of  income  returned 
by  the  company  had  been  received  in  coined 
money,  the  currency  of  California,  and  the 
amounts  were  returned  to  the  tax  oflicer  in 
that  form  of  currency.  The  aggregate  t-a.x, 
under  the  statute,  upon  this  sum  of  coin,  was 
.$.5,786.  The  assessor,  against  the  protest  of 
the  company,  added  the  difference  between 
legal  tender  currency  and  coined  monej",  and 
fl.\ed  the  tax  at  $7,303  legal  tender.  The 
company  refused  to  pay  it,  but  tendered  the 

G81 


1363 


.TELEGRAPH  CABLE  — TERRITORIAL  LIMITS. 


13G4 


Miscellaneous. 


smaller  sum  in  legal  tender  notes.  Held,  the 
company  was  bound  to  make  its  returns  in 
legal  tender  currency,  and  to  pay  the  tax  in 
Ihe  same  medium;  that  the  comnany's  propo- 
sition to  make  returns  in  coin  jiid  to  pay  in 
legal  tender  would  subvert  the  plainest  prin- 
ciples 01  reason  and  justice.  Pacific  Ins.  Co. 
«.  Soule,  7  Wall.,  433. 

2.  A  state  has  a  right  to  discriminate  be- 
tween her  own  domestic  corporations  and 
those  of  other  states  who  desire  to  transact  bu- 
siness within  her  jurisdiction  (citing  Paul  v. 
Virginia,  8  Wall.,  168;  Bank  of  Augusta  v. 
Earl,  13  Pet.,  519).  Bucat  v.  City  of  Chicago, 
10  Wall.,  410. 

3.  A  joint  stock  association  is  a  corporation, 
notwithstanding  certain  acts  of  parliament  de- 
clare that  it  is  not,  provided  it  has  a  distinc- 
tive artificial  name,  by  which  it  can  make 
-contracts,  statutory  authority  to  sue  and  be 
sued  in  the  name  of  its  officers,  a  statutory 
TecoguitioQ  of  the  association  as  an  entity, 
distinct  from  its  members,  allowing  them  to 
sue  it  and  be  sued  by  it,  and  a  provision  for 
ils  perpetuity  by  transfer  of  the  shares,  so  as 
to  secure  succession  of  membership;  and, 
held,  such  a  corporation,  whether  organized 
under  the  laws  of  a  state  of  the  union  or  of  a 
foreign  government,  is  subject  to  the  statute 
which  imposes  a  tax  upon  each  fire,  marine, 
and  fire  and  marine  insurance  company,  in- 
corporated or  associated  under  the  laws  of 
any  government  other  than  one  of  the  United 
States.  Liverpool  T/ik.  Co.  v.  State  of  Masses- 
cJiusetts,  10  Wall.,  566. 

4.  The  revenue  act  of  the  state  of  Louisiana, 
of  March  16,  18T0,  provides  that  no  insurance 
company  whose  license  tax  shall  be  $1,000, 
shall  be  liable  to  any  assessment  throughout 
the  state  other  than  that  imposed  by  this  stat- 
ute. The  city  of  New  Orleans  was  empow- 
ered by  law  to  levy  a  license  tax  upon  trade, 
professions  and  callings.  Ueld,  the  act  of 
■JTarch  16,  1870,  applied  only  to  taxes  levied 
by  the  state.  It  had  no  bearing  upon  the 
power  conferred  upon  the  city  of  New  Orleans 
to  levy  a  tax  upon  an  insurance  company  cre- 
ated by  a  foreign  state.  Iiuurance  Co.  v.  City 
■of  New  Orleans,  1  Woods,  85. 

5.  Tliese  companies  had  a  principal  place 
of  business,  each  in  the  city  of  New  Orleans, 
■where  policies  of  insurance  were  issued,  and 
payments  and  adjustments  were  made;  but 
ioT  the  accommodation  of  persons  who  resided 

683 


at  places  remote  from  the  principal  places  of 
business,  they  had  offices  for  the  transaction 
of  some  of  their  business.  Held,  they  were 
liable  for  one  license  only;  that  it  was  a 
tax  on  the  occupation,  and  not  on  the  business 
establishment,  and  must  therefore  be  uniform. 
Merchants  Mut.  Ins.  Co.  v.  Blandin,  24  La. 
An.,  113. 

6.  The  6tu  section  of  the  charter  of  Fire- 
men's Benevolent  Association  required  "  every 
person  who  shall,  in  the  city  of  Chicago,  act 
as  agent  for  or  on  behalf  of  any  individual 
of  association  of  individuals  not  incorpo- 
rated by  the  laws  of  the  state  of  Illinois, 
for  the  purpose  of  making  insurances,  shall 
pay  to  the  treasurer  of  the  Firemen's  Be- 
nevolent Association  two  per  cent,  of  the 
premiums  received  by  or  agreed  to  be  paid  to 
such  agent  upon  insurances  made.  Held,  the 
legislature  had  a  right  to  consider  the  associa- 
tion as  a  public  charity;  the  bill  was  consti- 
tutional, and  the  demurrer  to  the  action 
overrruled.  J^iremen's  Benevolent  Ass'n  v. 
Lounsbury,  2nils.,  511. 

7.  Sec.  30  of  statute,  March  10,  1869,  enti- 
tled an  act  to  incorporate  and  to  govern  fire, 
marine  and  inland  navigation  insurance  com- 
panies, repealed  sec.  5  of  the  act  of  February 
13,  1863,  and  thereby  took  away  from  the  city 
of  Chicago  the  right  to  sue  for  the  tax  mcu- 
tioned  in  that  statute.  Van  Inwagen  v.  City  of 
Chicago,  61  111.,  31. 


TELEGRAPH  CABLE. 

(See  Atlantic  Cabls.) 


TENDER. 

An  offer  of  a  certain  sum  in  full  of  all  de- 
mands is  not  a  legal  tender.  Strong  v.  Harvey 
3  Bing.,  304;  4  L.  J.  U.  P.,  57 ;  11  Moore,  73. 


TERRITORIAL  LIMITS. 

I.  When  kesidinq  O0T  op  is  a  defense. 

II.  IS  KOT  A  DEFENSE. 


13C5 


TERRITORIAL  LIMITS. 


13G6 


When  residing  out  of  is  a  defense  —  When  residing'  out  of  is  not  a  defense. 


I.  "When  kesiding  out  of  is  a  defense. 

1.  "To  be  void  if  the  insured  departs  be- 
yond the  limits  of  Europe;"  but  by  iudorsc- 
ment  he  was  permitted  to  travel  and  reside  in 
any  part  of  the  United  States  south  of  36°  31' 
north  latitude,  from  November  1st  to  July  1st. 
The  defendants'  agents  annexed  to  the  premi- 
um receipt  this  permission:  "It  is  understood 
and  agreed  that  insured  has  permission  to 
proceed  in  a  first  class  vessel  to  New  Orleans, 
on  and  after  this  datct"  He  sailed  October. 
24,  18C:i,  and  continued  to  reside  in  New  Or- 
leans till  August  23,  1864.  He  arrived  in  New 
York  August  31st.  Held,  the  insurers  were 
released.  liaimford  v.  Boyal  Ins.  Co.,  1  .1.  & 
Sp.,  453 ;  affirmed,  52  N.  Y.,  626. 

2.  Policy  on  the  life  of  person.  Stipulated : 
"  Insured  shall  not,  without  consent  of  insur. 
ers,  visit  those  parts  of  the  United  States  south 
of  the  southern  boundaries  of  Virginia  and 
Kentucky,  between  July  1st  and  November 
1st,  nor  pass  beyond  the  settled  limits  of  the 
United  States,  nor  enter  into  military  or  naval 
service."  Permission  was  given  "to  make 
one  voyage  out  and  home  to  California  in  a 
first  rate  vessel  round  Cape  Horn  or  by  Vera 
Cruz."  He  went  to  California  and  was  taken 
sick  at  San  Francisco.  He  left  there  the  fol- 
lowing month  for  his  home  in  New  Bedford, 
returning  by  way  of  Panama  and  Chagrcs,  but 
not  by  way  of  Vera  Cruz.  He  reached  hotne 
December,  1850,  where  he  died.  Held,  the 
policy  was  void;  that  the  permission  was  care- 
fully defined  and  restricted ;  that  the  insurers 
liad  the  right  to  fi.v  their  own  terms  within 
such  limitations  as  they  deemed  expedient, 
and  these  having  been  broken,  insurers  were 
discharged.  Ualhnoay  v.  Trenton  Mutual  Life 
and  Fire  Ins.  Co.,  11  Cush.,  448. 

3.  By  the  terms  of  the  policy,  residence  of 
the  life  insured  (the  Episcopal  bishop  of 
Rhode  Island)  was  limited  to  the  states  of  New 
York,  New  Jersey,  Pennsylvania  and  Ohio, 
with  the  privilege  to  travel  in  any  other  settled 
portions  of  the  United  States,  British  Prov- 
inces of  Canada,  New  Brunswick  and  Nova 
Scotia,  upon  conditions  that  if  he  should, 
without  the  consent  of  the  company,  go  into 
any  other  portion  of  the  United  States  beyond 
the  limits  of  constant  residence  permitted  to 
him,  and  be  there  for  more  than  five  days  be- 
tween July  1st  and  October  15th,  then  the 
policy  should  be  void.    During  the  absence 


of  the  bishop  of  Maryland  in  Europe,  the  per- 
son  insured  went  into  the  state  of  Maryland  to 
perform  the  duties  of  his  office,  and  there  re- 
mained for  about  ten  daj's  in  the  performance 
of  those  duties  without  the  company's  con- 
sent. During  his  stay  he  was  attacked  with 
apoplexy  and  died.  Held,  insurers  were  dis- 
charged. Nightingale  v.  State  Mutual  Life 
Ins.  Co.,  5  R.  I.,  38. 

II.  When  kesiding  orxsiDE  of,  is  not 
A  defense. 

1.  Stii)ulated:  "If  the  person  insured  shall 
pass  beyond  certain  limits  mentioned,  the  pol- 
icy shall  be  void."  It  w.as  necessary  for  him 
to  go  to  Cuba,  a  place  outside  of  the  limits 
named,  and  the  insurers  indorsed  the  follow- 
ing: "  Permission  is  hereby  given  to  J.  M.  P. 
to  proceed  to  Cuba,  and  return  before  April  1, 
1871.  He  is  to  take  his  own  risk  from  death 
by  epidemics."  He  died  of  yellow  fever,  in 
the  city  of  Havana,  in  the  month  of  Febru- 
ary, 1871 ;  but  the  referee  found  specially  that 
"yellow  fever  did  not  prevail  at  that  time,  in 
the  form  or  condition  or  to  the  extent  of  an 
epidemic."  Held,  the  insurers  were  liable. 
Pohalski  v.  Mutual  Life  Ins.  Co.,  45  How.  Pr., 
504;  s.  c.,4  J.  &  Sp.,  234;  aflirmed,  56  N.  Y., 
640. 

2.  Stipuliited  :  "  To  be  void  in  ease  the  per- 
son insured  sliall  pass  beyond  the  settled  lim- 
its of  the  United  States,  except  the  settled 
limits  of  the  British  Provinces  of  Canada,  or 
visit  pgirts  of  the  United  States  lying  south  of 
the  southern  boundary  of  Virginia  and  Ken- 
tucky, during  certain  periods  of  the  year  in 
the  policy  moutioned.  Insured  started  upou 
a  journey  to  California,  over  the  plains,  from 
Fort  Independence,  in  the  direction  of  Great 
Salt  Lake,  and  died  of  cholera  at  the  upper 
crossing  of  the  South  Fork  of  the  Platte  river, 
June  21,  1850.  Held,  he  was  not  within  pro- 
hibited territory.  (Comslock,  Davis  and 
Clerke,  JJ.,  dissenting.)  Casler  v.  Connecticut 
Mulu<d  Life  Ins.  Co.,  22  N.  Y.,  427. 

3.  Stipulated:  "The  insured  shall  not,  with- 
out the  consent  of  the  insurers  indorsed  on 
the  policy,  visit  those  parts  of  the  United 
States  which  lie  south  of  the  southern  bound- 
aries of  Virginia  and  Kentucky."  He  had 
permission  to  go  to  Florida,  conditioned  that 
he  must  1)e  north  of  the  south  boundary  of 
Virginia  by  July  10,  1854.     He  was  at  Appa- 

683 


1367 


THEFT  AND  ROBBERY. 


1568 


When  insurei-s  are  liaMe  for  a  loss  by. 


lacliicola,  Florida,  June  11th,  was  taken  ill 
and  became  unable  to  travel  or  to  leave 
that  place,  about  six  days  journey  from 
the  south  boundary  of  Virginia.  He  died 
there  July  20th.  Hdd,  insurers  were  liable, 
because  his  failure  to  be  north  of  tlie  limit 
named  was  caused  solely  by  that  illness  which 
resulted  iu  his  death.  Baldwin  v.  New  York 
Life  Ins.  and  Trust  Co.,  3  Bos.,  530. 

4.  Insured  had  perinission  to  pass  by  sea 
on  first  class  decked  vessels.  He  took  passage 
in  the  steerage.  Held,  no  defense  to  the  action. 
Taylor  v.  ^tna  Life  Ins.  Co.,  13  Gray,  434. 

5.  The  company's  agent  authorized  to  re- 
ceive the  premium  had  notice  that  the  person 
iiisured  resided  within  prohibited  territory; 
and  after  that  notice  he  received  annual  jire- 
miums  and  procured  a  permit  for  the  person 
insured  to  reside  within  the  prohibited  terri- 
tory. Held,  a  waiver  of  the  forfeiture.  Walsh 
■V.  ^tna  Life  Ins.  Co.,  30  Iowa,  133. 

6.  A.  insured  his  life  and  assigned  the  pol- 
icy to  a  creditor.  The  policy  stipulated  that 
it  should  be  void  and  the  premiums  forfeited 
to  the  company  if  the  in.sured  should  go  be- 
yond the  limits  of  Europe,  without  the  direct- 
ors' license.  He  went  into  Canada  without 
their  license,  remained  some  time,  and  died 
there.  It  was  proved  that  the  local  agents  of 
the  company  through  whom  the  insurance 
was  effected  received  all  the  premiums  that 
became  due  after  they  knew  that  insured  was 
residing  in  Canada;  that  they  stated  to  the 
creditor  that  the  breach  of  the  condition  in 
that  respect  would  not  invalidate  the  policy. 
Held,  it  was  not  necessary  to  determine 
whether  the  company  had  notice  of  the  in- 
sured's residence  beyond  the  prescribed  limits; 
if  the  agents  wore  authorized  to  receive  the 
premiums,  it  was  their  duty,  and  not  the  duty 
of  the  plaintiff,  to  communicate  to  the  com- 
pany  tlie  circumstances  under  which  the  pre- 
miums liad  been  paid  and  received.  Wing  v. 
HarKey,  23  L.  J.  Ch.,  511 ;  s.  c,  5  De  G  ,  M.  & 
G.,  265 ;  18  Jur.,  394. 

7.  Stipulated :  "  Insured  shall  not  go  beyond 
the  limits  of  Europe  without  leave  of  the  di- 
rectors." Indorsed:  "The  life  insured  under 
this  policy  being  about  to  proceed  to  and  re- 
side at  Belize,  in  the  state  of  Honduras,  and 
an  extra  premium  of  twenty  guineas  having 
been  paid  for  such  residence  for  one  year, 
permission  is  hereby  granted  to  the  life  in- 
sured to  proceed  to  and  reside  at  Belize  afore- 

G84 


said,  and  for  so  long  thereafter  as  the  extra 
premium  shall  from  time  to  time  be  paid, 
along  with  the  premium  payable  on  this  pol- 
icy as  within  expressed."  The  policy  and  in- 
dorsement  were  of  the  same  date,  June  23, 
1853.  Insured  did  not  proceed  to  Belize  until 
June  9,  1850.  He  arrived  there  the  end  of 
August,  and  died  there  August  13th  following. 
At  the  time  the  additional  premium  was  paid 
and  consent  given  to  reside  at  Belize,  both 
parties  supposed  he  would  immediately  pro- 
ceed thither.  Held,  the  rights  of  the  parties 
must  be  governed  by  the  terms  of  the  permis- 
sion, and  that  is  that  the  assured  had  permis- 
sion to  proceed  to  and  reside  at  Belize  afore- 
said, and  for  the  time  aforesaid;  that  reading 
these  in  connection  with  the  preceding  recital, 
"Being  about  to  proceed  to,  and  reside  at  Be- 
lize," the  effect  of  the  whole  was  that  he  had 
twelve  months'  residence  at  Belize  independ- 
ently of  the  time  occupied  in  the  voyage; 
that  there  was  nothing  iu  the  permission  to 
define  the  period  from  which  the  twelve 
months'  residence  was  to  begin;  that  the  lan- 
guage being  the  defendants',  it  must  be  taken 
most  strongly  against  them,  if  there  be  any 
ambiguity  in  it,  hence  the  residence  for  which 
liermission  was  granted  might  begin  at  any 
time.  Notman  v.  Anchor  Ass.  Co.,  4  C.  B.  (N. 
S.),  476;  27  L.J.  C.  P.,  275;  4  Jur.  (N.  6.), 
712. 


THEFT  AND  ROBBERY. 

I.  When    iNstrRERS    abe    liable    for  a 

LOSS  BT. 
II.  KOT  LLiBLE  FOR 

LOSS  BT. 

I.  "When  insukees  aee  liable  foe  a 

LOSS  BY. 

1 .  On  cargo.  Included  risk  of  the  seas,  pi- 
rates, robbers,  thieves  and  barratry  of  the  mas- 
ter and  mariners.  It  was  transhipped  at  Kew 
Orleans,  put  on  board  steamboats  for  Tuscura- 
bia.  At  the  latter  place  it  appeared  that  some 
of  the  boxes  had  been  broken  open  and  again 
closed,  and  goods  to  the  value  of  $1,176  .50 
were  missing.  There  was  no  proof  as  to  the 
manner,  the  persons  by  whom,  the  time 
when  or  the  place  they  were  taken.    Held^ 


i;56!> 


THEtT  AND  ROBBERY. 


1370 


When  insurers  are  not  liable  for  loss  b}'. 


the  insurer  was  liable.     American  Ins.  Co.  v. 
Bryan,  2(i  Weud.,5C3:  s.  c.  affirmed,!  Hill,  25. 

2.  The  value  of  the  goods  saved  amounted 
to  $9,488.06.  When  the  store  was  closed  the 
evening  previous,  the  value  of  the  stock 
aniounled  to  .$13,948  01.  The  fire  was  discov- 
ered about  midnight,  and  before  it  reached 
the  stock  in  question  it  was  removed  across 
the  street,  piled  jip  ou  the  sidewalk  by  persons 
acting  in  behalf  of  insurance  companies  gen- 
erally, who  were  stationed  in  charge  of 
tliem;  was  subsequently  removed  to  an- 
other building  one  hundred  feet  distant, 
locked  up,  and  the  key  retained  by  one  of  the 
insurance  agents  until  it  was  delivered  the 
following  day  to  the  insured.  Several  hun- 
dred persons  assisted  in  removing  the  goods, 
and  there  was  a  great  deal  of  confusion,  and 
much  opportunity  for  some  of  the  goods  to 
have  been  stolen.  Held,  it  was  immaterial 
whether  the  goods  were  burned,  or  abstracted, 
or  stolen  while  they  were  being  removed  out 
of  the  reach  of  the  fire,  for  where  existing  cir- 
cumstances, by  their  continuance,  would  cre- 
ate a  total  loss,  the  loss  continues  total,  al- 
though those  circumstances  may  have  wholly 
changed,  if  the  property  is  not  beneficially  re- 
stored to  the  insured;  that  if  the  goods  were 
removed  from  a  building  actually  on  fire,  and 
they  would  have  been  destroyed  b}-  that  fire 
had  they  remained  in  it,  the  loss  was  a  natural 
consequence  of  the  peril  insured  against  (cit- 
ing Btindrett  v.  Hentigg,  Holt  N.  P.,  149; 
Hahn  »•.  Corbett,  3  Eing.,  305;  Dean  ».  Ilorn- 
Icy,  3  El.  &  Bl.,  180.)  Tilton  v.  Hamilton  Fire 
Ins.  Co.,  14  How.  Pr.,  363;  s.  c,  1  Bos.,  367. 

3.  The  premises  were  discovered  on  fire, 
and  the  girnds  were  quickly  removed,  but  they 
were  damaged  seriously  by  water,  and  to  some 
extent  by  fire,  and  many  of  tliem  were 
stolen  while  being  removed.  Hdd,  insur- 
ers were  liable  for  the  goods  stolen.  Inde- 
pendent 3fut.  Ins.  Co.  V.  Agnew,  34  Penn.  St.,  96 ; 
8.  c,  3  Phila.,  193. 

4.  Some  of  the  goods  were  stolen.  At  the 
time  the  fire  occurred,  insured  removed  them 
fi)r  the  purpose  of  protecting  them.  Held, 
when  goods  are  damaged  ex  necessitate  to  pre. 
serve  them,  the  insurer  is  liable  for  the  dam- 
age, and  there  is  no  good  reason  why  he  should 
not  be  liable  for  an  actual  loss  by  theft,  when 
it  is  the  consequence  of  an  cfl'ort  to  save  (citing 
Case  V.  Hartford  Fire  Ins.  Co.,  13  111.,  6T6; 
City  Fire  Ins.  Co.  v.  Corlus,  21  Wend.,  3GT; 


Tilton  V.  Hamilton  Fire  Ins.  Co.,  1  Bos.,  307; 
Independent  Ins.  Co.  v.  Agnew,  34  Penn.  St. 
90).     Witherell  v.  Maine  Ins.  Co.,  49  Me.,  200. 

5.  Water  was  thrown  upon  the  premises  in- 
sured; some  of  it  fell  upon  tlie  goods  insured, 
and  greatly  soiled  them,  and  others  were  dam- 
aged by  removal  from  the  reach  of  the  fire. 
Some  were  stolen.  Held,  insurers  were  liable 
for  the  damages.  Whitehurst  v.  Fayetteville 
Mut.   Ins.  Co.,  6  Jones'  Law,  352. 

6.  Action  for  loss  by  fire ;  some  of  the  goods 
were  stolen  at  the  fire.  Held,  a  loss  within 
the  policy,  if  they  were  stolen  on  account  of 
the  fire.  Neiomark  v.  Liverpool  and  London, 
Ins.  Co.,  30  SIo.,  100. 

7.  Stipulated:  "This  company  will  not  be 
liable  for  any  loss  or  damage  to  goods  con- 
tained in  the  show  windows,  when  the  loss  or 
damage  is  caused  by  the  light  in  the  window, 
nor  shall  the  company  be  liable  for  loss  by 
theft.  Held,  if  the  removal  of  the  goods  was 
authorized  by  the  danger  of  fire,  and  some  of 
them  w-ere  stolen  in  course  of  removal,  the  in- 
surer was  liable,  the  exception  in  the  poliey 
being  limited  to  theft  from  the  show  windows. 
Letter  v.  Liverpool,  London  and  Globe  Ins.  Co.,  6 
Bush,  639. 

II.  When  lnsukees  aee    not  liable 

FOK   A   LOSS   BY. 

1.  Insurers  assumed  risk  of  pirates,  assailing 
thieves,  etc.  The  vessel  being  wrecked,  the  car- 
go was  saved  on  rafts ;  the  United  States  con- 
sul seized  it  and  kept  the  proceeds.  Held, 
not  within  the  risk  assumed,  for  there  was  no 
plunder  or  robbery  by  force.  Paddock  v. 
Commercial  Ins.  Co.,  2  Allen,  93. 

2.  The  roof  of  the  building  was  very  much 
burned,  the  openings  and  corners  were  very 
badly  scorched,  and  the  fire  engines  played 
on  the  building.  While  the  goods  were  l)e- 
ing  removed  some  were  stolen.  The  policy 
expressly  excluded  liability  for  goods  stolen 
while  being  removed  from  a  building  dam- 
aged by  fire.  Jleld,  good  faith  requires  both 
parties  to  do  all  in  their  power  to  make  the 
loss  as  small  as  possible,  and  as  there  was  e.x- 
4)ress  exemption  for  the  cause  of  action  set  forth, 
the  onus  was  upon  the  insured  tosliow  that  the 
defendant  did  some  act  to  incur  liability  for 
the  loss.  Fernandez  v.  Merchants  Mut.  Ins. 
Co.,  17  La.  An.,  131. 

.S.  Policy  provided,  "  This  company  shall 

683 


1371 


TIME. 


1372 


Computation  of. 


not  be  liable  to  make  good  any  loss  by  theft." 
Three  sides  of  the  building,  containing  the 
goods,  were  surrounded  by  burning  houses, 
and  the  building  itself  was  on  fire.  Insured 
endeavored  to  save  the  goods  by  removal,  and 
did  remove  them,  but  while  so  doing  there 
was  a  loss  by  pillage,  waste,  or  otherwise,  to 
the  amount  of  $4,970.  Hekl,  the  insurers  were 
not  liable  for  it.  Webb  v.  Protection  Ins.  Co., 
U  Mo.,  3. 

4.  Stipulated:  "The  company  shall  not 
be  answerable  for  loss  or  damage  by  theft  at 
or  after  any  fire.  Held,  insurers  were  not  li- 
able for  goods  stolen  during  the  fire  and 
while  they  were  being  removed.  Liverpool, 
London  and  Globe  Ins.  Co.  v.  CreigMon,  51 
Ga.,  95. 

5.  "Against  the  dangers  of  rivers,  seas,  ene- 
mies, pirates,  rovers,  thieves,"  etc.  The  dec- 
laration averred  a  loss  for  "  that  they  were 
stolen  by  thieves  from  on  board  the  boat." 
Held,  the  theft  insured  against  was  that 
accompanied  by  violence,  and  not  simple 
larceny  (citing  3  Kent's  Com.,  303;  Phillips 
on  Ins.,  p.  258).  Marshall  ».  Nashville  Marine 
and  Fire  Ins.  Co.,  1  Humph.,  99. 


TIME. 


Computation  of. 

1 .  On  coffee,  "  to  be  shipped  between  Feb- 
ruary 1st  and  July  15,  1840."  Coffee  was 
shipped  on  July  15,  1840,  and  lost  by  perils  of 
the  sea.  Held,  it  was  not  within  the  policy. 
Atkins  V.  Boylston  Fire  and  Marine  Ins.  Co.,  5 
Met.,  439. 

a.  For  the  period  of  twelve  months  from 
noon  October  5,  1866,  terminating  noon  Octo- 
ber 5,  1867,  against  loss  of  life,  payable  within 
ninety  days  after  suflBcient  proof  that  the  in- 
sured, at  any  time  after  the  date  hereof  and 
before  the  expiration  of  this  policy,  shall  have 
sustained  personal  Injury  caused  by  any  acci- 
dent within  the  meaning  of  this  policy,  and 
such  injuries  shall  occasion  death  within 
ninety  days  from  the  happening  thereof.  In- 
sured met  with  an  accident  December  11, 
1866,  from  which  he  died  at  9  A.  M.,  March 
12, 1867.  Held,  the  time  was  to  be  computed 
from  the  time  the  accident  occurred,  and  as 
death  did  not  happen  within  ninety  days  from 
036 


it,  no  recovery  could  be  had.    Perry  v.  Provi- 
dent Life  Ins.  Co.,  99  Mass.,  162. 

3.  Stipulated:  "To  pay  $10  per  week  for  a 
period  not  exceeding  altogether  twenty-six 
weeks  for  any  single  accident;  also  to  pay 
.$2,000  within  ninety  days  after  proof  that  tho 
assured,  at  any  time  before  the  expiraliou  of 
this  policy,  shall  have  sustained  personal  in- 
jury, and  such  injury  shall  occasion  death 
within  ninety  days  from  the  happening  there- 
of. Insured  met  with  an  accident  December 
11, 1866,  died  Jtarch  13,  1867.  Held,  insurer 
was  liable  for  thirteen  weeks  at  $10  per  week, 
and  nothing  more.  Perry  v.  Provident  Lift 
Ins.  Co.,  103  Mass.,  242. 

4.  The  policy  was  effected  December  17, 
1845,  for  one  year,  commencing  and  ending 
at  12  o'clock  noon.  The  loss  took  place  De- 
cember 17,  1846,  in  the  forenoon.  She  was 
wrecked  between  400  and  500  miles  from  Ber- 
muda.  The  master  and  crew  remained  upun 
her  a  day  or  two  before  they  were  taken  off. 
Held,  the  meridian  of  the  place  where  the  con- 
tract was  made  must  govern  the  rights  of  the 
parties.  Walker  v.  Protection  Ins.  Co.,  29  Me., 
317. 

5.  Stipulated:  "  Insured  shall  pay  into  the 
treasury  one  dollar  and  twenty -five  cents  upon 
the  death  of  any  member  of  the  association, 
within  thirty  days  afier  date  of  said  death, 
being  notified  thereof  by  publication  in  one 
daily  newspaper,  published  in  New  Orleans, 
in  English,  German  and  French,  for  five  con- 
secutive da}"S.  Held,  the  last  day  of  publica- 
tion, and  not  the  first,  was  the  period  from 
which  the  thirty  days  commenced  to  run. 
Wetmore  v  Mutual  Aid  and  Benevolent  Life 
Ins.  Ass.,  23  La.  An.,  770. 

6.  "On  goods  from  the  loading  thereof  till 
safely  landed  at  Savannah,  if  done  in  forty 
days."  The  vessel  sustained  injury  before  the 
goods  were  laden,  and  it  became  necessary  to 
detain  them  until  another  was  ready  to  take 
them.  Insurer  consented  to  transfer  the  risk 
from  that  vessel  to  another,  and  to  allow  forty 
days  for  the  trip;  which  consent  was  obtained 
twenty  days  after  the  policy  was  made,  and, 
thirty  days  after  the  transfer,  a  loss  occurred. 
Held,  the  delay  caused  by  changing  craft  and 
transhipping  were  not  to  bo  counted  in  the 
forty  days.  Plant  v.  Eiifaula  Home  Ins.  Co.,il 
Ga.,  130. 

7.  On  the  life  of  R.,  for  one  year,  "  from  tlie 
day  of  the  date;    dated  September  3,  1697." 


1373 


TITLE. 


1374 


What  must  be  disclosed  —  What  need  not  be  disclosed. 


R.  died  at  one  o'clock  A.  M.,  September  3, 
1G98.  Held,  "from  the  diiy  of  the  date"  ex- 
cludes the  day;  but  "  from  the  date  "  includes 
it.  As  R.  died  after  the  commencement  and  be- 
fore the,  end  of  the  last  day,  the  insurer  was 
liable,  because  the  insurance  was  for  a  year, 
and  the  year  was  not  complete  uutil  tlie  last 
day  was  over.  Sir  liobert  Howard's  Case, 
Holt  K.  B.,  195;  see  s.  c.  Anon.,  1  Ld.  Raym., 
480. 

8.  "  On  ship,  from  L.  to  any  port  or  ports 
in  the  North  or  South  Pacific  Oceans,  in  any 
order,  backwards  or  forwards,  and  during 
thirty  days  stay  in  her  last  port  of  discharge." 
She  arrived  at  7  P.  M.,  May  2dfh,  where  she 
remained  uutil  3  45  A.  M.,  June  24th,  when 
she  was  driven  ashore  and  lost.  Held,  the 
thirty  days  did  not  begin  to  run  until  the 
expiration  of  twenty-four  hours  after  her  arri- 
val ;  hence  she  was  ijrotected  by  the  policy. 
Mercantile  Marine  Ins.  Co.  v.  Tithcrington,  5 
B.  &  S.,  765;  U  Jur.  (N.  S.),  102;  34  L.  J.  Q. 
B.,  11 ;  13  W.  R.,  141 ;  11  L.  T.  (N.  S.),  340. 

9.  For  six  months  from  February  14,  1808, 
to  August  14,  1808,  and  for  so  long  after  as  in- 
sured shall  pay  and  the  defendants  shall  ac- 
cept the  premium  payable  therefor.  A  fire 
occurred  August  14,  1808.  Held,  the  whole  of 
that  day  was  protected ;  hence  insurers  were 
liable.  Isaacs  v.  Royal  Ins.  Co.,  5  L.  R.  Ex., 
296;  39  L.  J.  Ex.,  189;  18  W.  R.,  982;  23  L.  T. 
(N.  S.J,  681. 


TITLE. 

I.  What  must  be  disclosed. 

II.  KEED  NOT   BE  DISCLOSED. 

III.  IS   A   WARKANTY   OF. 

IV.  IS  NOT  A   WAKBANTV   OP. 
V.  SATISFIES  THE   WARRANTY. 

VI.  DOES     NOT     SATISFY    THE     WAR- 

RANTY. 

VII.  Op  change   op   title,  interest  or 

POSSESSION. 

(a)  What  is  not. 

(b)  is. 
VUl.  Generally. 

I.  What  must  be  disclosed. 

Act  of  incorporation  made  part  of  the  con- 
tract, provided:  "  If  insured  have  a  less  estate 


than  fee  simple,  or  if  the  premises  bo  incum- 
bercd,  the  policy  sliall  be  void,  unless  the  tru(? 
title  of  insured  and  the  incumbrances  on  the 
premises  be  expressed  thereon."  Held,  if  the 
insured  had  an  estate  less  than  fee  unincum- 
bered, it  must  be  disclosed;  that  an  omissioa 
to  set  forth  an  estate  less  than  fee  unincum- 
bered was  a  warranty  tliat  it  was  not  less- 
than  fee  unincumbered.  Illinois  Mutual 
Fire  Ins.  Co.  v.  Marseilles  Manufacturing  Co., 
6  111.,  230. 

II.  What  need  not  be  disclosed. 

1.  If  there  be  nn  inquiry  by  insurer  as  to- 
title  of  insured,  and  insured  in  his  applica- 
tion designate  the  property  as  "  his  own," 
this  is  no  misrepresentation  of  the  title, 
though  the  fact  be  that  the  property  is  under 
mortgage  and  his  equity  of  redemption  lias 
been  taken  but  not  sold.  Strong  v.  Manvfac- 
turers  Ins.  Co.,  10  Pick.,  40. 

2.  Stipulated:  "If  the  interest  in  the  prop- 
erty to  be  insured  be  a  leasehold  or  other  in- 
terest not  absolute,  it  must  be  so  represented 
to  the  company,  and  expressed  in  the  policy, 
otherwise  the  insurance  shall  be  void."  Tlie 
buildings  insured  were  the  property  of  in- 
sured, but  upon  leased  land.  Insured  had  the 
riglit  to  remove  them  at  the  end  of  the  term. 
Held,  he  was  not  bounu  to  disclose  the  extent 
of  his  interest,  since  it  was  not  a  leasehold  in- 
terest. Hope  Mutual  Ins.  Co.  v.  Brolaskey,  35 
Penn.  St.,  383. 

3.  A  failure  to  disclose  the  exact  state  of  the 
title  of  the  insured  does  not  avoid  the  policy, 
unless  there  ia  an  inquiry  in  respect  to  it,  or 
tlie  fact  is  material  to  the  risk  {Morrison  v. 
Tennessee  Marine  and  Fire  Ins.  Co.,  18  Mo., 
302),  and  it  is  not  necessary  to  disclose  that 
tlierc  are  liens  for  taxes  and  judgments. 
Ibid. 

4.  Stipvdated:  "If  the  interest  in  the  prop- 
erty to  be  insured  be  a  leasehold,  trustee, 
mortgagee,  or  reversionary  interest,  or  other 
interest  not  absolute,  it  must  be  so  represented 
to  the  company  and  expressed  in  the  policy  in 
writing,  otherwise  the  policy  shall  be  void." 
The  insured  became  the  purcliaser  under  a 
mortgagee's  sale;  tlie  right  to  redeem  had  not 
expired  at  the  time  the  policy  was  made.  He 
did  not  disclose  tlie  nature  of  his  title.  Held, 
he  was  not  bound  to  do  so.  Gaylord  v.  Lamar 
Fire  Ina.  Co.,  40  Mo.,  13. 

687 


1375 


TITLK. 


137G 


What  is  a  warranty  of. 


III.    WlIxVT  IS  A   WARRANTY  OF. 

1.  Policy  made  December  15,  1862,  to  A., 
the  owner,  hjss  payable  to  W.,  mortgagee. 
Stipulated  :  "  The  acts  of  the  mortgagor  shall 
not  affect  the  rights  of  mortgagee  under  the 
policy."  Also,  "In  case  of  payment  to 
mortgagee  for  a  loss  for  which  insurers  would 
not  be  liable  to  mortgagor,  the  mortgagee 
shall  assign  mortgage  to  insurers."  Also, 
•"  In  case  of  any  change  of  the  title  in  the 
property  insured,  the  policy  shall  be  void." 
The  mortgagor  paid  the  premiums,  and  by 
quit  claim  conveyed  to  H.  They  united  in  a 
warranty  deed  to  I.,  who  assumed  the  mort- 
gage, the  grantors  agreeing  he  should  have  the 
benefit  of  the  policy.  W.  assigned  his  mort- 
gage to  B.,  and  insurers  paid  the  loss  to  him, 
and  the  balance  of  the  mortgage  debt  beyond 
the  amount  insured  was  paid  by  F.,  the  mort^ 
gagee.  Held,  the  mortgagor  could  not  have 
recovered  on  the  policy,  because  he  had 
broken  the  condition  which  prohibited  "Sale 
or  change  in  title,"  hence,  he  was  not  entitled 
to  have  the  moneys  paid  under  the  policies 
applied  to  satisfy  the  mortgage,  therefore  the 
assignee  of  W.  was  entitled  to  a  foreclosure. 
Springfield  Fire  and  Marine  Ins.  Co.  v.  Allen, 
43  N.  Y.  (4  Hand),  389. 

2.  Stipulated  :  "  Application  shall  be  made 
according  to  the  printed  forms  of  the  com- 
pany, and  shall  specify  the  nature  of  the 
applicant's  title  if  less  than  fee  simple.  Any 
misstatement  or  concealment  relative  to  the 
foregoing  requirements  shall  render  the  in- 
surance void."  The  plaintiff's  written  appli- 
cation stated,  tliat  he  owned  the  property  by 
virtue  of  an  article  of  agreement  with  Eliza 
Chapen,  upon  which  land  the  building  in- 
sured was,  at  tbe  time  the  applicaticm  was 
made.  Held,  the  plaintiff  could  not  be  per- 
mitted to  prove  that  the  building  in  question 
was  a  chattel,  for  the  statement  in  the  applica- 

■  tiou  was  a  warranty  as  to  his  title,  and  as  his 
interest  did  not  agree  with  that  representation, 
the  policy  never  took  effect.  Ileld,  also,  the 
plaintiff  could  not  be  permitted  to  prove  that 
he  told  the  defendant's  agent,  who  took  the 
application,  that  he  had  purch.ased  the  build- 
Inff  prior  to  the  making  of  the  contract  for  the 
purchase  of  the  land.  Birminyham  v.  Empire 
Ins.  Co.,  43  Barb.,  457. 

3.  Stipulated:  "  If  the  title  of  the  property 
is   transferred  or   changed,  this  policy  shall 

683 


be  void  and  the  entry  of  a  foreclosure  of  ji 
mortgage  shall  be  deemed  an  alienation."  The 
property  —  a  cliattel  inteiest  —  had  been  mort- 
gaged to  secure  a  note  made  by  the  insured. 
The  mortgagee  gave  notice  of  his  intcution  to 
foreclose,  and  a  certified  copy  of  the  notice 
was  duly  recorded  (Gen.  Stats.,  ch.  151,  §g  6 
and  7);  about  four  weeks  thereafter  it  was 
totally  destroyed  by  fire.  Held,  a  literal  entry 
was  not  necessary ;  an  entry  for  a  foreclosure 
was  suflicient  to  terminate  the  risk.  Mclntire 
V.  Norwich  Ins.  Co.,  103  Mass.,  330. 

4.  Policy  to  the  H.  S.  &  L.  M.  Co.,  on  their 
one  story  frame  salt  block,  etc.  Stipulated  ■ 
"  If  the  insured  is  not  the  sole  and  uncon- 
ditional owner  of  the  property  insured  *  *  * 
then,  and  iu  every  such  case  this  policy  shall 
be  void."  The  defendant  offered  to  prove,  that 
at  the  time  of  the  loss,  B.  held  the  entire  equiu 
able  estate  and  interest,  and  the  right  to  be 
immediately  invested  with  the  legal  title. 
Held,  the  evidence  was  admissible,  for  the 
contract  warranted  that  insured  was  not  merely 
owner  but  owner  by  a  sole  uncoudititmal  title. 
Clay  Fire  and  Marine  Ins.  Co.  v.  Huron  Salt 
and  Lumber  Co.,  31  Mich.,  346. 

5.  The  application  propounded  these  ques- 
tions: "Is  the  property  mortgaged?  Are 
you  the  sole  and  undisputed  owner  of  the 
property  to  be  insured?  Do  you  own  the 
ground  on  which  the  building  stands;  if  not, 
how  is  it  held  ?"  To  the  last  he  answered,  "  By 
contract;"  to  the  first  he  answered,  "  No,"  and 
to  the  second  he  answered,  "  Yes."  Insured 
was  in  possession  of  the  property  under  a  con- 
tract to  purchase.  He  had  failed  to  pay  the 
purchase  money,  aud  neglected,  for  three  3-cars, 
to  pay  the  taxes.  The  policy  provided:  "If 
the  insured  is  not  the  sole  and  unconditional 
owner  of  the  property  insured,  or  if  tlie  prop- 
erty be  a  building  or  buildings  or  the  land  on 
which  such  building  or  buildings  stand,  by  a 
sole,  unconditional  and  entire  ownership  and 
title,  aud  is  not  so  expressed  in  the  written 
portion  of  the  policy,  it  shall  be  void."  Held, 
his  answers  to  the  questions  were  equivalent 
to  a  statement  that  although  he  held  the  land 
and  consequently  the  building  under  a  con- 
tract of'  purchase,  yet  no  person  other  than 
himself  had  any  substantial  interest  in  the 
properly ;  that  he  had  fully  paid  for  the  laud, 
was  the  sole  owner  by  an  equitable  title  in 
fee,  with  the  right  to  enforce  the  transfer  of 
the  naked  logal  outstanding  title  to  himself; 


137T 


TITLE. 


1378 


What  is  not  a  warranty  of —  What  satisfies  the  warranty. 


that  such  sfateniont  was  untrue,  tlicrclbre  the 
policy  was  void.  Ilinman  v.  Hartford  Fire 
nii.  Co.,  36  Wis.,  159. 

IV.   What  is  not  a  wakkanty  of. 

1.  Insured  was  in  possession,  IioUling  tlie 
premises  under  a  contract  of  sale  from  the 
owners.  In  answer  to  a  question  propounded 
in  the  application,  he  stated  that  he  was  tlie 
owner  of  the  property,  and  tliat  no  other  per- 
sons were  interested  in  it;  but  to  anotlier  ques- 
tion propounded,  as  to  whether  there  was  any 
incumbrance  on  the  property,  he  answered, 
"  Held  by  contract."  Held,  the  answers,  taken 
together,  precluded  the  insurer  from  asserting 
that  insured  warranted  his  interest  or  owner- 
ship as  exclusive  or  absolute.  McCulloch  v. 
Norwood,  58  N.  Y.,  562;  s.  c.,4  J.  &  Sp.,  180. 

2.  Stipulated:  "Any  policy  issued  by  this 
company  shall  be  void,  unless  the  true  title  of 
the  assured  be  expressed  in  his  application." 
Tlie  application  contained  no  inquiry  as  to 
the  title,  but  in  it  occurred  these  questions: 
"  Is  the  property  incumbered,  and  to  what 
amount?"  Answer:  "First  mortgage  to  M. 
Wyman  (the  plaintifl),  |1,500,  entered  Octo- 
ber, 1855."  "  Is  the  property  insured  ?"  An- 
swer: "Not  on  first  mortgagee's  interest,  not 
known  to  be  liy  any  other  concern."  Held, 
these  questions  and  answers  must  be  deemed 
to  represent  the  interest  of  the  applicant  truly, 
and  to  apprise  insurer  tliat  she  was  not  the 
absolute  owner  in  fee  simple.  Wyman  v.  Peo- 
ple's  Equity  Inn.  Co.,  1  Allen,  iJOl. 

3.  Stipulated:  "This  insurance  is  predi- 
cated upon  an  application  or  survey,  filed  in 
the  office  of  this  company,  which  is  made  part 
of  this  policy,  and  a  warranty  by  the  insured." 
In  it  the  applicant  was  aslted  to  state  whether 
the  buildings  and  machinery  were  owned  by 
him;  if  not,  by  whom;  and  wluit  was  the 
nature  of  his  interest.  lie  replied:  "All 
owned  by  one,  except  eight  cards,  one  drawing 
frame  and  seventy-live  new  tin  cans,  belong- 
ing to  H.,  not  to  be  insured  in  this  policy." 
He  was  aslied  to  state  whether  the  works"  were 
operated  on  account  of  the  proprietors,  or 
■whether  they  were  rented.  He  repl icd :  "  Rent- 
ed." He  was  also  aslvcd  to  state  whether  they 
■were  immediately  superintended  by  one  of 
the  proprietors;  and  if  not,  by  whom.  He 
replied:  "Yes."  It  was  proved  that  the  mill 
had  not  been  superintended  by  insured,  who 

44. 


was  sole  proprietor,  but  by  H.,  the  tenant. 
Held,  the  answers  disclosed  that  the  applicant 
owned  the  mill,  and  another  hired  it;  that  the 
word  "proprietors,"  taken  in  connection  with 
the  questions  and  answers  which  preceded  it, 
was  intended  to  include  the  tenant  in  the 
ordinary  use  of  that  word;  that  insurers  could 
not  have  understood,  from  the  applicatiion, 
that  the  landlord  superintended  the  works, 
because  it  stated  that  the  mill  was  rented; 
hence  there  was  no  misstatement  in  the  appli- 
cation which  could  affect  the  validity  of  the 
policy.  Wilson  v.  Hampden  Fire  Int.  Co.,  i 
R.  I.,  15U. 

4.  Whenever  the  insured  is  described  as  tlie 
owner  of  the  property,  it  is  not  to  be  construed 
that  he  is  the  absolute  owner,  but  that  he  has 
an  insurable  interest,  and  in  this  respect  the 
construction  is  different  to  what  it  would  be 
upon  covenant  to  convey  land,  for  there  tlie 
thing  conveyed  is  the  land,  and  the  vendor 
makes  an  implied  assertion  of  ownership.  In 
the  latter  case  the  word  is  entitled  to  receive 
its  technical  meaning,  but  in  the  former  it  is 
not  entitled  to  any  technical  meaning.  Sock- 
ford  Ins.  Co.  V.  Nelson,  65  III.,  415. 

3.  The  premises  insured  were  described  as 
"owned  and  occupied  by  the  insured  as  a 
store."  Held,  the  recital  in  the  policy  was  not 
a  'B'arranty  that  insured  was  the  owner  of  the 
property,  for  the  Georgia  Code,  sec.  2753,  pro- 
vides, that  to  sustain  any  contract  of  insurance, 
it  must  appear  that  the  insured  has  some  inter- 
est in  the  property  or  event  insured,  and  sucii 
as  he  has  represented  himself  to  have ;  a  slight 
or  contingent  interest  is  sufficient,  whether 
legal  or  equitable.  Southern  Ins.  and  Trust 
Co.  V.  Lewis,  43  Ga.,  587. 

6.  On  her  two  story  frame  dwelling  house. 
Held,  an  equitable  estate  satisfied  the  descrip- 
tion. Pennebaker  v.  Tomlinson,  1  Tenn.  Ch., 
598. 

7.  The  policy  was  written  on  his  buildings. 
Held,  no  warranty  that  they  were  his  property. 
Gilbert  v.  National  Ins.  Co.,  12  Ir.  Law,  143. 

V.  What  satisfies  the  ■waeeantt. 

1.  stipulated:  "If  the  property  shall  bo 
sold  or  transferred,  or  any  change  take  place 
in  title  or  possession  without  the  company's 
consent,  it  shall  be  void."  Insured  transferred 
the  property,  and  seventeen  days  thereafter  the 
policy  expired,  and  a  renewal  was  made  twen- 

6S9 


1379 


TITLE. 


13S0 


What  satisfies  the  warranty. 


ty-five  days  thereafter.  Insurers  had  notice  of 
it,  and  by  indorsement  consented  to  an  assign- 
ment of  the  policy.  Held,  a  waiver  of  the  for- 
feiture; tliat  when  the  company  consented  to 
the  assignment,  the  contract  revived  in  favor 
of  the  assignee;  that  the  premium  received 
for  the  renewal  and  retained  by  the  company, 
was  a  good  consideration  for  the  agreement. 
Shearman  v.  Niagara  Ins.  Co.,  46  N.  Y.,  53G ; 
s.  c,  3  Sweeney,  470;  40  How.  Pr.,  393. 

2.  The  husband  built  and  enlarged  the 
house  on  land  owned  by  his  wife  and  her 
sister,  which  he,  with  their  consent  occupied 
in  severalty.  Held,  he  could  insure  it  as  his 
own  in  a  stock  company.  Curry  v.  Common- 
wealth Ins.  Co.,  10  Pick.,  535. 

3.  Insured  was  asked:  "Do  you  own  the 
land  on  which  the  buildings  stand?"  Answer: 
"Yes."  She  derived  title  from  the  will  of 
her  husband,  admitted  to  probate  six  years 
before  the  policy  was  made.     Insurer  otfered 

to  prove  that  the  testator  left  two  children, 
not  provided  for  in  the  will,  and,  therefore, 
under  the  revised  statutes,  they  took  the  same 
estate  they  would  have  taken  had  their  father 
died  intestate,  the  entire  real  estate  subject 
only  to  the  widow's  dower.  Held,  insurer 
could  not  do  that  which  the  heirs  had  never 
done;  for  if  any  one  could  disturb  the  title  of 
insured  it  was  the  heirs  and  none  other ;  that 
her  representation  was  substantially  true,  for 
she  had  a  freehold  estate ;  and  the  owner  of  a 
freehold  is,  in  common  parlance,  as  well  as 
under  the  law,  regarded  as  the  owner  of  the 
estate.  Allen  v.  Charlestowri  Mutual  Fire  Ins. 
Co.,  5  Gray,  384. 

4.  The  property  was  described  in  the  appli- 
cation and  in  the  policy  as  "his  house."  The 
policy  stipulated:  "If  the  interest  in  the 
property  insured  is  not  absolute,  it  must  be  so 
represented  to  the  company  and  expressed  in 
the  policy,  in  writing,  otherwise  the  insurance 
shall  be  void."  At  the  time  the  applicatiuu 
and  ijolicy  were  written,  insured  had  not  the 
legal  estate,  but  had  made  a  parol  contract  to 
purchase,  for  a  fixed  price,  a  part  of  which  he 
had  paid,  had  entered  into  possession  as  pur- 
chaser, and  had  made  valuable  improvements 
on  the  property.  Ileld,  his  interest  was  abso- 
lute, because  il  was  an  interest  vested,  of  which 
he  could  not  be  deprived  without  his  consent. 
Hough  V.  City  Fire  Ins.  Co.,  29  Conn.,  10. 

5.  "  If  the  interest  in  the  property  to  be  in- 
sured be  not  absolute,  it  must  be  so  stated  in 

690 


the  policy,  and  the  nature  of  that  interest  must 
be  specilically  described,  otherwise  the  policy 
shall  be  void."  Plaintifl'had  advanced  to  his 
son  and  another  person,  the  equitable  owners 
of  tlie  land,  all  the  monej'  necessary  to  erect' 
the  building,  and  had  taken  their  notes  for  the 
money,  secured  by  a  trust  deed.  They  were 
unable  to  make  repayment,  and  sold  to  him, 
delivering  possession,  together  with  their 
muniments  of  title,  and  lie  surrendered  the 
notes.  The  court  of  the  county  in  which  the 
premises  were  situate  decreed  him  entitled  to 
a  deed  of  the  legal  title.  Held,  the  record  was 
evidence  to  establish  his  title,  and  his  estate 
was  absolute.  Coursin  v.  Pennsylvania  Ins. 
Co.,  46  Penn.  St.,  323. 

6.  The  contract  provided:  "All  policies 
upon  buildings,  when  the  insurance  is  general, 
shall  only  be  binding  when  the  insured  has  an 
unincumbered  title  in  fee ;  but  when  he  has  a 
less  estate  tlierein  the  policy  shall  be  void." 
Held,  it  meant  an  estate  of  less  duration  thau 
fee  simple ;  also,  that  although  the  deed  of  con- 
veyance  was  not  good  in  law,  yet  the  facts  be- 
ing such  that  a  court  of  equity  would  compel 
the  grantor  to  make  a  good  convej'ance  in 
law,  the  estate  was,  therefore,  an  estate  in  fee 
simple,  absolute,  and  the  policy  valid.  Sicijt 
V.  Vermont  Mutual  Fire  Ins.  Co.,  18  Vt., 
305. 

7.  Insured  was  in  possession,  claiming  and 
occupying  as  owner.  Held,  prima  facie  evi- 
dence of  title,  for  a  person  in  possession  of 
land  is  prima  facie  presumed  to  be  seized  in 
fee  (citing  1  Phillips  on  Ev.,  64G,  and  note.) 
FranJdin  Fire  Ins.  Co.  e.  Chicago  Ice  Co.,  3G 
Md.,  102. 

8.  Insurer  defended  on  the  ground  that  in- 
sured had  no  insurable  interest  in  the  prop, 
erty ;  that  at  all  events  he  was  not  the  sole 
owner.  The  conveyance  was  not  void,  but 
voidable,  at  the  election  of  the  vendor,  pro- 
viding the  right  to  disaiBrm  were  exercised 
within  a  reasonable  time.  Held,  insured  was 
the  legal  owner  of  the  property  as  against  all 
the  world.  His  title,  so  far  as  insurer  was  con- 
cerned, was  not  conditional.  Insurer  could 
not  get  rid  of  its  obligation  by  setting  up  a 
fraud  committed  upon  third  parties  (citing 
!Marks  v.  Hamilton,  16  Jur.,  152).  Phcenix 
Ins.  Co.  V.  Mitchell,  67  111.,  43. 

9.  Stipulated:  "To  bo  void  if  the  interest 
of  insured  in  the  property  insured  be  other 
thau  the  entire,  unconditional  and  sole  own- 


1381 


TITLE. 


1382 


What  does  not  satisfy  the  warranty. 


ership.  Insured  purchased,  and  gave  the  seller 
a  lien  for  a  portion  of  the  purchase  money. 
Held,  the  insured  was  the  unconditioual  and 
sole  owner.  Manhattan,  lua.  Co.  v.  Barker,  7 
Heislioll,  503. 

10.  Tlie  court  instructed  that  possession 
was  primafacie  evidence  of  title  to  the  prop- 
erty insured.  The  property  was  two  store- 
houses and  a  stock  of  goods.  Held,  correct. 
Kansas  Ins.  Co.  v.  Berry,  8  Kan.,  159. 

VI.  "What  does  not  satisfy  the  wae- 

KANTY. 

1.  Stipulated:  "Applications  shall  specify 
the  nature  of  applicant's  title,  if  less  than  fee 
simple;  any  misstatement  or  concealment  in 
relation  to  any  of  the  foregoing  rcquirenieuts 
shall  render  the  policy  void."  In  her  applica- 
tion she  stated  :  "  I  own  the  property ;  tliere  is 
no  incumbrance;"  but  it  appeared  she  was 
the  widow  of  the  former  owner;  that  the 
premises  had  been  previously  destroyed  by 
fire;  that  she  had  replaced  them  with  money 
of  her  own,  and  money  paid  to  her  by  the 
former  insurers;  that  she  had  made  a  verbal 
arrangement  with  her  son,  who  was  licir-at- 
law,  by  which  she  was  to  have  the  premises  in 
exchange  for  certain  lands  whicli  she  owned 
in  Michigan,  but  nothing  was  done  to  perfect 
this  arrangement  until  after  this  action  was 
brought.  Held,  no  reco\-ery  could  be  had. 
Pierce  ii.  Empire  Ins.  Co.,  G2  Darb  ,  636. 

2.  Policy  was  subject  to  insurer's  cliarter 
and  by-laws.  They  provided  that  the  true 
title  of  insured  must  be  stated  in  the  applica- 
tion, and  that  the  insured  must  make  a  true 
reijresentation  of  the  risk,  the  value,  the  title 
and  interest.  Insured  described  the  property 
as  his.  He  had  nothing  but  a  contract  for  a 
deed.  Held,  tlie  policy  was  void.  Smith  v. 
Botoditch  Mutual  Fire  Ins.  Co.,  6  Cush.,  448. 

3.  Policy  on  his  dwelling  house,  payable  in 
case  of  loss  to  L.  In  his  proposal  he  was 
asked,  and  stated,  that  the  premises  were 
mortgaged  to  L.  for  $2,000.  He  had  in  fact 
only  a  bond  from  L.  to  convey,  on  giving 
mortgage  for  .^2,000  advanced  to  build  witli, 
and  $1,800,  price  of  tlie  land.  Held,  the  policy 
was  void,  although  the  application  was  drawn 
by  the  agent  and  director  of  the  insured,  but 
the  case  does  not  show  that  the  agent  or  the 
director  knew  of  the  mortgage.  Lowell  v. 
Middlesex  Mutual  Fire  Ins.  Co.,  8  Cush.,  127. 


4.  Insurer's  agent  filled  out  a  printed  appli- 
cation for  insurance  without  the  knowledge 
of  tlie  parly  insured.  In  it  he  stated  that  tlio 
property  belonged  to  the  person  insured.  The 
policy  provided  that  it  sliould  be  void  un- 
less the  true  title  should  be  disclosed.  "  And 
if  the  insured  property  be  on  leased  land, 
it  shall  not  be  considered  insured  unless 
specially  described."  The  building  insured 
was  on  leased  laud.  Held,  when  insured  ac- 
cepted the  policy  he  adopted  the  application 
and  its  representations,  and  it  was  not  compe- 
tent for  him  to  show  that  the  agent  knew,  that 
insured's  interest  in  the  land  was  but  a  mere 
tenancy  at  will.  Kibbe  v.  Hamilton  Mat.  Ins, 
Co.,  11  Gray,  163. 

5.  "  Tills  policy  is  upon  the  express  condi- 
tion  that  the  application  upon  which  it  is 
founded  shall  be  held  to  be  a  warranty  on  the 
part  of  insured,  and  shall  be  considered  a  part 
of  this  policy."  Insured  was  required  to  an- 
swer whose  is  the  property  insured,  to  which 
he  replied:  "The  applicant's."  The  applica- 
tion was  signed:  "Abbott  Worsted  Co..  J.  W. 
Abbott,  Treasurer."  The  property  in  fact  be- 
longed to  him.  Held,  a  breach  of  the  war- 
ranty. Abbott  V.  Shawmut  Mutual  Fire  Ins. 
Co.,  3  Allen,  213. 

6.  Act  of  incorporation  provided  that  no 
insurance  on  real  estate  should  be  valid  unless 
tlie  title  of  insured  is  perfect  and  unincum- 
bered. Insured's  ^•endor  had  mortgaged  it, 
but  no  release  had  been  made.  The  mortgage 
debt  was  not  paid  till  after  law  day,  which  the 
mortgagee  could  have  set  up  as  a  defense  to 
an  action  of  ejectment.  Held,  the  insured  had 
not  a  perfect  unincumbered  title,  notwith- 
standing the  mortgagee  would  be  estopped  as 
against  the  insured,  from  setting  up  a  satisfied 
mortgage  title.  Warner  v.  Middlc»ex  Mat.  Ass. 
Co.,  21  Conn.,  444. 

7.  The  policy  required  insured  to  state  tlie 
nature  of  his  interest.  In  answer  to  the  ques- 
tions :  "  Who  is  the  owner  of  the  building  ? " 
"Is  there  any  incumbrance?"  he  answered: 
"Applicant."  Insured  had  only  a  bond  for  a 
deed,  subject  to  the  performance  of  certain 
conditions,  which  had  never  been  performed. 
Held,  the  company  had  no  lien  upon  the 
estate  insured,  therefore  the  representation  waa 
materially  untrue,  and  the  policy  void.  Brown 
V.  Willi'ims.  28  Me.,  252. 

8.  Insurer's  charter  provided :  "  The  com- 
pany shall  have  a  lieu  against  all  buildingi 

G'Jl 


13S3 


TITLE. 


13SJ: 


Of  change  of  title,  interest  or  possession. 


insured  by  them,  lo  the  amount  of  his  or  lur 
deposit  note."  Insured  described  the  property 
as  his  own,  but  his  title  was  a  ta,\  sale,  coupled 
with  foreclosure  of  mortgage.  The  statute  re- 
quired the  collector  to  make  return  within  thir- 
ty days  of  all  that  lie  had  done  in  every  tax  sale. 
It  did  not  appear  that  the  collector  had  ever 
made  a  return.  G.  &  N.  had  a  mortgage  upon 
the  premises;  N.  assigned  his  interest  to  E., 
■who  entered  and  claimed  to  have  foreclosed, 
and  insured  derived  his  foreclosure  title  from 
E.;  but  there  was  no  evidence  that  G.  had 
ever  parted  with  his  interest  in  the  mortgage. 
Held,  his  title  was  not  such  as  would  enable 
him  to  recover.  Piiikhani  v.  Moraiig,  40  Me., 
587. 

9.  The  act  of  incorporation  provided:  "If 
insured  have  a  less  estate  than  a  fee  simple, 
the  policy  may  be  void,  unless  the  true  title 
be  expressed  therein."  The  Insured,  in  his 
application,  described  himself  as  the  owner 
of  the  buildings.  His  estate  was  tenant  by  the 
courtesy.  Held,  the  policy  was  void.  Leath- 
ers V.  Farmers  Mutual  Fire  Ins.  Co.,  24  N.  H., 
259. 

10.  "  If  tlie  insured  have  a  less  estate  in 
the  land  than  fee  simple,  then  the  policy  shall 
be  void  unless  the  true  title  be  expressed  in 
the  policy."  The  property  belonged  to  the 
wife  of  insured;  the  fee  was  in  her,  but  the 
policy  was  made  lo  the  husband.  The  appli- 
cation propounded  this  question :  "  Have  you 
a  clear  title  to  the  property  which  you  wish 
insured  ? "  Answer :  "  It  was  the  house  and 
possessions  of  J.  P.  Force,  whose  title  was  as 
good  as  an}'  man's  in  the  country,  and  he  was 
the  fattier  of  my  wife."  Held,  insurer  had  no 
lieu  by  virtue  of  the  contract  upon  the  prem- 
ises insured,  hence  the  policj'  was  void.  Ftn- 
inence  Mut.  Ins.  Co.  v.  Jesse,  1  Met.  (Ky.),  533. 

1 1 .  Charter  declared  policy  void,  if  insured 
should  fail  to  state  in  tlie  application  any  in- 
cunibrance  on  the  insured  premises.  There 
was  a  deed  of  trust  outstanding-  against  the 
iremises.  7^6'M,  the  policj- was  void.  Lochner 
«.  Home  Mut.  Ins.  Co.,  17  Mo.,  347;  s.  c.  It) 
id.,  G28. 

12.  Stipulated:  "If  the  property  be  heUl 
in  trust  or  on  commission,  or  be  a  leasehold 
or  other  interest  not  absolute,  it  must  be  so 
represented  to  the  company  and  expressed  in 
the  policy  in  writing,  otlicrwlse  the  insurance 
as  to  such  property  shall  be  void."  The  pro|)- 
crly  was  described   as  "his  steam   tl. 

C92 


mill."  But  insured  held  under  a  bond,  which 
would  not  mature  within  the  time  insured. 
Held,  the  policy  was  void  unless  the  insured 
stated  the  true  u:vture  of  his  interest  to  the  , 
company's  agent,  to  whom  he  applied  for 
the  insurance.  Ayres  v.  Home  Ins.  Co.,  21 
Iowa,  185;  Same  v.  Hartford  Ins.  Co.,  id., 
193. 

13.  The  application  stated  that  insured 
were  owners  in  fee  unincumbered,  but  the 
only  interest  which  insured  had  was  that  of 
mortgagee  in  fee  for  a  sum  less  than  that  iu- 
sured.  Held,  a  false  representation,  which 
vitiated  the  policy.  Brown  v.  Gove  Hist.  Mut. 
Ins.  Co.,  10  U.  C.  Q.  B.,  353;  Wolroth  v.  St. 
Lawrence  County  Mut.  Ins.  Co.,  id.,  525. 


VII.  Of  change    of  title,  interest 

OE   POSSESSION. 

(a)    What  is  not. 

1.  Change  of  possession  prohibited.  Iu- 
sured  was  temporarily  absent  at  the  time  of 
the  fire ;  the  house  was  in  charge  of  another 
person.  Held,  no  change  of  possession. 
Shearman  v.  Niagara  Fire  Ins.  Co.,  46  N.  Y  , 
526;  2  Sweeney,  470;  40  How.  Pr.,  393. 

2.  Stipulated:  "In  case  of  any  sale,  alien- 
ation, transfer  or  change  of  title,  or  of  any  un- 
divided  interest  therein,  the  policy  shall  cease. 
The  entry  of  a  foreclosure,  the  levy  of  an  ex- 
cution,  or  an  assignment  for  the  benefit  of  the 
creditors,  shall  be  deemed  an  .alienation." 
Insured  chattel  mortgaged  the  property,  but  it 
did  not  appear  that  the  mortgagee  had  the 
right  to  take  possession,  or  liad  entered  into 
possession.  Held,  nothing  but  an  act  whicli 
divests  the  title  absolutely,  would  amount  toa 
change  of  title  within  the  meaning  of  the  con- 
tract.  Van  Deusen  v.  Charter  Oak  Ins.  Co.,  1 
Abb.  Pr  {N.  S.),  349;  s.  c,  1  Rob.  (N.  Y.),  55. 

3.  A  bill  of  sale  had  been  made,  but  never 
delivered,  no  consideration  had  passed,  nor 
liad  the  possession  of  the  property  ever  passed 
from  insured.  Held,  no  change  of  title. 
Vogel  V.  People's  Mutual  Fire  Ins.  Co.,  9  Gray, 
23. 

4.  Stipulated:  "  In  case  of  any  sale,  trans- 
fer  or  change  of  title,  the  policy  shall  be  void. 
The  owner  of  the  property  and  auother  person, 
to  prevent  attachments,  represented  to  thfl 
creditors  that  the   property    had  been  sold. 


1385 


TITLE. 


1386 


Of  change  of  title,  interest  or  possession. 


Held,  not  evidence  of  cliangc  of  title.  Orrell 
v.  Hampden  Fire  Ins.  Co.,  \'i  Gray,  4151. 

6.  Policy  prohibited  any  change  of  title. 
Insured  made  a  mortgage  upon  it,  to  which 
insurers  were  never  required  to  assent.  Held, 
no  change  of  title.  Shephard  v.  Union  Mutual 
Fire  Jns.  Co.,  38  N.  H.,  232. 

6.  Policy  to  M.  &  P.  on  buildings  and  ma- 
chinery owned  by  thcra  as  partnersliip  prop, 
erty.  M.  conveyed  his  interest  to  P.  Tlie 
policy  was  not  assigned.  P.  carried  it  to  W. 
the  company's  agent,  who  liuew  that  P.  had 
bought  M.'s  interest,  and  was  sole  owner.  P. 
told  W.  that  he  wanted  the  mill  reinsured. 
W.  took  the  policy,  returned  it  to  P.,  and  re- 
ceived the  premium.  P.  never  looked  at  it 
till  after  the  fire;  then  he  discovered  for  the 
first  time  that  it  was  simply  a  renewal  of  the 
old  policy  to  M.  &  P.  Held,  a  change  of  own- 
ership  among  joint  owners  did  not  affect  the 
liability  of  the  company  (citing  Niblo  v. 
North  America  Fire  Ins.  Co.,  1  Saadf.  (N.  Y.), 
551;  Tiilou  v.  Kingston  Mutual  Fire  Ins.  Co., 
7  Barb.,  570;  Wilson  ii.  Genesee  Mut.  Ins.  Co., 
16  id.,  512;  Hofl'man  o.  ^tna  Ins.  Co.,  32  N. 
Y.,  405;  1  Phil.  Ins.,  sec.  872).  Pierce  v. 
Ifashua  Fire  Ins.  Co.,  50  N.  H.,  297; 

7.  The  policy  prohibited  any  change  of 
title.  Held,  whether  a  sale  was  valid  or  void- 
able there  was  a  change  of  title.  School  Dis- 
trict V.  uStna  Ins.  Co.,  54  Me.,  505.  But  upon 
another  trial  it  appeared  that  tlie  sale  was  on 
credit,  and  that  the  school  authorities  had  not 
the  right  to  make  any  sale  for  credit;  and  it 
further  appeared  that  the  small  sum  paid 
down  never  came  into  the  possession  of  the 
authorities,  and  that  the  sale  was  never  ratified 
by  them.  Held,  the  plaintiffs  were  entitled  to 
recover,     s.  c,  02  id.,  330. 

8.  Stipulated:  "Any  transfer  or  change  of 
interest,  by  sale  or  otherwise,  shall  avoid 
the  policy."  B.  sold  the  properly  to  F.,  for 
whom  this  policy  was  made.  He  sold  to  >[., 
retaining  a  lien  for  the  purchase  money.  Held, 
not  such  a  change  of  interest  as  would  affect 
the  right  of  the  insured  to  recover  upon  the 
policy.  Bates  v.  Commercial  Ins.  Co.,  1  Ciu. 
Sup.  Ct.,  523. 

9.  The  policy  prohibited  any  change  of 
title.  Held,  it  meant  such  a  change  as  would 
terminate  the  interest  of  the  insured  in  the 
property.  Jackson  v.  JEtna  Ins.  Co.,  16  B. 
Mon.,  242.  And  though  there  was  a  sale  in 
Dame,  but  not  an  absolute  transfer  of  property 


nor  a  substantial  change  of  interest,  the  policy 
still  protects  the  vendor's  interest  or  his  lien 
for  the  purchase  money.    Ibid. 

10.  Stipulated:  "If  said  property  shall  be 
sold  or  conveyed,  or  the  interest  of  the  parties 
therein  changed,  this  policy  shall  l)e  null  and 
void."  Z.  and  S.  were  joint  owners  of  the 
property.  S.  sold  his  entire  interest  to  Z.,  and, 
to  secure  the  purchase  money,  reserved  a  lieu 
upon  the  properly  and  bound  Z.  to  insure  it, 
which  lie  did  for  $10,000.  A  decree  was  sub-' 
sequently  entered,  enforcing  the  lien  of  S., 
who,  on  the  loth  of  July,  bought  the  property 
under  a  decretal  sale.  It  was  consumed  Au- 
gust  5th;  the  order  of  sale  was  not  confirmed 
till  October  4th.  Held,  neither  the  title  nor 
the  insurable  interest  of  Z.  had  been  transferred 
or  changed  until  confirmation  of  the  decretal 
sale  to  S.  Manhattan  Ins.  Co.  v.  Stein,  5 
Bush.,  652. 

1 1.  Policy  on  vessel,  "To  be  void  on  assign- 
ment thereof,  transfer  of  interest,  or  change 
of  command."  She  was  seized  by  the  sheriff 
at  the  suit  of  a  creditor.  Held,  no  defense  to 
the  action.  Marigny  ».  Home  Mut.  Ins.  Co., 
13  La.  An.,  338. 

12.  Policy  to  T.  and  Co.,  on  merchandise, 
being  stock  in  trade  and  "  on  commission. 
Stipulated  :  "  This  policy  is  not  assignable 
unless  by  consent  of  this  corporation  mani- 
fested  in  writing;  and  in  case  of  any  transfer, 
either  by  sale  or  otherwise,  without  such  con- 
sent, this  policy  shall  be  void  and  of  no  effect." 
The  partner  of  T.  assumed  all  the  debts  of  the 
firm  and  took  all  the  assets  and  paid  T.  $725; 
about  three  months  thereafter  the  goods  were 
burned.  Held,  the  death  of  one  the  partners 
would  have  transferred  his  interest  in  the 
policy  to  his  heirs;  the  prohibitory  clause 
must  be  construed  strictly,  and  if  of  doubtful 
meaning  it  must  be  construed  against  the 
insurer;  and,  therefore,  it  would  be  construed 
.as  prohibiting  the  transfer  by  sale  or  other- 
wise of  the  policy,  and  not  as  prohibiting  a 
change  of  interests  among  the  partners,  nor 
the  assignment  of  the  interest  of  one  partner 
to  another.  Dermani  v.  Home  Mut.  Ins.  Co., 
26  La.  An.,  69. 

lij.  The  policy  prohibited  any  alienation, 
transfer,  sale,  or  change  of  title,  and  then 
stated:  "  An  entry  for  foreclosure  of  a  mort- 
gage, or  the  levy  of  an  execution,  or  an  assign- 
ment for  the  benefit  of  creditors,  shall  be 
deemed  au  alienation  of  the  property."  Held, 

693 


1387 


TITLE. 


13S8 


Of  change  of  title,  interest  or  possession. 


a  mortsAgc  was  not  a  viulalion  of  the  condi- 
tion, for  the  explanatory  clause  excludes  such 
a  construction.  Commercial  Ins.  Co.  v.  Spank- 
neUe.  53  111.,  53. 

14.  One  policy  upou  two  houses,  stipulated: 
"If  any  change  take  place  in  the  title  or  pos- 
session of  the  property,  whether  by  sale,  legal 
process,  judicial  decree,  voluntary  transfer  or 
conveyance,  it  shall  be  void."  The  insured 
mortgaged  the  premises.  Held,  a  mortgage 
was  not  within  the  prohibition.  Hartford 
Fire  Ins.  Co.  v.  Walsh,  54  111.,  164. 

1  5.  Stipulated  :  "  If  the  title  be  transferred 
or  changed,  this  policy  shall  be  void."  In- 
sured was  the  owner  of  the  equity  of  redemp- 
tion. T.  held  the  mortgage,  and  the  policy 
was  made  payable  to  him,  as  his  interest  might 
appear.  Subsequently  insured  conveyed  to  B., 
who  gave  back  to  insured,  as  part  of  the  same 
transaction,  a  defeasance,  and  the  mortgage  to 
T.  was  released.  Held,  the  conveyance  and 
defeasance  were  to  be  treated  as  a  mortgage, 
and  was  not  any  ch.'inge  or  transfer  of  the  title 
of  the  insured;  the  only  change  effected  was 
that  T.'s  mortgage  was  discharged  and  B.  had 
another,  the  latter  taking  the  place  of  the 
former.  Aurora  Fire  Ins.  Co.  v.  Eddy,  55  111., 
213. 

H5.  Stipulated:  "  In  case  of  any  sale,  trans- 
fer or  change  of  title  in  the  property  insured, 
such  insurance  shall  be  void  and  cease.  Held, 
a  transfer  absolute  upon  its  face,  but  intended 
as  collateral  security  for  subsisting  debts 
upon  the  property,  did  not  avoid  the  policy. 
Ayres  v.  Hartford  Fire  Ins.  Co.,  17  Iowa, 
17G. 

17.  Stipulated:  "If  the  said  property  shall 
be  sold  or  conveyed,  or  the  interest  of  the  par- 
ties therein  changed,  or  if  this  policy  shall  be 
assigned  without  the  consent  of  the  company 
obtained  in  writing  hereon,  then  and  in  every 
such  case  it  shall  be  null  and  void."  It  was 
made  to  B.,  M.  &  S.  on  goods  and  merchan- 
dise. S.  withdrew  from  the  firm,  and  sold  all 
his  interest  in  it  to  his  copartners.  Held,  the 
interest  of  each  partner  in  the  goods  was  per 
my  et  per  tout;  that  the  restriction  was  sus- 
ceptible of  different  meanings,  and  there- 
fore it  must  be  construed  contra  the  insurer 
(citing  Hoffman  v.  iEtna  Ins.  Co.,  32  N. 
Y.,  405;  Wilson  v.  Genesee  Mut.  Ins.  Co., 
16  Barb.,  511,  overruling  the  judgment  be- 
low). Burnett  v.  Eufaula  Home  Ins.  Co.,  46 
Ala..  U. 
604 


(b)  What  is. 

1 8.  Two  joint  owners  insured  in  their  joint 
names ;  one  conveyed  his  interest  to  the  other. 
Both  sued  jointly.  Held,  they  could  not  re- 
cover, because  they  had  no  joint  loss.  How- 
ard V.  Albany  Ins.  Co.,  3  Denio,  301. 

19.  Policy  to  B.,  to  expire  December  7, 
18G8,  at  noon  (it  was  renewed  for  one  year 
from  that  date,  and  B.  died  intestate  July  21, 
1869,  by  which  the  property  passed  to  his  lieirs 
at  law,  and  the  fire  occurred  November  9, 1869. 
Plaintiff  was  appointed  administrator  January 
10,1870).  Stipulated:  "  To  be  void  if  assigned 
before  or  after  loss,  and  in  case  of  any  sale, 
change  or  transfer  in  the  title  of  the  prop- 
erty; also  the  entry  for  foreclosure,  levy 
of  an  execution,  or  attachment,  or  possession 
by  another,  of  the  subject  insured,  unless  with 
the  company's  consent  indorsed,  shall  work 
its  determination.  Held,  the  policy  ceased  to 
have  any  binding  force  upon  the  death  of  the 
insured,  because  the  property  vested  in  his 
heirs  at  law,  which  was  a  change  of  title  and 
change  of  possession,  hotwithstanding  by  its 
terms  insurers  agreed  to  pay  the  sum  insured 
to  the  insured,  his  executors,  administrators, 
and  assigns.  Lappin  v.  Cluirter  Oak  Fire  and 
Marine  Ins.  Co.,  58  Barb.,  323. 

20.  Stipulated :  "  If  the  property  be  sold  or 
transferred,  or  any  change  take  place  in  title 
or  possession,  the  policy  shall  be  void." 
Plaintiff  conveyed  the  property  to  W.,  who 
then  held  a  mortgage  on  it,  who  executed  an 
agreement  giving  possession  to  plaintiff  fur 
one  year,  and  the  right  to  pay  $13,.'i00  and 
take  a  reconveyance.  Held,  insurers  were  re- 
leased. Tatham  v.  Commerce  Ins.  Co.,  4  Huu. 
(N.  Y.),  136. 

21.  Stipulated:  "If  the  propertj'  be  sold  or 
transferred,  or  any  change  takes  place  in  the 
title  or  possession  by  legal  process,  judicial 
decree,  or  voluntarj'  transfer  or  conveyance, 
without  written  permission,  the  policy  shall 
be  void."  One  partner  brought  an  action  to 
dissolve  the  firm,  and  a  receiver  was  appointed. 
Subsequently  a  dissolution  of  the  firm  was 
adjudged,  and  a  sale  of  the  property  decreed. 
A  loss  occurred  before  the  sale  was  made. 
Held,  a  violation  of  the  condition,  which  re- 
leased the  insurers.  Keeney  v.  Home  Im.  Co., 
3  N.  Y.  S.  C,  47S. 

22.  Stipul.ited:  "  If  the  property  shall  be 
sold  or  conveyed,  or  the  interest  of  the  parties 


1389 


TITLh. 


1390 


Of  cliange  of  title,  interest  or  possession. 


therein  be  changed  without  consent  of  the 
company  obtained  iu  writiiig,  it  shall  be 
void."  The  owner  contracted  under  seal,  to 
sell  and  convey,  and  the  purchaser  paid  part 
•of  the  purchase  price.  Held,  a  change  of  in- 
terest. Oermond  ».  Home  Inn.  Co.,  3  Ilun.  (N. 
Y.),  540;  s.  c,  5  N.  Y.  S.  C,  120. 

23.  Stipulated:  "When  any  property  in- 
sured shall  be  taken  possession  of  by  a  mort- 
gagee, the  policy  shall  be  void.  The  second 
mortgagee  had  already  taken  possession  of  the 
premises  for  condition  broken,. but  this  was 
jiot  disclosed.  After  the  policy  was  made,  the 
first  mortgagee  entered  and  took  possession, 
and  subsequently  a  third  mortgagee  entered 
and  took  possession.  Insured  subsequently 
■conveyed  his  interest  to  J.,  insurers  consentr 
ing,  and  he  became  bound  to  them  for  the  pay- 
mont  of  the  premium.  Ueld,  the  policy  was 
void  before  insurers  consented  to  the  assign- 
ment, and  no  recovery  could  be  had  upon  it. 
Jacobs  V.  Eagle  Mutual  Fire  las.  Co.,  1  Allen, 
132. 

24.  Policy  upon  goods  of  two  partners. 
Stipulated:  "Any  transfer  or  change  of  title 
in  the  property  insured  shall  avoid  the  pol- 
icy." Held,  a  dissolution  of  the  copartner- 
ship, the  division  of  the  goods,  so  that  the 
parties  held  their  shares  separately  and  dis- 
tinctly, operated  as  a  change  of  title  in  the 
goods.    Dreher  v.  .^tiia  Ins.  Co.,  18  Mo.,  128. 

25.  "  In  case  of  loss,  payable  to  F."  Stipu- 
lated :  "  If  any  change  shall  take  place  in  the 
title  or  possession  of  the  property,  whether  by 
sale,  lease,  legal  process,  judicial  decree,  or 
voluntary  transfer  without  the  consent  of  this 
company',  the  policy  shall  be  void."  Insured 
sold  and  conveyed  an  undivided  half  interest, 
for  which  consent  was  not  obtained.  Held,  the 
policy  was  void.  McEwen  v.  Western  Ins.  Co., 
1  Mich.  N.  P.  (Brown),  118. 

26.  Stipulated:  "And  in  case  of  any  sale, 
transfer  or  change  of  title  iu  the  properly  in- 
sured by  this  company,  such  insurance  sliall 
be  void  and  cease."  After  the  policy  was 
issued  insure<l  made  a  conveyance  of  an  undi- 
vided one-third  interest  absolute  in  form,  but 
it  was  intended  by  the  parties  to  secure  the 
grantee  for  a  sum  of  money  due,  and  other  ad- 
vances to  be  made.  Ileld,  the  policy  prohib- 
ited a  change  of  title  and  this,  though  not  in- 
tended as  a  sale,  was  within  the  proliibitinn 
and  avoided  the  policy.  Western  Massachu- 
setts  Ins.  Co.  v.  Hiker,  10  Mich.,  879. 


27.  Stipulated:  "To  be  void  in  case  of 
transfer  or  change  of  interest  of  the  insured, 
by  sale  or  otherwise."  The  policy  was  made 
to  the  purchaser.  "  Loss,  if  any,  payable  to 
the  vendor."  But  the  vendee  sold,  and  re- 
tained a  lien  for  the  purchase  money.  Held,  ,i 
change  of  interest  which  released  the  insurers, 
making  a  distinction  between  tlie  terms  of  the 
contract  in  Bates  v.  Commercial  Ins.  Co.,  1 
Cin.  Sup.  Ct.,  523.  Bates  v.  Commercial  Ins. 
Co.,  2  Cin.  Sup.  Ct.,  195. 

28.  Stipulated:  "In  case  of  any  sale,  trans- 
fer or  change  of  title  in  any  property  insured 
by  this  company,  or  of  any  undivided  interest 
therein,  such  insurance  shall  be  void  and 
cease."  Held,  a  sale  and  transfer  by  one  paru 
ner  of  his  interest  in  the  properly  to  one  of  his 
copartners  before  the  loss  occurred,  made 
without  the  consent  of  the  company,  released 
the  insurer.  Hartford  Fire  Ins.  Co.  v.  Ross, 
23  lud.,  179. 

29.  Policy  to  D.,  S.  &  H.,  copartners.  Stip- 
ulated: "  In  case  of  any  change  of  title  in  the 
property  insured,  or  of  any  undivided  interest 
therein,  such  insurance  shall  be  void  and 
cease."  S.  sold  his  interest  in  the  concern  to 
D.  &  H.  Held,  the  sale  avoided  the  policy 
Dix  «.  Mercantile  Ins.  Co.,  22  111.,  272. 

30.  The  policy  prohibited  cliange  of  title. 
When  it  was  made,  insured  was  the  absolute 
owner,  but  he  sold  an  undivided  two-thirds, 
and  took  a  mortgage  back  to  secure  the  pur- 
chase money.  Held,  a  change  of  title  which 
vitiated  the  policy.  Home  Mutual  Fire  Ins. 
Co.  V.  Hauslein,  60  111.,  521. 

31.  Policj-  to  H.  &  H.  who  were  cop.artners. 
Stipulated:  "In  case  of  assignment  without 
insurer's  consent,  whether  of  the  whole  policy 
or  of  any  interest  in  it,  the  liability  of  the 
company,  in  virtue  of  such  policy,  shall 
thenceforth  cease."  The  defendant  pleaded 
that  one  partner  had  assigned  his  interest 
in  the  subject  insured  to  the  other;  to  which 
plaintiffs  replied:  "The  assignment  was 
made  with  defendant's  consent;"  to  which 
the  defendant  demurred.  The  demurrer  was 
overruled  iu  the  court  below,  and  there  wfiS 
judgment  against  the  defendant,  but  it  was  re- 
versed and  remanded.  Hobbs  v.  Memphis  Ing. 
Co.,  1  Sneed,  444. 

VIII.  Geneballt. 

[f  tlie  insured  expressly  or  impliedly  war- 

695 


1391 


TO  RECOVER  HONEY  BACK. 


1392 


Of  the  pleadings  —  When  the  action  shall  be  maintained. 


rants  an  estate,  not  less  than  fee,  unincum- 
bered, he  must  aver  and  prove  it.  Illinois 
Mutual  Fire  Ins.  Co.  v.  Marseilles  Manufactu- 
ring Co.,  6  111.,  236. 


TO  RECOVER  MONEY  BACK. 

I.  Op  the  pleadings. 
II.  When   the    action   shalt^   be   main- 
tained. 
III.  When  the  action  shali,  not  be  main- 
tained. 

I.  Of  the  pleadings. 

In  an  action  to  recover  money  obtained  by 
false  statements,  the  requisites  for  supporting 
the  action  are  the  telling  of  an  untruth,  know- 
ing  it  to  be  an  untruth,  with  intent  to  induce 
the  other  party  to  alter  his  condition,  and  that 
in  consequence,  the  other  party  did  alter  his 
condition,  whereby  he  sustained  damage.  The 
scienter  is  a  material  and  vital  element  in  the 
case,  and  must  be  alleged  in  the  declartion 
and  proved  at  the  trial  (citing  King  v.  Eagle 
Mills,  10  Allen,  548;  Pierson  v.  Howe,  1  id., 
207).  Tlartford  Live  Stock  Ins.  Co.  v.  Matthews, 
102  Mass.,  221. 

II.  When  the  action  shall  be  jiain- 

TAINED. 

I.  Policy  upon  the  life  of  the  wife,  payable 
to  her  assigns,  executors,  administrators,  etc. 
After  her  death  insurers  paid  the  claim  to  her 
husband  in  his  character  as  administrator, 
and  now  brought  this  action  to  recover  the 
money  back,  on  the  ground  that  the  contract 
and  the  payment  of  tlie  claim  were  procured 
by  the  fraud  of  the  wife  and  the  husband,  in 
this ;  that  the  deceased  had  an  incurable  can- 
cer at  the  time  the  policy  was  made,  and,  that 
the  claim  was  paid  in  ignorance  of  that  fact. 
Held,  if  the  husband  obtained  the  policy  by 
fraud,  acting  as  the  agent  of  his  wife,  he  oc- 
cupied tlie  position  of  claiming  to  keep  the 
money  as  her  legal  representative,  which  he  )iad 
fraudulently  obtained  as  her  agent;  that  if  the 
policy  was  procured  by  fraud,  it  was  invalid 
and  he  could  not  defend  this  action  upon  her 
title  to  it.  National  Life  Ins.  Co.  v.  Mincli,  53 
N.  Y.,  144;  reversing  G  Laus.,  100. 
C96 


2.  Plaintiff's  agent  acting  without  author!. 
ty  and  through  mistake,  paid  insurer  for  the 
privilege  of  afi)roign  residence  for  liis  princi- 
pal, which  privilege  was  already  witliiu  the 
terms  of  the  contract.  2/«W,  defendant  must 
refund  the  moiicj-.  Forbes  t.  American  Mutual 
Life  Ins.  Co.,  15  Gray,  249. 

3.  If  an  insurer  pays  money  in  ignorance 
of  a  fact  which  avoided  the  policj-,  an  ac- 
tion lies  to  recover  it  back;  and  the  fact  that 
the  person  who  effected  the  insurance,  and  to 
whom  the  money  was  paid  acted  a.s  the  agent 
of  the  owner,  and  has  paid  the  money  over  to 
him,  is  no  defense  unless  he  disclosed  his 
agency,  before  lie  received  the  money  from  the 
insurer.  Columbus  Ins.  Co.  z.  Walsh,  19  Mo., 
229. 

4.  B.  procured  a  polic}'  of  insurance  in 
phiintiff's  name  and  paid  the  premium  to  de- 
fendant;  but  plaintiff  had  no  goods  on  board. 
Held,  the  premium  was  money  received  tO 
plaintiffs  use  without  any  consideration,  and 
therefore  indebitatus  assumpsit  could  be  main- 
tained. Martin  V.  Sitwell,  Holt,  K.  B.,  25; 
Show.,  156. 

5.  Insured  claimed  a  loss,  which  was  paid, 
and  this  action  was  brought  to  recover  back 
the  money.  It  appeared  tlial  the  warranty  to 
depart  with  convoy  was  broken.  Held,  the 
insurer  was  entitled  to  recover.  Anderson  v. 
Pitcher,  2  B.  &  P.,  164;  3  Esp.,  124. 

6.  The  insurer  paid  a  total  loss,  and  after- 
wards ascertained  that  a  warrant}-  had  not 
been  observed,  and  brought  suit  to  recover  it 
back.  Held,  he  could  maintain  the  action. 
DeH.thn  v.  Hartley,  1  Term,  343;  affirmed,  2 
id.,  186. 

7.  Miss  Simpson  effected  a  policy  on  her 
own  life  by  means  of  certain  fraudulent  prac- 
tices. The  defendant  afterwards  inquired  of 
the  insurers  aS  to  its  value,  and  whether  he 
could  receive  the  money  tliat  might  accrue 
under  it,  if  it  should  be  assigned.  He  stated 
that  he  was  about  to  purchase  it,  but  that  he 
would  not  do  so  if  he  should  have  any  trouble 
in  collecting  the  money  in  case  of  3Iiss  Simp- 
son's death.  The  company  replied,  "  That  a» 
but  one  payment  had  been  made  on  the  policy, 
it  was  worth  little  or  nothing,"  and  that  Miss 
Simpson  might  assign  the  policy  to  him. 
Miss  Simpson  subsequentl}'  notified  the  com- 
pany that  she  was  indebted  to  tlie  defendant' 
a  sum  greater  than  that  insured,  that  she  hao 
given  the  policy  up  to  the  defendant  as  secu/ 


1393 


TO  RECOVER  MONEY  BACK. 


WJ-i 


When  the  action  shall  not  be  maintained. 


ity  for  the  debt,  and  in  case  the  notice  was 
deemed  insufRcient  she  would  e.\poct  to  hear 
in  respi'c'  of  it,  in  order  that  a  valid  assign- 
ment niiglit  be  made.  The  company  con- 
Bented  totlie  transfer,  and  in  (me  montli  there- 
after the  defendant  notitied  thorn  of  the  death 
of  Miss  Simpson,  asked  for  instructions  how 
he  shjuld  make  proof  of  her  death,  which 
were  given,  and  the  company  paid  the  sura 
insured,  £850.  Afterwards  the  fraud  was  dis- 
closed, and  it  appeared  that  Miss  Simpson 
was  not  indebted  to  the  defendant;  that  he 
took  the  policy  as  a  security  for  a  debt  of 
£450  due  him  by  one  Edwards,  Miss  Simp. 
Bou's  relation.  The  jury  found  that  he  was 
not  a  bona  fide  assignee  of  the  policy,  but  took 
it  without  any  knowledge  that  Miss  Simpson 
bad  fraudulently  procured  the  company  to 
make  it.  Held,  the  company  was  entitled  to 
recover  the  money  back.  Lefeere  v.  Boyle,  1 
L.  J.  (N.  8.)  K.  B.,  199. 

III.   When  the  action  shall  not  be 

MAINTAINED. 

1.  If  .on  insurer  pays  a  claim,  he  must  es- 
tablish a  clear  mistake  of  fact  before  he  is  enti- 
tled to  recover  it  back.  Eltiiig  v.  Scott,  2 
Johns.,  157. 

2.  Insured  stated  in  his  application  tliat  he 
never  had  apoplexy,  asthma,  bronchitis,  con- 
Bumption,  spitting  of  blood,  disease  of  the 
heart  or  urinary  organs,  that  he  never  had  any 
serious  illness,  local  disease  or  personal  in- 
jury. After  his  death  insurers  made  examina- 
tion and  ascertained  that  he  had  been  sick 
frequently,  probably  of  consumption.  They 
consulted  physicians  who  had  attended  him, 
and  as  the  result  of  those  examinations  deci- 
ded to  pay  the  claim  in  full.  Subsequently 
they  came  to  the  conclusion  tliat  they  ought 
not  to  have  paid  it,  and  brought  this  action  to 
recover  the  money  back.  Jleld,  in  an  action 
to  recover  money  back,  if  the  money  is  paid 
under  mistake  of  fact,  the  plaintiflf s  recovery 
is  not  defeated  thougli  it  appears  he  possessed 
the  means  of  acquiring  the  truth,  by  examina- 
tion and  investigation  (citing  Dails  v.  Lloyd, 
12  Q.  B.,  531;  Kelly  v.  Solan,  S  M.  &  W.,  54;. 
But  if  the  payment  be  not  solely  upon  the  mis- 
take of  fact,  but  from  mi.xed  motives,  the  ac- 
tion cannot  be  maintained,  nor  can  the  plaiutift 
be  permitted  to  rescind  the  payment,  merely 
because  lie  has  changed  his  mind  in  regard  to 


a  matter  of  policy,  or  because  he  has  come  to 
a  better  position.  National  Life  Ins.  Co.  v. 
Joneis,  1  N.  Y.  S.  C,  46G. 

.'J.  .\.u  action  of  tort,  to  recover  money  back 
on  th'j  ground  that  defendant  had  conveyed 
the  premises  before  the  loss,  and  that  lie  had 
falsely  and  fraudulently  stated  to  the  company 
that  he  owned  the  property  at  the  time  of  the 
loss.  Held,  to  enable  the  company  to  recover 
back  the  money,  they  must  show  that  insured 
had  not  only  conveyed  the  property,  and  made 
the  false  representations  as  alleged,  but  they 
must  also  prove  that  the  insured  had  no  I'ight 
to  recover  a  loss  upon  the  policy.  Berkshire 
Mut.  Ins.  Co.  v.  Slurgis,  13  Gray,  177. 

4.  The  defendant's  life  was  insured  by  the 
plaintiff  for  the  use  of  W.  and  A.,  and  the  loss 
was  made  payable  to  them.  Held,  the  defend- 
ant was  not  a  party  to  the  ecmlract;  he  could 
not  avoid  it  on  the  gnuind  of  fraud,  and 
thougli  the  money  paid  for  tlie  premiums  waa 
his  own,  and  not  that  of  the  insured,  he  could 
not  maintain  an  action  to  recover  it  back. 
North  America  Life  Ins.  Co.  v.  Wilson,  111 
Mass.,  543. 

5.  The  policy  was  effected  through  an  agent, 
and  agreed  in  all  respects  with  the  proposal 
signed  by  the  insured,  who  kept  it,  and  paid, 
two  premiums.  Held,  he  could  not  recover 
back  the  premium  on  the  ground  that  it  was 
not  such  a  policy  as  the  soliciting  agent  agreed 
to  deliver.     Mecke  «.  Life  Ins.  Co.,  8  Phlla.,  6. 

6.  Policy  on  account  of  S.  K.,  "  Loss,  if  any, 
payable  to  J.  &  H."  The  plaintilf  paid  J.  & 
H.  the  whole  amount  of  the  claim.  Held,  the 
policy  was  for  the  benefit,  and  covered  the  in- 
terest of  S.  K. ;  that  the  money  paid  to  J.  &  11. 
must  be  regarded  as  paid  to  S.  K.,  and  if  J.  & 
H.  accounted  with  S.  K.  for  it,  and  discharged 
themselves  of  their  agency,  no  action  could 
lie  against  them  for  money  wrongfully  paid 
(citing  Bogart  d.  Nevins,  G  S.  &  K.,  3G8).  C'iVi- 
cinnatilns.  Co.  v.  Rieman,  1  Disney,  390. 

7.  The  plaintiff  caused  a  policy  to  be  made 
for  the  defendant.  A  loss  happened,  and  the 
plaintiff  paid  the  sum  insured  to  the  defend- 
ant; but  (he  insurer  had  become  insolvent,  of 
which  the  plaintiff  had  no  knowledge.  Held, 
he  could  not  recover  the  money  back.  Edgar 
v.Bumstead,  1  Camp.,  411. 

8.  If  a  man  has  actually  paid  what  the  law 
would  not  have  compelled  hira  to  pay,  but 
what  in  equity  and  conscience  he  ought  to 
have  paid,  he  cannot  recover  it  back.    But 

097 


1395 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


1396 


What  constitutes. 


where  money  has  been  paid  under  a  mistake, 
where  there  was  no  ground  I;)  claim  in  con- 
science, an  action  for  money  had  and  received 
can  be  maintained.  Bite  v.  Dickason,  1  Term, 
285. 

9.  Goods  valued  in  the  policy  at  £1,500  were 
seized  and  sold  by  the  goverumeul  of  Hol- 
land. No  abandonment  was  made,  nor  were 
there  any  documents  to  verify  the  loss  when 
the  insurer,  at  the  request  of  insured,  paid 
fifty  per  cent,  on  the  sum  insured.  Holland 
ultimately  restored  half  their  proceeds,  £1,551 
Is.;  and  the  insurer  brought  his  action  to  re- 
cover back  the  money  by  him  paid  on  the 
cl^im.  Held,  he  could  not  recover.  Tunno  v. 
Edwards,  12  East,  488. 

10.  A.,  agent  of  insured,  procured  the  pol- 
icy. He  had  a  letter  in  his  possession  inform- 
ing him  that  the  vessel  had  been  aground, 
sprung  a  serious  leak,  and  was  then  at  Car- 
thagena  making  repairs.  Without  any  inten- 
tion to  deceive  insurers,  he  omitted  to  disclose 
the  information.  A  loss  occurred,  and  the  in- 
surer paid  it  to  A.,  who  appropriated  a  portion 
«f  the  money  to  the  payment  of  certain  debts 
incurred  by  insured,  and  remitted  the  balance 
to  him,  before  he  had  notice  of  insurer's  in- 
tention  to  repudiate  the  policy.  Insurer 
brought  this  action  against  A.  to  recover  the 
money.  Held,  the  omission  to  disclose  the 
information  contained  in  the  master's  letter 
made  the  policy  voidable  at  the  election  of  the 
insurer;  but  as  A.  was  an  agent  only,  of  which 
insurer  had  notice,  his  payment  of  the  money 
received  to  liis  principal  and  for  account  of 
his  principal,  without  notice  of  an  intention  to 
repudiate  the  contract,  was  a  bar  to  insurer's 
action.  Holland  v.  Russell,  1  B.  &  S.,  434; 
s.  c,  30  L.  J.  Q.  B.,  308;  7  Jur.  (N.  S.),  842;  4 
L.  T.  (N.  S.),  547;  affirmed,  4  B.  &  S.,  14;  s.  c, 
33  L.  J.  Q.  B.,  297 ;  11  W.  R.,  757 ;  8  L.  T.  (N. 
S.),  468. 

11.  The  pursuer  brought  his  action  to  re- 
cover premium  paid,  and  alleged  the  policy 
■was  void  under  14  Geo.  III.  ch.  48,  because  he  I 
had  not  any  interest  in  the  life  insured,  and  that 
he  did  not  know  of  this  when  the  policy  was 
made,  but  that  insurer  knew  it.  Held,  no 
recovery  could  be  allowed.  Campbell  v.  Allan, 
Faculty  Dec,  1796  to  1801,  p.  353. 

12.  When  a  person  has  paid  money  with 
full  knowledge  of  the  facts,  he  cannot  main 
tain  an  action  to  recover  it  back  on  the  ground 
that  he  paid  it  in  ignorance  of  his  legal  rights,  i 

098 


Perry  v.  Newcastle  Mutual  Fire  Int.  Co.,  8  U. 
C.  Q.  B.,  363. 


TO  SUE,  LABOR  AND  TRAVEL  FOR. 

(See  Pbesebvation  op  Pbopebtt.) 


total  loss  (absolute  or  con- 
structi^t:). 

(See  Abandonment;  Fbeioht;  Master  op  Ship;  Oi7S- 
TuiBD  Mew  roR  Old.) 

I.   Wn.\T  CONSTITUTES. 

(a)  Of  the  master'.^  sale. 

(b)  Of  capture,  seizure,  arrests,  detention 

and  retardation. 

(c)  Of  perils  of  the  seas. 

(d)  Of  missing  ship. 

II.  What  does  xot  constitute. 

(a)  Of  Ike  master's  sale. 

(b)  Of  capture,  seizure,  arrests,  detention 

and  retardation. 

(c)  Of  perils  of  the  seas. 

(d)  Of  missing  ship. 

III.  Op  the  amount  of  damage  and  diffi- 
culty OR  inabilitt  op  pbocuking  kb- 

PAIRS. 

I.  What  constitutes. 

(a)  Of  the  master's  sale. 

1.  "On  the  schoer*er  Francis,  valued  at 
$2,500,  lost  or  not  lost,  from  Cura9oa,  or  a  port 
01  departure  in  the  West  Indies  or  on  the 
Main,  to  a  port  in  the  United  States."  She 
sailed  from  Curacoa  to  Carthageua,  and  took 
a  cargo  for  Norfolk,  with  which  she  sailed, 
but  received  such  injuries  in  a  gale  that  she 
was  forced  to  put  back  to  Carthagena,  where 
the  American  consul  ordered  a  survej*,  and 
sold  her  for  |140  to  E. ;  but  it  was  understood 
that  the  master  was  concerned  with  him  in 
the  purchase,  and  furnished  the  money.  She 
was  resold  by  her  purchasers  for  over  $200, 
subsequently  repaired  and  returned  to  the 
United  States.  Held,  if  she  could  not  have 
been  repaired  except  at  an  expense  exceeding 
half  her  value,  at  Carthagena,  she  was  a  total 


1397 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


1398 


Wliat  constitutes. 


loss,  and  the  value  at  the  time  the  injury  hap- 
pened was  the  rule  by  which  the  right  was  to 
be  decided.  Patapsco  Ins.  Co.  v.  Southgate,  5 
Pet.,  604. 

2.  Policy  upon  specific  articles,  part  of 
vhicli  being  condemned,  the  master,  to  pre- 
vent the  embarrassment  of  an  appeal  as  to 
others,  with  whicli  he  was  tlirealened,  agreed 
to  pay  captors  $5,000.  To  raise  this  sum  it 
became  necessary  to  sell  more  than  a  moiety 
in  quantity  and  value  ot  the  cargo.  Held,  a 
technical  total  loss  of  the  cargo.  Vandenlieu- 
vel  V.  United  Ins.  Co.,  1  Johns,,  400. 

3.  Three  hundred  barrels  of  Hour  were  in- 
sured for  $2,7.50.  One  hundred  and  twenty- 
three  barrels  were  jettisoned,  and  thirty  bar- 
rels sold  at  the  port  of  distress,  in  conse- 
quence of  sea  damage,  produced  $105.  Held, 
insured  were  entitled  to  recover  for  a  total 
loss;  that  the  sale  was  necessary,  because  of 
an  injury  for  which  insurers  were  liable,  and 
the  proceeds  passed  by  abandonment  to  in- 
surers. Moses  V.  Columbian  Ins.  Co.,  0  Johns., 
219. 

4.  On  ship.  She  performed  her  outward 
voyage  and  set  sail  on  the  homeward  passage. 
In  very  heavy  weather  slie  sprung  a  leak,  and 
bore  away  for  a  port  of  distress,  and  reached 
Kinsale,  November  28th,  and  left  it  January 
1st;  encountering  heavy  weather  again,  she 
ran  back  to  Kinsale,  and  arrived  there  fourteen 
days  after  her  departure,  was  condemned 
as  unfit  to  be  repaired,  and  sold.  Held,  in- 
sured "was  entitled  to  recover  for  a  total  loss, 
and  general  average  expenses.  Saltus  v.  Com- 
mercial Ins.  Co.,  10  Johns.,  487. 

5.  She  was  sold  under  a  decree  in  admiral- 
ty, in  a  foreign  country,  and  the  master  pur- 
chased her  on  his  own  account,  without  au- 
thority or  assent  of  the  owners.  Held,  the  in- 
surers could  not  avail  themselves  of  the  pur- 
chase to  reduce  the  loss  from  a  total  to  a  par- 
tial loss.  Sawyer  v.  Maine  ^ire  and  Marine 
Ins.  Co.,  12  Mass.,  291. 

G.  Surveyors,  at  a  port  of  necessity,  reported 
that  the  ship  could  not  be  repaired  there  with- 
out incurring  expenses  exceeding  her  value, 
because  of  the  lack  of  materials.  She  was 
condemned  and  sold  for  account  of  whom  it 
might  concern.  Slie  was  valued  in  the  polic)' 
for  $2,000  and  brought  .f  1,08G.  She  was  after- 
wards refitted  by  the  purchaser.  Held,  if  the 
Bale  was  necessary  it  constituted  a  total  loss 
without  an  abandonment;  but  the  survey  and 


condemnation  were  not  conclusive  evidence 
of  the  necessity  of  the  sale.  Gordon  v.  Mas- 
sachuselts  Fire  and  Marine  Ins.  Co.,  3  Pick., 
249. 

7.  It  was  impossible  to  repair  her,  either  at 
the  port  of  necessity  or  at  a  neighboring  port 
to  which  she  might  have  gone,  except  by  ex- 
pending a  sura  greatly  exceeding  the  valua- 
tion named  in  tlie  policy.  The  master  sold 
her.  Held,  the  master's  sale  was  justifiable; 
that  it  was  a  total  loss  and  no  abandonment 
was  necessary,  notwithstanding  the  mtister 
paid  over  to  insured  the  net  proceeds  of  the 
sale.  Graces  v.  Washingtoti  Marine  Ins.  Co.,  13 
Allen,  391. 

8.  She  was  thrown  upon  the  rocks  at  Ilell 
Gate  and  very  badly  damaged.  A  large  part  cf 
her  keel  was  knocked  off,  sides  beaten  in,  and 
her  cargo  of  salt  washed  out.  Insurers  refused 
to  incur  any  expense  in  getting  her  off  or  repair- 
ing her,  claiming  that  they  had  no  risk  upon 

her  at  the  time  of  the  accident.  Held,  if  her 
situation  was  extremely  hazardous,  and  she 
w.as  in  danger  of  being  utterly  lost,  and  in- 
sured aljandoned  before  she  was  got  off,  tlieu 
insured  had  a  right  to  recover  fur  a  total  loss, 
notwithstanding  she  was  sold  by  the  master 
at  public  auction  and  bought  in  hy  the  in- 
sured. King  v.  Middletown  Ins.  Co.,  1  Conn., 
184. 

9.  If  the  master  sells  the  vessel  from  neces- 
sity, and  the  sale  is  justifiable,  the  insured 
may  recover  as  for  a  constructive  total  loss, 
though  there  has  been  no  formal  abandonment 
made.  Dunning  v.  Merclumts  Mutual  Marine 
Ins.  Co.,  57  l\Ie.,  108. 

10.  She  met  with  a  disaster  near  Vera  Cruz, 
March  26,  1847.  A  survey  was  called,  and  sh« 
was  condemned  and  sold  April  5tli,  following. 
An  offer  to  abandon  was  made  22d  of  .the 
same.  Immediately  after  the  sale  she  was  re- 
paired and  carried  to  New  Orleans,  and  then 
to  Bath.  Held,  if  the  circumstances  uniier 
which  she  was  placed  by  the  disaster  justified 
the  sale,  that  constituted  a  total  loss;  that  the 
subsequent  success  of  the  purchaser  in  repair- 
ing and  navigating  her  could  not  make  the 
sale  invalid,  nor  change  a  total  into  a  partial 
loss;  the  right  to  sell  as  well  as  to  abandon 
was  to  be  determined  by  the  state  of  facts  at 
the  time  the  sale  was  made,  and  not  by  subse- 
quent events;  the  rights  of  the  parties  werta 
vested  by  the  abandonment,  if  it  was  properly 
made;  nor  was  abandonment  necessar3'  tocou- 

699 


1399 


TOTAL  LOSS  (AI5S0LUTE  OR  CONSTRUCTIVE). 


1400 


What  constitutes. 


stitute  a  total  loss,  if  the  sale,  matle  by  the 
master,  was  warranted  by  the  rules  of  law. 
Fuller  V.  Kennebec  Mut.  Ins.  Co.,  31  Me.,  325. 

11.  Oil  ship.  She  ran  on  a  coral  reef  be- 
tween Aspinwall  and  Port  Cabello,  was  taken 
to  Aspinwall,  but  no  repairs  could  be  pro- 
cured, and  a  survey  was  called.  The  survey- 
ors reported  her  condition  and  were  of  opin- 
ion that  the  repairs  would  greatly  exceed  her 
value.  The  master  sold  her.  The  purchaser 
made  slight  repairs  and  navigated  her  to  Bal- 
timore, where  he  made  other  repairs.  Kotice 
of  the  disaster  and  intention  to  sell  was  not 
given  insurers.  There  was  no  abandonment. 
fi'eM,  if  the  necessity  to  sell  left  no  alternative 
(of  which  the  jury  were  the  judges),  the  sale 
was  justifiable,  and  insurers  liable,  as  for  a 
total  loss.  Prince  v.  Ocean  Ins.  Co.,  40  Me.,  4S1. 

12.  She  encountered  a  gale,  sustained  much 
damage,  and  while  making  a  port  of  safety 
grounded  on  a  reef,  but  w.as  got  off  and 
reached  port.  Surveyors  reported  her  un- 
worthy repairs,  and  she  was  sold  for  the 
benefit  of  all  concerned.  No  abandonment 
was  made.  Held,  the  jury  were  to  judge  of 
the  necessity  for  the  sale,  and  whether  it  was 
made  for  the  interest  of  all  concerned,  and  in 
good  faith;  if  these  were  found,  the  insured 
could  recover  for  a  total  loss  without  an  offer 
to  abandon.  Mutual  Safety  Ins.  Co.  v.  Cohen, 
3  Gill,  459. 

1 3.  Insurers  refused  to  accept  an  abandon- 
ment, and  the  master  sold  her.  Held,  if  the 
case  was  a  proper  one  for  abandonment,  the 
master's  sale  could  not  affect  the  right  of  the 
insured  to  recover.  Moiory  v.  Charleston  Ins. 
Co.,  6  Rich.,  146. 

14.  On  sugar  from  Liverpool  to  Calais  or 
ship's  port  of  discharge  in  the  British  chan- 
nel. She  met  with  heavy  weather  and  put 
back  to  Liverpool.  The  London  agent  of  in- 
sured communicated  with  insurers  who 
begged  insured  to  act  as  if  they  were  unin- 
sured. A  large  portion  of  the  cargo  was  so 
badly  damaged  that  its  sale  became  necessary. 
Insured  gave  notice  of  an  intention  to  aban- 
don the  whole  and  sell  it  on  a  day  named, 
which  was  accordingly  done  and  the  whole 
loss  was  somewhat  more  than  one-third  the 
amount  insured.  Held,  if  the  cargo  was  not 
fit  to  be  sent  forward  to  a  market  they  had  a 
right  to  abandon  it.  Oernon  v.  Hoyal  E.r- 
change  Ass.  Co.,  6  Taunt.,  388;  s.  C,  1  Ilolt.  N. 
P.,  49;  3  Marsh.,  88. 

700 


1.5.  Ship  very  much  shattered  by  perils  of 
the  sea.  The  master  was  of  opinion  that  she 
could  not,  without  imminent  peril  to  the  lives 
of  the  crew,  proceed  on  her  voyage,  and 
could  not  be  repaired  for  a  sum  less  tli.in 
her  value.  He  accordingly  sold  her.  She 
was  afterwards  navigated  to  destination  with 
a  cargo.  Held,  the  question  was  not  whether, 
had  a  different  course  been  pursued  by  the 
master,  she  might  eventually  have  been  saved, 
but  whether,  exercising  the  best  discretion, 
the  master  was  justified  in  abandoning  the 
ship;  that  if  he  exercised  the  same  judgment 
and  discretion  which  he  ought  to  have  used 
had  she  been  uninsured,  the  insurer  was  liable 
for  a  total  loss.  liobertson  v.  Carruthers,  3 
Starkie,  571. 

16.  Ship  insured  for  ^£8,000,  and  freight  for 
£4,000,  from  London  to  the  East  Indies,  and 
return.  On  her  vo3'age  home  she  became  so 
greatly  damaged  by  sea  perils  that  she  was 
obliged  to  run  back  to  Calcutta.  The  expense 
of  repairs  would  have  amounted  to  £5,000;  the 
captain  failed  to  hypothecate  her,  and  the 
agents  refused  to  undertake  repairs.  He  sold 
her  for  £1,200,  and  arrived  in  London  April 
25th.  May  5th,-  notice  of  abandonment  was 
made.  The  jury  found  specially  that  the  mas- 
ter's  sale  was  justified.  Held,  a  total  loss. 
Head  !).  Bo7ilmm,  3  B.  &  B.,  147 ;  6  Moore,  397. 

17.  The  disputed  point  was  whether  the 
master's  sale  of  the  vessel  was  justified.  Held, 
in  such  a  case  there  can  be  neither  a  legal  ne- 
cessity nor  a  physical  necessity ;  and  therefore 
it  must  mean  a  moral  necessity,  that  is  to  say, 
whether  the  circumstances  were  such  that  a 
person  of  prudent  and  sound  mind  would  have 
no  doubt  as  to  the  course  he  ought  to  pursue. 
That  if  the  master  had  no  means  of  getting  the 
repairs  done  at  the  port  of  distress,  or,  if  being 
done,he  had  no  money  or  was  not  able  to  raise 
any  to  p.ay  for  them,  then  he  would  be  justified 
in  selling  her.   Somes  v.  Sngrue,  4  C.  &  P.,  27(5. 

18.  She  was  driven  back  to  her  port  of 
lading,  found  unfit  for  the  voyage,  it  was  im- 
possible  to  repair  her,  and  she  was  sold.  There 
were  no  vessels  to  carry  the  cargo  to  port  of 
destination,  and  it  was  sold  for  nearlj'  the  sum 
insured.  Insured  abandoned.  Held,  a  total 
loss  of  ship,  freight  and  cargo.  Manning  v. 
Netniham,  3  Doug.,  130;  2  Camp.,  624  n. 

I  9.  Dutch  ship,  valued  ,€8,000,  insured  Rot- 
terdam to  Java  and  Sumatra  and  back  to  her 
port  of  discharge  in  Holland.     Stranded  on 


UOl 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVK). 


1402 


What  constitutes. 


Go  )dwin  Sands,  and  plundered.  She  was  car- 
ried  to  Loudon,  and  uhandonmcnt  made.  She 
was  worth  £5,833  when  cast  away.  Her  value 
on  the  Sands  was  £700,  with  salvage  £420.  It 
would  hive  cost,  iu  England,  to  repair  her 
£4,015,  and  she  would  have  been  worth  £4,700. 
It'she  had  bron  entitled  to  a  British  register, 
it  would  have  lieen  jirudent  to  repair  her.  The 
repairs  in  Holland  would  have  cost  more  than 
her  value  tliere  (not  exceeding  £2,915,  caused 
by  a  disinclination  on  the  part  of  Holland 
traders  to  employ  a  vessel  that  had- been 
.stranded  as  she  had  been).  JIcUl,  it  was  proper 
to  tell  the  jury  that  they  were  to  look  at  all  the 
circumstances  attending  the  ship,  and  judge 
whether,  under  all  of  them,  a  prudent 
owner,  uninsured,  would  have  declined  to 
repair,  and  if  so,  to  find  for  a  total  loss. 
Young  v.  Turing,  3  M.  &  G.,  593;  2  Scott.  N. 
K.,  753. 

20.  Ship  with  a  cargo  of  coals  ran  upon  the 
beach  for  the  purpose  of  discharging  her  car- 
go; before  it  was  tinislied  the  wind_ veered 
with  rough  weather  and  it  became  necessary 
to  haul  her  off.  In  attempting  to  do  so,  an  an- 
chor came  home  and  she  drifted  broadside 
upon  the  beach  and  sustained  large  damage. 
Surveyors  recommended  a  sale  as  she  lay. 
Hull  and  sizars  sold  for  £185.  Purchasers  got 
lier  otV  and  repaired  her  lor  about  £350.  Held, 
the  jury  were  to  consider  whether  the  owners 
of  the  ship,  as  prudent  persons,  exercising 
sound  judgment,  would  have  sold  her,  had 
they  been  uninsured.  Domett  v.  Young,  1  C. 
&  M.,  4G5. 

21.  She  was  wrecked,  and  the  master,  a  part 
owner,  had  her  surveyed  and  sold  at  Buenos 
Ayres.  The  purchaser  got  her  off  and  repaired 
her  at  great  expense.  Jleld,  it  was  proper  to 
tell  the  jury  that  tiie  loss  of  the  voyage  could 
not  create  a  constructive  total  loss  of  the  ship ; 
that  all  the  circiunstances  were  to  be  taken 
into  consideration,  if  the  muster  did  what  at 
the  time  was  best  for  all  parties  and  sold  her, 
there  was  a  total  loss,  if  otherwise,  it  was  a 
partial  loss  only.  Doyle  v.  Dallas,  1  M.  <fc 
Hob.,  48. 

22.  On  cargo,  with  the  usual  memorandum. 
She  was  captured,  recaptured  and  sent  by  the 
recaptors  to  Bermuda,  where  a  scarcity  of  pro- 
visions prevailed,  and  in  consequence  an  em- 
bargo was  laid  on  provisions.  Tlie  cargo  be- 
inij  landed,  some  of  it  greatly  damaged  bj'  sea 
water,  was  thrown  overboard,  and  some  of  it 


sold  there  at  a  profit.  The  ship  was  put  up  at 
public  sale  and  purchased  at  one-fourth  her 
value  for  the  benefit  of  her  owners,  who  re- 
paired her.  A  part  of  the  cargo  was  repur. 
chased,  reshipped,  and  carried  to  Madeira, 
where  she  arrived  and  delivered  it.  Held,  all 
who  abandoned  were  entitled  to  recover  for  a 
total  loss  on  all  the  goods  insured.  Cologan  v. 
London  Ass.  Co.,  5  Mau.  &  Sel.,  447. 

23.  She  was  taken  by  a  cruiser  of  the 
United  States  to  New  Orleans,  where  tlie  cap. 
tors  iustiluted  proceedings  in  admiralty 
against  ship  and  cargo.  About  eight  months 
thereafter  the  court  gave  judgment  against 
the  captors,  and  declared  restitution.  Up  to 
this  time  insured  treated  the  seizure  as  a  par- 
tial  loss.  Captors  appealed  July  1st,  and  about 
six  weeks  thereafter  insured  heard  of  the  ap- 
peal, and  then  offered  an  abandonment,  which 
was  refused.  The  prize  commissioner  applied 
to  the  court  for  permission  to  sell  ship  and 
cargo,  of  which  insured  gave  insurers  notice. 
The  sale  could  have  been  prevented  l)y  depos- 
iting the  full  value  of  the  goods,  or  giving 
bond  for  them  in  current  funds,  then  at  65  per 
cent,  discount  from  coin.  Neither  party  took 
any  steps  to  relieve  the  property,  and  it  was 
sold  May  26,  1865,  by  order  of  court.  Held, 
the  captors'  appeal  gave  the  insured  no  right 
to  change  their  election,  lience  they  had  no 
right,  on  that  ground,  to  maintain  the  action 
as  for  a  total  loss;  that  insured  were  not 
bound  to  give  bond  or  to  deposit  the  money 
for  the  purpose  of  preventing  a  sale,  hence  the 
sale  was  a  total  loss,  occasioned  by  capture, 
and  insurers  were  liable.  Stringer  v.  English 
and  Scottish  Mut.  Ins.  Co.,  5  L.  R.  Q.  B.,  o9U; 
18  W.  R.,  1201 ;  22  L.  T.  (N.  S),  802;  10  B.  & 
S.,  770;  affirming  s.  c,  4  L.  R.  Q.  B.,  676. 

(b)  Of  capture,  seizure,  arrests,  de- 
tention, and  retardation. 

24.  "Ou  her  freight  and  cargo  (separate 
policies  ou  each)  from  New  York  to  Cape  St. 
Francois,  with  liberty  to  proceed  to  anotlier 
port  should  that  be  blockaded."  She  was  in- 
structed, if  she  could  not  enter  because  of 
blockade,  to  steer  toward  the  Bite  of  Leogane 
and  to  enter  Port  au  Prince  or  some  otlier 
port  in  the  Bite.  She  was  i>revcnted  by  a 
British  ship  of  war  from  entering  any  portoi\ 
the  island  of  San  Domingo;  but  permission 
wi*  given  by  the  bloikading  squadnm  to  go 

701 


l-t03 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


UOi 


AVhat  constitutes. 


to  Kingston,  where  she  arrived.  Slie  was  pre- 
vented at  Kingston  from  clearing  for  Cuba. 
Tlie  cargo  was  sold  at  Kingston.  The  pro- 
ceeds invested  in  produce  witli  which  she  re- 
turned to  New  York,  and  insured  abandoned 
cargo  and  freight,  offering  to  give  credit,  in 
settlement  with  tlie  underwriters,  for  the  pro- 
ceeds of  the  investment,  which  was  refused. 
Held,  the  law  was  clearly  with  the  insured; 
that  he  was  entitled  to  recover  the  value  of  the 
cargo  delivered  at  Kingston,  and  the  freight, 
less  the  proceeds  of  the  investment.  Symvnds 
t.  Union  Ins.  Co.,  4  Dall.,  417;  s.  c,  1  Wash. 
C.  C,  383. 

2.5.  Ship  and  cargo,  property  of  British 
subjects,  captured  by  French  privateer  and 
carried  into  Havana.  They  were  claimed  by  an 
English  merchant,  for  the  British  owners,  and 
an  order  for  restitution  given  by  the  Spanish 
government,  security  being  given  for  the  ap- 
praised value,  ship,  $9,655,  cargo,  !i!22,400,  to 
abide  the  issue  of  the  appeal  taken  by  captor 
from  tlie  order  of  restitution.  The  master  had 
been  removed  and  sent  to  the  United  States  at 
the  time  of  the  capture;  but  the  first  and  second 
mates  gave  securit}-,  bj'  Felix  Crucet,  and  the 
sliip  and  cargo  were  delivered  to  him,  for 
account  of  the  original  owners,  subject  to  his 
orders  till  he  should  be  finally  indemnified 
and  released  from  his  suretyship.  He  sent 
ship  and  cargo  direct  to  New  York,  and  the 
consignee  effected  insurance  for  him.  She 
sailed  on  the  voyage  and  was  captured  off 
Sandy  Hook,  taken  to  Halifax,  there  libeled 
in  the  court  of  admiralty  as  prize,  claimed  by 
the  master  for  Crucet,  which  was  rejected,  and 
she  was  pronounced  to  be  the  property  of 
English  subjects,  recaptured  by  his  majesty's 
ship  of  war,  and  decreed  to  be  restored  to  her 
original  British  owners,  on  payment  to  the  re- 
caplors  one-eighth  of  tlie  whole  value  as  sal- 
vage and  costs.  From  this  decree  Crucet 
apjiealed,  but  vessel  and  cargo  were  delivered 
to  the  agent  of  the  British  owners,  on  securitj^ 
given,  and  by  him  sent  to  England.  Insurers 
were  notified  of  the  capture  and  agreed  to  pay 
a  just  portion  of  the  expense  of  recovering 
tlie  jiroperty.  No  offer  to  abandon  was  made 
until  after  the  decree  of  the  vice  admiralty 
court  was  received  by  insured.  On  the  trial 
Crucet's  orders  to  his  agents  to  insure,  and 
the  nature  of  his  interest,  communicated  to  the 
insurers  al  the  time  of  effecting  the  insurance, 
and  the  record  of  the  proceedings  in  the  vice 
703 


admiralty  court,  the  hypothecation  to  Crucet, 
bill  of  lading  and  invoice  were  given  in  evi- 
dence. Held,  upon  abandonment,  the  insurers 
acquired  all  Cructt's  rights  and  remedies 
against  the  British  owners;  that  the  loss  of 
possession  would  have  made  it  necessary  for 
him  to  pursue  the  property  through  an  ex- 
pensive, troublesome  and  doubtful  medium, 
and  that  therefore  he  had  a  right  to  consider 
the  occurrence  as  a  total  loss,  and  to  recover 
the  sum  insured.  Russell  v.  Union  Ins.  Co.,  4 
Dall.,  421. 

26.  She  was  captured  by  British  cruisers, 
carried  into  port,  and  there  libeled  as  prize. 
A  decree  of  restitution  was  subsequently  ob- 
tained. A  part  owner,  one  of  the  insured, 
was  with  her  when  the  decree  of  restitution 
was  made ;  but  before  restoration,  and  without 
any  knowledge  of  the  decree,  the  agent  of  the 
owners,  the  person  who  procured  the  insur- 
ance, offered  to  abandon,  whicli  was  refused. 
Held,  the  bare  taking  of  the  vessel  did  not 
constitute  a  total  loss ;  but  when  the  captor  car- 
ried her  into  port  and  completed  his  examina- 
tion, instead  of  releasing  her,  he  proceeded 
to  libel  her  as  prize;  that  then  the  property 
insured  was  no  longer  subject  to  the  command 
of  the  owner,  and  the  loss  became  complete ; 
nor  was  this  affected  by  the  subsequent  decree 
of  acquittal,  nor  by  the  fact  that  she  after- 
wards proceeded  on  her  voyage,  nor  by  the 
fict  tliat  one  of  the  owners  was  with  her  and 
cognizant  of  it,  for  the  rights  of  the  parties 
were  fixed  at  the  time  of  the  abandonment. 
Dvtilh  V.  GntUff  4  Dall.,  446. 

27.  The  ship,  in  the  course  of  the  outward 
voyage,  and  before  its  termination,  became  a 
total  wreck,  and  the  cargo  being  perishable  ia 
its  nature,  though  not  injured  to  one-half  its 
value,  a  sale  thereof  became  necessary,  and 
the  further  prosecution  of  the  voj'age  with  the 
same  ship  became  impracticable.  Held,  a 
technical  total  loss  by  the  breaking  up  of  tlie 
voyage.  Columhidn,  Ins.  Co.  v.  CutUtt,  13 
Wheat.,  383. 

28.  She  was  captured ;  all  her  men  were  tak- 
en out  except  two.  In  less  than  three  d.ays  she 
was  recaptured  by  a  British  sloop  of  war,  car- 
ried to  Kingston  and  libeled  for  salvage.  But 
she  was  claimed  by  insurers,  who  alleged  that 
she  had  been  abandoned  to  them.  One-eighth 
her  value  was  decreed  to  the  salvors.  Claim- 
ant made  no  efforts  to  agree  with  the  captors 
as  to  the  value  of  the  vessel,  and  she  was  sold 


1405 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


UOS 


What  constitutes. 


for  $915,  and  her  cargo  brought  $1,000.  Costs, 
charges  and  commissions  amounted  to  $909, 
and  salvage  to  $239.  Held,  the  loss  was  total. 
Marine  Ins.  Co.  v.  Tucker,  3  Cranch,  357. 

29.  On  freight,  from  New  York  to  Batavia, 
and  back  to  New  York.  She  was  captured  by 
a  BritLsh  armed  vessel,  her  male  and  twenty- 
<me  seamen  taken  out,  and  fifteen  seamen  and 
two  British  officers  put  on  board,  February  10, 
1805.  She  was  carried  into  Bermuda  on  the 
13th,  and  libeled  as  prize  of  war.  The  second 
mate,  who  had  been  put  on  board  another  ves- 
sel, arrived  iu  New  York  February  26tli,  and 
intelligence  of  what  had  occurred  was  then 
given  the  insured,  who  made  an  effort  of  aban- 
donment two  days  later.  She  was  acquitted 
April  20,  1805,  from  which  an  appeal  was  ta- 
ken, as  to  the  cargo  only,  but  it  was  delivered 
to  the  owners  thereof  May  8th,  upon  security 
given  to  abide  theresult  of  the  appeal.  Ship  and 
cargo  arrived  in  New  York  July  8th.  Insurers 
of  freight  had  refused  to  give  any  security  for 
the  relief  of  the  cargo  owner.  Hdd,  a  com- 
plete arrest  bj'  a  belligerent  is,  for  the  time,  a 
total  loss;  and,  where  there  is  a  complete  tak- 
ing at  sea  by  a  belligerent,  who  has  full  pos- 
session of  the  vessel  as  prize,  and  continues 
that  possession  to  the  time  of  abandonment, 
there  exists,  in  point  of  law,  a  total  loss;  and 
the  act  of  abandonment  vests  the  right  to  the 
thing  abandoned  in  the  insurer,  and  the 
amovmt  insured  in  the  assured.  lihinelander 
«.  Insurance  Co.  of  Pennsj/lvania,  4  Cranch,  29. 

30.  Two  policies,  one  valued  on  the  vessel, 
the  other  open  on  the  cargo,  from  New  York 
to  Gibraltar.  She  was  captured,  carried  into 
Algeziras;  the  cargo  was  not  condemned,  but 
she  was  not  permitted  to  sail  with  it  without 
security  that  it  would  not  be  carried  to  a  Brit- 
ish port  in  the  Mediterranean.  The  supercar- 
go sold  it,  and  she  look  another  and  sailed  for 
New  York.  Ileld,  the  seizure,  carrying  into 
Algeziras,  and  the  prohibition  against  the  car- 
go was  a  complete  destruction  of  the  voyage, 
and  authorized  au  abandonment  of  it;  hence 
the  supercargo,  acting  for  the  interests  of  all 
concerned,  had  a  right  to  sell  it.  Uurtin  ». 
PluBHix  Ins.  Co.,  1  Wash.  C.  C,  400. 

31.  On  goods.  The  risk  of  illicit  trade 
■was  taken.  They  were  partly  illicit.  She 
arrived  at  Kingston,  Jamaica,  October  12th.  | 
The  illicit  goods  were  libeled,  and  the 
value  of  those  saved  was  less  than  lialf  tlie 
sum  insured.    The  insured  abandoned.    Hdd, 


the  loss  was  constructively  total.    Gardiner  v. 
Smith,  1  Johns.  C,  141. 

32.  On  goods  from  New  York  to  Barracoa, 
with  liberty  to  touch  at  one  or  two  ports  oa 
the  north  side  of  Cuba,  She  arrived  at  Barra- 
coa  June  2Gth,  where  she  remained  without 
being  able  to  sell  the  cargo  till  October  30th. 
Slie  was  forcibly  entered  by  pirates,  wlio  car- 
ried  away  a  large  quantity  of  the  goods  and 
$4,780  in  money.  She  sailed  for  Havana,  but 
was  compelled  by  stress  of  weather  and  short- 
ness of  provisions,  to  put  in  at  New  Provi- 
dence,  where  she  arrived,  December  l.'ith ;  and 
where  the  remnant  of  the  cargo  was  sold  for 
$3,701.  (The  invoice  of  the  -nhole  cargo  was 
iflGjSOO.)  The  voyage  was  there  broken  up 
and  an  abandonment  made.  Held,  the  aban- 
donment was  effectual  and  warranted  a  recov- 
ery as  for  a  total  loss.  Oilfert  t.  Ballet,  2 
Johns.  C,  296. 

33.  Ship  and  freight  insured  in  two  poli- 
cies by  the  same  insurers.  New  York  to  the 
River  La  Plata,  thence  to  a  port  in  Europe. 
February  13th,  she  arrived  at  Buenos  Ayres 
and  delivered  her  cargo,  but  was  embargoed 
till  October  1st,  when  she  sailed  for  Havre  de 
Grace,  at  which  port  she  arrived  in  December. 
Insurers  offered  to  abandon  June  29lli,  pre- 
ceding, but  it  was  refused.  Held,  a  total 
loss.  Livingston  v.  Columbian  Ins.  Co.,  $ 
Johns.,  49. 

34.  Policy  on  cargo  from  New  York  to 
Hamburg.  She  was  boarded  in  the  Englisli 
channel  by  a  British  ship  of  war,  and  forbid- 
den to  proceed  to  the  Elbe.  She  was  again 
boarded  by  another  British  ship  of  war  and 
forbidden  to  proceed  to  Hamburg,  but  advised 
to  go  into  Portsmouth  and  take  advice  of  the 
agent  of  the  ship  owner.  Slie  went  to  Spit- 
head,  at  which  place  she  was  recomnitnded  to 
go  to  Embden,  where  she  delivered  the  cargo 
in  good  order.  While  at  Embden  she  received 
large  damage  by  collision  with  another  vessel 
in  a  gale.  Held,  the  port  of  destination  being 
actually  blockaded,  llie  right  to  abandon  ex- 
isted,  and  if  that  right  was  seasonably  ex- 
ercised, everj-thing  done  afterwards  in  good 
faith  must  be  considered  as  done  for  account 
of  the  insurers.  Schmidt  v.  United  Ins.  Co.,  I 
Johns.,  249. 

3.5.  On  ship  from  New  York  to  Bordeaux 
and  back,  was  captured  when  returning,  car- 
ried into  England  January- 24,  1808,  and  aban- 
doned June  1st  following.     The  capture  \va» 

703 


Ii07 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


1408 


What  constitutes. 


defended,  cargo  restored,  and  vessel  con- 
demned March  29,  1809.  Both  parties  ap- 
pealed, bul  the  master  effected  a  compromise, 
and  both  appeals  were  witlidrawn.  He  bought 
Iier  of  the  captors,  sailed  for  New  York,  where 
she  arrived  and  delivered  cargo.  But  to  pro- 
cure money  to  pay  for  the  vessel,  and  the  ex- 
penses arising  from  the  capture,  he  gave  a 
bottomry  bond.  Held,  the  abandonment  Jixed 
the  rights  of  the  parties  and  the  insured  were 
uot  bound  by  what  the  master  did  after  June 
1st;  and  that  the  loss  was  total.  Jumel  v.  Ma- 
rine Ins.  Co.,  7  Johns.,  412. 

36.  On  cargo.  Ship  and  cargo  captured  by 
the  French,  carried  into  Ferraja,  where  resti- 
tution was  ordeied  with  costs  and  charges. 
Captors  appealed,  and  the  cargo  was  delivered 
■upon  bonds  given  for  its  appraised  value, 
fifty  per  cent,  over  prime  cost,  and  greater 
than  the  sum  insured.  It  was  delivered 
at  point  of  destination  and  sold  for  more 
than  the  appraised  value.  It  was  finally  con- 
demned as  lawful  prize;  and  the  consignees, 
having  been  obliged  to  pay  their  bond,  sued 
on  the  policy.  Held,  a  recovery  could  be  had 
■without  an  abandonment,  for  the  amount  paid 
on  the  bond ;  because  the  loss  here  was  equal 
to  a  total  loss.  Grade  v.  Neic  York  Ins.  Co.,  8 
Johns.,  237. 

37.  The  vessel  and  cargo  were  seized  by 
the  French  when  they  arrived  at  S-in  Antonio, 
who  carried  the  cargo  to  Bayonne,  but  never 
restored  it ;  the.  shij)  was  not  restored  until  ten 
months  after  capture,  on  payment  of  salvage, 
and  then  she  was  left  naked  of  any  documents 
or  voucher  to  give  her  protection  on  the  high 
seas.  Held,  the  capture  continued  its  destruct- 
ive effects  to  the  time  of  abandonment,  which 
was  made  after  her  restoration ;  that  she  was 
not  then  so  restored  as  to  have  legal  capacity 
to  perform  the  vo3'age.  Post  v.  Plmnix  Ins. 
Co.,  10  Johns.,  80. 

38.  She  was  captured,  recaptured  and  car- 
ried into  an  English  port  and  libeled  for 
salvage.  She  was  sold  by  order  of  court,  pur- 
chased b3'  the  master  and  delivered  to  her 
owners,  who  credited  insurers  with  the  pro- 
ceeds of  the  sale  and  sued  for  a  total  loss. 
Held,  that  insured  was  not  bound  to  abandon, 
and  that  he  was  entitled  to  recover  as  for  a 
total  loss.  Storer  v.  Oray,  2  Mass.,  565.  But 
see  Oliver  v.  Newburyport  Ins.  Co.,o  Mass., 
37,  where  the  facts  were  in  all  respects 
similar  except  there   was  no  decree  of  sale, 

704 


and  the  court  held  it  was  not  a  case  of  total 
loss. 

39.  Ship  arrested  within  three  days'  sail  of 
her  port,  carried  to  Bermuda  and  libeled  a 
prize.  Abandonment  made  after  insured 
heard  of  capture  and  while  she  was  detained. 
Insurers  refused  to  accept  abandonment.  She 
was  afterwards  released  and  arrived  at  port 
of  destination.  Held,  a  total  loss.  Lee  v. 
Boardnmn,  3  Mass.,  237. 

40.  The  cargo  being  detained  and  claimed 
as  prize,  an  abandonment  was  offered.  Held, 
a  total  loss,  notwithstanding  the  cargo  was 
afterwards  released.  Dorr  v.  New  England 
Marine  Ins.  Co.,  4  Mass.,  221. 

41.  On  ship  for  twenty- four  calender 
mouths:  "Risk  of  illicit  trade  or  of  trading 
from  one  belligerent  port  to  another  ex- 
cepted."  Vessel  captured  and  taken,  Feb- 
ruary 5,  1809,  from  the  coast  of  China  for 
Calcutta,  where  she  was  afterwards  condemned 
as  lawful  prize  for  the  captors.  June  5,  1809, 
insured  received  informadon  of  the  capture. 
After  the  term  had  elapsed  she  was  condemned 
at  Calcutta,  and  insured  then  abandoned. 
Held,  the  condemnation  and  sale  at  Calcutta 
were  parts  of  the  same  loss ;  that  insured  was 
entitled  to  recover  for  a  total  loss.  Dorr  v. 
New  England  Ins.  Co.,  11  Mass.,  1. 

42.  The  policy  provided  that  the  insured 
shall  not  abandon  for  the  amount  of  damage 
merely,  unless  the  amount  which  the  insurer 
would  be  liable  to  pay  under  an  adjustment 
as  of  partial  loss,  exceeds  half  the  amount  in- 
sured. Held,  the  cost  of  repairing  the  damage, 
less  one-third  new  for  old,  must  exceed  half  her 
value,  before  an  abandonment  can  be  allowed. 
Winn  V.  Columbian  Ins.  Co.,  12  Pick.,  379. 

43.  Ship  insured  for  a  term  of  twelve  months 
at  a  premium  of  four  and  a  half  per  cent.,  and 
at  that  rate  for  a  longer  or  a  shorter  period, 
warranting  two  and  a  half  per  cent,  for  six 
months.  She  was  captured  just  before  the  ex- 
piration of  six  months,  and  afterwards  aban- 
doned. Held,  the  .abandonment  had  relation 
to  the  time  of  the  capture,  because  the  results 
showed  a  total  loss  at  that  time ;  and  the  in- 
surer was  entitled  to  premium  for  six  months 
only.  Lovering  v.  Mercantile  Ins.  Co.,  12 
Pick.,  348. 

44.  On  vessel  and  outfits,  including  loss  by 
barratry,  "  Free  from  loss  or  expense  arising 
from  capture,  seizure,  or  detention."  She  was 
barratrously  seized  by  a  part  of  the  crew  who 


1409 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


1410 


What  constitutes. 


killed  tlie  master  and  third  mate,  and  badl}- 
wounded  the  first  and  second  officers.  The 
mutineers  retained  possession  for  nine  days, 
and  tlien  left  her  in  the  hands  of  the  wounded 
officers,  having  damaged  her  by  tire,  carried 
away  a  quantity  of  tlie  oulfit.s,  and  destroyed 
the  vvhivling  gear.  After  her  restoration  she 
arrived  at  a  port  of  necessity,  unlit  to  continue 
the  voyage.  There  was  no  means  witliin  tlie 
reach  or  control  of  the  officers  in  charge  to 
refit,  reofflcer,  or  reman  lier.  Held,  the  right 
to  abandon,  and  claim  for  a  constructive  total 
loss  exists,  whenever  by  reason  of  a  peril  in- 
sured against,  the  vessel  for  all  the  purposes 
of  the  voj'age  is  gone  from  the  present  control 
of  the  owner,  and  the  lime  when  she  will  bo 
returned  in  a  state  to  resume  the  voyage  is  un- 
certain or  unreasonably  distant,  or  the  risk  of 
delay  and  expense  disproportionate  to  the  ex- 
pected benefits  and  objects  of  the  voyage. 
(Greene  v.  Pacific  Mut.  Ins.  Co.,  9  Allen,  217. 

45.  Where  the  property  is  in  esse,  but  the 
insured  has  no  power  to  take  it  from  the  per- 
ison  in  whose  possession  it  remains,  it  is  lost 
to  the  insured,  and  the  insurer  must  answer 
for  it  if  the  loss  was  a  peril  insured  against. 
It  is  immaterial  in  such  case  when  the  aban- 
<li)nmcnt  was  made.  Brown  v.  Phmnix  Ins.  Co., 
4  Biun.,  44o 

46.  Th^  vessel  was  illegaly  seized,  master 
and  crew  thrown  into  prison,  and  he  was 
threatened  with  death  if  he  persisted  in  mak- 
ing claim  to  her.  Held,  insured  had  the  right 
to  abandon  and  recover  as  for  a  total  loss 
(citing  Mclver  v.  Henderson,  4  Mau.  &  Sel., 
57C).  Thompson  v.  ilississipi  Marine  and  Fire 
Ins.  Co.,  La.  (O.  S.),  228. 

47.  Time  policy  for  three  months  against 
capture.  SheWas  captured  Februarj' 3,  1744, 
and  was  in  the  possession  of  the  enemy  till 
the  P.  M.  of  the  5th,  when  she  was  retaken  by 
a  privateer,  who  carried  her  into  Lisbon,  a 
neutral  port.  Judgment  was  given  April  29, 
174o,  "  that  she  should  be  restored  to  the 
owners  on  payment  ot  one-third  of  the  value 
of  the  salvage."  Held,  a  totii'l  loss.  Pond  v. 
King,  1  Wils.,  101. 

48.  The  ship  insured  was  taken  by  the 
French,  some  of  the  goods  had  been  previ- 
ously jettisoned.  An  offer  to  abandon  was 
made.  //cW,  the  loss  was  total.  Goss  v.  Withers, 
2  Burr.,  683 ;  2  Ld.  Kenyon,  335. 

49.  She  was  captured  within  a  short  dis- 
tance of  the  port  of  destination,  carried  in, 

45 


and  the  cargo  sold  by  the  original  consignees. 
Held,  it  never  reached  the  agents  of  tlie  in- 
sured,  and  if  it  had,  was  to  be  treated  as 
carried  into  any  hostile  port  and  sold  by  the 
cajitors.     Afarshnll  v.  Parker,  3  Camp.,  09. 

50.  She  was  captured,  carried  into  Gibral- 
tar tind  restored ;  but  the  goods  were  detained 
for  further  information.  They  were  unladen 
and  sold,  but  a  final  decree  was  made,  that 
the  value  thereof  should  be  restored.  Held,  Sk 
total  loss.     Visger  v.  Prescott,  5  Esp.,  184. 

51.  She  .was  captured;  all  the  crew  and 
part  of  the  cargo  taken  out,  and  the  rigging 
taken  away.  In  that  condition  she  was  re- 
captured  and  taken  to  New  York.  The  mas- 
ter arrived  in  New  York  June  33d,  found  her 
there  and  took  possession  of  her.  There  were 
then  but  fifty-seven  bogheads  of  sugar  on  board, 
part  of  which  was  damaged  by  sea  water.  The 
salvage  amounted  to  about  the  value  of  forty 
bogheads  of  the  sugar.  No  sailors  could  be  pro. 
cured.  He  sold  the  cargo,  left  the  ship  at  New 
York  and  returned  to  London  where  he  arrived 
February  following.  Insured  was  not  in- 
formed till  that  time  of  the  disaster.  Held,  a 
total  loss.     Milles  v.  Fletcher,  1  Doug.,  231. 

52.  An  American,  licensed  to  export  salt- 
petre from  Calcutta  to  America,  insured  it. 
Ship  was  seized  by  a  British  ship  of  war,  and 
the  cargo  condemned,  unladen  and  sold 
by  order  of  admiralty  court  at  the  Cape  of 
Good  Hope,  which  order  was  reversed  and 
the  property  ordered  restored  or  its  value 
paid  to  the  owner  on  payment  of  captors 
Costs;  no  notice  of  abandonment  was  made. 
Held,  a  total  loss  when  it  was  unshipped  and 
sold  under  the  order  of  court.  Mullet  v. 
Shedden,  13  East,  304. 

53.  On  ship  valued  at  £3,000,  from  Liver- 
pool to  Sierra  Leone.  A  French  frigate 
captured  and  plundered  the  ship,  and  threw 
overboard  a  large  part  of  the  cargo,  the  great 
est  part  of  her  stores,  provisions  and  water, 
thirteen  out  of  sixteen  guns,  all  her  small 
arms,  all  her  ammunition,  long  boat,  instru- 
ments,  register  and  all  her  papers,  except  the 
log  book.  The  captors  then  gave  her  to  the 
master  of  a  Portuguese  schooner  previously 
captured  and  burned.  The  master  of  the 
Portuguese  schooner,  her  own  master,  fourteeu 
of  tlie  crew,  fourteen  other  British  sailors  and 
twenty-one  of  the  schooner's  crew  were  put 
aboard,  and  they  were  ordered  to  make  for 
the  nearest   land,  Bueua  Vista,  which  pl.tco 

703 


1411 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


1412 


"What  constitutes. 


she  reached  io  two  days  ;  but  the  crew  became 
ungovernable  and  insisted  on  going  to  one  of 
the  Western  islands;  she  accordingly  arrived 
at  Fayal  in  about  twenty  days,  where  the 
Portuguese  master  claimed  ship  and  cargo  as  a 
donation  from  the  French  commander,  and 
proceedings  were  commenced  in  admiralty 
there,  and  sentence  pronounced  in  favor 
of  him  April  1st.  Insured  received  intelli- 
gence April  4th,  and  abandoned.  The  re- 
mainder of  the  cargo  was  landed  and  sold  at 
Fayal.  But  she  was  restored,  sailed  May  12th, 
and  arrived  in  Liverpool  on  the  29th.  She 
vrtiuld  not  have  brought  more  than  .£600  in 
Fayal,  but  was  worth  £1,300  in  Liverpool. 
The  expense  of  navigating  her  to  Liverpool 
was  £231.  An  appeal  from  the  order  of  resti- 
tution -was  pending,  when  she  sailed  from 
Fayal ;  £427  were  deposited  at  Faj'al  to  abide 
the  event  of  the  appeal.  Held,  the  loss  was 
total.  M  'Iver  v.  Henderson,  4  Mau.  &  Sel., 
576. 

54.  "  On  advances  for  the  transport  of  Chi- 
nese emigrants,  for  their  outfit  and  provisions, 
to  be  paid  on  the  arrival  of  the  emigrants  at 
the  port  of  destination,  against  pirates,  rovers, 
thieves,  barratry  of  tire  master  and  mariners, 
and  all  other  losses  and  misfortunes."  The 
declaration  alleged  a  total  loss,  for  that  the  emi- 
grants, piratically  and  feloniously,  had  mur- 
dered the  master  and  part  of  the  crew,  and  had 
feloniously  stolen  and  carried  away  the  ship. 
Insurer  pleaded:  First.  So  soon  as  the  emi- 
grants had  committed  the  murder  and  ob- 
tained possession  of  the  vessel  they  steered 
her  for  the  nearest  land,  for  the  purpose  of 
landing,  and  refused  to  and  would  not  proceed 
upon  the  voyage;  that  the  vessel  was  then 
sufficient  to  proceed  to  port;  that  the  re- 
mainder of  the  crew  could  have  navigated 
her  there,  and  were  ready  and  willing  so  to 
do,  and  convey  the  emigrants  to  port  if  they 
■would  have  gone;  but  they  would  not  go,  and 
by  reason  of  such  refusal,  and  no  other,  the 
transportation  was  never  completed.  Second. 
That  the  emigrants  were  unw  ill!  ng  to  be  carried 
on  the  voyage,  and  committed  the  murder  and 
t<iok  possession  of  the  vessel  for  the  purpose 
of  landing  and  escaping  from  the  voyage,  and 
for  no  other  purpose.  Held,  the  murder  of 
the  master  and  part  of  the  crew,  and  seizure 
of  the  vessel,  as  alleged  in  the  declaration  and 
admitted  by  the  pleas,  was,  if  not  a  piratical 
act,  one  of  the  same  nature,  and  therefore 
706 


within  the  perils  insured  against;  that  as  tli& 
loss  was  complete  the  moment  the  vessel 
was  seized,  the  unwillingness  of  the  emigrants 
to  be  carried  to  the  point  of  destination  was 
immaterial,  for  that  was  remotely  the  causa 
of  the  loss.  Palmer  v.  Naylor,  10  Exchr.,  382 ; 
affirming  s.  c,  8  id.,  739;  6.  c,  23  L.  J.  Ex., 
328;  2  W.  R.,  621. 

55.  The  perils  insured  against  were  {inter 
alia)  "  takings  at  sea,  arrests,  restraints  and 
detainments,  of  all  kings,  princes,  and  people, 
etc."  She  was  seized  near  Ambriz  by  a 
queen's  ship,  under  statute  of  5  Geo.  IV,  ch. 
114,  sec.  4,  and  was  sent  with  the  cargo  to  St. 
Helena  for  adjudication,  September  21,  1854. 
S)ie  was  condemned  in  the  vice  admiralty 
court  of  St.  Helena,  November  20,  1854,  and 
shippers  of  cargo  were  also  condemned  in 
penalties  amounting  to  double  the  value  of  the 
goods  and  costs,  and  the  goods  were  ordered 
to  be  kept  on  deposit  until  payment  of  penalty 
and  costs.  She  was  sold  by  order  of  court, 
together  with  that  portion  of  the  cargo  which 
was  perishable,  in  December,  1854,  and  the 
residue  of  the  goods  were  detained  at  St.  Hel- 
ena, by  order  of  court.  On  arrival  of  this  in- 
formation in  England,  insured  on  cargo  aban- 
doned December  13,  1854,  and  an  appeal  to 
the  queen  in  council  was  lodged  January  31, 
1855.  Possession  of  the  goods  that  remained  in 
specie  at  St.  Helena  could  not  have  been  ob- 
tained before  December,  1856,  and  then  only 
by  giving  security  for  the  invoice  cost.  Tlu 
privy  council  reversed  the  decree,  and  ordered 
restitution  of  ship  and  cargo,  February  3, 1858. 
At  that  time  the  goods  remaining  in  specie  at 
St.  Helena  had  greatly  deteriorated  in  value, 
and  it  would  have  cost  more  than  they  were 
worth  at  the  point  of  destination  to  have  carried 
them  there.  Held,  the  wrongful  seizure  was  a 
loss' within  the  policy;  that  the  notice  of  aban- 
donment  made  the  loss  total,  and  it  so  contin- 
ued until  the  time  action  was  brought.  Xoza- 
no  «.  Janson,  2  El.  &  El.,  160 ;  s.  c,  5  Jur.  (N. 
S.),  1401 ;  28  L.  J.  Q.  B.,  337;  7  W.  R.,  654. 

56.  "  On  silks,  at  and  from  Japan  or  Shang- 
hai to  Marsailles,  Leghorn  or  London,  via 
M.arseilles  or  Southampton,  and  while  remain 
ing  there  for  transit,  with  leave  to  call  at  any 
ports  or  places  in  or  out  of  the  way,  for  .all 
purposes,  including  all  risks  of  craft  to  and 
from  the  steamers  per  overland  or  via  Suez 
Canal,  against  seas,  men  of  war,  enemies,  sur- 
prisals,  takings  at  sea,  arrests,  restraints,  and' 


1413 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


1414 


^Vllat  constitutes. 


detainments  of  all  liings,  etc."  Memorandum 
in  tlie  margin:  "The  sillcs  insured  by  ihis 
policy  shall  be  shipped  by  Peninsular  and 
Oriental  Company,  Messageries  Iraperiales 
steamers,  or  the  steamers  of  the  mercantile 
Trading  Co.,  of  Liverpool,  only."  They  were 
carried  from  Shanghai  to  Hong  Kong  in  a 
Messageries  Imperial  steamer,  there  tran- 
shipped to  another  steamer  of  the  same  com- 
pany and  carried  through  the  Suez  Canal  to 
Marseilles.  The  through  freight  was  paid  to 
tliat  company  for  the  whole  transportation. 
At  the  t.ime  of  making  the  policy  the  steamers 
of  the  Messageries  Imperiales  ran  no  further 
than  Marseilles,  and  goods,  in  the  ordinary 
course  of  business,  were  never  carried  from 
Japan  in  anyother  way,  and  were  always  sent 
by  that  company  OTerland  by  the  Lyons  Rail- 
way from  Marsailles  to  Paris,  theuce  by  the 
Northern  Railway  to  Bologne,  thence  to  Lon- 
don, and  this  course  of  the  business  was  well 
known  among  insurers  generally.  The  goods 
arrived  at  the  railway  station  in  Paris,  Sep- 
tember 13,  1870.  The  German  armies  were 
then  advancing  upon  Paris;  and,  before  the 
goods  were  removed  Paris  was  completely 
surrounded  and  beseiged  on  the  19th ;  and 
while  this  continued,  October  7,  1870,  insui'-ed 
gave  notice  of  abandonment.  Subsequently 
thej'  arrived  in  London  in  an  undamaged  con- 
dition, March  20,  1871.  Held,  insured  were 
entitled  to  abandon  and  recover  as  for  a  total 
loss,  notwithstanding  the  goods  were  safe 
after  the  action  was  brouglit.  Rodocanacld  v. 
Elliott,  8  L.  R.  C.  P.,  64S;  42  L.  J.  C.  P.,  247; 
21  W.  R,  810;  28  L.  T.  (N.  S.),  840;  affirmed 
in  Ex.  Ch.,  9  L.  R.  C.  P.,  518;  43  L.  J.  C.  P., 
255;  31  L.  T.  (N.  S.),  239. 

57.  "  On  goods,  interest  or  no  interest,  from 
Jamaica  to  Bristol."  She  was  taken  by  a 
Spanish  privateer,  carried  into  Mores,  a  port 
in  Spain,  and  then  cutout  by  an  English  ship. 
Held,  carrying  into  port  and  detention  for 
eight  days  constituted  a  total  loss.  Dean  v. 
Dicker,  2  Strange,  1250. 

.t8.  On  brig,  furniture  and  cargo  for  twelve 
months  from  December  29,  1825,  valued 
£2,700.  She  received  considerable  injury  on 
the  voyage,  and  came  to  anchor  at  the  Falk- 
land Islands  in  West  Point  Bay,  May  11, 1826 ; 
and  was  there  driven  from  her  anchors  up- 
on the  rocks,  where  she  remained  until  the 
beginning  of  July ;  and  then  by  the  assistance 
of  the  crews  of  other  vessels  she  was  got  off 


and  pursued  her  voyage  to  Callao.  On  her 
arrival  there  she  was  arrested  at  the  suit  of  tho 
master  of  one  of  the  vessels  who  aided  in  get- 
ting her  off,  on  a  claim  for  salvage.  This  ar- 
rest look  place  before  she  was  moored  in  the 
liarbor  November  24,  1825.  The  owners,  oQ 
receiving  notice  of  the  arrest,  offered  to  aban- 
don. The  amount  of  salvage  was  ascertained 
by  arbitrators;  but  as  the  money  could  not  be 
obtained  to  satisfy  it,  the  admiralty  court  de- 
creed January  12,  1827,  that  she  should  be  at- 
tached and  sold  to  satisfy  it.  She  was  sold 
January  20th  for  $3,100,  the  whole  of  which 
was  consumed  in  the  jxiyment  of  salvage,  auc- 
tioneer's fees,  brokerage,  law  costs,  etc.  Held, 
the  plaintiff  had  a  right  to  abandon  so  soon  as 
he  heard  of  the  seizure ;  that  the  vessel  thea 
became  a  total  loss,  and  by  relation  within 
the  period  insured.  Smith  v.  liobinson,  Hayes, 
125. 

(c)  Of  perils  of  the  seas. 

59.  On  clothes  and  the  proceeds  thereof, 
on  a  sealing  voyage  for  seal  and  oil  in  the 
South  seas,  and  back  to  the  United  States. 
She  was  wrecked  on  Refreshment  Island 
when  she  had  about  ninety  b.arrels  of  whale 
and  elephant  oil  and  thirty  six  seal  skins; 
everything  was  lost  except  the  seal  skins  and 
about  fifty  barrels  of  whale  oil.  According 
to  custom,  clothing,  bedding,  and  stores  of 
all  kinds  for  the  use  of  the  crew  during  the 
voyage,  were  carried  aud  sold  to  the  crew 
duiing  the  voyage.  The  crew  were  debited 
with  all  they  received  and  credited  at  the  end 
of  the  voyage  with  their  proportion  of  the 
proceeds  of  the  catchings.  The  insured 
shipped  the  clothes  insured  for  the  master  to 
sell  them  to  the  crew,  for  which  he  was  to  be 
paid  a  commission  of  seven  per  cent.;  about 
$9.50  of  the  clothing  had  been  sold  to  the 
crew  and  there  remained  on  board  at  the  time 
of  the  wreck,  $.50  or  $100  of  it;  which  was 
lost;  but  the  interest  which  the  crew  had  in 
the  cargo  sent  home  was  insufficient  to  repay 
the  advances  the  owners  had  made  to  them. 
Jfeld,  though  it  was  contemplated  that  the 
clothing  should  be  sold,  it  was  never  contem- 
plated that  the  proceeds,  in  a  strict  sense, 
should  be  invested  in  any  other  property  dur- 
ing the  voyage.  The  real  object  of  the  policy 
was  to  cover  the  risks  of  the  shippers  arising 
from  the  loss  of  the  goods  or  the  frustration  of 

707 


1415 


TOTAL  LOSS  (ABSOLUFE  OR  CONSTRUCTIVE). 


1416 


What  constitutes. 


the  voyage ;  if  the  vo3'age  should  bu  successful, 
the  shipper  coufideiitly  looked  to  the  proceeds 
of  the  adventure  for  the  due  payment  of  the 
sales  made  to  the  seamen ;  and  so  soou  as  the 
goods  were  sold  to  the  seamen,  the  shipper  ac- 
quired an  interest  in  the  voyage  equal  to  the 
sales;  nor  was  it  marine  perils  alone,  to  the 
goods  themselves  while  they  were  unsold,  that 
the  policy  was  intended  to  protect,  hut  it  was 
against  a  loss  of  the  voyago  and  adventure, 
and  was  analogous  to  insurance  upon  outfits 
in  a  fishing  or  whaling  voyage  and  hence  in- 
surers were  liable  for  a  total  loss.  Hancox  v. 
Fishing  Ins.  Co.,  3  Sumn.,  132. 

60.  "  On  commissions."  Ship  was  com- 
pelled by  stress  of  weather  to  put  into  St. 
Kitts,  where  the  cargo  was  necessarily  sold, 
and  the  proceeds  were  partly  invested  in 
the  produce  of  the  island.  Held,  as  the 
return  cargo  never  arrived  at  the  port  of 
destination,  insured  was  entitled  to  recover. 
New  York  Ins.  Co.  v.  Robinson,  1  Johns., 
616. 

61.  On  ship.  She  met  with  heavy  gales, 
sprung  a  leak,  pumps  became  choked  with 
corn,  part  of  cargo  was  thrown  overboard  and 
the  mainmast  cut  away.  She  reached  point 
of  destination,  but  coijld  not  be  repaired  there 
for  want  of  materials,  nor  could  she  have  been 
sold  for  enough  to  pay  for  the  repairs.  Held, 
a  total  loss.  Slagg  v.  United  Ins.  Co.,  3  Johns. 
C,  34. 

62.  Vessel  lying  at  anchor  commenced  to 
drag  stern  foremost  upon  a  reef.  Both  cables 
were  cut  and  she  became  fast  upon  Ragged 
Staff.  She  bilged,  and  everything  was  afloat 
fore  and  aft.  The  following  day  the  masts 
were  cut  away  to  jireveut  them  working 
through  the  bottom.  Held,  a  total  loss. 
Walker  v.  United  States  Ins.  Co.,.n  S.  «&  R.,  61. 

63.  On  ship  at  and  from  Liverpool  to  New 
York,  thence  to  any  other  port  in  the  United 
States  or  to  Quebec,  thence  to  a  port  of  dis- 
charge in  the  United  Kingdom,  until  she  hath 
moored  at  anchor,  in  good  safet}-,  at  her  place 
of  destination,  and  for  such  period  afterwards 
as  she  shall  be  there  occupied  in  discharging 
her  cargo,  not  exceeding  ten  days  from  the 
date  of  reporting  at  the  custom  house.  There 
was  a  policy  on  freight  in  similar  terms.  She 
took  a  cargo,  cliiefly  of  timber,  at  Quebec,  and 
sailed  July  14th,  bound  for  Liverpool.  She 
ran  upon  an  iceberg,  carried  away  the  bow- 
sprit, stove  in  the  bows,  received  other  serious 

708 


damage,  and  became  water  logged;  but  tho 
timber  kept  her  afloat,  and  by  great  exertions 
she  reached  Point  Lynas,  a  short  distance 
from  the  Mersey,  took  a  pilot  and  proceeded 
for  Liverpool,  arriving  ofl'  Brunswick  pier 
head  August  11th.  She  was  moored  outside 
the  dock  gates,  laid  alongside  the  pier  head  in 
the  open  river,  and  when  the  tide  went  out  she 
grounded,  fell  over,  and  sustained  much  addi- 
tional damage.  Holes  were  bored  in  her  bot- 
tom, which  permitted  the  water  to  pass  out; 
they  were  closed,  and  she  floated  with  the 
rising  tide,  was  carried  into  the  Brunswick 
basin,  and  the  following  day  taken  into  dock 
and  discharged  cargo,  noae  of  which  was 
taken  out  till  she  was  ultimately  placed  in  the 
dock.  It  would  have  cost  £3,000  to  £4,000  to 
repair  all  her  injuries.  The  insured  offered  to 
abandon,  but  the  insurers  refused  to  accept  it. 
The  freight  actually  earned  was  paid  to  her 
owners,  £1,403  2s.  2d.  Held,  the  insured  were 
entitled  to  recover  for  a  total  loss;  but  where 
the  subject  insured  is  not  actually  annihilated, 
and  the  insured  is  entitled  to  claim,  and  does 
claim  for  a  total  loss,  he  must  give  up  to  the 
underwriters  all  that  remains  of  the  property 
insured,  together  with  all  benefit  or  advantage 
that  belongs  to  or  was  incident  to  it;  the 
freight  which  the  ship  was  in  the  course  of 
e.arning  was  a  benefit  or  advantage  belonging 
to  her,  and  became  the  property  of  the  under- 
writers on  ship  when  they  paid  a  total  loss. 
Stewart  v.  Greenock  Marine  Ins.  Co.,  3  H.  L 
Gas.,  159;  1  Macq.  H.  L.  Gas.,  383. 

64.  "  On  ship  valued,  £17,500,  at  and  from 
China  to  Madras  and  back  to  China."  Tlie 
insured  had  paid  £11,000  for  her.  She  was 
dismasted,  and  the  masts  and  rigging  dragged 
under  her  bottom,  and  very  much  injured  her 
copper  and  wood  sheathing.  It  would  have 
cost  £10,500  to  make  her  seaworthy,  and  then 
she  would  have  been  worth  not  over  £9,000. 
The  hull  appeared  to  be  sound,  and  she  made 
little  or  no  water.  Held,  a  total  loss  for  £17,500. 
Manning  v.  Irving,  1  C.  B.,  168;  s.  c,  2  C.  B., 
784;  s.  c,  affirmed.  House  of  Lords,  6  C.  B., 
391;  1  II.  L.  Gas.,  287. 

65.  The  ship  w  as  so  much  injured  by  perils 
of  the  sea  that  she  was  not  repairable  except 
at  an  expense  exceeding  her  value  when 
repaired.  Held,  it  was  a  total  loss  without 
abandonment.  Cambridge  v.  Anderton.  2  B.  & 
C,  691;  s.  c,  1  G.  &  P.,  213;  4  D.  &  R.,  203; 
U.  &  M.,  60;  2  L.  J.  K.  B.,  14L 


U17 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


1418 


What  does  not  constitute. 


66.  Ship  became  very  lealty,  and  the  crew, 
acting  hona  fide  for  the  preservation  of  their 
lives,  deserted  Iier  at  sea.  She  was  found 
on  the  following  day,  taken  into  porl,  repaired 
and  sent  home,  subject  to  salvage  and  repairs, 
exceeding  Iier  value.  The  insured  abandoned 
before  they  linew  of  lier  safety.  Held,  a  total 
loss.  IToldsworth  v.  Wise,  7  B.  &  C,  794;  G  L. 
J.  K.  B.,  134;  1  M.  &R.,  673. 

67.  She  was  valued  in  the  policy  at  £3,000, 
and  damaged  by  perils  of  the  sea  which  would 
have  required  £1,450  to  repair.  The  jury 
found  she  was  not  worth  repairing.  Held,  a 
total  loss.  Allen  v.  Sugrue,  8  B.  &  C,  oGl ;  7 
L.  J.  K.  B.,  53. 

68.  "  Warranted  free  from  average  unless 
general."  She  was  placed  in  so  much  peril 
that  the  crew,  to  save  their  lives,  deserted  her 
and  the  owners  abandoned  the  cargo  to  in- 
surers. But  tishermeu  found  and  towed  her 
into  port,  where  she  was  repaired.  The  cargo 
was  in  such  a  damaged  condition  that  it 
would  not  have  been  worth  anything  had  it 
been  sent  to  port  of  destination.  Held,  a  total 
loss.  Parry  v.  Aberdein,  9  B.  &  C,  411 ;  4  M. 
&  R,,  343. 

69.  On  corn  valued  at  £317.  It  was  so 
damaged  that  it  sold  for  £67,  and  the  freight 
was  £80.  fi'eW,  a  total  loss.  Bot/field  v.  Brown, 
2  Strange,  1005. 

(d)  Of  missing  ships. 

70.  Insured  proved  that  the  vessel  was  at- 
tacked by  a  Spanish  privateer,  made  prize, 
and  carried  into  Porto  Rico.  Three  years  had 
elapsed,  and  nothing  had  been  heard  of  her. 
Held,  no  sentence  of  condemnation  was  neces- 
sary ;  that  the  voyage  having  been  ended  by 
the  capture,  the  insured  had  a  right  to  recover. 
Ruan  V.  Gardner,  1  Wash.  C.  C,  145. 

71.  On  cargo,  from  North  Carolina  for 
JMcw  York.  She  sailed  February  10,  1803, 
and  was  never  heard  of.  An  abandonment 
was  made  February  17,  1803.  Held,  evidence 
of  a  total  loss.    Gordon  v.  Boicne,  3  Johns.,  150. 

72.  The  plaintiff  proved  that  the  ship  was 
expected  to  arrive  at  her  port  of  departure  in 
Starch,  1846;  that  she  had  never  been  heard 
of  from  November  18,  1845;  that  the  fam- 
ily of  her  master  had  not  heard  from  him 
since  October  15,  1845,  when  the  vessel  was  at 
Honolulu;  that  the  master  of  a  whaling  vessel 
saw  her  at  the  Sandwich  Islands  in  October, 


1845,  when  she  got  under  weigh  to  rctnra 
home;  that  she  was  deep  in  the  water,  and 
appeared  fit  for  the  voyage,  which  usually 
occupied  five  months.  Ueld,  a  prima  facie 
case  of  the  loss.  Child  v.  Sun  Mat.  Ins.  Co., 
3  Sandf.,  20. 

73.  Evidence  that  the  vessel  sailed  on  the 
voyage  with  the  goods  on  board,  that  after  her 
departuie  a  report  was  heaid  at  the  place  of 
sailing  that  she  had  foundered  at  sea,  and  the 
crew  saved,  and  that  she  had  never  been  heard- 
of  Ueld,  prima  facie  evidence  of  her  loss. 
Koster  v.  Reed,  6  B.  &  C.  10. 

74.  No  time  is  fixed  within  wliieli  a  missing 
ship  shall  be  presumed  lost;  bat  the  question 
of  loss  is  to  be  governed  by  the  circumstances 
of  the  particular  case ;  and  in  this  case  the 
ship  had  not  been  heard  of  for  nine  months. 
Held,  she  was  lost.  Houslman  ii.  Thornton, 
Holt  N.  P.,  243. 

75.  Ship  sailed  from  an  English  to  a  foreign 
port,  and  was  never  heard  of.  Held,  it  was  suf- 
ficient to  prove  that  she  had  never  been  heard 
of  in  England;  and  that  it  was  not  necessary 
to  call  witnesses  at  the  port  of  destination  to 
prove  that  she  never  arrived  there.  Twemlou) 
V.  Oswin,  3  Camp,,  85. 

76.  She  sailed  upon  her  intended  voyage, 
and  nothing  was  ever  heard  of  her  at  her  des- 
tined  port.  It  was  proved  that  it  was  stated 
and  rumored  at  the  destined  port  she  was  lost, 
and  that  hei  crew  had  smvived.  Held,  the 
rumor  that  the  crew  had  survived  was  not  to 
bind  the  plaintifl  nor  was  he  bound  to  trace 
it;  that  was  for  ihe  defendant  to  do  if  he 
pleased;  the  fact  that  she  had  never  reached 
her  destined  port  was  evidence  from  which 
the  jury  were  authorized  to  find  that  she  was 
lost.    Foster  v.  Reeve,  5  L.  J.  K.  B.,  73. 

77.  When  last  heard  of  she  was  making 
repairs  in  a  Danish  port.  The  person  who 
made  the  repairs  intended  to  detain  her  until 
remittances  should  be  received  to  satisfy  his 
demands.  Denmark  declared  war  against 
England,  and  she  had  not  been  heard  from  up 
to  the  time  this  action  was  tried.  Held,  prima 
facie  evidence  of  a  total  loss.  Ferrier  v.  San- 
dieman,  F.aculty  Dec,  1808  to  1810,  p.  373. 

II.  What  does  not  constitute. 

(a)  Of  the  master'' s  sale. 

1,  On  ship  from  New  York  to  port  or  ports 

709 


1419 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


1420 


Wliat  does  not  constitute  . 


on  the  north  side  of  Jamaica,  and  at  and  from 
cither  or  all  of  said  ports  to  New  York.  She 
was  captured  by  a  Spanish  privateer  while 
proceeding  from  Falmouth  to  Montego  Ba}-, 
recaptured,  carried  back  to  Falmoutli,  after- 
wards to  Montego  Ba}',  and  there  subjected 
to  one-eighth  for  salvage.  Ship  and  cargo 
■were  sold  to  pay  the  salvage.  She  was  pur- 
chased by  the  master  for  account  of  whom  it 
might  concern,  took  a  cargo  and  returned  to 
New  York  subject  to  a  bottomry  bond  for  ad- 
vances made  by  the  consignee.  Her  freight 
out  exceeded  salvage  and  expenses.  Insured, 
on  hearing  of  the  recapture,  abandoned.  Held, 
the  capture  was  a  mere  temporary  obstruction 
of  the  voyage,  which  the  master  could  have 
removed  by  applying  for  a  commission  of  ap- 
praisement instead  of  inviting  a  sale,  hence 
there  was  no  claim  for  total  loss.  Queen  v. 
Union  Ins.  Co.,  2  Wash.  C.  C,  331. 

2.  "On  freight,  §2,000,  New  York  to  Wil- 
mington, thence  to  Barbados,  and  with  liberty 
to  go  to  another  English  island,  and  at  and 
from  thence  to  the  city  of  San  Domingo,  there 
and  at  the  usual  loading  places  on  the  coast, 
and  thence  to  New  York  "  She  sailed  on  the 
voyage,  but  was  obliged  to  cut  away  her  masts, 
and  reached  Norfolk  in  about  three  weeks  in 
a  very  disabled  condition.  Insured  applied 
to  insurers'  agent  at  Norfolk  to  have  her  re- 
paired,  who  refused  to  have  all  the  repairs 
made  that  were  necessary,  or  to  agree  to  pay 
for  tliem,  but  was  willing  to  agree  to  pay  for 
them  in  part,  that  is,  whatever  sums  insurers 
should  be  liable  to  pay.  She  was  insured  for 
$3,000,  by  the  same  insurers,  and  it  would  have 
cost  more  than  that  sum  to  repair  her.  She  was 
sold  at  public  auction  for  $325.  Had  she  per- 
formed the  voyage  she  would  have  earned 
freight  equal  to  the  sum  insured.  Ileld,  if  the 
insurer  was  willing  to  have  the  vessel  repaired 
and  to  pay  his  proportion  of  the  loss,  the  in- 
sured had  no  right  to  turn  it  into  a  total  loss. 
Hart  V.  Delaware  Ins.  Go.,  2  Wash.  C.  C,  346. 

3.  She  put  into  a  foreign  port  for  repairs, 
and  the  American  consul  ordered  a  survey; 
and  upon  that  she  was  sold  by  the  master 
without  a  regular  condemnation.  Held,  with- 
out showing  what  the  repairs  would  have  cost 
at  the  port  of  distress,  insured  could  not  re- 
cover for  a  total  loss.  Gort  v.  Delaware  Ins. 
Co.,  2  Wash.  C.  C,  37.5. 

4.  The  vessel  being  stranded,  she  was  sold 
by  the  master  at  public  auction,  and  by  hira 

710 


purchased,  but  was  got  off  without  material 
injury,  and  before  abandonment.  Held,  a  par- 
tial loss  only.  Church  v.  Marine  Ins.  Co.,  1 
Mason,  341. 

5.  She  was  captured  January  19th,  acquit- 
ted February  20th,  and  restored  to  master  with 
$2,000  freight.  She  refitted  at  an  expense  of 
$800,  and  proceeded  on  the  voyage.  Insuied, 
having  no  notice  of  her  restoration,  offered  to 
abandon  March  5th,  which  was  refused.  She 
was  sold  for  account  of  whom  it  concerned, 
and  suit  brought  for  a  total  loss.  Held,  not  a 
total  loss.    Hallett  c.  Peyton,  1  Caines  Cas.,  28. 

6.  On  ship  from  New  York  to  East  Indies. 
Siie  was  compelled  to  put  into  Martinique  for 
repairs.  Cargo  was  unladen  in  a  sound  condi- 
tion; but  in  consequence  of  the  climate  and 
exposure  on  the  beach  it  was  in  great  danger 
of  spoiling,  and  was  sold  there.  The  vesscd 
might  have  been  repaired  for  less  than  half 
her  value,  and  have  prosecuted  her  intended 
voyage.  She  repaired  and  returned  to  New 
York.  Held,  the  necessity  of  selling  the  cargo 
did  not  entitle  the  insured  on  ship  to  recover 
for  a  total  loss.    Ooold  v.  Shaw,  1  Johns.  C,  293. 

7.  The  insured  on  cargo  must,  if  he  can, 
send  the  goods  to  the  port  of  destination;  and 
if  it  could  have  been  done  by  lighters  or  other 
vessels,  a  sale  at  the  point  of  distress  will  not 
confer  a  right  to  recover  for  a  total  loss 
Ludlow  V.  Columbian  Ins.  Co.,  1  Johns.,  335. 

8.  Vessel  and  cargo  were  stranded.  Insured 
gave  notice  of  abandonment;  but  prior  to  that 
the  cargo  had  arrived  safely  at  an  intermediate 
port.  It  was  sold  and  the  proceeds  invested. 
Held,  insured  were  entitled  to  claim  for  a  par 
tial  loss  only.  Child  v.  Sun  Mut.  Ins.  Co.,  3 
Sandf.,  76. 

9.  The  master  testified  that  in  five  minutes 
after  she  struck  she  was  a  complete  wreck; 
but  he  did  not  state  any  facts  upon  which  this 
conclusion  was  based.  The  insured  testified 
that  she  was  afterwards  rescued,  repaired,  and 
made  seaworthy.  Held,  the  master's  statement 
was  a  mere  expression  of  opinion,  and  when 
taken  in  connection  with  what  the  plaintiff 
admitted,  was  not  suiBcient  evidence  of  a  total 
loss,  actual  or  constructive.  McColl  v.  Sun 
Mut.  Ins.  Go.,  3  J.  &  Sp.  (N.  Y.),  313;  s.  C,  50 
N.  Y.,  832;  44  How.  Pr.,  453. 

10.  On  ship  insured  at  Boston,  owned 
partly  at  Boston,  but  chiefly  at  New  Orleans. 
She  was  on  a  voyage  to  New  Orleans;  slie 
struck  oa  a  shoal  on  the  coast  of  Florida,  but 


1421 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTITfi). 


1422 


What  does  not  constitute. 


with  the  help  of  wreckers  was  taken  olf;  they 
insisted  that  she  should  go  to  Key  West  to  ad- 
just the  salvage  by  arbitration  or  judgment; 
6he  was  there  condemned,  as  unworthy  of  re- 
I)airs,  and  sold.  The  expense  of  repairing  her 
there  would  have  e.xceeded  fifty  per  cent,  of 
her  value;  but  at  New  Orleans  or  Boston,  to 
«ither  of  which  she  might  have  proceeded 
<she  did  proceed  to  Boston  with  the  same 
master),  the  expense  would  have  been  less 
than  tifty  per  cent.  Held,  tlie  sale  was  not 
justifiable  aud  did  not  affect  the  iusurex's. 
Hall  V.  Franklin  Ins.  Co.,  9  Pick.,  466. 

11.  A  master  cannot  justifj-  a  sale  of  the 
cargo  on  the  ground  that  it  was  the  best  thing 
for  all  concerned;  that  a  prudent  owner,  if 
present,  would  have  sold  it  under  the  same 
circumstances.  Nothing  but  a  legal  necessity 
will  justify  a  sale.  Bryant  v.  Commonwealth 
Ins.  Co.,  13  Pick.,  543.  And  where  the  cargo 
might  have  been  sent  overland  to  a  port  forty 
miles  distant,  and  there  reshipped  to  the  port 
of  destination  at  a  cost  of  less  than  fifty  per 
cent,  of  its  value,  the  master  has  no  legal  right 
to  sell  it.  Ibid.  And  in  ascertaining  whether 
the  cost  would  amount  to  fifty  per  cent,  of  its 
value,  the  expense  to  insure  it  against  risks  of 
plunder  and  weather,  from  the  wreck  to  the 
place  of  destination,  is  not  to  be  considered. 
Ibid. 

12.  Vessel  struck  Craysford  reef  while  on  a 
voyage  to  Mobile,  and  was  injured  to  more 
than  one-half  her  value;  but  she  got  into  Mo- 
bile in  safety,  where  a  survey  was  held,  and 
the  surveyors  having  recommended  a  sale,  she 
was  sold  there  by  the  master,  apart  owner  and 
one  of  the  insured,  without  consulting  the  in- 
surers at  Boston.  Held,  the  sale  was  not  ju.sti- 
fied  under  the  circumstances.  Peirce  v.  Ocean 
Ins.  Co.,  18  Pick.,  83. 

1  3.  Master  sold  a  stranded  ship  without  no- 
tice to  owners  or  insurers.  All  the  owners 
joined  ia  an  offer  to  abandon,  giving  credit 
for  the  sale.  The  insurers  neither  accepted 
iior  refused  the  abandonment  expressly,  nor 
did  they  take  the  proceeds  of  the  sale,  but  sent 
an  agent  who  repurchased  lier,  repaired  and 
kept  her  for  their  own  use.  Held,  the  insured 
had  affirmed  the  master's  sale,  therefore  they 
had  nothing  to  abandon;  tliat  insurers  were 
entitled  to  hold  her  under  their  purchase,  aud 
insured  was  not  entitled  to  recover  for  a  total 
loss.    Badger  v.  Ocean.  Ins.  Co.,  23  Pick.,  347. 

14.  She  arrived  at  herport  of  destination  in 


a  damaged  condition;  the  damage  was  less 
than  half  her  value;  but  it  was  impossible  to 
obtain  funds  to  repair  her  there,  and  the  mas- 
ter, in  the  presence  of  her  owners,  sold  her. 
Held,  they  were  not  entitled  to  recover  for  a 
total  loss.  Allen  v.  Commercial  Ins.  Co.,  1 
Gray,  154.  And  evidence,  that  it  would  have 
been  dangerous  and  impracticable  to  repair 
her  there,  was  immaterial.    Ibid. 

15.  From  New  Orleans  for  Tampico.  $5,000 
on  hull  etc.,  valued  at  $20,000.    She  arrived 
off"  the  bar  at  Tampico,  about  six  miles  from 
the  town,  and  grounded.    Unsuccessful  etlbrts 
were  made  to  get  her  off;  the  weather  became 
boisterous;  the  master  and  all  the  crew  except 
one  man  left  her  at  night,  deeming  it  unsafe 
to  remain;  they   r;eturned  the  following  day 
and  left  her  the  following  night;  during  that 
night  she  was  driven  over  the  bar  and  upon 
the  beach.    C.  took  possession  of  her  on  the 
beach,  claiming  that  right  as  salvor,  and  re- 
fused to  allow  the  master  aud  crew  to  exercise 
any  authority.     C.  lightened  her  off  and  took 
her  to  Tampico,  at  an  expense  of  about  $250, 
and  claimed  50  per  cent,  salvage.    The  master 
called  a  survey,  and  the  surveyors  gave  their 
opiuion  that  it  would  cost  more  to  repair  her 
at  Tampico  than  she  would  be  worth  when  re- 
paired,  and  a  sale  was  recommended.    The 
salvor  and  master   agreed  to  submit  the  sal- 
vage claim  to  arbitrators,  and  it  was  decided 
that  C.  should  be  paid  fifty  per  cent,  salvage. 
She  was  sold  for  $3,200.   The  purchaser  put  iu 
a  temporary  rudder  at  an  expense  of  |100, 
navigated  her  to  New  Orleans,  where  she  was 
thoroughly  repaired  at  an  expense  of  about 
$800.    Held,  the  repairs  and   amount  of  sal- 
vage, at  the  highest  estimate,  did  not  reach 
even  one-third  of  $10,000;  the  master's  agree- 
ment to  submit  to  arbitration  without  waiting 
for   instructions,  aud  the  manner  of  conduct- 
ing the  proceedings,  gave  no  color  to  the  sale; 
insurers  were  liable  for  a  partial  loss  only. 
Peck  V.  Nashville  Marine  and  Fire  Ins.  Co.,  6 
La.  An.,  148. 

16.  On  cotton.  The  vessel  became  disabled 
and  the  cargo  was  unladen,  but  in  a  condition 
to  be  sent  to  New  Orleans,  the  port  of  destina- 
tion, and  means  of  transportation  could  have 
been  procured.  It  was  sold  at  the  point  of 
disaster,  without  consulting  insurers.  Held, 
the  sale  was  illegal  and  conferred  no  right  to 
abandon.  Rugely  v.  Sun  Mut.  Ins.  Co.,  7  La. 
An.,  270. 

711 


1423 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


1424 


Wliat  does  not  constitute. 


17.  On  ship  from  Callao  to  Cowes.  She 
sailed  July  12th,  with  a  cargo  of  guano,  and 
returned  to  port  in  about  thirty  hours.  From 
her  departure  until  she  returned,  she  strained 
and  leaked  very  much,  in  a  fresh  gale  and 
chopping  sea.  She  was  abandoned  ami  s.'-.'d, 
and  subsequently  repaired  for  llie  sum  of  .§190, 
took  a  cargo  for  Valencia,  and  pert'orniod  the 
voyace  in  safety.  Held,  it  was  the  dutj'  of  tlie 
master  to  have  made  the  necessary  repairs; 
the  abandonment  and  sale  could  not  prejudice 
the  rights  of  the  insurers.  Hanau  v.  Louisiana 
Mut.  Ins.  Go.,  15  La.  An.,  201. 

18.  On  negro  slaves,  valued  at  $250  each. 
St.  Thomas  to  Charleston.  She  sailed  Febru- 
ary 27th,  and  labored  heavily  in  a  head  sea, 
March  5th  and  6th.  The  starboard  chain 
plates  gave  way,  also  the  step  of  the  mast, 
which  went  overboard  with  all  sails  set,  carry- 
ing aw.ay  the  deck  on  the  starboard  side.  She 
bore  away  for  Havana,  and  on  the  9th  fell  in 
with  the  Charlotte,  bound  to  Havana;  the  ne- 
groes were  transferred,  and  the  vessel  aban- 
doned at  sea.  The  Charlotte  carried  the  slaves 
to  Havana,  where  they  were  sold,  except  one 
who  died  in  the  course  of  the  voyage.  EM, 
insured  was  not  entitled  to  recover  for  a  total 
loss.  Tensdale  v.  Charleston  Ins.  Co.,  2  Brev., 
part  1,  190. 

19.  She  was  captured,  brought  into  a  neu- 
tral port,  and  sold.  The  master  bought  her  in 
for  the  benefit  of  the  owner.  Held,  an  average 
loss.     M  'Masters  v.  Shoolbred,  1  Esp.,  237. 

20.  She  arrived  within  two  miles  of  the 
port  of  destination,  when  she  was  driven  on 
sunken  rocks;  was  got  uft'  and  carried  into 
port,  and  cargo  discharged.  The  master  in- 
formed owner's  agents,  and  demanded  a  sur. 
vey ;  she  was  condemned  by  the  surveyors,  and 
offered  for  sale,  but  no  purchaser  obtained. 
He  was  ordered  to  tow  her  out  of  the  harljor. 
She  was  sold  piece  \iy  piece  for  firewood.  It 
was  impossible  to  ascertain  the  extent  of  her 
damage  without  heaving  her  down,  and  there 
were  no  conveniences  at  the  port  of  destina- 
tion for  doing  so.  Meld,  if  she  might  have 
been  repaired,  the  insurers  were  not  liable  for 
a  total  loss.  Tanner  v.  Bennett,  R.  &  31., 
182. 

21.  On  cargo  of  timber  from  Quebec  to 
Liverpool.  She  sailed  November  20tli,  and 
grounded  at  Brandypotts,  in  the  St.  Lawrence, 
December  2d.  Ineffectual  efiforts  were  made 
to  get  her  off,  and  she  was  frozen  in.    Exam- 

712 


inations  as  to  her  condition  were  made  De- 
cember lOtli  and  January  IGlh.  Slie  was  very 
badly  crushed,  and  the  survej'ors  advised  a 
sale  for  the  benefit  of  all  concerned;  but 
Lloyd's  agent  at  Quebec  witldield  his  con- 
sent. The  crew  were  discharged.  The  ice 
commenced  breaking  April  2yth,  when  sur- 
veyors again  examined  her  and  advised  an 
immediate  sale  of  ship  and  cargo.  They 
were  sold  separately,  the  ship  for  £349,  and 
cargo  for  £550.  It  was  taken  out  and  resold 
for  £1,400,  and  she  w^as  repaired  at  an  expense 
exceeding  £3,000,  but  upon  a  resale,  she 
brought  very  much  less  than  cost  and  repairs. 
Held,  insured  was  not  entitled  to  recover  aa 
for  a  total  loss.  Farnioorth  v.  Hyde,  2  L.  R. 
C.  P.,  204;  35  L.  J.  C.  P.,  250;  12  Jur.  (N.  S.), 
997;  15  L.  T.  (IST.  S.),  395;  36  L.  J.  C.  P.,  33; 
15  W.  R.,  340;  reversing  18  C.  B.  (N.  S.),  835; 
11  Jur.  (N.  S.),  349:  34  L.  J.  C.  P.,  207;  13  W. 
R.,  613;  12L.  T.,  231. 

22.  On  ship.  She  was  stranded  off  Vigo. 
The  master  wrote  to  the  brokers  through 
whom  the  insurance  was  effected,  and  offered 
an  abandonment.  He  obtained  a  warrant 
from  the  magistrates  at  Vigo  to  sell  the  vessel, 
which  was  done.  She  was  repaired  at  a  small 
expense  and  put  to  sea  on  another  voyage. 
Held,  the  loss  was  partial.  Smith  v.  Dreeier, 
2  C.  C.  S.,  494. 

23.  She  was  insured  for  her  full  value  and 
suffered  great  damage  at  sea.  Idsurers  re 
fused  abandonment  and  owners  sold  her  as  a 
wreck.  Purchasers  repaired  at  a  small  ex- 
pense, and  sold  her  at  a  profit.  Held,  not  a 
total  loss.  M'Corkdl  t.  Murison,  9  C.  0.  S., 
149;  19  Scot.  Jur.,  658. 

(b)  Of  capture,  seizure,  arrests,  deten- 
tion and  retardation. 

24.  The  plaintiffs  were  in  advance  for  money 
lent  and  goods  delivered  to  C,  according  to 
an  account  stated,  $13,750,  which  included 
commissions  and  insurance  premium ;  and 
they  contracted  with  C.  to  furnish  a  suitable 
vessel  to  transport  the  goods  and  effects  of  C. 
from  Philadelphia  to  Havana,  to  procure  in- 
surance  to  be  made  upon  them  for  the  voyage, 
for  their  value,  commissions,  premiums,  and 
charges  added;  and  C.  agreed  to  repay  tho 
money  advanced,  with  freight  and  charges,  to 
the  plaintifTs  agent  at  Havana,  in  specie  or 
produce  of  the  island  of  Cuba.    Defendant 


1425 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


U2r> 


W  hat  does  not  constitute. 


insureJ  Ifl3,750  from  Pliiliulelphia  to  ILivaua 
and  back  to  PliiladelpUia,  ou  goods  and  mer- 
chaudise.  The  property  out  was  warranted  as 
the  property  of  C,  and  that  he  had  all  the 
necessary  passports  and  protections  for  him- 
sell  and  suite;  that  if  the  home  cargo  should 
not  be  shipped  at  Havana,  there  should  be  a 
return  of  seven  and  a  lialf  per  cent,  of  the 
premium.  She  was  captured  by  a  British 
privateer,  carried  to  Kew  Providence,  and  con- 
demned ;  hut  the  goods  of  C,  except  one  trunk, 
lost  after  the  capture,  were  restored  on  his 
giving  security  to  abide  the  final  decree.  C. 
refused  to  pay  the  phiiutift's  debt,  and  insured 
abandoned  before  restitution.  Ileld,  the  in- 
surance was  made  by  insured  in  their  capacity 
as  agents,  for  C. ;  that  C.'s  acceptance  of  a 
part  of  the  property  saved,  precluded  the  re- 
covery  of  anything  beyond  a  partial  loss,  for 
if  C.  had  paid  the  plaiutili's'  account,  he  could 
recover  imly  the  loss  actually  sustained;  and 
hence  it  follows  plaintifTs  could  not  recover 
for  their  own  use,  because,  if  they  could,  one 
insurance,  effected  for  one  premium,  would 
be  made  to  cover  two  different  interests,  vested 
in  difTerent  persons.  Donath  v.  Insurance  Co. 
of  North  America,  4  Dall.,  4G3. 

25.  She  sailed  from  New  York  on  the  voy- 
age insured,  touched  at  Baracoa  and  proceeded 
to  Nevitas,  where  she  sold  her  out  cargo,  took 
in  a  return  cargo  of  goods  and  $5,000  in  silver 
specie;  she  also  had  upwards  of  |1,000  of 
inone}'  taken  on  the  outward  voyage.  She 
sailed  from  Nuevitas  on  the  home  trip,  but 
stress  of  weather  and  damages  sustained  drove 
her  into  Matanzas,  where  the  governor  ordered 
her  to  land  the  specie,  but  permitted  her  to 
lay  it  out  in  colonial  produce,  half  of  which 
was  expended  in  purchasing  sugars  to  fill 
up,  and  the  balance  deposited  with  a  mer- 
chant there,  who  bought  sugars  with  it  and 
sent  them  to  New  York  in  another  vessel.  She 
arrived  at  New  Y'^ork,  having  jettisoned  a  por- 
tion of  the  cargo ;  an  abandonment  was  offered 
but  refused,  and  the  jjarties  agreed  that  vessel 
and  cargo,  as  well  as  the  sugars  purchased 
with  the  money  deposited  at  Matanzas, 
should  be  sold  without  prejudice  to  the  rights 
of  either.  Held,  the  detention  of  the  specie  at 
Matanzas  gave  no  right  to  recover  for  a  total 
loss;  that  while  a  partial  loss  of  an  entire  car- 
go may  convert  a  technical  into  a  total  loss,  a 
ilesiruction  of  a  distinct  part  cannot  give  the 
light  to  recover  for  a  total  loss,  if  the  voyage 


is  not  thereby  broken  up  or  rendered  unworthy 
of  further  prosecution.  Seton  v.  Delaware  Ins. 
Co.,  3  Wash.  C.  C,  175. 

26.  Open  policy  on  vessel  from  Philadel- 
phia to  .Jamaica.  She  was  taken  hy  tlie  ene- 
my, retaken  and  carried  into  Jamaica,  where^ 
by  agreement  between  the  master  and  recap- 
tors,  without  proceedings  in  a  court  of  admi- 
ralty, she  was  publicly  sold  for  about  one- 
fourth  the  sum  insured,  and  bought  1:^-  thfr 
master  for  the  owners,  who  confirmed  his  act. 
Held,  insured  was  not  entitled  to  recover  for  a 
total  loss;  but  that  he  w;us  entitled  to  compen- 
sation for  salvage,  charges  and  loss  of  ship's 
time  on  account  uf  the  capture.  Story  v. 
Strettel,  1  Dall.,  13. 

27.  On  ship,  from  New  Bedford  to  Charles- 
ton, with  liberty  to  touch  at  Savannah,  and  at 
and  from  thence  to  port  or  ports  in  Great  Brit- 
ain. Stipulated:  "Incase  of  capture  or  de- 
tention insured  shall  not  abandon  short  of  six 
months  after  notice  thereof  shall  be  given  to 
underwriters,  unless  sooner  condemned." 
While  she  lay  at  Savannah,  United  States  im- 
posed an  embargo  upnn  all  ships  and  vessels 
for  ninety  days,  and  before  it  expired  war  was 
declared.  Insured  gave  notice  of  embargo, 
and  sis  months  afterwards  abandoned ;  but  in 
the  meantime  she  had  returned  to  New  Bed- 
ford. Held,  not  a  total  loss.  Delano  v.  Bed- 
ford Marine  Ins.  Co.,  10  Mass.,  348. 

28.  The  ship  insured  was  at  Buenos  Ayres 
when  United  Slates  and  Great  Britain  de- 
clared war.  Two  British  ships  of  war  were 
lying  in  the  river  below,  the  commanders  of 
which  announced  their  intentions  to  capture 
her  if  she  attempted  to  sail.  Thus  deterred 
from  sailing,  an  abandonment  was  offered. 
Held,  there  was  neither  an  absolute  nor  a  tech- 
nical tt)tal  loss.  Brewer  v.  Union  Ins.  Co.,  12 
Mass.,  170. 

29.  Policy  provided:  "Incase  of  loss  no 
proof  of  property  shall  be  required,  and  no 
return  premium  paid  for  want  of  interest." 
Stipulated:  "Ship  shall  be  documented  and 
manned  as  Swedish,  and  in  case  of  capture 
she  shall  be  claimed  as  Swedish  property." 
She  was  captured,  but  restored.  Large  ex- 
penses attended  the  restoration.  Held,  not  a 
total  loss;  that  insured  was  entitled  to  indem- 
nity for  the  actual  loss.  Hemmcnwai/  v.  Eaton, 
13  Mass.,  108. 

30.  On  ship,  cargo  and  freight,  from  Havana 
to  a  port  of  discharge  in  the  United  States.  She 

713 


142 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


1428 


"Wliat  does  not  constitute. 


made  Charlestou  for  repairs,  and  was  after- 
wards cast  ashore  by  stress  of  weather,  at 
Washwoods,  about  forty  miles  from  Norfolk. 
She  sustained  no  material  damage  by  strand- 
ing. Two  or  three  days  after ,  all  her  cargo 
■was  landed  on  the  beach,  slightly  damage:!, 
where  it  remained  for  twelve  days,  when  it 
was  sold  for  the  benefit  of  all  concerned.  Mas- 
ter paid  the  duties  on  the  cargo  at  Norfolk, 
fraudulently  concealed  himself,  and  never 
jjaid  over  the  proceeds  to  the  insured  nor  to 
the  insurers.  Insured  claimed  for  a  general 
average  loss  at  Charleston,  and  a  total  loss  by 
-stranding  at  Washwoods.  The  cargo  was  car- 
i-ied  overland  to  Norfolk,  at  which  place  a  ves- 
sel might  have  been  procured  to  carry  it  to 
port  of  destination.  Held,  the  owner  of  goods 
cannot  abandon  on  account  of  vessel  being 
disabled  in  the  course  of  her  voyage,  if  on  the 
whole  it  is  reasonable,  taking  into  view  all  the 
circumstances,  expense  and  risk  of  sending 
on  the  cargo,  that  the  master  could  have 
procured  another  vessel  for  that  purpose; 
that  he  must  do  so,  although  not  able  to  pro- 
cure one  at  the  port  of  distress ;  that  he  must, 
if  he  can,  procure  one  at  a  contiguous  port,  al- 
though it  be  necessary  to  carry  the  goods  over- 
land to  have  them  reshipped.  Bryant  v.  Cum- 
monwealth  Ins.  Co.,  6  Pick.,  131. 

31.  Stipulated:  "  Free  from  loss  in  conse- 
quence of  seizure  or  detention  for,  or  on  ac- 
count of,  illicit  or  prohibited  trade.  Warrant- 
ed not  to  abandon  if  turned  away  or  captured 
till  condemned."  She  was  captured  and  sent 
to  England.  Subsequently  released,  continued 
her  voyage,  reached  Verdun  January  16,  1804, 
was  seized,  not  suffered  to  unload,  ordered  to 
leave  the  territory  of  France  because  she  had 
come  directlj'  from  Engl.aud.  She  went  to  St. 
Sebastians,  Spain,  discharged  cargo,  and  re- 
turned in  ballast  to  Bordeaux.  The  cargo 
unsold  at  St.  Sebastians  was  sent  to  Bordeaux 
and  sold.  Held,  the  insured  could  recover  for 
a  partial  loss  and  expenses  from  the  time  she 
was  captured  till  she  arrived  at  Bordeaux,  but 
not  for  a  total  loss.  Speyer  v.  2^ew  York  Ins. 
Co.  3  Johns.,  88. 

32.  On  ship  from  Philadelphia  to  Ciirun- 
ua;  was  captured,  sent  to  Plymouth  and  the 
voyage  broken  up.  Policy  stipulated:  "Nut  to 
abandon  in  case  of  capture  in  less  than  sixt}' 
days  after  advice  thereof,  unless  previously 
condemned."  March  5tli  insured  received 
atotice  of  capture.     March  2d  restitution  was 

714 


ordered.  May  7th  insured  abandoned.  Held, 
he  could  not  recover  for  a  total  loss.  Ritchie 
V.  United  States  Ins.  Co.,  5  S.  &  R.,  501. 

33.  On  ship  valued  at  £1,200.  She  was 
captured,  a  prize  master  put  on  board  to  Ciury 
her  to  France.  She  was  retaken  by  an  English 
man  of  war,  who  took  her  to  Plymouth,  and 
insured  ottered  to  abandon  as  to  the  sum  in- 
sured (£100).  She  sustained  no  damage  except 
from  the  capture.  Held,  there  was  no  change 
of  property  before  condemnation;  and,  by  the 
act  of  parliament,  in  case  of  recapture,  Uie 
jus  postiiminii  continues  for  ever.  Held,  also, 
that  it  is  repugnant  upon  a  contract  of  in- 
demnity to  recover  a.s  for  a  total  loss  when  the 
final  event  has  decided  that  the  damnification, 
in  truth,  is  an  average,  or  perhaps  no  loss  at 
all.  That  if  the  thing  is  safe,  no  artificial 
reasoning  shall  be  allowed  to  set  up  a  total 
loss.  Hamilton,  v.  Mendes,  2  Burr.,  1198;  1  W. 
Bl.,  276. 

34.  She  was  insured  for  the  voyage  and  lost 
by  capture.  The  master  paid  to  the  com- 
mander $8,000,  and  contracted  that  if  she 
should  be  liberated  and  permitted  to  proceed 
to  England  as  a  cartel  ship,  with  a  number  of 
Engli.sli  prisoners  who  were  at  Oporto,  the 
English  government  should  liberate  an  equal 
number  of  French  prisoners,  or  that  the  ves- 
sel and  master  should  be  again  placed  in  the 
custody  of  the  commander.  After  she  was 
liberated,  insured  abandoned,  and,  upon  her 
arrival  at  destination,  the  master  refused  to 
deliver  lier  to  the  insured  until  the  sum  of 
§3.000  was  repaid,  which  the  plaintiff  refused 
to  do ;  and,  up  to  the  time  of  the  ti-ial,  she  con- 
tinned  in  the  possession  of  the  master.  Held, 
the  loss  of  the  voyage  and  the  loss  of  the 
freight  was  not  a  loss  of  the  ship.  Parsont  v. 
Scott,  2  Taunt.,  363. 

35.  On  vessel.  She  was  seized  by  the  oflS- 
cers  of  the  Prussian  government  and  put  up 
for  sale.  The  master  bought  her,  made  re- 
pairs and  bottomried  her  for  the  expenses,  and 
brought  her  home  to  the  owner,  who  refused 
to  receive  her  or  pay  the  bottomry  bond,  upon 
which  she  was  libeled  in  admiralty  and  sold. 
Held,  the  mere  seizure  and  selling  did  not 
create  a  forfeiture  or  change  the  property, 
hence  the  insurer  was  not  liable  for  a  total  loss. 
Wilson  V.  Forster,  6  Taunt.,  25;  s.  c,  1  Marsh., 
425. 

36.  Goods  were  detained  by  a  foreign  power 
and   afterwards  restored.    Held,  the    insurer 


1429 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


1430 


What  does  not  constitute. 


■was     discharged.     Jordaine   v.  Cornwall,    1 
Stark.,  6. 

37.  "  Ou  cargo  of  pilchards  to  Naples,  with 
leave  to  join  convoy  at  Falmoutli  or  elsewhere. 
Warranted  free  from  average,  unless  general, 
or  the  ship  be  stranded."  Naples  was  shut 
against  British  vessels.  Under  the  directions 
of  the  vice  admiralty  court  at  Minorca,  where 
she  put  in,  the  cargo  was  sold  for  a  small 
sum,  and  an  abandonment  offered  and  refused. 
Held,  avoiding  the  port  of  destination  to  save 
confiscation  of  the  vessel,  though  it  defeated 
the  voyage,  did  not  operate  as  a  total  destruc- 
tion of  the  thing  insured.  Uadkinaoii  v.  Rob- 
inson, 3  B.  &  P.,  388. 

38.  "  On  freight."  An  embargo  was  laid 
by  the  Russian  government  on  all  British 
ships  in  the  port  of  Riga,  where  she  was  with 
lier  cargo  ready  to  depart.  She  was  taken 
possession  of  by  the  Russian  government,  her 
sails  taken  away  and  her  cargo  relanded. 
Two  months  after,  information  of  it  reached  the 
insured,  who  then  abandoned.  Four  months 
after,  she  was  restored,  the  master,  crew  and 
cargo  were  released ;  after  taking  them  on 
board,  she  proceeded  to  the  port  of  destina- 
tion. Held,  the  insurers  were  not  liable. 
M  'Corthy  v.  Abel,  5  East,  388;  1  Smith,  524. 

39.  She  was  captured,  and  in  a  few  days 
recaptured.  Insured  abandoned  on  receiving 
intelligence  of  the  capture.  She  was  after, 
wards  restored,  arrived  in  Liverpool,  earned 
freight.  The  salvage  and  charges  of  the  re- 
capture amounting  only  to  £15  4s.  8d.  per  cent. 
Held,  he  had  no  right  to  recover  as  for  a  total 
loss.  Bainbridge  v.  Neilson,  10  East,  329;  1 
Camp.,  237. 

40.  "  Warranted  free  of  particular  average," 
from  London  to  Quebec.  She  encountered 
very  heavy  weather,  lost  her  sails,  and  was 
obMged  to  bear  up  for  Cork,  but  ran  into 
Kiusale,  October  25th,  where  she  was  obliged 
ti  unload  cargo;  some  of  it  was  damaged 
seventy-five  per  cent.,  and  some  only  ten  per 
cent.;  she  could  not  repair  in  time  to  reach 
Quebec  that  season,  nor  could  a  vessel  be  pro- 
<'ured  to  carry  on  the  goods  that  season.  They 
were  sold,  and  notice  of  abandonment  giv 
en.  Held,  a  temporary  retardation  of  tlie 
■voyage  is  no  cause  of  abandonment,  and  gives 
no  right  to  a  total  loss.  Anderson  v.  Wallis,  3 
Camp.,  440 ;  2  JIau.  &  Sel.,  240 ;  Hunt  v.  Royal 
Eichatige  Ass.  Co.,  5  id.,  47. 

41.  While  loading  her  homeward  cargo  for 


the  voyage  insured,  she  was  carried  by  the 
crew  to  a  distant  country,  cargo  plundered 
there,  and  she  was  deserted ;  another  ship  took 
her  with  a  small  part  of  the  cargo  to  an  Eng- 
lish port;  part  of  her  rigging  was  gone,  nor 
could  she  be  made  fit  for  a  voyage  without 
considerable  expense  in  providing  a  crew  and 
stores.  Held,  not  a  total  loss.  Falkner  v. 
Ritchie,  2  Mau.  &  Sel.,  200. 

42.  September  27lh  she  was  captured  by  an 
American  privateer;  intelligence  of  which 
reached  insured  October  13tli,  when  an  offer 
to  abandon  was  made,  and  refused.  October 
27th  she  was  recaptured  by  an  English  priva- 
teer, and  carried  to  Halifax  for  adjudication, 
where  stime  of  the  cargo  was  sold  to  pay  sal- 
vage. She  arrived  in  May  following  at  desti- 
nation. One  hundred  and  eighty-eight  gallons 
of  rum  and  twenty-three  tons  of  salt,  part  of 
the  cargo,  had  been  plundered  by  the  captors. 
Held,  not  a  total  loss.  Patterson  v.  Ritchie,  4 
Mau.  &  Sel.,  393 ;  Brotlierston  v.  Barber.  5  id., 
418. 

43.  On  cargo  to  St.  Johns,  Newfoundland. 
She  was  obliged  to  put  into  Cork  in  distress, 
in  November,  and  was  there  broken  up 
and  sold.  It  was  impossible  to  forward 
the  cargo  (of  flour  and  pork)  before  the 
next  spring.  Held,  not  a  total  loss,  for  it 
was  a  mere  retardation  of  the  voyage. 
Uu7U  V.  Royal  Exchange  Ass.  Co.,  5  Mau.  & 
Sel.,  47. 

44.  On  goods.  She  was  captured  bj'  pirates 
and  partially  plundered,  July  20,  1828.  Tlie 
goods  insured  were  plundered  £9.  Master, 
crew  and  passengers  were  taken  out  and  con- 
fined  in  the  pirate  vessel,  and  subsequently 
l)ut  to  sea  in  a  small  boat.  She  was  then  car- 
ried to  St.  Eustalia,  August  22,  1828.  Insured 
received  information  of  tlie  capture,  and  no- 
tice of  abandonment  was  offered  and  refused. 
The  ship  and  cargo  were  taken  by  the  Dutch 
authorities  at  St.  Eustatia,  but  she  was  given 
up  to  the  British  authorities  of  St.  Kits,  who 
demanded  her  August  27,  1828,  at  St.  Eustatia. 
She  was  carried  by  them  to  St.  Kits.  On  re- 
cciving  information  that  she  was  at  St.  Eusta- 
tia, insured  again  pressed  their  abandonment, 
but  insurers  authorized  the  insured  to  t.ake 
suoh  steps  as  were  expedient  for  prosecuting 
the  voj'age  to  the  place  of  destination,  and 
agreed  to  indemnify  insured  against  all  e.x- 
peiises  in  tliat  behalf,  without  prejudice  to  the 
rights  of  either  party.    An  agent  was  sent  by 

715 


1431 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


1432 


What  does  not  constitute. 


the  insured  from  Liverpool  to  St.  Kits,  wlio 
dispatched  lier  February  4,  1829,  for  her  port 
of  destination,  Buenos  Ayres,  where  she  ar- 
rived tlie  May  following,  and  delivered  the 
goods  insured  to  the  consignees  named  in  the 
bill  of  lading.  The  defendant  paid  into  court 
money  enough  to  make  good  the  loss  by 
plunder,  and  the  expenses  of  salvage  and  dis- 
patching vessel  from  St.  Kits.  Held,  the 
plaintiffs  were  not  entitled  to  recover,  for 
there  was  nothing  but  a  retardation  of  the 
voyage.  Council  v.  Massie,  2  L.  J.  (N.  S.)  K. 
B.,  IGO. 

43.  She  sailed  with  a  cargo  of  2,493  bales 
of  cotton,  the  property  of  different  persons, 
under  separate  bills  of  lading.  532  bales,  in- 
cluding the  43  bales  for  the  loss  of  which  this 
action  was  brought,  belonged  to  the  plaintifi. 
She  was  wrecked  at  Kej*  West,  the  cargo  was 
landed  there  in  a  damaged  condition,  many 
of  the  bales  were  broken,  the  marks  and  num- 
bers were  entirely  obliterated,  some  were  en- 
tirely lost,  and  others  were  in  such  a  condition 
that  they  were  necessarily  sold  at  Key  West. 
On  her  arrival  at  destination,  617  bales  were 
identified;  614  bales  could  not  be  identified 
because  all  marks  of  identification  had  been 
obliterated;  231  bales  were  either  lost  on  the 
reef  or  sold  at  Key  West.  Of  the  whole  of 
plaintiff's  shipment,  only  491  bales  were  iden- 
tified, two  of  them  in  a  greatly  damaged  con- 
dition ;  and  this  action  was  brought  to  recover 
for  the  43  bales.  Held,  as  to  the  cotton  which 
arrived  at  Liverpool,  and  which  could  not  lie 
identified,  all  the  shippers  were  tenants  in 
common,  in  proportion  to  their  respective  in- 
terests ;  that  as  to,  the  cotton  sold  at  Key  West, 
there  was  a  total  loss  of  it,  which  was  to  be 
distributed  among  all  the  shippers  pro  rata, 
hence  there  could  not  he  an  actual  total  loss 
of  the  plaintiff's  41  b.ales,  but  that  he  was  en- 
titled to  recover  for  an  average  loss.  Spcnce 
13.  Union  Marine  Ins.  Co.,  3  L.  R.  C.  P.,  427; 
37  L.  J.  C.  P.,  169 ;  16  W.  R,  1010 ;  18  L.  T. 
(N.  S.),  632. 

46.  On  ship  from  Grenada  to  Florida,  and 
from  thence  to  Grenada,  valued  at  £1,300. 
She  had  arrived  at  Florida  when  the  policy 
was  made.  On  her  return  she  was  captured 
by  an  American  privateer,  retaken  in  about 
five  weeks,  and  carried  to  Rhode  Island, 
thence  to  New  York,  where  she  was  thorough- 
ly repaired,  which,  with  salvage  paid,  amount, 
ed  to  .€G58.  She  sailed  for  Grenada  and  was 
716 


captured,  retaken,  and  carried  to  Grenada; 
but  no  person  appearing  there  in  behalf  of 
her  owners  to  redeem,  she  was  appraised  and 
sold  by  order  of  court,  and  the  proceeds  after 
paying  salvage  deposited  in  court.  Held,  not 
a  total  loss.  Edmonstone  v.  Jackson,  F.acul-ty 
Dec.  1778  to  1781,  p.  19.5. 

47.  She  was  cast  down  on  her  beam  ends, 
but  righted  and  proceeded  on  the  voyage,  C!»ii- 
tured,  retaken,  and  arrived  at  point  of  destina- 
tion. On  application  in  behalf  of  the  owner 
of  the  cargo,  it  was  sold  by  order  of  the  admi- 
ralty  court.  Ver}-  few  of  the  goods  were  dam- 
aged, but  their  market  value  had  depreciated 
in  the  meantime  more  than  fifty  per  cent. 
Held,  insured  was  not  entitled  to  recover  for 
a  total  loss.  Gavin  v.  Glen,  Faculty  Dec,  1781 
to  1787,  p.  419. 

48.  On  cargo  of  s.almon  intended  for  Ven- 
ice during  the  season  of  Lent.  She  w.is 
obliged  to  throw  overboard  part  of  it,  and  after 
much  delay  put  into  Port  St.  Luc.ar,  on  the 
coast  of  Spain,  to  make  repairs.  Certain  mer- 
chants at  that  place  advised  the  master  that  it 
would  be  for  the  interest  of  all  concerned  to 
sell  the  cargo  at  that  place,  because  she  could 
not  then  reach  Venice  in  the  Lenten  season. 
The  salmon  would  have  spoiled  from  long 
keeping  if  the  voyage  had  been  continued. 
Held,  insurers  were  not  liable  for  the  loss  on 
that  sold  at  St.  Lucar.  Bichardson  v.  Stodart, 
Fuculty  Dec,  1781  to  1787,  p.  299. 

(e)   Of  jper'ils  of  the  seas. 

49.  Part  of  the  goods  insured,  to  the  amount 
of  more  than  one-half,  were  jettisoned,  and  the 
balance  arrived  in  good  condition  at  the  port 
of  destination.  On  adjusting  the  general 
average,  the  loss  was  thirty-six  and  a  half 
per  cent.  Ileld,  the  plaintiff  could  not  aban- 
don even  as  to  the  goods  jettisoned,  for  it  did 
not  appear  that  the  insured  ever  applied  to  tlie 
persons  bound  to  contribute,  or  that  there  was 
the  least  difficulty  in  procuring  contribution. 
Lapsley  v.  United  States  Ins.  Co.,  4  Binn.,  502. 

50.  The  crew  became  completely  exhaust 
ed,  and  deserted  her  for  the  preservation  of 
their  lives.  She  was  taken  by  salvors,  who 
carried  her  into  port,  and  she  was  sold  by  an 
order  in  admiralty  to  satisfy  salvage.  Held, 
only  a  partial  loss,  for  the  sale  might  have 
been  prevented  by  raising  money  to  pay  the 
salvage.    Thomly  v.  Hebson,  2  B.  &  A.,  513. 


14:33 


TOTAL  LOSS  {ABSOLUTE  OR  CONSTEUCTIVE). 


Ii34 


of  the  auiouut  of  damage  and  tlifficidty  or  inabdity  of  procuring  roi)aii-s. 


51.  The  vessel  went  ashore,  and  insured  on 
c.irgo  wrote  to  inform  insurers  of  the  circum- 
stunccs  and  particuhirs  of  the  injury.  Insur- 
cni  directed  insured  to  do  the  best  they  could 
wilu  the  damaged  property.  Held,  a  partial 
loss.      llii'Musoii  V.    Fletcher,    1   Esp.,    73 ;    1 

Doug.,  ;n5. 

.52.  She  sailed  from  Liverpool  for  Rio  laden 
with   a  general    cargo,    encountered     heavy 
weather,  was  obliged  to  cut  away  all  forward, 
and  to  bear  up  for  Falmouth,  where  she  arrived, 
having  been  out  about  twenty  days.    B.  and 
S.  were  thereupon  appointed  by  the    master 
ship's  agents.     She  was  moored  to  the  pier  for 
the  purpose  of  repairs,  and  a  portion  of  the  car- 
go taken  out.    A  hurricane  came  on  December 
3,  1803,  when  she  was  sunk  at  her  moorings  in 
twenty-two  feet  of  water,  when  the  tide  was 
out,  and  forty  feet  when  it  was  in.    Insured 
directed  B.,  a  competent  and  experienced  per- 
son  to  act  for  him  according  to  his  best  judg- 
ment.    B.  concluded   it  would   cost   more  to 
raise  and  repair  her  than  she  would  be  worth 
when  repaired,  of  which   fact  ship's  agents 
were  informed  and  directed   not  to  incur  any 
expense,  or  Vi  do  anything  to  raise  and  repair 
lier.     But  B.  &  S.,on  their  own  responsibility, 
commenced   raising   her   December  7th,  and 
completed  it  the  20th.     She    was  taken   into 
dock  by  orders,  and  under  the  superintend- 
ance  of  the  master  and  safely  moored.     Notice 
■of  abandonment  had  been  previously  given 
December   4lh   to    insurers.     Held,  insurers 
were  not  liable  for  an  absolute  total  loss,  be- 
cause it  was  not  impossible  to  raise  her,  and 
when  raised  to  repair  her,  but  they  were  li- 
able for  a  partial  loss.     Kemp  v.  Halliday,  6 
B.  &  S.,  723. 

(d)  Of  missing  ship. 

5.?.  On  cargo  from  Leghorn  to  Lisbon.  It 
was  proved  by  one  witness  that  he  packed  at 
bis  warehouse  certain  goods  consisting  of 
silks,  etc.,  to  go  by  her;  that  there  was  no  ad- 
dress on  the  packages,  and  in  accordance  with 
instructions,  he  delivered  them  to  a  boatman  ; 
that  he  knew  she  had  arrived  at  Leghorn  and 
W.1S  intended  to  sail  for  Lisbon.  The  boat- 
man testiticd  that  he  delivered  the  goods  to  the 
vessel  March  11th  or  13,  1821,  and  took  a  re- 
ceipt for  them ;  that  he  heard,  from  the  insured 
and  the  master,  that  she  was  bound  for  Lisbon ; 
that  she  sailed  April  0th  or  lOlh;  heard  a  few 


days  after  of  her  loss,  and  that  the  master  and 
crew  were  saved,  but  had  not  seen  any  of 
them.  Held,  not  a  prima  facie  case.  Kotter  v. 
lanes,  R.  &  M.,  333. 

III.  Of  the  amount  of  damagk  and 

DIFFICULTY  OE  INABILITY  OF  PKOOUK- 
ING  EEPAIES. 

1.  The  cargo  w.as  valued  at  .?29,889,  of  which 
.$7,439  were  memi>randum  articles.  She  was 
compelled  by  stress  of  weather  and  other  acci- 
dents to  bear  away  to  the  West  Indies,  and  ar- 
rived  at  St.  Johns,  Antigua,  December  22d, 
where  she  was  surveyed,  and  under  a  decretal 
order  of  tlie  court  of  admiralty,  January  31st, 
the  cargo  was  sold  and  the  sales  completed 
before  March  28th.  The  net  proceeds  amount- 
ed  to  1 13,707,  of  which  $0,863.30  were  memo- 
randum  articles.  She  was  repaired  at  Antigua 
and  made  capable  of  performing  the  voyage 
with  the  original  cargo.  An  abandonment 
was  made.  Held,  in  determining  whether  the 
cargo  was  damaged  more  than  half  its  value, 
damage  to  the  memorandum  articles  must  be 
e.Kcluded  ;  and  a  total  loss  of  the  balance  of  the 
cargo  could  not  be  supported  unless  the  dam- 
age to  the  nonmemorandum  articles  exceeded 
a  moiety  of  the  value  of  all  the  nonmemoran- 
dum and  memorandum  articles;  the  forced 
sales  at  Antigua  did  not  constitute  a  medium 
by  which  that  damage  could  be  ascertained, 
therefore  there  was  no  evidence  of  a  total 
loss.  Marcardier  v.  Chesapeake  Ins.  Co.,  8 
Cranch,  39. 

2.  |iO,000  on  the  brig  Gracchus,  valued  at 
that  sum,  for  six  months.  She  arrived  at  New 
Orleans,  took  on  part  of  her  cargo  and  sailed, 
intending  to  go  thirty-three  miles  below  New- 
Orleans  to  take  in  the  balance.  She  lost  one 
of  her  anchors,  struck  ou  a  log,  broke  the  rud- 
der pintles,  fell  off  and  went  ashore.  All  the 
cargo  was  discharged.  She  was  leaking  badly, 
and  was  pulled  off  and  carried  to  New  Orleans ; 
subsequently  carried  across  the  river  and  re- 
paired. The  steamboat  which  pulled  her  off 
claimed  fifty  per  cent,  salvage,  and  libeled 
for  it.  Insured  offered  to  abandon,  which  was 
relused.  About  two  mouths  after,  the  court 
decreed  one-quarler  of  the  vessel  and  cargo  to 
the  salvors,  the  cargo  being  valued  at  $7,000 
and  the  brig  at  $3,.)00.  The  salvage  was  puid 
and  tlie  master  got  possession  of  her.    June 

717 


1435 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


i43e 


Of  the  amount  of  damage  and  difficulty  or  inability  of  procuring  repairs. 


3d  her  repairs  were  complete,  and  she  was 
rcadj'  for  freight.  Her  repairs  amounted  to 
fl,C90.15,  and  the  salvage  to  $1,215.07.  To 
meet  this  and  other  expenses,  she  was  bottom- 
ried for  §.3,715.-41,  and  live  per  cent,  maritime 
premium,  paj-able  on  her  arrival  at  Baltimore. 
She  was  partly  loaded  and  arrived  at  Balti- 
luoro,  where  she  was  liljeled  to  satisfy  the 
bond,  of  which  insurers  had  notice,  and  she  was 
sold  for  $4,750.  Held,  if  she  could  not  have  been 
got  off  and  repaired  at  an  expense  exceeding 
half  her  value  at  the  place  where  the  repairs 
wen;  made,  then  the  loss  was  total,  and  the  sum 
for  which  she  was  liable  to  the  salvors  must  be 
added  to  the  expense  of  repairs  proper ;  but  if 
she  could  have  been  got  off  aud  repaired  at 
an  expense  less  than  half  her  value,  including 
salvage,  then  insured  were  not  entitled  to  re- 
cover for  a  total  loss;  neither  the  arrest  and 
detention  at  the  instance  of  the  salvors,  nor  the 
retardation  of  the  voyage  caused  by  the  acci- 
dent, were  to  be  considered  in  determining 
the  right  of  insured  to  recover  for  a  total  loss. 
In  ascertaining  whether  the  expense  of  re- 
pairs exceeded  half  her  value,  neither  the  val- 
uation given  in  the  policy  nor  that  at  the 
home  port,  nor  at  other  ports  in  general,  were 
to  be  considered ;  neither  was  any  deduction, 
one-third  new  for  old,  to  be  taken  into  account. 
That  to  take  away  the  right  to  recover  as  for  a 
total  loss,  she  should  be  worth  when  repaired, 
at  the  place  where  she  was  repaired,  double 
the  expense  of  repairs.  Bradlie  v.  Maryland 
Ins.  eo.,12Pet.,  378. 

3.  She  was  cast  away  in  March,  1820,  upon 
a  ledge  of  rocks  near  Portsmouth,  and  bilged 
immediately.  She  was  in  a  very  desperate  sit- 
uation, and  a  total  loss  was  exjjected  within 
twenty-four  hours.  Insured  tendered  an  aban- 
donment, and  insurers  sent  their  agents  to  take 
possession  of  her,  sell  her,"ir  they  deemed  best. 
Agents  look  possession,  got  her  off  and  car- 
ried her  into  Portsmouth  in  a  week.  She  was 
injured  about  one-half  her  value;  necessary 
repairs  could  not  have  been  made  in  less  than 
three  mouths.  Insurers  offered  to  return  her 
to  the  owners,  who  refused ;  they  repaired  her 
within  three  months,  and  again  tendered  her 
to  insured,  who  again  refused.  Held,  insured 
had  a  right  to  abandon  if  she  was  damaged 
one-half  her  value,  in  estimating  which  there 
was  to  be  no  deduction,  one-third  new  for  old, 
as  in  cases  of  partial  loss;  the  half  value  whicli 
authorized  an  abandonment  was  half  the  sum 
718 


which  the  ship,  if  repaired,  would  bo  worth 
after  repairs  made;  in  other  words,  she  must 
be  worth  double  the  amount  of  repairs ;  insur- 
ers  had  no  right  to  take  possession  of  her 
either  to  move  or  repair  her,  and  in  doing  so 
they  accepted  the  abandonment,  which  could 
not  be  revoked  by  one  party  without  the  assent 
of  the  other;  under  the  circumstances,  insured 
had  the  right  to  abandon,  though  the  injury 
was  less  than  one  half  the  value.  Peek  v.  Mer- 
chants Ins.  Co.,  3  Mason,  27. 

4.  The  policy  provided  "  that  insured  shall 
not  abandon,  unless  the  amount  which  the  in- 
surer will  be  liable  to  pay  under  an  adjustment 
as  of  partial  loss  shall  exceed  half  the  sum  in- 
sured, and  that  in  all  adjustments,  whether  for 
partial  loss  or  general  average,  a  deduction  of 
one-third  new  for  old  from  the  cost  of  labor 
and  materials  shall  be  deducted."  Held,  be- 
fore insured  could  recover  for  total  loss,  it 
must  appear  that  after  a  deduction  of  one-third 
new  for  old  from  the  estimated  repairs,  and 
an  apportionment  of  the  net  loss,  the  insurer's 
proportion  would  have  amounted  to  the  sum 
limited.  Bullard  v.  Soger  Willtams  Ins.  Co., 
1  Curtis,  148. 

5.  la  admir.alty.  A  survey  was  ordered, 
and  she  was  condemned  as  unworthy  of  re- 
pairs, at  the  Isle  of  France.  A  depositioQ  of 
the  master  tending  to  show  the  loss,  and  the 
injury  that  made  it  necessary  to  put  into  the 
Isle  of  France,  was  read ;  and  it  stated  that  she 
could  not  have  been  repaired  there  so  as  to 
prosecute  the  voyage,  and  that  no  other  vessel 
could  be  obtained  to  carry  on  the  cargo.  Held, 
a  prima  facie  case.     Catleti  t.  Pacific  Ins.  Co., 

1  Paine,  594. 

6.  The  ship  could  not  have  been  repaired 
for  half  her  value.  Held,  a  technical  total 
loss.    Abbott  V.  Broome,  1  Caines,  292. 

7.  The  polic}-  was  made  to  cover  the  inter- 
ests  of  persons  not  named  in  it.  Held,  that 
proof  of  a  total  loss  of  the  property  of  the 
person  named  would  not  authorize  a  techni- 
cal total  loss  of  the  whole.    Lawrence  v.  Sebor, 

2  Caines,  203. 

8.  To  establish  a  claim  for  technical  total 
loss  for  the  ship,  she  must  be  damaged  ono- 
half  her  value.  Smith  v.  Bell,  2  Caines  Cas., 
153.  And  to  establish  the  damaged  value,  one- 
third  new  for  old  shall  be  deducted  from  her 
gross  repairs.    Ibid. 

9.  To  establish  a  claim  for  technical  total 
loss  of  goods.    If  the  part  lost  excecdeii  the 


1437 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


U3S 


Of  the  amount  of  damage  and  difficulty  or  inability  of  procuring  repaiis. 


half  value  of  the  whole,  it  is  a  total  loss  of 
the  whole.  Judah  v.  Randal,  2  Gaines  Cas., 
324. 

10.  One-third  new  for  old  is  not  to  be  de- 
ducted from  the  gross  repairs  of  a  vessel,  in 
ascertaining  whether  she  is  damaged  over 
oue-half  her  value.  Dupuy  v.  United  Ins.  Co., 
3  Johns.  C,  182. 

H.  On  goods  from  New  York  to  Tonnin- 
gen.      "  Warranted  American    property,  and 
not  to  abandon  if  captured  until  six  months 
after  notice,  unless  previously  condemned,  nor 
if  refused  admittance  or  turned  away,  but  to 
proceed  to  another  near  open  port."    She  was 
captured,  carried  into  Calais  aud  condemna- 
tion demanded.    The  master  was  advised  by 
counsel    that    she    would    certainly  be  con- 
demned, and  to  compromise  with  the  captors. 
A  compromise  was  efl'ected  July  25th.    Nei- 
ther the  insured  nor  tlie  insurers  ratified  it. 
Insured  received  notice  of  the   capture   May 
26th,  but  made  no  abandonment  till  November 
26th.    Held,  that  the  special  stipulation  only 
suspended  for  six  months  the  right  to  aban- 
don,  and  when  made  it  related  back  to  the  cap. 
ture  and  became  operative  from  that  time; 
that  the  master,  acting  in  good  faitli  and  with 
the  best  advice  that  could  be  obtained,  be- 
came the  agent  of  both  parties,  without  pre- 
judice to  the  rights  of  either;  that  tlie  benefit 
of  the  compromise  belonged  to  the  insurers, 
who  must  look  to  the  master  for  it;  hence  the 
insured  was  entitled  to  be  paid  a  total  loss. 
Clarkson  ».  Phcenix  Ins.  Co.,  9  Johns.,  1  ■,-Wad- 
dell  v.  Columbian  Ins.  Co.,  10  id.,  61. 

12.  On  ship.  Stipulated:  "No  risk  in  port 
but  sea  risks."  She  was  driven  ashore  in  a 
gale,  and  left  high  aud  dry  200  yards  above 
high  watermark,  and  within  forty-eight  hours 
■was  destroyed  by  burning.  Held,  if  she  was 
so  stranded  that  she  could  not  have  been  got 
off  at  an  expense  of  less  than  half  her  value, 
it  was  a  total  loss  within  the  policy.  Patrick 
v.  Commercial  Ins.  Co.,  11  Johns.,  9. 

13.  If  a  vessel  is  damaged  by  any  of  the 
perils  insured  against,  so  that  repairs  necessa- 
ry to  restore  her  former  state  and  make  her 
seaworthy  will  exceed  three-fourths  of  what 
her  value  was  before  the  disaster,  the  insured 
on  ship  may  abandon,  and  is  not  bound  to  re- 
pair her.  Dickey  v.  American  Ins.  Co.,  3 
Wend.,  658. 

1 4.  If  the  owner  of  ship  is  owner  of  freight 
and  cargo,  and  the  general  average  contribu- 


tion due  by  them  to  the  ship  reduces  tlie  ex- 
pense of  her  repairs  below  one-half  her  value, 
a  technical  total  loss  of  ship  cannot  be  sus' 
tained.  Penzanl  v.  National  Ins.  Co.,  15 
Wend.,  453. 

15.  Two  policies,  one  on  cargo  the  other  on 
ship,  valued  at  $10,000.  She  struck  a  bar 
on  her  way  out,  put  back  to  New  Orleans  for 
repairs,  at  which  place  the  port  wardens 
recommended  a  sale,  in  consequence  of  the 
large  amount  required  to  repair  her.  She  was 
sold  January  17th,  and  brought  .f2,800.  Oa 
the  21st  she  was  abandoned  by  insured,  who 
claimed  for  a  total  loss,  minus  her  net  pro- 
ceeds. The  other  suit  was  upon  policy 
-->n  freight,  valued  at  $6,000,  on  the  same 
voyage.  Held,  that  if  she  could  not  have  been 
fully  repaired  at  New  Orleant  for  one-half  her 
value,  insured  had  a  right  to  abandon  and  re- 
cover for  a  total  loss  of  ship.  Held,  also,  that 
the  vessel  being  driven  back  with  her  cargo 
to  the  port  of  departure,  where  she  was  sold 
for  the  benefit  of  those  concerned,  the  cargo 
unladen  and  redelivered  to  the  shippers,  there 
was  a  loss  of  freight  absolutely  total.  Center 
V.  American  Ins.  Co.,  7  Cow.,  564;  affirmed,  4 
Wend.,  46. 

16.  She  was  valued  at  $16,000.  The  jury 
found  the  whole  cost  of  repairs  $12,000.  Held, 
a  partial  loss  only,  for  deducting  one-third  new 
for  old,  left  $8,000,  whicli  did  not  exceed  a 
moiety  of  her  value.  Fiedler  v.  New  Tork 
Ins.  Co.,  6  Duer,  282. 

17.  If  the  vessel  sustained  damage  which 
deteriorated  her  value  one-half,  the  insured 
was  eutitled  to  recover  for  a  total  loss.  Peters 
V.  Phoinix  Ins.  Co..  3  S.  &  R.,  25. 

18.  The  insured  may  abandon  when  the 
damage  exceeds  one-lialf  the  value  of  the 
ship,  subject  to  this  exception;  if  the  insurer 
will  repair  the  ship  he  may  do  it.  If  the  ship 
is  repaired,  the  cost,  whether  it  be  more  or 
less,  is  immaterial  to  the  insured.  Hitchie  v. 
United  States  Ins.  Co.,  5  S.  &  R.,  501. 

19.  Tlie  value  of  the  vessel  at  the  port  of 
necessity  must  determine  whether  there  is  a 
technical  total  loss.  A^nerican  Ins.  Co.  v. 
Francia,  9  Penn.  St.,  390. 

20.  In  determining  whether  the  expense  of 
repairing  a  stranded  ship  amounts  to  half  her 
value,  so  as  to  constitute  a  technical  total  lo.ss, 
the  expense  of  getting  tlie  ship  afloat  is  to  be 
included;  and  whether  this  expense  was  in- 
curred in  saving  the  ship  alnue,  or  the  ship 

719 


1439 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTBUCTIVK). 


lUO 


Of  the  amount  of  damage  and  difficulty  or  inability  of  procuring  repairs. 


and  cargo,  is  immaterial;  and  one-third  new 
for  old  is  not  to  be  deducted  from  it.  Sewall 
V.  United  States  Ins.  Co.,  11  Pick.,  90. 

21.  In  determining  whether  the  costs  of  re- 
pairing the  ship  would  exceed  half  her  value, 
so  as  to  constitute  a  constructive  total  loss, 
lier  sound  value  is,  prima  fiicii',U\e  sum  agreed 
upon  in  a  valued  policy.  Win/i  v.  Columbian 
Ins.  Co.,  12  Pick.,  279. 

22.  Where  the  question  is,  whether  the  cost 
of  repairs  would  exceed  half  the  value  of  the 
vessel,  evidence  tending  to  show  that  she 
would  have  been  worth  less  after  she  was  re- 
paired than  she  was  before  the  injury  is  inad- 
missible. Whether  the  e.xpeuse  of  repairs 
will  e.vceed  half  the  vessel's  value,  and  thus 
constitute  a  technical  total  loss,  is  to  be  deter- 
mined b}'  her  valuation  expressed  in  the  pol- 
icy, which  is  conclusive  as  to  her  value. 
Crroh  V.  Commonwealth  Ins.  Co.,  21  Pick.,  456. 
And  where  the  valuation  includes  the  pre- 
mium, the  expense  of  repairs  must  exceed 
one-half  of  the  whole  valuation.    Ibid. 

23.  The  premium  must  not  be  deducted 
frsm  the  valuation  named  in  the  policy  when 
a  constructive  total  loss  is  being  determined; 

,and  items  of  expense  properly  belonging  to 
general  average  are  not  to  be  included,  nor 
the  expenses  incurred  to  ascertain  tlie  extent. 
of  the  loss,  nor  the  wages  and  provisions  of 
the  ofRcers  and  crew  while  the  ship  is  under- 
going repairs.  Sail  v.  Ocean  Ins.  Co.,  21 
Pick.,  473. 

24.  A  damage  to  ship,  which  is  properly  a 
charge  in  general  average,  must  not  be  added 
to  a  p.artial  loss  ou  her  for  the  purpose  of 
carrying  it  up  so  as  to  constitute  a  construc- 
tive loss.  Greely  v.  Tremont  Ins.  Co.,  9  Cush., 
415.  And  if  the  ship  remains  in  specie  in 
control  of  the  insured,  and  there  is  not  a  total 
loss  in  fact,  a  sale  by  the  master  cannot  make 
it  so.    Ibid. 

2.5.  In  ascertaining  whether  a  partial  loss 
ou  ship  amounts  to  one-half  of  her  agreed 
valuation,  charges  in  general  average  against 
her  must  not  be  taken  into  account.  Reynolds 
V.  Ocean  Ins.  Co.,  22  Pick.,  191, 

26.  Cargo  of  teas,  insured  from  Canton  to 
New  York.  About  62  per  cent,  of  the  teas 
■were  jettisoned;  the  ship  reached  her  home 
port  with  the  balance  in  good  condition. 
Held,  goods  lost  by  jettison  may  be  taken  into 
tlie  estimate  in  making  up  the  loss  of  fifty 
per  cent;  but  after  any  considerable  portion 
720 


of  the  goods  insured  are  landed  at  the  port  of 
destination  in  good  condition,  the  insured 
cannot  recover  for  a  technical  total  loss  ou 
the  ground  that  the  damage  e.xceeds  fifty  per 
cent,  upon  the  whole.  Forbes  v.  Manufacturers 
Ins.  Co.,  1  Gray,  371. 

27.  $9,000  on  a  Ijarque  for  one  year,  from 
Novetnber  8,  1849,  valued  at  §18,000.  "  Not 
liable  for  repairs  made  in  California."  She 
was  stranded  at  San  Francisco  and  could  not 
be  repaired  there  so  as  to  make  her  in  all 
respects  as  good  as  she  was  before  the  acci- 
dent; but  she  could  have  been  made  sea- 
worthy at  that  port.  New  York  was  the 
nearest  port  where  full  repairs  could  have 
been  made ;  but  the  expense  of  navigating 
her  there  and  repairs  would  have  been  equal 
to  three-fourths  of  her  value.  Held,  whether 
the  defendants  were  liable  for  repairs  made  in 
California  was  one  thing,  and  whether  tlio 
vessel  was  to  be  deemed  constructively  lost 
upon  an  estimate  of  repairs,  made  at  the  pl.ice 
of  the  injury,  was  another;  the  contract  did 
not  say,  the  defendants  would  not  be  liable 
for  losses  incurred  in  California;  therefore,  if 
the  injury  was  of  such  a  uature  that  the  vessel 
could  have  been  taken  to  another  place  fpr 
repairs  the  exception  could  not  save  the 
defendants,  nor  could  it  afl'ect  the  right  of 
insured  to  abandon ;  and  the  cost  of  taking  tlic 
vessel  from  place  of  disaster  to  a  point  where 
she  could  have  been  rejjaired  must  be  added 
to  the  estimate  of  repairs  in  detprmining  the 
question,  whether  she  was  damaged  one-half 
her  value.  Lincoln  v.  Hope  Ins.  Co.,  8  Gray, 
22. 

28.  She  went  ashore  at  Cape  Cod,  loaded 
with  coal,  filled,  and  at  high  tide  her  deck  was 
three  feet  under  watpr.  Insured  offered  an 
abandonment,  which  was  refused.  Insurers 
sent  their  agents,  who  succeeded  in  raising 
her  and  in  saving  such  portion  of  the  coal  as 
had  not  been  thrown  overboard  in  the  attempt 
to  save  the  vessel.  Insurers  brought  her  to 
Boston,  the  most  convenient  port  for  repairs, 
and  tendered  her  to  insured.  The  expense  of 
repairing  her  did  not  amount  to  one-half  her- 
value;  but  if  the  expense  of  raising  and  tak- 
ing her  to  Boston  were  added,  the  loss  would 
exceed  one-half  her  value.  Held,  the  expense 
of  raising  her  was  not  a  general  average 
charge  (citing  Lincoln  v.  Hope  Ins.  Co.,  8 
Gray,  22).  That  all  the  expenses  incurred  in 
raising  and  carrying  her  to  Boston  were  in  the 


1441 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


1442 


Of  the  amount  of  damage  aiid  tlifficulty  or  inability  of  procming  repairs. 


nature  of  rejiairs,  tlieri'Core  insured  was  en- 
titled to  reciiver  fur  a  emistructive  total  loss. 
Ellicoil  V.  AUiitnce  Ins.  Co.,  14  Gray,  318. 

29.  The  court  below  instructed,  "If  the 
jury  should  lind  that  the  vessel  remained  in 
sjiecie,  but  was  so  badly  damaged  that  repairs 
would  have  cost  more  than  she  would  be  worth 
when  fully  repaired,  the  repairs  must  be  con- 
sidered impracticable  and  the  loss  considered 
as  total  without  abandonment.  Held,  error, 
fur  if  she  remained  in  specie  and  the  owners 
elected  to  repair,  they  could  not  prevent  the 
application  of  the  rule  "one  third  new  for 
old,"  by  showing  that  the  cost  of  repairs  ex- 
ceeded the  value  of  the  vessel  when  repaired. 
Reversing  s.  c,  1  Cin.  Sup.  Ct.,  1D3.  Globe 
Tub.  Co.  v.  Sherlock,  25  Ohio  St.,  50. 

JJO.  The  insured  cannot  abandon  as  for  a 
total  loss,  unless  it  e.xeeed  one-half  of  tlie 
value  of  the  proper!}'  insureil.  Budd  v.  Union 
Ins.  Co.,  i  McCord,  1. 

31.  Stipulated:  "Unless  the  injuries  sus- 
tained be  equivalent  to  fifty  per  cent,  on  the 
value  of  the  interest  owned  by  the  insured  he 
shall  not  have  the  riglit  to  abandon  as  for  a 
total  loss."  Held,  the  actual  value  of  the 
vessel  when  repaired  at  the  port  of  repairs 
4ind  not  the  value  agreed  in  the  policy  was 
the  standard  by  which  the  right  to  abandon 
must  be  determined.  Fulton  Ins.  Co.  v.  Oood- 
man,  32  Ala.,  108. 

.32.  Valued  at  |G,000;  insured  for  |4,000. 
Her  freight  was  valued  at  $1,873.36,  and  in- 
sured for  $1,225.  She  took  the  ground  in  at- 
tempting to  cross  a  bar  at  the  mouth  of  the 
llississippi.  The  tow  boat  had  great  difficulty 
in  twisting  her  off,  and  in  attempting  so  to  do, 
knocked  against  and  carried  away  the  wind- 
lass bits  and  some  of  her  tackle.  After  she 
got  to  sea  a  leak  was  discovered,  and  encoun- 
tering heavy  gales  and  seas,  it  increased  so 
rapidly  that  she  was  obliged  to  put  into  Key 
West,  where  she  was  pronounced  unworthy  of 
repairs.  Ilcr  cargo  w.as  forwarded  to  destina- 
tion by  another  vessel,  and  insured  offered  an 
abandonment,  which  was  refused.  Held,  in 
estimating  the  cost  of  repairs,  to  ascertain 
whether  they  would  exceed  fifty  per  cent,  of 
ship's  value,  a  deduction  of  one-third  new  for 
old  was  not  to  be  made,  because  that  rule  ap- 
plies to  cases  where  the  loss  is  partial ;  that  a? 
the  repairs  would  have  exceeded  tifty  per  cent, 
of  lier  V'llue,  the  abandonment  was  valid,  and 
insured  were  entitled  to  recover  as  for  a  total 
40 


loss.     Phillips  V.  St.  Louis  Perpetiud  Ins.  Co., 
1 1  La.  An.,  459. 

ij.'{.  The  master  elected  to  repair.  The  ex- 
penses proved  greater  than  the  value  of  the 
ship  when  repaired.  Held,  thu  result  did  not 
prove  that  the  master  acted  beyond  the  scope 
of  his  authority,  for  it  was  the  master's  duly 
to  do  all  that  could  reasonably  be  dime  to  re- 
pair the  ship  and  make  her  lit  to  carry  the 
cargo  to  the  port  of  destination  and  earn 
freight;  the  fact  that  the  repairs  exceeded  her 
value  when  repaired  did  not  confer  any  right 
ujjon  the  insured  to  recover  as  for  a  total  loss. 
Benson  c.  Chapman,  2  H.  L.  Cas.,  696. 

34.  Ship  received  at  Sierra  Leone  233  logs 
of  timber  and  sailed,  but  was  barratrously 
taken  by  the  crew  to  Barbados,  where  she  was 
condemned  and  sold.  Some  of  the  cargo  was 
sold  there  to  pay  charges  incurred,  and  tlie 
balance  forwarded  to  port  of  destination. 
Held,  from  the  time  the  cargo  was  taken  out 
of  the  possession  of  the  insured,  it  became  a 
total  loss;  what  was  done  at  Barbados  was  not 
done  by  anj'  person  authorized  by  the  insured ; 
hence  the  loss  was  total,  with  benefit  of  salv. 
age.  Dixon  v.  Heed,  5  B.  &  A.,  597 ;  1  D.  &  R., 
207. 

35.  On  ship.  Stipulated:  "Allowed  to  be 
seaworthy  for  the  voyage."  Her  admitted 
value  before  damage  was  £5,500;  but  it  would 
have  cost  £4,000  to  repair  her,  which  would 
have  been  more  than  her  value  when  repaired. 
Held,  it  was  proper  to  tell  the  jury  to  find  a 
total  loss  for  the  plaintiff  if  the  cost  of  re. 
pairing  would  have  been  greater  than  her 
value  when  repaired.  Held,  also,  it  would  not 
have  been  proper  to  tell  tlie  jury  to  exclude 
from  their  estimate  all  such  repairs  as  the  de- 
cayed state  of  some  part  of  the  ship  made 
necessary.  Phillips  v.  Nairne,  4  C.  B.,  343 ; 
16  L.  J.  (X  S.)  C.  P.,  194;  11  Jur.,  455. 

36.  On  wheat,  valued  at  £6,400,  from  Odessa 
to  Liverpool.  She  was  compelled  to  put  back 
to  repair,  which  cost  £1,800.  Ship  and  cargo 
were  hypothecated  for  £1,850.  She  sailed 
again,  was  wrecked  and  carried  into  Cork, 
where  she  was  found  not  worth  repairs,  and 
ship  and  cargo  were  sold  there  b}-  decree  in  ad- 
miraltj'.  One-half  of  the  wheat  might  have 
been  dried  and  carried  from  Cork  to  destina- 
tion at  an  expense  less  than  its  value  at  desti- 
nation. Held,  the  jury  must  be  instructed  to  as- 
certain cost  of  unshipping,  drying,  warehous- 
ing and  transhipping  into  another  bottom,  and 

721 


lUS 


TOTAL  LOSS  (ABSOLUTE  OR  CONSTRUCTIVE). 


l-i-i4 


Of  tbe  amount  of  damage  and  difficulty  or  inability  of  procuring  repairs, 


the  cost  of  the  difference  of  transit;  if  it 
could  only  bo  effected  at  a  higher  than  the 
original  freight,  the  salvage  allowed  in  pro- 
portion to  the  value  of  the  cargo  saved  must 
be  added  to  these,  and  if  the  aggregate  ex- 
ceeded the  value  of  the  cargo  when  delivei-ed 
at  destination,  the  loss  would  be  total ;  if  It 
did  not,  tbe  loss  would  be  partial  only.  Ro- 
setto  V.  G-urney,  11  C.  B.,  176;  20  L.  J.  C.  P., 
2-57;  15  Jur.,  1177. 

37.  Valued  at  £17,000.  It  would  have  cost 
£10,500  to  have  repaired  her  at  the  port  of  dis- 
tress, and  when  repaired  she  would  have  been 
worth  only  £7,500.  But  an  owner  wanting 
such  a  ship  for  the  particular  purposes  of  his 
trade,  and  having  to  elect  whether  he  would 
sell,  repair  or  purchase,  would  have  elected  to 
repair,  because  she  could  not  have  been  built 
or  purchased  at  that  time  for  £10,500.  The 
master  corresponded  with  owners  after  he 
reached  the  port  of  distress,  but  he  was  left 
to  act  as  he  considered  best  for  all  parties 
concerned.  HeM,  the  price  of  the  ship  in  the 
market  after  she  was  repaired,  was  not  the 
test  of  her  real  talue,  —  hence  the  loss  was  net 
total,  but  average  only.  Grainger  v.  Martin, 
2  B.  &  S.,  456;  8  Jur.  (N.  S.),  995;  31  L.  J.  Q. 
B.,  186;  s.  c,  affirmed,  4  B.  &  S.,  9;  11  W.  R., 
7.58;  8  L.  T.  (N.  S.),  796. 

38.  She  was  submerged  in  deep  water,  with 
a  heavy  cargo  on  board.  A  common  peril  of 
destruction  threatened  ship  and  cargo  as  they 
lay  submerged.  The  most  convenient  method 
of  saving  ship,  or  cargo,  or  both,  was  by  rais- 
ing both  together.  The  cost  of  raising  was  an 
extraordinary  expense.  Seld,  in  determining 
whether  the  ship  was  constructively  a  total 
loss,  the  amount  to  be  contributed  by  the  car- 
go must  be  deducted  from  the  expense  incur- 
red for  raising.  Kemp  v.  Halliday,  1  L.  R.  Q. 
B.,  520 ;  12  Jur.  (N.  S.),  582 ;  35  L.  J.  Q.  B.,  150 ; 
14  W.  R.,  697;  14  L.  T.  (N.  S.;,  762;  6  B.  &  S., 
723. 

39.  At  the  time  she  was  abandoned  she  was 
neither  aground,  wrecked  nor  sunk.  Held,  her 
owners  could  not  recover  for  a  constructive 
total  loss,  except  she  was  unseaworthy  at  the 
place,  and  it  was  impossible  to  make  the  re- 
pairs there,  or  the  making  of  them  would  have 
required  an  expense  exceeding  her  value  when 
repaired.    Lindsay  v.  Leat.liley,  3  P.  &  F.,  902. 

40.  She  came  in  collision  with  an  iceberg, 


but  reached  port  in  a  greatly  disabled  condi- 
tion. Held,  in  determining  whether  the  loss 
was  constructively  total,  her  real  value,  not  the 
value  mentioned  in  the  policy,  must  be  con- 
sidered. Stewart  t.  Oreenock  Mut.  Ins.  Co.,  6 
0.  C.  S.,  359. 

41.  She  sailed  July  22d,  from  Old  Harbor 
for  Port  Antonio,  to  join  convoy  which  was  to 
sail  thence  .July  25th ;  but  bad  weather  pre- 
vented her  arrival  there  until  August  3d,  three 
days  after  convoy  had  sailed.  She  should 
have  sailed  with  next  convoy,  but  the  crew 
mutinied  and  refused  to  navigate  the  ship. 
Three  masters  died  in  succession,  which 
causc^d  further  detention.  She  was  then  exam- 
ined by  the  officer  of  the  port,  who  found  her 
unfit  to  prosecute  the  voyage.  Repairs  would 
have  cost  more  than  she  would  have  been 
worth  when  repaired.  Insured  abandoned. 
Held,  she  was  a  total  loss.  Adam  v.  Murray, 
Faculty  Dec,  1801  to  1807,  p.  360. 

42.  The  contract  provided :  "Insured  shall 
not  have  the  right  to  abandon,  unless  the 
amount  which  insurer  shall  be  liable  to  pay 
under  an  adjustment  of  partial  loss,  exclusive 
of  general  average,  shall  exceed  half  the 
amount  insured ;"  but  on  the  face  of  the  policy 
the  following  words  were  written:  "  It  is  un-  ' 
derstood  that  the  above  named  vessel  is  in- 
sured against  total  loss  only."  She  struck  ."» 
reef  in  calm  weather,  and  remained  fast.  la 
six  days  thereafter  insured  gave  notice  of 
abandonment.  Insurers  refused  it,  but  inter- 
posed, got  her  off,  and  repaired  her  at  au  ex. 
pense  of  £3,000.  She  was  valued  in  the  pol- 
icy at  £15,000.  Held,  whether  there  was  a 
constructive  total  loss,  the  law  of  Canada,  not 
of  tbe  United  States,  must  determine,  and  the 
test  was  whether  a  prudent  owner  uninsured 
would  have  considered  it  worth  his  while  to 
attempt  to  save  her.  Meagher  v.  ^tna  Ins. 
Co.,  20  U.  C.  Q.  B.,  007. 

43.  She  was  driven  ashore  near  Fairport, 
and  an  abandonment  tendered  to  insurers, 
and  refused.  The  master  then  contracted  with 
certain  persons  in  behalf  of  insurers  and  all 
persons  interested,  to  get  her  off,  which  was 
accomplished;  but  the  jury  found  specially 
that  a  prudent  owner  would  have  abandoned 
her.  Held,  the  loss  was  constructively  total, 
and  the  insured  was  entitled  to  recover  for  it. 
King  v.  Western  Ass.  Go.,  7  U.  C.  C.  t ,  300. 


722 


1445 


TRANSHIPMENT  OF  CARGO— ULTRA  VIRES. 


1446 


Wliat  is. 


TRANSHIPMENT  OF  CARGO. 

The  policy  covered  outfits,  "One  fourth  of 
the  catchings  to  replace  the  outtits  consumed." 
There  was  no  evidence  to  show  that  she  might 
not  have  been  made  seaworthy,  or,  at  least,  cap- 
able to  reach  a  port  where  she  could  have  been 
repaired  and  made  seaworthy  for  the  remainder 
of  the  voyage.  The  master  transhipped  the 
cargo  and  sold  the  vessel.  It  was  subsequent- 
ly lost.  Held,  when  a  cargo  is  unnecessarily 
transhipped,  insurers  are  discharged  (citing  1 
Phillips  Ins.,  sec.  983;  Oliverson  v.  Brighton, 
8  Q.  B.,  781 ;  Bold  v.  Rotheram,  id.,  797).  Fad- 
dock  V.  Commercial  Ins.  Co.,  3  Allen,  93. 


TRAVELING  BY  PRIVATE  OR  PUBLIC 
CONVEYANCE. 

(See  Accidents.) 

Against  death  or  personal  injuries  "Caused 
by  any  accident  while  traveling  by  public  or 
private  conveyance  provided  for  the  transpor- 
tation of  passengers."  Deceased  was  proceed- 
ing from  Rathbone,  in  Steuben  county,  to 
Madison.  She  had  traveled  on  the  Erie  road 
to  Watkins,  at  the  head  of  Seneca  lake,  and 
there  took  steamboat  to  Geneva.  The  railway 
station  was  about  seventy  rods  from  the 
steamboat  landing,  and  while  walking  to  it, 
she  slipped  and  fell  upon  the  sidewalk, 
sustaining  serious  injuries,  from  which  she 
died.  Held,  the  words  of  the  contract  must 
be  construed  so  as  to  carry  into  efl'ect  the  in- 
tention of  the  parties,  so  far  as  that  intention 
could  be  determined  from  the  language  used  ; 
that  the  court  must  consider  every  important 
feature  in  the  case,  namely:  the  frequent 
change  travelers  necessarily  make  from  one 
train  of  cars  to  another,  in  the  prosecution  of 
a  journey;  that  though  the  deceased  might 
have  employed  a  hack  to  carry  her  from  the 
wharf  to  the  railway  station,  she  was  not 
bound  to  do  it,  so  long  as  she  acted  as  the 
groat  majority  of  travelers  did;  hence  the  in- 
jury was  received  while  she  was  actually 
prosecuting  the  journey,  and  while  traveling 
by  public  conveyance  within  the  meaning  of 
the  contract  (citing  Theobold  v.  Railway  Pas- 
seager  Ass.  Co.,  10  Esclir.,  45;.    Northi-up  u. 


Railway  Passenger  Ass.  Co.,  43  N.  Y.  (4  Hand), 
51G;  reversing  s.  c,  3  Lans.,  1G6. 


ULTRA  VIRES. 

I.  What  is. 

II.  NOT. 

I.  "What  is. 

1.  A  corporation  is  a  mere  creature  of  the 
act  to  which  it  owes  its  existence,  and  it  can 
exert  its  powers  only  in  the  manner  author- 
ized by  the  act.  Head  v.  Providence  Ins.  Co., 
3  Cranch,  137. 

2.  A  corporation  cannot  make  a  contract 
for  the  loan  of  money,  or  take  security  for  it, 
unless  the  power  is  expressly  given  or  neces- 
sarily incident  to  the  powers  granted.  Jforth 
River  Ins.  Co.  v.  Lawrence,  8  Wend.,  483. 

3.  A  mutual  life  insurance  company,  by  its 
charter  authorized  to  take  the  notes  of  its 
members  for  premiums,  and,  by  tha  charter, 
persons  insured  were  made  members.  The 
company  made  a  policy  to  one  person,  and 
took  the  note  of  another  for  the  premium. 
Held,  the  maker  of  the  note  was  not  liable. 
Mutual  Benefit  Life  Ins.  Co.  v.  Davis,  13  N.  Y., 
569.  And  that  the  company  had  no  authority 
to  take  the  note.     Ihid. 

4.  The  managers  were  authorized  to  issue 
special  rate  policies  to  persons  who  had  be- 
come members  by  taking  policies  of  mutual 
insurance.  Special  policies  were  granted  to 
H.,  who  had  not  taken  any  policies  of  mutual 
insurance.  Held,  they  were  void,  bccauso 
idtra  vires.  In  re  Arthur  Average  Association, 
Ex  parte  Hargrave,  10  L.  R.  Ch.,  543. 

5.  The  deed  of  settlement  conferred  power 
to  grant  insurances  upon  lives,  endowments, 
and  annuities,  and  at  an  extraordinary  general 
meeting  it  was  resolved  to  extend  the  business 
to  marine  insurance,  which  was  subsequently 
embodied  in  a  supplemental  deed,  and  exe- 
cuted by  some,  but  not  by  all  the  shareholders. 
The  business  was  so  extended,  and  reports 
were  made  to  the  registry  office,  which  stated 
that  the  business  of  marine  insurace  was  in- 
eluded.  After  the  business  was  carried  on  for 
a  year  and  a  half,  an  order  to  wind  up  was 

723 


144T 


UNTIL  SAFELY  MOORED  —  USAGE  AND  CUSTOM. 


144b 


Miscellaneous. 


made.  Ileld,  the  act  extending  the  business 
of  the  company  was  ultra  vires,  and  persons 
claiming  for  marine  losses  could  not  come  in 
as  creditors  of  the  compan}-  in  respect  of  such 
losses.  In  re  Phoenix  Life  Ass.  Co.,  31  L.  J. 
Ch.,  749;  3  Johns.  &  H.,  441 ;  In  re  Era  Ass. 
Co.,  Williams'  Case,  6  Jur.  (N.  S.),  1334;  2 
Johns.  &  n.,  400. 

II.  What  is  not. 

1.  The  company  was  incorporated  by  the 
legislature  of  Virginia,  and  was  authorized  to 
insure  buildings  in  the  county  of  Alexandria, 
against  fire ;  but  Alexandria  was  subsequently 
separated  from  Virginia.  Held,  the  insurance 
upon  buildings  in  Alexandria  was  not  deter- 
mined by  the  separation.  Korn  v.  Mutual 
Ais.  Soo.,  G  Cranch,  192. 

2.  Declaration  upon  a  policy  of  insurance. 
Plea:  that  the  business  of  the  company  was 
to  be  conducted  on  the  plan  of  mutual  insur- 
ance under  the  act  of  1849,  and  that  receiving 
a  definite  sum  of  money  in  lieu  of  a  premium 
note  was  not  warranted  by  the  act ;  that  it  was 
in  violation  of  the  statute,  and  therefore  the 
policy  *as  made  without  authority  and  void. 
Demurrer  to  the  plea.  Held,  the  general  act 
of  April  10,  1849,  authorizing  the  incorpora- 
tion of  insurance  companies,  and  the  eighth 
section  of  the  charter  of  this  company,  made 
under  that  act,  provided  for  the  payment  of 
cash  premiums  as  well  as  premiums  secured 
by  notes,  at  the  election  of  the  insured ;  there- 
fore the  payment  of  the  premium  in  cash  was 
legal,  the  policy  valid,  and  the  plea  bad. 
Union  Ins.  Co.  v.  Huge,  21  How.,  35 ;  8.  C,  17 
How.  Pr.  (N.  Y.),  127. 

3.  Policy  made  by  a  mutual  company  of 
the  state  of  New  Y''ork,  insuring  property  in 
Canada,  is  valid;  the  act  of  incorporation  au- 
thorized it  to  insure  the  property  of  all  per- 
sons who  became  members.  Western  v.  Gen- 
esee Mut.  Ins.  Co.,  12  N.  Y.,  258. 


UNTLL  SAFELY  MOORED. 

1.  "  Until  she  shall  be  safely  arrived  at  such 
port  of   discharge,  and    moored  tweutj-.four 
hours  in  good  safety."     She  arrived  at  Valcn- 
724 


tia  with  a  cargo  of  guano,  and  came  to  anchor 
February  5,  1867.  That  port  was  an  open 
roadstead,  and  all  vessels  must  necessarily  be 
partially  discharged  into  lighters,  some  of 
them  being  admitted  into  an  inner  basin  after 
largely  lightened.  She  commenced  putting 
out  cargo  into  lighters,  with  an  intention  of 
going  into  the  basin  when  light  enough,  but 
was  wrecked  before  she  was  admitted,  March 
3d.  Held,  she  had  safely  arrived  at  her  port 
of  discharge,  and  had  been  there  moored 
twenty-four  hours  in  good  safety  before  the 
loss  occurred.  Branthall  v.  Sun  Mut.  Ins.  Co., 
104  Mass.,  510. 

2.  "  To  Rouen,  and  until  she  shall  be 
moored  twenty-four  hours  in  safety  there." 
She  arrived  February  1st,  an  embargo  hav- 
ing been  previously  laid  on  all  English  ves- 
sels in  port.  The  captain  went  ashore  the  day 
he  arrived,  and  the  embargo  was  laid  on  the 
ship  the  fi)llowing  day.  He  was  permitted  to 
discharge  cargo,  and  deliver  it  to  the  con- 
signees; but  she  was  detained  as  prize,  the 
master  and  crew  being  allowed  subsistence 
as  prisoners  of  war,  from  the  time  of  her  ar- 
rival. Ueld,  she  was  not  moored  twenty-four 
hours  in  safety,  for  immediately  she  entered 
the  port  she  was,  to  all  intents  and  purposes, 
captured  by  the  French.  Minett  s.  Anderson, 
Peake's  N.  P.  C,  277. 

3.  "  On  ship  from  Leghorn  to  port  of  Lou- 
don, and  until  there  moored  twenty-four  hours 
in  good  safetj'."  She  arrived  at  Freshwater, 
July  8th,  and  moored,  but  was  ordered  to  re- 
turn to  quarantine.  The  crew  deserted.  She 
was  taken  back  on  the  30th,  performed  quar- 
antine, was  then  sent  up  for  orders  to  air  tlic 
goods,  and  was  burned  August  23d,  before  slie 
returned.  Held,  she  was  never  moored  in 
good  safety,  for  that  means  with  opportunity 
to  unload.     Waples  «.  Eames,  2  Strange,  1243. 


USAGE  AND  CUSTOM. 

I.  When  they  affect  the  eights  op  the 

P.\RTIES. 
IL  DO  KOT  AFFECT  THE  RIGHTS 

OF  THE  PARTIES. 
III.    GENEK-iLLT. 


1449 


USAGE  AND  CUSTOM. 


1450 


When  they  aftect,  and  when  they  do  not  aiFect,  the  rights  of  the  parties. 


I.     WUEN    THEY  AFFECT  THE    RIGHTS  OF 
THE    PARTIES. 

1.  AV'hcn  the  insurers  know,  or,  by  tlie 
usage  .lutl  course  of  trade,  ought  to  know, 
that  certain  papers  ought  to  be  on  board 
for  the  purposes  of  protection  in  one  evcntj 
but  wliich  miglit  endanger  the  proj)erty  ia 
anotlier  event,  they  lacitly  consent  that  llie  pa- 
pers shall  be  so  used  to  protect  the  property. 
Lisingstun  v.  Maryland  Ins.  Co.,  7  Cranch,  50G. 

2.  In  construing  policies  of  insurance,  the 
usages  of  trade  must  be  taken  into  considera- 
tion.   Hancox  v.  Fishing  Ins.  Co.,  3  Sumn.,  133. 

3.  "  Warranted  filled  in  with  brick."  Held, 
competent  to  prove  a  usage  among  insurers  to 
treat  a  building  filled  in  with  brick  in  front 
and  rear,  and  supported  by  brick  buildings 
on  both  sides,  as  fulfilling  the  warranty.  Fow- 
ler ».  JEtna  Fire  Ins.  Co.,  1  Wend.,  270. 

4.  Evidence  of  a  usage  among  commission 
merchants  to  insure  goods  consigned  to  them 
without  orders  is  admissible.  De  Forest  o. 
Fulton  Fire  Ins.  Co.,  1  Hall,  84. 

5.  Policy  on  a  whaling  ship.  She  com- 
menced taking  sea  elephants,  amphibious 
animals  covered  with  hair  like  seals.  They 
are  killed  on  land  with  lances  and  harpoons, 
sometimes  shot.  The  same  process  is  used 
for  extracting  their  oil  as  for  extracting  whale 
oil,  but  it  is  more  valuable  than  the  latter, 
and  is  known  in  commerce  as  "  Elephant 
oil."  Held,  it  was  proper  to  show  by  persons 
familiar  with  the  business  of  whaling,  that  the 
taking  of  elephants  was  usually  a  part  of  the 
business  or  trade  of  a  whaling  ship.  Child  v. 
San  Mat.  Ins.  Co.,  3  Saudf,  20. 

6.  Upon  a  question,  whether  the  risk  has 
been  increased  by  taking  a  deck  load  of  cot- 
ton, it  is  competent  to  prove  the  general  usage 
for  the  same  class  of  vessels  in  various  kinds 
of  navigation  and  ditt'erent  seasons  of  the 
year.    Lapham  v.  Alias  Ins.  Co.,  24  Pick.,  1. 

7.  It  is  competent  to  prove,  that  among 
owners  and  insurers  of  whaling  ships,  an 
insurance  on  outfits  covers  one-quarter  of  the 
catchings.  Macy  b.  WTtaling  Ins.  Co.,  9  Met., 
354. 

8.  On  a  patent  leather  manufactory.  The 
printed  terms  proliibited  the  use  of  benzole, 
but  a  written  clause  gave  liberty  to  keep  five 
barrels  of  benzole  in  a  shed  one  hundred  feet 
from  the  building.  A  witness  was  called  to 
testify  as  to  the  mode  of  using  benzole  in 


similar  factories  situated  in  a  town  many 
hundred  miles  from  the  factory  insured.  Hdi, 
admissible,  that  if  another  mode  prevailed 
the  defendants  should  have  proved  it.  Citi- 
zens Ins.  Co.  V.  McLaughlin,  53  Penn.  St.,  485. 

9.  On  tobacco,  Kew  York  to  Mobile,  dam- 
aged  on  the  voyage  to  an  extent  exceeding 
fifteen  per  cent.,  the  minimum  partial  loss 
sti|)ulated  in  the  policy.  It  was  proven  that 
by  the  custom  of  insurers  and  insured  at 
Mobile,  partial  losses  on  valued  jiolicies  were 
adjusted  by  paying  the  difference  between  the 
sales  price  of  the  thing  injured  and  the  price 
stipulated  in  the  policy.  Held,  the  custom,  if 
shown,  must  govern  and  the  general  law  regu- 
lating the  assessment  of  damages  under  such 
policies  must  give  way.  Fulton  Ins.  Co.  v. 
Milner,  33  Ala.,  430. 

10.  One  of  the  questions  between  the  par- 
ties  was  whether  it  was  the  custom  for  vessels 
engaged  in  the  Labrador  trade  to  keep  their 
cargoes  on  board  for  several  months  after  tlieir 
arrival  on  that  coast;  and  it  was,  held,  evi- 
dence to  prove  the  custom  at  Newfoundland 
was  admissible.  Noble  v.  Kennoway,  2  Doug., 
510. 

11.  If  the  course  of  dealing  between  the 
shipper  and  the  consignee  has  been  such  that 
tlie  practice  of  the  one  has  been  to  order  the 
other  to  insure  and  for  the  other  to  comply, 
the  shipper  has  a  right  to  expect  that  his  order 
will  be  obeyed  unless  there  is  notice  to  the 
contrary.    Smith  v.  Laseellts,  2  Term,  187. 

12.  The  question  between  the  parties  was, 
whether  they  intended  that  the  life  insured 
was  in  good  health  at  the  time  the  rei'nsur.ince 
was  made,  and  it  was,  held,  evidence  was  ad- 
missible to  prove  a  custom  in  cases  of  rein- 
surance, to  confine  the  warranty  of  health  to 
the  date  of  the  original  insurance  and  to  leave 
to  the  reinsurers  the  necessity  of  inquiring 
for  themselves  whether  it  was  unaltered.  Fos- 
ter V.  Mentor  Life  Ai>s.  Co.,  3  El.  &  Bl.,  48; 
18  Jur.,  837;  33  L.  J.  Q.  B.,  145. 

II.  When  they  do  not  affect  the 

EIGHTS   OF   THE   PARTIES. 

1.  "  To  a  port  in  Cuba  and  at  and  from 
thence  to  a  port  of  advice  in  Europe."  Held, 
evidence  to  show  a  usage  for  such  vessels  to 
go  to  two  ports  in  the  same  island  was  inad- 
missible, because  the  contract  was  written 
and  plain,  and  the  evidence  tendered  w,is  m- 

725 


1451 


USAGE  AND  CUSTOM. 


1452 


When  they  do  not  affect  the  rights  of  the  parties 


consistent  with  and  repugnant  to  it.    Heartie 
V.  Marine  Ins.  Co.,  30  Wall.,  488. 

2.  Evidence  of  usage  to  e.vplain  the  con- 
tract of  insurance  is  admissible  in  cases  only 
■where  the  policy  is  ambiguous,  or  the  law 
concludes  it  was  made  with  reference  to  a 
prevailing  usage;  but  even  tlien,  the  usage 
must  be  proved  and  the  opinions  of  witnesses 
as  to  the  usage  are  not  admissible.  Winthrop 
V.  Union  Ins.  Co.,  3  Wash.  C.  C,  7. 

3.  This  was  a  policy  to  reinsure  tlie  first 
insurer.  The  defendant  ofl'ered  to  prove  a 
usage  that  tlie  reinsurer  pays  to  tlie  first  in- 
surer only  so  much  of  the  sum  reinsured  as 
bears  tlie  same  proportion  to  the  value  of  the 
property  destroyed  and  covered  by  the  first 
policy.  Held,  inadmissible,  for  the  reinsurer 
was  bound  to  answer  according  to  tlic  plain 
terms  of  his  contract,  namely,  the  sum  re- 
inswed,  if  the  loss  amounted  to  or  exceeded 
it.  Hone  v.  Mutual  Safety  Ins.  Co.,  1  Sandf , 
137;  3N.  Y.,  235. 

4.  Defendants  offered  evidence  of  a  usage, 
on  the  part  of  persons  insured,  to  give  notice 
of  any  increase  of  rislv.  Held,  inadmissible 
to  control  the  legal  effect  of  the  policy.  Steb- 
bins  v.  Globe  Ins.  Co.,  3  Hall,  632. 

5.  The  defendant  offered  proof  of  a  usage 
and  custom  in  the  city  of  New  York  among 
companies  reinsuring  others,  to  abate  fifteen 
per  cent,  from  the  premium  stipulated  to  be 
paid;  also  that  the  plaintiflf  agreed  at  the 
time  the  policy  was  made  to  abate  fifteen  per 
cent,  from  the  stipulated  premium.  Held,  the 
language  of  the  contract  was  unequivocal  and 
unambiguous,  hence  neither  usage  nor  cus- 
tom could  be  received  to  control  its  plain 
terms,  nor  could  a  contemporaneous  parol 
agreement  be  received  for  the  purpose  ofl'ered. 
St.  Nicholas  Ins.  Co.  v.  Mercantile  Mut.  Ins.  Co., 
5  Bos.,  338. 

6.  The  law  does  not  recognize  a  usage  for 
tlie  master  of  a  vessel  stranded  to  sell  the 
cargo  witliout  necessity.  Bryant  v.  Common- 
wealth Ins.  Co.,  6  Pick.,  131. 

7.  A  usage  which  shows  when  a  voyage  is 
terminated,  so  far  as  it  relates  to  the  payment 
of  premium,  is  not  admissible  to  show  when 
the  risk  terminates.  Meigs  v.  Mutual  Marine 
Ins.  Co.,  3  Cush.,  439. 

8.  If  a  usage  leads  to  consequences  absurd, 
or  which  could  not  be  fairly  presumed  to  have 
been  contemplated  by  the  parties,  the  pre- 
sumption that  it  was  a  part  of  the  contract  is 

720 


repelled.     Seccomb  v.  Provincial  Ins.  Co.,  10 
Allen,  305. 

9.  In  determining  a  loss  under  an  open 
policy,  the  market  value  of  the  goods  at  the 
inception  of  the  risk  is  the  proper  basis  of 
damage,  and  not  the  invoice  cost,  nor  is  evi- 
dence of  a  contrary  usage  at  that  port  admissi- 
ble to  vary  this  rule.  Warren  v.Franhlin  Ins. 
Co.,  104  Mass.,  518.  • 

10.  The  contract  obliged  insured  to  keep  a 
watchman  in  the  mill  every  night.  Held,  it 
was  not  competent  to  prove  a  usage  or  prac- 
tice of  insured  to  allow  the  watchman  to  leave 
at  twelve  o'clock  on  Saturday  night  and  re- 
turn at  the  same  hour  on  the  following  night; 
nor  was  it  competent  to  prove  that  such  usage 
and  practice  was  communicated  to  the  insur- 
er's  agent  at  the  time  the  survey  was  made, 
nor  that  the  Insurer's  agent  had  often  visited 
the  mill  for  the  purpose  of  making  inquiries 
in  regard  to  that  matter,  and  that  in  answer  to 
his  inquiries  he  had  been  informed  of  the 
practice.  Glendale  Woolen  Co.  v.  Protection  Ins. 
Co.,  21  Conn.,  19. 

11.  "Prohibited  from  the  River  and  Gulf 
of  St.  Lawrence,  between  September  1st  and 
May  1st."  The  policy  was  made  at  Rockland. 
Insured  offered  to  prove  that  by  a  usage  in 
Boston,  the  Strait  of  Northumberland  and 
Pictou  was  not  deemed  within  the  Gulf  of  St. 
Lawrence.  Held,  the  usage  could  not  affect  a 
contract  made  at  Rockland,  unless  the  same 
usage  was  shown  to  exist  there;  nor  could 
the  usage  affect  the  parties  unless  it  were 
brought  home  to  their  knowledge,  or  it  was 
so  general  and  well  established  as  to  raise  a 
presumption  that  the  parties  had  knowledge 
of  it,  or  that  they  were  bound  to  inform 
themselves  of  it.  Cobb  v.  Lime  Sock  Fire  and 
Marine  Ins.  Co.,  58  Me.,  336. 

1 2.  Evidence  of  a  local  custom  among  in- 
surers,  not  communicated  to  insured,  nor  of 
such  notoriety  as  to  raise  a  presumption  that 
he  knew  it,  is  not  admissible ;  nor  the  opinions 
of  witnesses  as  to  the  materiality  of  a  fact; 
nor  what  effect  the  fact  would  hare  had  upon 
the  mind  of  a  prudent  insurer.  Hartford 
Protection  Ins.  Co.  v.  Harmer,  2  Ohio  St., 
453. 

13.  If  the  evidence  tendered  will  not  throw 
light  upon  any  question  in  issue,  it  is  irrele- 
vant,  and  should  be  rejected.  A  custom  or 
usage  of  other  companies  or  of  the  contract- 
ing  company    is  incompetent  to   affect  the 


1453 


USE  AND  OCCUPATION  (PROHIBITED). 


1451 


What  vitiates. 


written  contract.    King  «.  Enterprise  Ins.  Co., 
45  Ind.,  43. 

14.  A  particular  tisage  or  custom  cunuot  be 
pleaded  agaiust  the  express  stipulations  of 
Ihe  contract;  nothing  hut  a  general  custom, 
}iaving  the  effect  and  operation  of  a  general 
rule  of  law  can  be  pleaded  against  a  contract 
•which  is  plain,  express  and  unambiguous  in 
its  terms.  Lattomus  v.  Farmers  Mutual  Fire 
Ins  Co.,  3  Iloust.,  234. 

15.  "  Beginning  the  adventure  of  said  goods 
and  merchandise  from  and  immediately  after 
the  loading  thereof  on  l)oard  the  said  vessel  or 
boat  at  New  Orleans."  They  were  destroyed 
by  fire  on  the  wharf  at  the  lalie  end  of  the  J. 
&  P.  R.  R.  Ueld,  not  a  loss  within  the  policy ; 
that  evidence  of  a  custom  to  include  tlie  risk 
tif  lire  on  such  goods,  at  sucli  a  place,  was  not 
admissible,  because  the  language  of  the  con- 
tract was  too  plain  and  unambiguous.  Smith 
t:  Mobile  Navigation  Ins.  Co.,  30  Ala.,  1G7. 

1 6.  "  On  the  body,  tackle,  apparel,  ordnance, 
ammunition,  artillery,  boat  and  other  furni- 
ture." Tlie  pinnace  was  slung  on  the  davits 
according  to  custom,  for  the  better  security 
of  sailo.rs  who  might  fall  overboard.  It 
was  carried  away  in  a  storm.  'Insurers  of- 
fered evidence  tending  to  prove  a  custom 
mot  to  pay  for  boats  slung  in  that  manner 
ind  lost.  Ueld,  Tlie  evidence  was  not  admis- 
sible, because  it  was  a  direct  variance  from 
the  words  of  the  policy,  and  in  plain  opposi- 
tion to  the  language  used.  Usage  may  be  ad- 
missible to  explain  what  is  doubtful,  but  it  is 
never  admissible  to  contradict  what  is  plain. 
See  the  cases  hereon,  1  Phillips  Ev.,  .553  to 
559,  and  2d  vol.,  36  and  37;  Starkie  on  Ev., 
1032  to  1038.  Blackett  v.  Royal  Exchange  Ass. 
Co.,  2  Tyrw.,  2C6;  1  L.  J.  (N.  S.)  Ex.,  101;*  2 
Cromp.  &  J.,  244. 

17.  Evidence  of  custom  or  usage  canuot  be 
received  to  explain  a  policy  where  tlie  lan- 
guage is  plain  and  unambiguous.  Hare  v. 
Barstow,  8  J ui:,i)2S. 

18.  On  money  advanced  on  account  of 
freight.  "  Warranted  free  from  average  under 
five  per  cent.,  unless  general."  She  was 
driven  into  a  port  of  distress  and  obliged  to 
make  repairs  there;  and  in  order  to  make 
them  the  cargo  was  unloaded.  Insured  was 
compelled  to  contribute  in  general  average. 
Plea  that  the  policy  was  made  in  London ;  and 
that  by  custom  there,  insurers  of  money  ad- 
vanced on  account  of  freight  were  not  liable 


to  pay  or  make  good  any  part  of  a  -general 
average  loss  or  contribution.  Held,  the  plea 
was  bad,  because  the  usage  set  up  was  in  con- 
tradiction of  the  written  contract.  Hall  v. 
Janson,  4  El.  &  Bl.,  500;  8.  c,  1  Jur.  (N.  S.), 
571 ;  24  L.  J.  Q.  B.,  77. 

III.  Generally. 

1 .  A  usage  of  trade  may  be  proved  by  parol 
although  it  originated  in  a  law  or  edict  of  the 
government.  Livingston  v.  Maryland  Ins.  Co., 
7  Cranch,  506. 

2.  Usages  become  laws  by  their  frequent 
repetition,  their  reasonableness,  their  adapta- 
tion to  promote  the  interests  of  those  to  whom 
they  are  applied,  and  their  common  adoption 
in  the  community  of  those  interested;  but 
when  the  question  is  first  pi-esented  as  to  giv- 
ing legal  effect  to  an  alleged  usage,  where  its 
binding  force  or  proof  of  its  admissibility  is 
denied  by  one  of  the  parties,  the  court  will 
not  enforce  it  or  give  it  the  sanction  of  law, 
unless  it  be  reasonable,  convenient,  and  adapt- 
ed not  only  to  increase  facilities  in  trade,  but 
to  promote  just  dealings  between  parties. 
Macy  v.  Whaling  Ins.  Co.,  9  Met.,  354 


USE  AND  OCCUPATION  (PROHIBITED). 

I.  What  vitiates. 

II.  DOES  NOT  VITIATE. 

III.  Questions  fob  the  juky. 

I.  "What  vitiates. 

1.  The  policy  prohibited  carrying  on  or 
exercising  in  the  building  certain  hazardous 
or  extra  hazardous  business.  Held,  a  pros- 
pective or  promissory  warranty ;  and  a  viola- 
tion of  it  avoided  the  policy,  though  it  did 
not  cause  the  loss,  the  prohibited  use  being 
discontinued  before  the  loss,  and  thougli  the 
insured  did  not  know  of  the  use.  Mead  b. 
Northwestern  Ins.  Co.,  7  N.  Y.,  530. 

2.  On  merchandise,  hazardous  and  not  haz- 
ardous—  cabinet  ware  included  under  the 
designation  hazardous.  Held,  using  the  prem- 
ises  for  putting  together  and  finishing  chairs 
was  not  permitted  by  the  policy,  because  the 

727 


1455 


USE  AND  OCCUPATION  (PROHIBITED). 


1456 


Wliat  vitiatee. 


term  "cabinet  ware  "  includes  only  flnislied  ar- 
ticles. AppMiy  v.  Astor  Fire  Ins.  Co.,  04  N. 
T.,  253. 

3.  Policy  prohibited  use  of  the  buildings 
for  any  trade  or  business  denominated  hazard- 
ous or  extra  hazardous,  or  specified  in  the 
mcmoraudum  of  special  risks  and  tlie  condi- 
tions annexed,  one  of  which  prohibited  any 
Increase  of  the  risk  by  any  means  within  con- 
trc5l  of  the  iusured,  nnless  consented  to  by 
indorsement  on  the  policy.  Held,  using  any 
part  of  the  premises  for  business  prohibited 
avoided  it.  Lee  v.  Howard  Fire  Ins.  Co.,  3 
Gray,  583. 

4.  Tlie  memorandum  of  special  hazards 
annexed  to  the  policy  prohibited  all  unlawful 
use  of  the  premises.  The  preliminary  proofs 
of  loss  stated  that  it  was  occupied  as  a  hotel. 
Defendant  proved  that  it  had  not  been  licensed 
as  a  hotel.  Held,  a  defense  to  the  action. 
Campbell  v.  Charter  Oak  Fire  and  Marine  Ins. 
Co.,  10  Allen,  313. 

5.  On  a  stock  of  liquors,  in  a  building  occu- 
pied as  a  liquor  store,  kept  for  sale  in  viola- 
tion of  Gen.  Stat.,  ch.  86.  Held,  the  policy 
was  void.  KeUi/  «.  Home  Ins.  Co.,  97  Mass., 
288. 

6.  Stipulated:  "  Tlie  following  risks  (among 
which  were  mills  and  manufactories),  being 
considered  more  hazardous  than  others,  and 
buildings  intended  to  be  occupied  by  persons 
carrying  on  any  of  the  trades  or  business  men- 
tioned, or  in  which  any  large  quantities  of 
certain  goods  mentioned  are  deposited,  will 
be  subjected  to  an  extra  premium  on  that  ac- 
count. No  policy  will  be  construed,  therefore, 
to  extend  to  such  a  risk,  unless  liberty  be 
given  for  the  purpose,  and  expressed  hereon." 
Held,  the  making  of  muslin  window  shades, 
in  the  fifth  story  of  the  building,  by  nine  or 
ten  persons  regularly  employed  in  that  bus- 
iness as  the  sole  means  of  their  liveliliood, 
constituted  a  manufactory  within  the  meaning 
of  the  conditiim,  and  was  a  bar  to  the  plaint- 
iffs action.  Steinmitz  v.  Franklin  Fire  Ins. 
Co.,  6  Phila.,  21. 

7.  "On  a  building  occupied  as  a  country 
store."  Stipulated:  "In  case  the  premises 
shall,  at  any  time  during  the  period  for  which 
this  policy  would  otherwise  continue  in  force, 
be  used  for  the  purpose  of  carrying  on  therein 
any  trade  or  vocation,  or  for  storing  and  keep- 
ing tlierein  any  articles,  goods,  or  merclianise 
denominated  hazardous,   extra  hazardous,  or 

728 


specially  hazardous,  in  the  second  cla.ss  of  the 
classes  of  hazards  annexed,  from  thenceforth,  so 
long  as  the  same  shall  be  so  used,  this  policy 
shall  be  void."  At  the  time  the  policy  was 
taken,  and  from  thence  to  the  time  the  fire  oc- 
curred, the  premises  were  used  in  part  as  a 
stable.  Among  the  extra  hazardous  risks, 
that  of  a  private  stable  was  enumerated.  Held, 
a  violation  of  the  contract,  and  this  was  not 
cured  by  the  fact  that  insurers'  agent,  who 
made  the  policy,  knew  at  the  time  that  the 
premises  were  used  for  the  purpose  prohibited. 
Hewees  v.  Manliattan  Ins.  Co.  35  N.  J.,  3t36. 

8.  On  building  occupied  for  a  dwelling 
house,  the  basement  being  of  stone  and  wood. 
The  charter  provided:  "No  policy  shall  ex- 
tend to  any  sugar  house,  bake  house,  distil- 
house,  joiner  shop,  or  other  house,  except  on 
such  terms  only  as  shall  be  specially  agreed 
on  by  the  directors,  unless  expressly  men- 
tioned in  the  policy"  The  defendant  pleaded 
that  after  the  policy  was  assigned,  the  prem- 
ises were  used  and  occupied  as  a  joiners  shop, 
and  that  the  risk  was  therebj'  increased.  The 
plaintitr  replied,  it  was  so  used  and  occupied 
without  the  knowledge  of  the  plaintitj".  Held, 
the  plea  was  a  good  bar,  and  the  replication  no 
answer  to  it.  Hoxsie  v.  Protidcnce  Mut.  Ins. 
Co.,  6  R.  I.,  517. 

9.  By  the  classification  of  hazards  annexed 
to  the  policy,  planingmills,  sawmills  and  car- 
penter shops  were  designated  "  hazardous ;  " 
and  by  the  terms  of  the  policy  the  use  of  the 
premises  for  any  hazardous  trades,  business 
or  vocations,  in  the  conditions  mentioned, 
were  prohibited,  unless  by  agreement  indorsed 
upon  the  policy.  The  policy  was  on  a  plan- 
iugmill  and  sawmill."  The  second  story  was 
used  as  a  carpenter  shop,  a  risk  in  the  same 
class  of  hazards  as  planing  and  sawmills. 
Held,  using  the  second  story  as  a  carpenters 
shop  was  a  breach  of  the  conditions.  (The 
court  refused  to  adopt  the  ruling  in  the  case 
of  Smith  e.  Mechanics  and  Traders  Ins.  Co., 
32  N.  Y.,  399.)  MaUliews  v.  Queen  City  Ins. 
Co.,  2  Cm.  Sup.  Ct.,  109. 

10.  Stipulated  that  articles  denominated 
hazardous,  mentioned  in  the  memorandum, 
should  not  be  kept  upon  the  premises.  In- 
sured used  the  building  as  a  grocery  house, 
and  kept  for  sale  some  of  the  prohibited  arti- 
cles. Held,  the  policy  was  void.  Datern  v. 
Merchants  Ins.  Co.,  7  La.  An.,  344. 

i;.  Policy  to    a    mortgagee.     Stipulated: 


1467 


USE  AND  OCCUPATION  (PROHIBITED). 


1-1.58 


What  does  not  vitiate. 


"  The  intiTt'st  of  thfe  mortgagee  shall  not  be 
invalklatcil  by  any  act  of  the  mortgagor;  but 
Iho  mortgagee  sliall  notify  insurers  of  any 
change  of  ownership  or  hazard  as  soon  as  the 
same  shall  come  to  his  knowledge,  and  shall, 
on  reasonable  demand,  jiay  an  additional 
charge  for  the  same."  The  premises  were 
insured  as  a  dwelling  house,  all  specially 
liazardous  trades  prohibited.  Among  those 
■were  workshops,  manufacturing  establish- 
ments, trades  and  mills.  The  owner  used  it 
as  a  workshop  in  the  business  of  currying,  of 
■which  insured  had  notice.  Held,  insured 
■warranted  that  the  building  should  not,  within 
his  knowledge,  be  used  as  a  place  of  business 
for  any  of  the  purposes  prohibited;  the  fultill- 
ment  of  the  warranty  was  a  condition  prece- 
dent, and  without  it  no  recovery  could  be  had. 
Oasner  v.  Metropolitan,  Ins.  Co.,  13  Minn.,  483. 

12.  The  policy  prohibited  any  alterations, 
additions  or  erections  of  liuildings  about  the 
premises,  unless  made  with  insurer's  consent. 
The  buildings  were  enlarged  and  turned  iato 
a  hotel  and  shop.  The  barns  were  moved  and 
turned  round.  Held,  the  policy  was  void. 
Kuntz  V.  Niagara  District  Mutual  Fire  Ins. 
Co.,  16  U.  C.  C.  Pj,  593. 

13.  Application  described  the  property  as 
dry  goods,  in  the  first  and  second  floors  of 
a  certain  building.  The  policy  stipulated: 
"Applications  shall  specify  the  construction  of 
the  building  containing  the  property  to  be  in- 
sured and  by  whom  occupied,  and  if  the  risk 
shall  be  increased  by  any  means  within  the 
control  of  insured,  or  if  the  building  shall  be 
occupied  so  as  to  increase  the  risk,  the  policy 
shall  be  void."  Hat  bleaching  was  included 
in  the  class  of  risks  called  "  e.\tra  hazardous." 
The  plaintiff  kept  a  stock  of  millinery,  and 
bleaching  bonnets  was  done  in  the  third  story. 
A  stove  was  introduced  in  the  cellar  for 
bleaching  purposes.  Held,  bleaching  bonnets 
was  "  hat  bleaching,"  and  extra  hazardous  by 
agreement  of  parties.  There  was  no  ques- 
tion for  the  jurj-  as  to  increase  of  risk;  there- 
fore, insurers  were  released.  Merrick  t.  Pro- 
vincial Ins.  Co.,  U  U.  C.  q.  B.,  439. 


II.  What  does  not  vitiate. 

1.  A  change  of  tenants  does  not  affect  the 
policy,  though  the  first  was  a  prudent  person 
and  the  second  grossly  careless.   Oatea  v.  Mad- 


ison County  Mut.  Ins.  Co.,  5  N.  Y.,  4G9;  $ 
Barb.,  73. 

2.  The  house  was  burned  wdiile  it  was  being 
repaired  and  painted.  Oil  and  turpentine 
were  in  it  for  making  paint.  Tlie  policy  stip- 
ulated it  should  be  void  if  the  building  should 
be  used  for  any  purpose  denominated  hazard, 
ous,  or  for  the  keeping  of  anything  hazardous. 
Oils  and  turpentine  were  declared  by  the  pol- 
icy e.\tra  hazardous.  Held,  having  them  in 
the  house  for  making  necessary  repairs  was 
no  violation  of  the  condition.  O'Niel  n.  Buf- 
falo Ins.  Co.,  3  N.  Y.,  123. 

iJ.  A  condition  that  the  premises  shall  not 
be  appropriated,  applied,  or  used  for  the  pur- 
pose  of  carrying  on  or  exercising  any  trade, 
business  or  vocation,  hazardous  or  extra  haz- 
ardous, is  not  violated  by  using  them  tempor- 
arily for  a  purpose  forbidden.  Gates  u.  Madi- 
son Count)/  Mut.  Ins.  Co.,  5  N.  Y.,  409;  3 
Barb.,  73. 

4.  A  change  of  use  does  not  avoid  policy  on 
building,  uuless  the  risk  is  increased.  Blood 
V.  Howard  Fire  Ins.  Co.,  12  Cush.,  472. 

o.  "  On  a  building  occupied  as  a  manufac- 
tory of  hat  bodies.  Carpenter's  shop  prohib- 
ited." Held,  the  employment  of  a  carpenter 
to  make  necessary  repairs  did  not  invalidate 
the  contract,  although  it  was  stipulated  that  it 
should  cease  so  long  as  the  premises  should 
be  used  for  hazardous  trades.  Loumbury  v. 
Protection  Ins.  Co.,  8  Conn.,  459. 

6.  On  sundry  buildings  described  as  barns, 
stated :  "  All  the  above  described  barns  are 
used  for  hay,  straw,  grain  unthreshed,  stabling 
and  shelter."  Held,  not  a  warranty  that  the 
barns  should  be  used  for  hay,  etc.,  only;  that 
the  language  was  inserted  to  designate  the 
buildings,  not  to  limit  their  use,  or  to  deprive 
insured  of  the  right  to  use  them  in  the  same 
manner  as  buildings  of  that  description  were 
generally  used,  and  that  a  single  employment 
not  in  the  ordinary,  common  and  appropriate 
use  of  the  buildings,  would  not  change  their 
character  nor  affect  the  policy,  unless  it  were 
fr.'vudulent  or  grossly  careless ;  and  not  even 
then,  uuless  that  employment  was  the  cause 
of  the  loss.  Billings  v.  Tolland  County  Mut. 
Ins.  Co.,  20  Conn.,  139.  -       . 

7.  The  conditions  were  part  of  the  contract,. 
and  they  provided  that  no  policy  would  be 
construed  to  extend  to  certain  risks  speci- 
fied, uuless  liberty  were  obtained  by  in- 
dorsement    upon   the    policy.       Amoug   the 

729 


1459 


VALID  AND  VOID  POLICIES. 


1460 


What  are  valid. 


risks  specified  were,  "  Mills  and  manufactories 
of  anj'  kind."  The  tenant  kept  hay,  straw, 
and  produce,  to  which  insuers  consented. 
This  he  discontinued  and  made  brooms  by 
hand  from  broom  corn.  Held,  this  did  not 
come  within  the  meaning  of  the  term  mills 
a-nd  manufactories.  Franklin  Fire  Ins.  Co.  v. 
Brock,  57  Penn.  St.,  74. 

8.  The  policy  prohibited  using  the  prem- 
ises for  purposes  hazardous,  extra  hazardous 
and  specially  hazardous;  and,  in  describing 
the  latter  class  of  hazards, "  Carpenters,  barns, 
stables,  breweries,  camphene,  etc,"  were 
named.  Held,  the  prohiljition  had  no  refer- 
<;uce  to  the  employment  of  carpenters  to  erect 
a  building  on  ground  adjacent  unless  the  car- 
penter  used  the  premises  insured  as  a  work- 
shop. Washington  Fire  Ins.  Co.  v.  Davison, 
SO  Md.,  91. 

9.  The  defendant  pleaded:  "It  was  agreed 
that  none  of  the  following  trades  should  be 
carried  on  viz:  —  grist,  saw, paper,  and  other 
mills,  manufacturing  or  mechanical  opera- 
tions, requiring  fire  heat,  or  in  which  wood, 
chips  or  shavings  are  made;  that  before  the 
•destruction  of  the  premises,  the  business  of 
kiln  drying  corn  meal  by  fii-ehoat  was  carried 
on  in  the  premises.  Replication:  —  Kiln 
drying  corn  meal  was  incident  to  a  steam 
flouring  mill,  and  that  the  premises  were  in- 
sured as  such.  Held,  a  good  answer  to  the 
plea.  But,  if  it  was  not  an  incident  to  a 
steam  flouring  mill  or  a  proper  appliance  in 
carrying  on  the  business,  the  mere  fact  that  it 
was  in  existence  and  in  operation  in  some 
X'art  of  the  mill  at  the  time  the  policy  was 
made,  conferred  no  right  to  continue  its  use 
after  the  policy  was  made.  Merchants  and 
Manvfiicturers  Ins.  Co.  v.  Washington  Ifttt. 
Ins.  Co.,  1  Handy,  181;  affirmed,  id.,  408. 

10.  Plea  that  there  was  a  change  of  occu- 
pancy, and  that  the  by-laws  required  the 
insurer's  approval  of  it;  that  plaintiff  though 
the  occupier  at  the  time  of  ett'ecting  the  in- 
surance was  not  the  occupier  at  the  time  of 
Are,  but  that  A.  B.  was;  that  notice  of  that 
^change  was  not  given  to  insurer,  contrary  to 
tlie  by-laws.  Held,  upon  demurrer,  a  change 
of  occupancy  was  not  tlie  kind  of  change  to 
Avliich  the  by-laws  applied.  Held,  also,  a  plea 
setting  up  a  lease  for  a  term,  though  in  one 
sense  an  alienation,  was  not  such  as  the  policy 
-contemplated.  Hobson  v.  Wellington  Fire  Ins. 
■Co.,  6  U.  C.  Q.  B.,  356. 

730 


III.  Questions  foe  the  joey. 

On  stock  of  Gout  and  grain  contained  in 
their  stone  and  brick  flouring  mill.  All 
trades  or  vocations,  designated  hazardous 
in  the  conditions  annexed  were  prohiljited. 
Mills,  manufactories,  and  all  mechanical 
operations  requiring  fire  heat,  were  declared 
hazardous  in  the  conditions  annexed.  The 
premises  were  used  for  the  purpose  of  kiln 
drying  corn  meal  by  fire  heat.  Held,  whether 
the  use  of  the  kiln  in  the  mill,  for  the  pur- 
pose of  drying  corn  meal,  was  an  appropriate 
and  proper  part  of,  or  incident  to,  a  flouring 
mill,  was  a  question  for  the  jur3-,  and  not  for 
the  court;  that  if  the  business  of  manufac- 
turing corn  meal,  and  kiln  drying  corn  for 
that  purpose,  did  not  constitute  a  part  of  the 
appropriate  or  known  business  of  a  steam 
flouring  mill,  the  use  of  the  kiln  was  a  viola- 
tion of  the  terms  of  the  contract.  Was?tington 
Mut.  Ins.  Co.  V.  Merchants  and  Manufacturers 
Ins.  Co.,  5  Ohio  St.,  450. 


VALID  AND  VOID 'POLICIES. 

I.  What  ake  valid. 

II.  VOID. 

I.   "What  aee  valid. 

1 .  If  the  policy  provides  that  it  is,  "  to  be 
proof  of  interest,"  that  is  not  evidence  that  it 
is  a  wagering  policy,  nor  does  the  failure  to 
aver  an  interest,  coupled  with  the  words  of  the 
policy,  amount  to  evidence  that  it  is  a  wager, 
ihg  policy.  Clendenning  v.  Church,  3  Caines, 
141. 

2.  In  wager  policies  the  loss  should  be  ab- 
solutely and  finally  total.  Buchanan  v.  Ocean 
Ins.  Co.,  6  Cow.,  318. 

3.  A  wager  policy  is  a  valid  contract  at 
common  law.  St.  Johri,  v.  Ameriuin  Mutual 
Life  Ins.  Co.,  13  N.  T.,  31 ;  s.  c,  2  Duer,  419. 

4.  "  On  the  commission,  privilege,  etc.,  of 
the  master."  Held,  lawful.  Sing  -c.  Glover, 
5  B.  &  P.,  206. 

5.  Policy  dated  October  26,  1852,  £499  19s., 
payable  to  his  widow ;  and  if  there  should  be 
none,  then  to  his  executors.  Held,  it  was  valid 
notwithstanding  13  and  14  Vict.,  ch.  115,  sec. 


14G1 


VALID  AND  VOID  POLICIES. 


1462 


What  ai'O  void. 


2.  Clayton  v.  Owen,  31  Ecav.,  285;  8  Jur.  (N. 
S.),  1117;  31  L.  J.  Cli.,  835;  10  VL  R,  770;  6 
L.  T.  (N.  SO,  802. 

6.  The  policy  insured  the  return  of  a  cer- 
tain whale  ship,  with  a  certain  quantity  of 
blubber.  Held,  valid,  aud  not  within  19  Geo. 
II,  eh.  37.  Addison  v.  Duguid,  Faculty  Dec. 
17S2  to  1790,  p.  83;  s.  c.  decided  tlic  other  way, 
Faculty  Dec.  1790  to  1801,  p.  04. 

7.  A.  pledged  his  ship  to  secure  a  loan  of 
£2,700,  and  insured  her  in  tlie  name  of  the 
lender.  The  policy  recited  that  "  J.  S.,  as 
5igent,  as  well  in  his  own  name  as  in  the  name 
of  every  other  person  to  whom  the  same  doth, 
may  or  shall  appertain,  in  part  or  in  all,  doth 
make  insurance  and  cause  to  be  insured,  etc." 
H-:ld,  the  policy  was  valid,  notwithstanding 
28  Geo.  Ill,  oh.  50,  for  inserting  the  name  of 
J.  S.  was  a  sufficient  compliance  with  Uie 
statute;  the  words  "as  agent,"  being  disre- 
garded. Symers  v.  Glasgow  Ins.  Co.,  19  Scot. 
Jur.,  49. 

II.  "What  ake  void. 

1 .  Within  the  meaning  of  the  law  of  Massa- 
chusetts, there  cannot  be  a  gaming  policy,  un- 
less both  parties  intend  it  as  such;  it  one  in- 
tends to  game,  and  the  other  does  not,  they 
do  not  come  nd  idem;  that  if  one  intends  to 
write  a  policy  upon  interest,  and  the  other  is 
misled  to  write  one  not  upon  interest,  it  is  a 
fraud,  and  the  policy  is  void.  Alsop  v.  Com- 
mercial Ins.  Co.,  1  Sumu  ,  451. 

2.  An  enrolled  citizen  of  the  United  States, 
liable  to  be  drafted  into  the  military  service, 
contracted  with  A.  to  procure  for  him  a  sub- 
stitute, or  otherwise  to  clear  him  from  the 
(.Iraft,  and  save  him  harmless  from  cost  and 
u.xpense  in  consequence  thereof,  and,  in  con- 
sideration thereof,  delivered  his  promissory 
note  to  A.  Held,  the  contract  is  void  as  against 
public  policy;  there  was  no  consideration  for 
the  promissory  note.  O'Hara  v.  Carpenter,  23 
.Mich.,  410. 

3.  Action  to  recover  premiums  on  policies 
]ireviously  issued.  The  insurer  was  a  copart- 
ner with  M.,  and  it  was  agreed  between  them 
that  the  profits  of  underwriting  should  be 
divided.  Ileld,  the  policies  were  void  under 
6  Geo.  I,  ch.  18,  sec.  12;  hence,  the  premiums 
could  not  be  recovered.  Branton  v.  Taddy, 
J  Taunt,  6. 

4.  A  policy  was  efifected  by  Helen  for  two 


years  upon  her  own  life.  Iler  executor  brought 
suit  upon  it.  Held,  it  was  proper  for  the  jury 
to  determine  whether  the  policy  was  made  in 
the  name  of  the  deceased  for  the  purpose  mere- 
ly of  conferring  its  beuelits  upon  a  person  who 
had  no  interest  in  her  life;  that  if  the  jury 
were  satisfied  that  such  was  the  purpose  df 
the  deceased,  it  was  a  fraudulent  evasion  of 
the  statute  14  Geo.  Ill,  ch.  48,  which  rendered 
the  policy  void.  Wainewright  v.  Bland,  1  M. 
&  Bob.,  481;  s.  c,  0  Tyrw.,  417:  1  Mee.  &  W., 
32;  s.  c,  5  L.  J.  (N.  S.)  Ex.,  147. 

5.  An  agreement  to  pay  £100,  in  case  Bra- 
zilian shares  shall  be  sold  at  a  certain  sum  on 
a  certain  day,  is  a  contract  of  insurance,  aud 
void  under  14  Geo.  Ill,  ch.  48,  for  there  is  no 
insurable  interest.  Pateraon  v.  Powell,  9  Bing., 
320 ;  2  M.  &  Scott,  399. 

6.  Policy  upon  the  life  of  Charlotte.  Neither 
her  name  nor  the  name  of  any  other  person 
was  inserted  in  it,  as  a  person  for  whose  use 
or  benefit  it  was  made.  Held,  if  the  person 
whose  life  was  insured  was  the  person  inter- 
ested, tlie  policy  was  void,  because  the  statute 
14  Geo.  Ill,  ch.  48,  sec.  2,  had  lioi  been  com- 
plied with.  Hodson  v.  Obsemer  Life  Ass.  Soc, 
8  El.  &  Bl.,  40;  s.  c,  3  Jur.  (N.  S.),  1125;  20 
L.  J.  Q.  B.,  303. 

7.  "  On  profit  on  cotton  valued  at  £350,  war- 
ranted free  of  average  without  benefit  of  sal- 
vage." Held,  void  under  19  Geo.  II,  ch.  37, 
sec.  1.  Smith  v.  Reynolds,  1  H.  &  N.,  221 ;  25 
L.  J.  Ex.,  337 ;  De  Mattos  v.  North,  3  L.  R.  Ex., 
185;  37  L.  J.  Ex.,  110;  18  L.  T.  (N.  S.),  797. 

S.  The  policj'  recited:  "Mary,  wife  of 
William,  hath  agreed  to  effect  an  insurance 
upon  her  own  life  with  the  Norwich,  etc.,  for 
the  sum  of  £200,  etc."  It  was  intended  for 
the  use  and  benefit  of  the  plaintiB",  and  not  for 
the  use  and  benefit,  or  for  account  of  Mary. 
Held,  the  name  of  the  person  for  whose  benefit 
the  policy  was  intended  must  be  inserted  in  it, 
and  as  this  was  not  done,  it  was  void  under 
14  Geo.  Ill,  ch.  48,  sec.  2.  Scans  v.  Birjnold, 
4  L.  R.  Q.  B.,  022 ;  20  L.  T.  (N.  S.),  059. 

9.  "  Upon  profits  on  a  cargo  of  timber,  from 
Quebec  to  Newiy,  valued  at  £800,  warranted 
free  from  average,  being  against  total  loss  only, 
and  without  benefit  of  salvage."  Held,  void 
under  19  Geo.  II,  ch.  37,  sec.  1,  though  the  in- 
sured was  interested  to  the  full  amount  in- 
sured. Mortimer  v.  Broadwood,  17  W.  R.,  653; 
20  L.  T.  (N.  S.),  398. 

10.  The  policies  did  not  specify  the  names 

731 


1463 


VALUED  POLICY. 


1404 


What  is. 


of  the  underwriters.  Held,  they  were  void 
under  30  Vict.,  ch.  23,  sec.  7.  In  re  Arthur 
Average  Association,  Ex  parte  Uargrace,  10  L. 
R.  Ch.,  543. 

11.  Policy  recited  it  was  on  the  joint  lives 
of  M.  and  wife.  A  declaration  of  trust  was 
put  in  evidence,  by  which  the  trustees  declared 
that  in  case  of  the  denth  of  either  M.  or  his 
wife,  they  would  hold  the  money  insured  for 
the  benefit  of  the  survivor,  and  for  the  chil- 
<1ren  of  the  insured.  Held,  the  policj'  was 
void  under  14  Geo.  Ill,  ch.  48,  for  the  name 
of  the  person  interested,  or  on  whose  account 
it  was  made,  was  not  inserted  in  it,  nor  could 
the  declaration  of  trust  be  incorporated  in  the 
policy  to  aid  the  omission.  Dotcker  V.Canada 
Life  Ins.  Co.,  24  U.  C.  Q.  B.,  591. 

12.  Under  the  statute,  25  Geo.  Ill,  ch.  44, 
the  name  of  the  person  interested  in  the  prop- 
erty insured  must  be  inserted  in  the  policy. 
Cox  V.  Parry,  1  Term,  464;  Camden  v.  Edie, 
1  H.  BL,  21. 


VALUED  POLICY. 

.1.  'Wn.'iT  IS. 

II.  NOT. 

III.  When  valuation  is  conclusive. 

IV.  SHALI,  BE  OPENED. 

V.  Construction. 

II.  "What  is. 

1 .  On  380  kegs  manufactured  tobacco,  worth 
|9,600.  Held,  a  valued  policy,  and  insured 
was  entitled  to  recover  the  sum  named.  Har- 
ris V.  Eagle  Fire  Ins.  Co.,  5  Johns.,  368. 

2.  An  insurance  on  life  admits  of  no  dis- 
tinction between  partial  and  total  losses. 
When  a  loss  happens  it  binds  the  insurer  to 
pay  the  sum  insured,  accoriling  to  the  terms 
of  the  agreement ;  the  interest  of  the  insured 
in  every  life  policy  is  valued  at  the  sum  in- 
sured. St.  John  V.  Ainerican  Mutual  Life  Ins. 
Co.,  13  N.  Y.,  31 ;  2  Duer,  419. 

3.  On  the  life  of  another.  The  insured  ad- 
vanced the  life  insured  a  sum  of  monej' exceed- 
ing the  sum  insured.  It  was  agreed  between 
them  that  the  net  profits  arising  from  an  ad- 
venture, to  be  prosecuted  by  latter,  should  be 
equally  divided.     Held,  the  insured  had  an  in- 


surable inlcrest  in  th£  life  insured;  that  the 
policy,  upon  the  facts  stated,  was  a  lawful  con- 
tract; and  was  an  insurance  in  the  nature  of 
profits,  and  as  such  was  to  be  considered  a 
valued  policy;  that  all  policies  upon  lives 
should  be  treated  as  valued  policies  when  the 
insured  proves  that  the  insurance  was  made 
in  good  faith,  for  his  security  or  indemnity. 
Miller  c.  Engle  Life  and  Health  Co.,  2  E.  D. 
Smith,  268. 

4.  A  dwelling  house  was  valued  at  $1,700 
and  the  barn  and  shed  at  $3.50.  There  was  ;i 
mortgage  on  them  for  $1,650,  and  the  plaintiff 
purchased  the  right  to  redeem,  slating  tho 
facts  to  the  insurer,  who  issued  a  policv  for 
$1,500;  $1,2,50  on  the  house,  and  $2.50  on  the 
barn.  The  policy  staled;  "This  is  not  more 
than  three-fourths  of  the  value."  The  build- 
ings were  worth  $2,000,  and  were  damaged 
$1,8.50.  Held,  the  insured  could  recover  the 
sum  insured.  Borden  t:  Hingham  Mutual  Fire 
Ins.  Co.,  18  Pick.,  523. 

5.  The  policy  recited:  "The  amount  in- 
sured  is  not  more  than  three-fourths  of  the 
value  of  the  projierty,  as  ajipears  bj'  the  pro- 
posal of  the  insured.  The  application  named 
a  sum  as  the  value  of  the  property  insured. 
Held,  a  valued  policy.  Jfichols  v.  Fayette  Mu- 
tual Fire  Ins.  Co.,  1  Allen,  63. 

6.  Insured  .§400;  value  stated  by  the  appli- 
cant, $800.  Stipulated:  "  The  amount  insured 
being  not  more  than  three-fourths  of  the  value 
of  the  property,  as  stated  by  the  applicant, 
and  in  case  of  any  other  contract  of  insurance 
upon  the  property  hereby  insured,  whether 
such  be  valid  or  not  as  against  the  parties 
thereto,  this  compan}'  shall  not  be  held  to  pay 
anj'  greater  portion  of  the  loss  than  the  amount 
herebj'  insured  shall  bear  to  the  whole  amount 
insured  on  said  property,  as  herein  stated, 
such  amount  in  all  not  to  exceed  three-fourths 
of  the  actual  value  at  the  time  of  the  loss. 
There  was  not  any  other  insurance.  Held,  a 
valued  policy  (citing  Borden  v.  Hingham  Ins. 
Co.,  18  Pick.,  523;  Fuller  c.  Boston  Ins.  Co.^ 
4  Met.,  206;  Phillips  o  Merrimack  Ins.  Co.,  10 
Cush.,  350;  Phoenix  Ins;  Co.  v.  McLcon,  100 
Mass.,  475.)  The  covenant  in  the  application, 
that  the  estimate  value  should  not  be  conclu- 
sive, was  not  embodied  or  stated  in  the  policy, 
therefore  it  was  no  part  of  the  contract  (citing 
Stat.  1864,  ch.  196;  Eastern  H.  R.  Co.  v.  Relief 
Ins.  Co.,  98  Mass.,  420).  Luce  v.  Dorchester 
Mut.  Ins.  Co.,  105  .Mass.,  297. 


1465 


VALUED  POLICY. 


140(5 


What  is  not. 


7.  A  policy  to  the  araoiiut  of  $3,000.  "  Say 
oil  tlic  building  and  fi.xed  maciruuTy,  $1,700; 
on  mo  'able  niachinory  tliorcin,  $ir)0 ;  on  slock, 
raw  aad  wrought,  $150,"  made  to  a  lessee  lor 
one  year  from  November  1,  1850.  Stipulated: 
"  Said  lessee  having  paid  the  rent  therefor, 
$3,171.01,  which  interest,  diniinishing  day  by 
day,  in  proportion  for  the  whole  rent  for  a  year, 
is  horely  insured."  The  policy  contained  the 
following  printed  words:  "The  said  loss  or 
ilaraage  to  be  estimated  according  to  the  true 
and  actual  cash  value  of  the  said  property  at 
the  time  such  loss  or  damage  shall  happen." 
Held,  the  policy  was  a  valued  policy,  except 
as  to  the  raw  and  wrought  stock ;  that  the  man- 
uscript stipulation  was  the  agreed  basis  upon 
which  to  ascertain  the  value  of  lessee's  inter- 
est. Oushniaii  o.  Northwestern  Inf.  Co.,  34  Me., 
4S7. 

8.  Stipulated :  "  To  be  on  such  risks  as  may 
be  approved,  and  indorsed  on  this  policy  bj' 
the  company.  No  risk  binding  until  so  in- 
dorsed." Two  indorsements  were  made,  each 
for  a  sum  specified,  one  of  them  on  merchan- 
dise, $3,800,  which  was  lost,  but  the  invoice 
price,  inclusive  of  charges,  amounted  to 
$3,160.40.  Ueld,  although  the  indorsemwit 
■was  made  on  an  open  policy,  the  indorsement 
itself  contained  all  the  ingredients  of  a  valued 
policy,  hence  insured  was  entitled  to  recov- 
er the  sum  of  $2,800.  Howes  v.  Union  Ins. 
Co.,  16  La.  An.,  235. 

9.  On  goods  valued  at  £1,400.  Held,  a  val- 
ued policy,  although  no  particulars  of  the 
goods  were  stated.  Franco  v.  Natuscli,  6  Tyrw., 
401. 

II.    Wu.VT  IS  NOT. 

1.  On  goods  from  Marseilles:  "The  said 
goods  are  valued  at  eighteen  francs;  valued 
at  four  dollars  and  forty -four  cents."  The  first 
si-x  words  of  the  quotation  were  printed;  the 
others  were  written.  Held,  the  expression 
'■valued  at  eighteen  francs,  valued  at  four 
dollars  and  forty-four  cents,"  was  an  agree- 
ment that  what  the  insured  paiil  eighteen 
francs  for  in  France,  should  be  estimated  at 
four  dollars  and  forty-four  cents;  and  that  the 
])olicy  was  therefore  not  a  valued  policy. 
Ogden  v.  Columbian  Ins.  Co.,  10  Johns.,  373. 

2.  Insurance  $800,  valued  in  the  applica- 
tion $1,200.  Stipulated:  "In  no  event  liable 
licyoud  the  sum  insured,  nor  beyond  three- 


fourths  of  the  actual  cash  value  of  the  prop- 
erty insured,  at  the  time  of  loss  or  damage, 
nor  beyond  such  sum  as  will  enable  the  in- 
sured to  replace  or  restore  the  property  dam- 
aged." Held,  not  a  valued  policy;  that  th<j 
insurers  were  liable  for  three-fourths  of  the 
actual  value.  Brawn  v.  Quincy  Ins.  Co.,  105 
Mass.,  396. 

3.  The  real  estate  was  valued  in  the  appli- 
cation at  $11,180,  which  was  made  part  of  the 
policy;  and  it  stipulated:  "It  is  also  agreed 
that  the  aggregate  amount  insured  in  this  and 
other  companies  on  the  above  mentioned  prop- 
erty, shall  not  exceed  two-thirds  of  the  esti- 
mated cash  value."  Held,  not  a  valued  policy 
Lycoming  Ins.  Co.  v.  Mitchell,  48  Pcnn.  St.,  367. 

4.  On  vessel  and  freight  (vessel  valued  at 
$8,000);  but  the  blank  for  valuing  the  freight 
was  not  filled.  The  policy  was  for  $10,000 — 
$8,000  on  vessel,  $3,000  on  freight.  Held,  it 
was  an  open  policy  as  to  the  freight.  Riley 
V.  nartford  Ins.  Co.,  3  Conn.,  368. 

5.  The  application  stated,  a  valuation  of  tha 
premises  insured.  The  policy  was  made  sub- 
ject to  it  and  the  by-laws,  which  provided : 
"  The  companj'  will  in  no  case  pa}-  more  than 
two-thirds  on  personal  property,  and  tliree- 
fourths  on  the  real  estate  of  the  actual  cash 
value  of  the  property  at  risk  at  the  time  of 
the  loss.  Partial  losses  will  be  paid  in  full, 
anything  in  the  bylaws  to  the  contrary  not- 
withstanding." Ueld,  error  to  (ell  the  jury 
that  the  sum  valued  in  the  application  was 
the  true  value,  unless  impeached  by  the  de- 
fendants, for  the  loss  was  to  be  determined  by 
the  value  of  the  property  at  the  time  of  the 
fire,  independently  of  what  its  value  was  at 
the  date  of  the  insurance.  Huckins  v.  People' i 
Mutunl  Fire  Ins.  Co.,  31  N.  H.,  238. 

6.  Stipulated :  "  In  a  valued  policy  an  over 
valuation  shall  render  it  absolutely  void." 
the  insured  was  asked  to  state  the  value  of  the 
premises  and  answered,  $1,500.  This  state- 
ment was  a  part  of  the  polic}'.  The  policy 
provided  that  insurer  should  be  liable  for  the 
actual  cash  value.  iJc^rf,  not  a  valued  policy; 
and  therefore  if  the  valuation  was  excessive, 
the  condition  did  not  apply.  Cox  v.  u^tna 
Ins.  Co.,  2!)  Ind.,  586. 

7.  $8,500  on  one  brick  house  and  two  wood- 
en houses.  /7<;W,  not  a  valued  policy.  Wallaet 
V.  Ins.  Co.,  4  La.  (O.  S.),  289. 

8.  Plaintiffs  exhibited  to  insurers  a  valued 
policy  on  five  buildings,  insuring  them  for 

733 


1467 


VALUED  POLICY. 


14G8 


When  valuation  is  conclusive. 


$15,000,  aud  valuing  them  at  |30.000.  This 
pi)licy  was  then  writteQ —  "  $15,000  on  t.ve 
buildings,  the  sum  of  $3,000  on  each."  Iltld, 
the  last  policy  was  open.  Millaudon  v.  West- 
ern Sfarine  and  Fire  Ins.  Co.,  9  La.  (O.  S )  27. 
i).  The  sum  insured  is  not  the  value  of  the 
subject  insured,  unless  the  policy  so  states. 
If  there  is  no  agreement  as  to  value,  the  pol- 
icy is  an  open  one.  Gox  v.  Charleston  Ins.  Co., 
8Ricli.,33L 

10.  "On  sugar  and  cotton  as  might  le 
tliereafter  declared  and  valued."  Held,  a  dec- 
laration necessarily  imports  two  parties,  the 
person  who  makes  it  and  the  person  to  whom 
it  is  made.  Harmon  v.  Kingston,  3  Camp., 
150.  But  if  no  declaration  is  made,  the  policy 
remains  open  and  the  interest  of  the  insured  is 
matter  of  evidence;  if  the  interest  and  value 
were  declarated  before  the  loss,  the  policy 
becomes  valued.     Ibid. 

11.  "On  freight  warranted  free  of  capture, 
seizure,  etc."  Opposite  these  words  in  the  mar- 
gin was  written  the  following,  "£1,300." 
Held,  not  a  valued  policy.  Wilson  r.  Nelson, 
5B.«&  S.,  354;  10  Jur.  (N.  8.),  1044;  38  L.  J. 
Q.  B.,  220;  13  W.  R.,  795;  10  L.  T.  (N.  S.),  523. 

12.  The  application  stated:  "Tannery  and 
fi.xtures,  $1,000;  estimated  value,  exclusive  of 
the  land,  $3,300.  The  real  property  above 
specified  is  herein  estimated  at  two-thirds  its 
value.  In  case  of  loss  by  fire,  the  company 
shall  only  be  obliged  to  pay  as  if  they  had  In- 
sured two-tliirds  of  the  actual  value  of  such 
property,  anything  contained  in  this  applica- 
tion or  policy  to  the  contrary,  notwithstand- 
ing." The  application  was  made  part  of  the 
policy,  and  it  stipulated :  "  Said  loss  or  dam- 
a£;e  shall  be  estimated  according  to  the  true 
and  actual  cash  value  of  the  property  at  the 
time  the  same  shall  happen."  Held,  the  two 
papers  were  to  be  read  as  one  contract ;  insured 
was  not  entitled  to  recover  the  actual  cash 
value  of  the  tannery,  $1,000,  but  he  was  en- 
titled to  two-thirds  of  that  sum,  $700.  Wil- 
liamson V.  Core  District  Mutual  Ins.  Co.,  26  U. 
C.  Q.  B.,  145. 

III.  "When  valuation  is  conclusive. 

1.  Nine  policies  were  effected  in  Philadel- 
phia on  cargo.  In  seven  of  them  no  valuation 
was  fl.xed;  the  eighth  was  valued  at  forty  cents 
per  ruble;  the  ninth  (the  policy  in  suit)  was 
valued  at  forty -six  cents  per  ruble.  The  whole 
734 


value  of  tlie  cargo  proved  95,565  rubles.  Held, 
the  value  per  rublt'  mentioned  in  this  policy, 
upon  the  whole  value  of  the  cargo,  was  the 
correct  rule  by  which  the  insured  was  entitled 
to  indemnity.  Pleasants  v.  Maryland  Ins.  Go., 
8  Cranch,  5). 

2.  If  the  freight  is  insured  in  a  valued  pol- 
icy, the  right  to  indemnity  attaclies  if  any 
part  of  the  cargo  is  taken  on  board.  Hart  v. 
Delaware  Ins.  Co.,  2  Wash.  C.  C,  346. 

3.  $5,000  on  freight  valued,  from  New  York 
to  Canton,  and  back  to  the  United  States. 
The  insured  were  owners  of  most  of  the  cargo, 
some  of  which  was  jettisoned,  tlie  freight  of 
which  amounted  to  .f4,949.45,  and  was  a  subject 
of  general  average.  Held,  an  adjustment  of 
general  average  does  not  affect  the  right  of 
the  insured  to  indemnity  under  the  stipula- 
tions of  the  policy ;  the  valuation  in  the  policy 
furnished  the  rule  by  which  the  insured  were 
entitled  to  indemnity;  to  adopt  any  other 
measure  would  be  reframing  the  contract ;  and, 
therefore,  in  determining  the  claim  of  insured, 
tlie  amount  by  him  contributed  in  general 
average  was  immaterial.  Crrisvjold  v.  Union 
Mutual  Ins.  Co.,  3  Blatch.,  231.     ^ 

4.  The  property  insured  was  valued  iu  the 
policy,  hut  the  claim  was  for  an  average  loss. 
Held,  it  was  unnecessary  to  produce  the  in- 
voice or  show  the  prime  cost.  Bentaloe  v. 
Pratt,  Wall.  C.  C,  58. 

5.  Valued  policy  on  freight.  Held,  if  there 
was  an  inchoate  right  to  some,  and  the  valua- 
tion is  bona  fide,  it  cannot  be  opened.  Davy  v. 
IlaUett,  3  Caines,  16. 

6.  Printed  blank  policy  on  cargo  was  writ- 
ten: "On  profits;"  but  the  printed  words, 
"  on  all  goods  and  merchandises  laden  or  to  be 
laden,"  were  not  erased,  aud  following  them 
tlie  blank  was  filled  up  "valued  at  $3,500." 
Held,  parol  evidence  could  not  be  received  to 
show  that  profits  were  valued  at  $2,500;  that 
it  was  an  insurance  on  profits,  and  the  goods 
from  which  the  profits  were  expected  were 
valued  at  $3,500.  Mumford  v.  Ilallett,  1  Johns., 
434. 

7.  The  insurer  contracts  in  a  valued  policy 
to  pay  the  sum  valued  if  the  subject  is  lost, 
and  the  valuation  is  conclusive  unless  there 
be  fraud  or  imposition  in  fixing  tlie  value. 
Whitney  v.  American  Ins.  Co.,  3  Cow.,  210. 

8.  Action  on  a  valued  policy.  Held,  it  was 
only  necessary  for  insured  to  prove  a  substantial 
interest  in  a  subject  corresponding  to,  and  sat;- 


1469 


VALUED  POLICY. 


1470 


When  valuation  is  conclusive. 


isfying  the  description  mentioned  in  the  pol- 
icy  (citing  3  Phil,  on  Ins.,  743) ;  that  it  was  not 
necessary  I'ur  insured  to  prove  that  the  wliole 
property  was  shipped,  or  that  he  was  the  own- 
er of  the  whole.  Atlantic  fns.  Co.  v.  Lunar.  1 
Sandf.  Ch.,  91.  But  the  insurers  may  show 
that  either  by  mistake  or  design,  the  whole  of 
the  property  insured  was  not  put  on  bo.ard,  or 
if  it  was,  that  the  claimant  had  an  interest  in 
only  a  part  of  it.     Ibid. 

9.  On  cargo,  laden  or  to  be  laden,  out  and 
back  to  a  port  of  discharge  in  the  United 
States,  being  upon  li'!  whole  and  48  half 
pipes  of  wine,  out  and  return  home,  valued  at 
$14,000.  The  \Viae  was  delivered  but  not  sold, 
and  the  consignee  advanced  $7,000,  and  prom- 
ised to  answer  drafts  to  the  e.xtent  of  |3,000 
more,  the  wine  to  be  sold  and  the  proceeds  re- 
mitted. But  it.did  not  bring  enough  to  reim- 
burse the  consignee  by  $4,680.26,  for  which  he 
drew  on  the  insured.  The  supercargo  drew'for 
11,621  instead  of  .$3,000,  which,  with  the  |7,000, 
he  invested  in  cargo  for  the  return  voyage. 
Held,  the  return  cargo  was  by  the  policy  val- 
ued at  $14,000,  and  the  insured  was  entitled 
to  recover  the  whole  amount  with  interest. 
Whitney  v.  American  Ins.  Co.,  3  Cow.,  210;  and 
affirmed  Court  of  Errors,  5  id.,  712. 

10.  Valued  policy.  Held,  conclusive,  un- 
less fraudulent  representations  were  made  to 
procure  it,  and  a  gross  overvaluation  is  pre- 
sumptive evidence  of  fraud.  Sturm  v.  Atlantic 
Mut.  Ins.  Co.,  6  J.  &  Sp.  (K.  Y.),  281.  But  the 
burden  was  upon  insurer  to  establish  the 
fraud.  The  production  of  the  policy,  without 
any  other  evidence,  is  sufficient  to  make  out 
the  plaintifTs  case.    Ibid. 

11."  On  cargo  or  freight  or  both  or  either, 
to  the  amount  insured,  valued  at  the  sum 
insured."  Held,  an  insurance  of  freight  or 
cargo  in  the  event  insured  have  but  one  of 
those  descriptions  of  property  at  risk ;  and  if 
he  have  both,  it  includes  both  in  proportion 
as  his  interests  are  in  the  respective  subjects. 
Paris  V.  Newburyport  Marine  Ins.  Co.,  3  Mass., 
476. 

12.  The  valuation  mentioned  in  the  policy 
is  the  measure  of  the  insurer's  liability,  and 
a  valuation  fixed  by  the  prize  court  does 
not  att'ect  it.  Lovering  v.  Mercantile  Ins.  Co., 
13  Pick.,  348. 

13.  A  valuation  fairly  made  by  tlie  parties, 
■with  a  full  knowledge  of  the  material  facts,  is 
binding  upon   the  insurer;   but  if  it  was  a 


mere  cover  for  a  wager,  it  should  be  set  aside 
and  the  insured  should  recover  according  to 
his  actual  interest.  Clark  v.  Ocean  Ins.  Co.,  IS 
Pick.,  389. 

14.  Valuation  of  the  premises  insured,  de- 
liberately made  by  mutual  agreement  between 
the  parties  to  the  contract,  in  the  absence  of 
fraud,  is  the  best  evidence  of  their  value. 
Fuller  V.  Bonton  Mut.  Ins.  Co.,  4  Met.,  306. 

15.  The  application,  made  part  of  tlie  con- 
tract, valued  the  buildings  at  $4,000,  and  the 
policy  insured,  $3,500,  being  not  more  thau 
three-fourths  of  the  actual  valuation.  Held, 
evidence  to  show  that  the  buildings  were 
worth  more  than  $4,000  could  not  be  re- 
ceived. Holmes  v.  Charleston  Mutual  Fire 
Ins.  Co.,  10  Met.,  211. 

16.  The  valuation  in  the  policy  mentioned, 
although  it  exceeds  the  value  of  the  goods  at 
the  ijort  of  destination,  is  the  amount  for 
which  the  insurer  must  answer.  Forbes  v. 
Manvfacturers  Ins.  Co.,  1  Gray,  371. 

17.  "Valued  policy  on  outfits,  with  liberty 
to  touch  at  all  ports  and  places  for  refresh- 
ments, and  to  sell  her  catchings,  or  ship  them 
home  at  the  risk  of  insured.  One-fourth  of 
the  catchings  shall  replace  the  outfits  con- 
sumed, but  catchings  shipped  home  from  the 
Cape  de  Verd  islands,  or  this  side  thereof, 
shall  be  at  risk  of  insured."  She  was  at 
Honolula  with  $46,000  whale  oil,  and  $11,000 
whale  bone.  The  whale  bone  was  transhipped 
to  another  vessel,  carried  to  New  York,  and 
subsequently  the  ship  with  all  the  whale 
oil  was  lost.  Insurers  paid  a  total  loss,  and 
brought  this  action  to  recover  for  a  pro- 
portion of  the  whale  bone.  Held,  the  calch- 
ings  shipped  home  and  sold  being  severed 
from  the  voyage,  were  at  the  sole  risk  of  the 
owners,  and  insurers  ceased  to  have  any  inter- 
est in  them;  the  object  of  the  last  clause  was 
to  provide,  that  exercising  the  liberty  to  soil 
or  tranship  the  catchings  should  not  aflcct 
the  value  so  long  as  (me-fourth  of  the  entire 
catchings  in  all  stages  of  the  voyage  remained 
on  board,  for  then  the  whole  interest  was  kept 
full;  nor  could  the  catchings  which  were 
transhipped  be  regarded  as  salvage,  for  "sal- 
vage is  that  part  or  remnant  of  the  subject  in- 
sured which  survives  a  total  loss."  Mutual 
Marine  Ins.  Co.  v.  Munro,  7  Gray,  246. 

1  8.  On  freight,  valued  at  $2.j.000.  Bostou 
to  San  Francisco,  and  thence  to  a  port  or  ports 
in  the  East  Indies,  and  to  a  port  of  discharge 

735 


Ull 


VALUED  POLICY. 


1472 


When  valuation  is  conclusive. 


in  the  United  States,  with  liberty  to  return 
with  a  cargo  of  guano  from  the  Chincha 
Islands.  She  delivered  her  cargo  at  San 
Francisco,  auu  made  freight  $23,338  20.  On 
licr  home  vo3-age  from  Chincha  Islands  she 
put  into  Callao,  wliich  she  was  obliged  to 
do  to  obtain  her  clearance.  She  was  then 
in  a.veiy  leaky  condition,  and  the  cargo  was 
transhipped  for  the  port  of  delivery  at  a  freight 
of  $18  000,  equal  to  that  insured  would  have 
received  liad  she  carried  it  to  destination. 
Held,  it  could  not  have  been  the  intention  of 
the  parties  that  the  freiglit  earned  on  the  tirst 
voyage  should  be  deducted  from  the  valuation, 
for  the  voyages  contemplated  were  to  ports  a 
long  distance  from  each  other,  on  each  of 
vhich  the  amount  of  freight  pending  might 
have  been  very  nearly  equal  to  the  valuation, 
also  the  aggregate  risk  during  all  the  success- 
ive voyages  exceeded  it  largelj';  and  in  the 
absence  of  e.Kplicit  provision  to  the  contrary, 
the  parties  intended  to  protect  the  freight 
pending  during  each  successive  voyage  speci- 
fied, not  on  the  aggregate  freight  of  all  the 
voyages  (citing  2  Phil,  on  Ins.,  sec.  1208). 
Therefore  the  freight  earned  to  San  Francisco 
must  not  be  deducted  from  the  sum  insured. 
Thwing  b.  Washington  Ins.  Co.,  10  Gray,  448. 

1 9.  Insured  offered  neither  evidence  of  title 
nor  of  value,  but  the  application  upon  which 
the  policy  was  issued  stated  that  the  insured 
were  mortgagees  in  possession,  and  the  policies 
were  valued.  Held,  prima  facie  case.  Nichols 
«.  Fayette  Mutual  Fire  Ins.  Co.,  1  Allen,  63. 

20.  On  ship,  $7,500,  valued  at  $65,000,  and 
on  freight,  $2,500,  valued  at  $23,500.  The 
valuation  of  ship  was  excessive,  $12,500;  the 
freight  and  outfits  were  overvalued  $10,300. 
She  was  totally  destroyed  at  sea.  The  jury 
found  specially  that  the  overvaluations  were 
not  fraudulent.  Held,  insured  w  as  entitled  to 
judgment  for  the  sum  insured.  Phmnix  Ins. 
Co.  V.  McLoon,  100  Mass.,  475. 

21.  Insurer  cannot  introduce  evidence  to 
show  that  the  real  valuation  was  less  than  the 
sum  agreed  iu  the  policy,  except  for  the  pur- 
pose of  establishing  fraud.  Cushman  i\  North- 
western  Ins.  Co.,  34  Me,.  487. 

22.  Ship  owner  was  also  owner  of  two- 
thirds  of  the  cargo,  and  insured  freight  for 
$7,500,  valued.  Insurer  of  freight  accepted  an 
abandonment,  but  claimed  credit  for  the 
freight  upon  cargo  not  owned  by  insured. 
Held,  the   valuation   iu   the  policy  was  cou- 

73G 


elusive.     Dumas  v.  United  States  Ins.  Co.,  13 
S  &  R.,  437. 

2ii.  Where  the  sum  valued  in  the  policy 
slightly  exceeds  the  value  of  the  thing  in- 
sured and  the  freight  added  to  the  point  of 
destination,  the  valuation  will  not  be  d'u- 
turbed.  Pritchet  v.  Insurance  Co.  of  North 
America,  3  Yeates,  458. 

24.  Stipulated:  "The  insured  shall  not  be 
entitled  to  demaud  and  recover  on  this  policy 
any  greater  proportion  of  the  loss  than  the 
amount  hereby  insured  shall  bear  to  the  whole 
amount  insured  on  said  property."  Also 
stipulated:  "The  aggregate  amount  insured 
in  this  and  other  companies  shall  not  exceed 
two-thirds  of  the  estimated  cash  value."  In- 
sured made  insurance  exceeding  two-thirds 
of  the  estimated  cash  value,  of  which  this  in- 
surer had  notice.  Held,  in  the  absence  of 
proof  showing  that  the  value  of  the  property 
insured  was  greater  than  the  estimate  men- 
tioned in  this  policy,  the  damages  must  be  es- 
timated against  this  insurer,  in  proportion  as 
the  sum  hereby  insured  bears  to  the  agreed 
value.  Lycoming  Ins.  Co.  v.  Slockbower,  2o 
Penn.  St.,  199. 

25.  Insurers'  by-law  prohibited  insurance 
exceeding  two-thirds  the  value  of  the  proj)- 
erty.  Held,  if  insurers  deliberately  made  :t 
valuation  of  the  property,  tliey  were  bound  by 
it,  unless  insured  fraudulently  or  collusively 
assisted  in  fixing  it;  and  thougii  the  overval- 
uation be  very  large,  insured  cannot  be  affect- 
ed by  it,  if  insurer's  agent  joined  with  the  in- 
sured in  making  the  estimate,  unless  fraud  or 
collusion  was  established  between  the  agent 
and  the  insured.  Cumberland  Valley  Mutual 
Protection  Co.  v.  Schell,  29  Penn.  St.,  31. 

26.  The  directors  were  empowered  by  char- 
ter to  determine  the  sum  to  be  insured,  which 
was  not  to  exceed  three-fourths  of  the  value; 
they  were  also  empowered  to  determine  the 
value  of  the  premises.  Held,  the  company  were 
estopped  to  object  that  the  sum  insured  ex- 
ceeded the  limit  mentioned  in  the  policy,  un- 
less fraud  or  misrepresentation  was  resorted 
to  by  tiie  insured.  Hoxsie  i\  Providence  Mut. 
Ins.  Co.,  G  R.  I.,  517. 

27.  A  life  insurance  policy  is  not,  iu  any 
proper  sense,  a  contract  of  indemnity.  Mote- 
ry  v.  Home  Life  Ins.  Co.,  9  R.  I.,  340. 

28.  On  freight  from  Baltimore  to  Auv 
Cayes,  with  a  privilege  of  one  other  port  of 
San  Domingo  to    Baltimore,  valued  $1,00(1 


1473 


VALUED  POLICY. 


1474 


When  valuation  is  conclusive. 


She  earned  freight,  |500  upon  the  out,  and 
was  lost  on  the  liome  voyage.  Held,  insured 
was  entitled  to  rec  ver  the  sum  insured.  The 
valuation  named  in  the  policy  5*  always  bind- 
ing upon  the  parties  unless  it  is  IVautlulcnt. 
Patapsco  Ins.  C.>.  v.  Brucue,  7  G.  &  J.,  293. 

29.  On  freiglit,  to  be  earned,  valued  at 
$2,000.  Held,  conclusive  as  to  the  amount  of 
damage.  Cole  v.  Louisiana  Ins.  Co.,  14  Martin 
(La.),  165. 

30.  Tlie  insurer  c.nnnot  object  to  tlie  valua- 
tion to  which  he  has  agreed  in  a  valued  policy 
if  it  was  fixed  in  good  faith.  Brook  v.  Loui- 
siana State  Ins.  Co.,  10  Martin  (La.),  640;  s.  c, 
id.,  681;  Akin  v.  Mississippi  Marine  and  Fire 
Ins.  Co.,  id.,  6G1. 

31.  Tlie  answer  did  not  set  uj)  a  want  of  in- 
surable interest.  Held,  in  life  insurance  tlie 
amount  of  the  indemnity  is  like  a  valued  pol- 
icy—  agreed  upon  beforehand;  and  insurer, 
nnder  the  rules  of  pleading  in  Louisiana,  can- 
not contest  this  question  without  putting  it  ex- 
pressly in  issue,  for  the  law  of  Louisiana  pre- 
sumes every  contract  which  docs  not  appear 
illegal  or  immoral  on  its  face  to  be  valid,  and 
founded  upon  suflicient  consideration ;  there- 
fore, if  one  party  would  put  the  other  upon 
proof  of  the  sufficiency  of  the  cause,  it  must 
be  done  by  special  pleadings  (citing  Herman 
V.  Pfister,  2  La.  (O.  S.),  4.55).  Kennedy  v.  New 
York  Life  Ins.  Co.,  10  La  An.,  809. 

32.  Valued  policy.  Held,  insured  was  not 
bound  to  give  evidence  of  her  interest  in  the 
subject  insured,  where  the  plea  was  notliing 
but  the  general  issue.  Katlieman  v.  General 
Mat.  Ins.  Co.,  12  La.  An.,  35. 

33.  "On  goods  and  merchandise,  laden  or 
to  be  laden  on  board  the  good  steamer  Shoot- 
ing Star,  valued  .$8,000."  Tliere  was  nothing 
but  a  genera!  denial  pleaded.  Held,  the  bill 
of  hading  dated  two  days  subsequent  (o  the 
jiolic}',  in  the  absence  of  some  allegation  of 
deficiency,  error  or  fraud,  was  suflicient  proof; 
that  to  put  insured  to  proof  of  all  the  goods 
at  risk,  insurer  was  bound  to  plead  specially. 
Hinck  D.  Home  Ins.  Co.,  19  La.  An.,  527. 

34.  Valued  policy.  The  loss  was  total. 
Held,  in  the  absence  of  fraud,  the  agreement 
of  the  parties  as  to  value  was  the  best  evi- 
dence of  value,  notwithstanding  the  opinion 
of  witnesses  to  the  contrary.  Lockwood  v.  San- 
gaino  Ins.  Co.,  46  Mo.,  71. 

35.  On  steamboat,  against  fire  only.  She 
came  into  collision  with  another  vessel,  a  fire 

17 


ensued,  doing  great  injury,  and  she  sunk  in 
the  river.  She  was  subsequently  raised  and 
repaired.  Insured  claimed  for  a  total  loss, 
but  insurers  refused  to  pay  anything,  on  the 
ground  that  the  loss  was  not  within  the  policy. 
No  abandonment  was  made.  Held,  in  detet- 
miaing  whether  there  had  been  a  total  loss, 
the  jury  must  take  the  valuation  of  the  policy 
as  the  basis  of  their  estimates;  that  tlie  dam- 
age  by  collision  should  be  regarded  as  so 
much  saved  from  the  wreck;  and  if  the  dam- 
age by  fire,  after  allowing  for  the  damage  by 
collision,  exceeded  the  value  of  the  entire 
boat  wlien  repaired,  the  insured  was  entitled 
to  recover  for  a  total  loss.  Sherlock  v.  Olobe 
Ins.  Co.,  1  Cin.  Sup.  Ct.,  193. 

36.  Ship  and  cargo  insured  for  a  sum  val- 
ued. Held  (reversing  interlocutors  of  the 
court  of  session  in  Scotland),  that  the  insured 
must  recover  the  whole  sum  insured.  Mae- 
Hair  V.  Coulter,  i  Bro.  P.  C,  450. 

37.  Complainants  had  insured  two  vessels 
with  their  cargoes,  and  these  having  been  cap- 
tured, actions  at  law  were  commenced  upon  the 
policies.  This  bill  was  brought  for  discovery 
and  an  injunction.  It  appeared  that  the  poll- 
cies  were  valued ;  but  the  only  allegation  in  the 
bill,  as  to  fraud,  was  that  the  cargoes  had  been 
sold  in  South  America  before  the  capture. 
The  defendants  in  their  answers  swore  that 
the  value  stated  in  the  policy  was  the  same 
that  was  stated  in  the  invoices.  Held,  the 
sums  named  in  the  policies  were  conclusive 
between  the  parties  unless  fraud  were  alleged, 
and  as  to  fraud,  there  was  no  sufficient  allega- 
tion inthebill.  Aubert v.  Jacobs,Vf \ght'vrick,118. 

38.  On  goods  valued  at  £19,000.  Several 
persons  had  contributed  diflerent  assortments 
to  the  whole  cargo,  the  insured  being  inter- 
ested  four-ninths  of  the  whole.  Some  of  the 
persons  interested  were  alien  enemies.  Held, 
the  insured  could  recover  the  sum  valued,  not- 
withstanding alien  enemies  were  interested; 
for  the  court  must  take  the  sum  insured  as  the 
value  of  the  plaintifl's  interest,  and  no  proof 
was  necessary  to  establish  it.  Feise  v.  Aguilar, 
3  Taunt.,  500. 

39.  She  was  valued  in  this  policy  at  £3,200, 
and  insured  for  £2,400.  There  were  tlire& 
other  policies  upon  her,  in  two  of  which  she 
was  valued  at  £3,000,  and  in  the  other  at  £5,- 
000.  The  evidence  as  to  her  value  conflicted. 
Under  the  other  policies  insured  had  been 
paid  several  sums  amounting  to  £3,126  13s.  6d. 

737 


1475 


VALUED  POLICY. 


147C 


When  valuation  is  conclusive. 


Held,  as  between  insurer  and  insured,  the  val- 
uation was  conclusive;  that  the  contract 
being  one  of  indemnity  only,  the  recovery 
here  must  be  limited  to  the  ditTerence  between 
the  last  sum  and  the  valuation  mentioned  in 
this  policy.  Bruce  v.  Jones,  1  H.  &  C.  769; 
33  L.  J.  Ex.,  132;  9  Jur.  (N.  S.),  638;  11  W. 
R.,  371 ;  7  L.  T.  (N.  S.),  748. 

40.  "  On  any  kind  of  goods  valued,  being 
profits  expected  to  arise  on  the  cargo  in  the 
event  of  her  safe  arrival  at  Quebec,  and  in  case 
of  loss,  insurers  agree  to  pay  the  same  without 
any  other  voucher  than  the  policy."  Hdd,  19 
Geo.  II,  ch.  37,  did  not  make  it  void.  Orant  v. 
Parkinson,  3  Doug.,  16 ;  6  Term,  483  n ;  3  B. 
&  P.,  85  n. 

41.  She  was  valued  in  the  policy  at  £6,000, 
and  insured  for  £600.  By  another  policy  she 
was  valued  at  £8,000,  and  insured  for  £6,000, 
which  last  sum  had  been  paid.  The  defense 
was  that  the  insured  had  been  paid  by  the  last 
policy  the  sum  valued  in  the  first ;  but  the  in- 
sured gave  evidence  to  show  that  she  was 
worth  above  £8,000.  Held,  the  valuation  in 
the  policy  upon  which  the  suit  was  brought 
was  conclusive  as  between  the  insured  and 
the  insurers,  who  subscribed  the  policy  with- 
out taking  into  account  transactions  between 
the  insured  and  third  persons.  Bousjkld  v. 
Barnes,  4  Camp.,  228. 

42.  "  On  sliip  and  cargo  valued  at  £6,600, 
from  Liverpool  to  the  coast  of  Africa,  during 
her  stay  there,  and  thence  to  her  ports  of  dis- 
charge, sale,  and  final  discharge  in  the  West 
Indies  and  America,  and  till  moored  twenty- 
four  hours  in  safety."  She  arrived  on  the  coast 
of  Africa,  and  took  a  cargo  of  slaves*  while 
proceeding  to  Demarara,  in  calm  weather, 
there  was  a  violent  concussion  which  resem- 
bled an  earthquake,  in  which  she  was  sO 
greatly  damaged,  that  with  the  greatest  diffi- 
culty she  was  kept  afloat,  by  pumping,  till  she 
reached  Demarara,  almost  a  wreck.  There 
she  was  lashed  alongside  of  a  hulk  to  prevent 
submerging;  an  attempt  was  made  a  few  days 
after  to  get  her  to  the  shore,  and  though  the  dis- 
tance was  only  fifty  yards,  she  sunk.  She  was 
condemned  and  sold  at  Demarara  for  .£388,  and 
the  master  was  obliged  to  sell  her  cargo  of 
slaves  there  at  a  loss.  Insured  gave  notice  of 
abandonment.  Held,  insurers  were  bound  for 
the  sum  valued  in  the  policy.  Shawe  v.  Fel- 
ton,  2  East,  109. 

43.  On  ship  for  a  term,  valued  at  £8,000. 
738 


At  the  time  the  policy  was  made  she  was  in  a 
damaged  condition,  and  the  expense  of  repairs 
would  have  exceeded  her  value,  but  neither 
party  knew  of  the  disaster.  Held,  the  valua. 
tion  was  conclusive  between  the  parties;  that 
the  policy  attached  notwithstanding  the  prior 
injury.  Barker  v.  Janson,  3  L.  R.  C.  P.,  303; 
37  L.  J.  C.  P.,  105;  17  L.  T.  (N.  S.),  473;  1ft 
W.  R.,  399. 

44.  £6,000  on  ship  H.,  valued  at  £6,000.  She 
was  sunk  by  collision,  and  insurers  paid  a 
total  loss.  Insured  afterwards  recovered 
against  the  owners  of  the  other  vessel  £5,000. 
The  real  value  of  the  ship  H.  was  £9,000 ;  there 
was  no  other  insurance.  Held,  the  valuation 
named  in  the  policy,  as  between  insurers 
and  insured,  was  conclusive,  hence  the  amount 
recovered  from  the  wrongdoer  was  in  the  nature 
of  salvage,  and  belonged  wholly  to  insurers. 
JSfo^'tJi  of  England  Stetmnshiji  Ins.  Ass'n  v.  Ann. 
strong,  5  L.  R.  Q.  B.,  344;  39  L.  J.  Q.  B.,  81; 
21  L.  T.  N.  S.,  822;  18  W.  R.,  520. 

45.  At  and  from  Calcutta  to  London,  £10,000, 
valued  at  £30,000.  On  her  outward  voj-agc 
she  sustained  damage,  but  reached  Calcutta 
October  28th.  She  discharged  cargo  and  was 
taken  to  dry  dock  for  repairs,  and  while  they 
were  being  m.ade,  she  w-as  destroyed  by  fire. 
The  same  insurers  were  liable  for  the  partial 
loss  that  had  occurred  on  the  outward  voyage. 
Held,  insurers  were  liable  for  the  sum  insured, 
without  considering  the  fact  that  she  had  been 
greatly  reduced  in  value  by  perils  of  the  sea; 
that  to  hold  otherwise  would  be  to  open  the 
valuation  mentioned  in  the  policy.  Lidgett  v. 
Secretan,  6  L.  R.  C.  P.,  616 ;  s.  c,  40  L.  J.  C. 
P.,  257;  24  L.  T.  (N.  S.),  943;  19  W.  R.,  1088. 

46.  A.,  the  owner  of  a  cargo  of  wheat,  in- 
sured  it  for  £7,000  valued.  The  current  mar- 
ket price  depreciated,  and  he  sold  it  for  £5,700, 
including  freight  and  insurance,  payment  to 
be  made  in  cash  upon  delivery  of  bills  of 
lading  and  policies  of  insurance,  eflected  with 
approved  underwriters.  A  loss  occurred  after 
the  sale.  Held,  the  purcliaser  was  entitled  to 
the  amount  insured  by  the  policies.  Ralli  v. 
Universal  Marine  Ins.  Co.,  4  De  G.,  P.  &  J.,  1 ; 
31  L.  J.  Ch.,  313;  8  Jur.  (N.  S.),49o;  10  W.  R., 
278 ;  6  L.  T.  (N.  S.),  34. 

47.  Valued  policy.  Held,  insurers  were 
liable  for  the  sum  insured,  though  it  was  far 
above  tlie  true  value,  imless  the  value  agreed 
was  procured  by  fraud.  Wilson  c.  Wordie, 
Faculty  Dec.  1781  to  1787,  p.  207. 


1477 


VALUED  rOLICY. 


1478 


When  the  valuation  shall  be  opened. 


48.  On  ship  valued.  Insurers  defended  on 
the  ground  tluit  she  was  not  seaworthy,  and, 
failing  in  that  attempt,  they  then  tendered  evi- 
dence to  show  that  slie  was  out  of  repair  and 
overvalued.  Held,  inadmissible.  Young  v. 
Deas,  Faculty  Dec,  1706  to  1801,  p.  140. 

49.  Valued  policy  on  freight.  She  was 
wrecked  when  a  part  of  the  cargo  was  on 
board.  Seld,  insurers  were  liable  for  the  sum 
insured.  Rhand  v.  liobb,  Faculty  Dec,  1801  to 
1807,  p.  433. 

50.  On  ship  valued.  At  the  time  the  policy 
was  made,  she  was  in  a  very  disabled  condi- 
tion,  but  neither  party  had  knowledge  of  it. 
Held,  it  was  not  competent  to  raise  any  ques- 
tion as  to  the  value,  unless  insurers  alleged 
fraud.  Smith  v.  Fkmming,  13  C.  C.  S.,  138 ; 
22  Scot.  Jur.,  7. 

IV.  When  the  valuation  shall  be 

OPENED. 

1.  $15,500  on  135,000  lbs.  coffee  at  twenty- 
two  cents  per  pound.  $12,000  insured  in  the 
Phil.  Ins.  Co.,  to  be  deducted  from  the  whole 
value.  Stipulated:  "If  insured  sliall  have 
made  prior  insurance  upon  the  cargo,  this  in- 
surer shall  be  answerable  only  for  so  much  as 
the  prior  insurance  may  be  deficient  in  fully 
covering  the  coffee,  and  this  policy,  so  far  as 
the  property  has  been  previouslj'  insured,  shall 
be  considered  as  null  and  void."  Ilcld,  the 
policy  insured  only  the  property  which  was 
not  insured  by  any  prior  insurances;  the 
prior  policy  was  to  be  treated  as  an  open  pol- 
icy, covering  so  much  of  the  cotfee  as  $12,000 
would  purchase  at  prime  cost,  and  this  policy 
then  attached  upon  the  balance  at  a  valuation 
of  twenty-two  cents  per  pound.  M'Kim  v. 
Phcenix  Ins.  Co.,  2  Wash.  C.  C,  89. 

2.  Two  policies  on  the  same  ship,  the  first 
$4,000,  valuing  her  at  that  sum ;  the  second  for 
$4,000,  valuing  her  at  $6,000.  ffeld,  the  last 
insurer  was  liable  for  so  much  of  the  agreed 
value  as  was  not  covered  bj'  the  first  policy. 
Murray  v.  Insurance  Co.  of  Pennsyltania,  2 
Wash.  0.  C,  186. 

3.  The  jury  found  specially  that  the  vessel 
was  worth  $15,000.  She  was  valued  in  the 
policy  at  $12,000;  but  it  provided  that  if 
any  prior  insurance  on  the  same  property 
has  been  made,  the  insurers  in  this  shall  be 
answerable  onl}' for  so  much  as  tlie  prior  in- 
burance  may  be  deficient  in  fully  covering  the 


premises  insured.  A  bottomry  bond  was  ese- 
cuted  upon  her  for  $12,000.  Held,  the  policy 
must  be  opened,  and  tlie  amount  of  the  bot- 
tomry bond  deducted  from  the  real  value. 
Watson  ».  Ins.  Co.  of  North  America,  3  Wash. 
C.  C,  1. 

4.  Under  a  valued  policy,  "  on  goods  and 
freight,"  if  by  mistake  or  design,  a  part  only 
of  the  goods  intended  to  be  included  in  the 
valuation  should  be  put  at  risk,  the  insured 
can  recover,  in  case  of  a  total  loss,  such  a  pro- 
portion only  of  the  valuation  as  the  goods  and 
freight  at  risk  bore  to  the  whole  subject  of 
valuation.  Wolcott  v.  Eagle  Ins.  Co.,  4  Pick., 
429. 

.5.  The  insured  can  have  but  one  satisfac- 
tion for  the  loss;  and  if  he  is  insured  by  a 
valued  policy  and  an  open  policy,  and  he  has 
elected  to  claim  upon  the  open  policy,  and 
has  abandoned  to  the  insurer  upon  that,  the 
proper  proportion  in  the  whole,  he  cannot  re- 
cover  under  the  valued  policy  any  more  than 
will  make  up  and  satisfy  his  whole  loss. 
Craig  v.  Murgatroyd,  4  Yeates,  161. 

6.  Valued  policj'.  Stipulated:  "  In  case  of 
prior  insurance,  this  company  is  answerable 
only  for  so  much  as  the  amount  of  such  prior 
insurance  may  be  deficient  toward  fully  cov. 
ering  the  properly  at  risk."  Held,  in  order  to 
give  effect  to  this  provision,  it  became  neces- 
sary  to  value  Ihe  vessel  at  the  time  and  phice 
of  tlie  loss.  Stephenson  u.  Piscataqua  Fire  and 
Marine  Ins.  Co.,  54  Me.,  55. 

7.  Action  on  a  valued  policy  to  recover  for 
partial  loss  on  cargo.  Held,  the  difference 
between  the  agreed  value  and  the  damaged 
value  was  the  measure  of  damage,  adding  the 
necessary  costs  and  expenses  for  ascertaining 
it.  Natchez  his.  Co.  v.  Buckncr,  5  Miss.,  63; 
Stanton  v.  Natchez  Ins.  Co.,  6  id.,  744. 

8.  On  freight,  valued  at  £10,000,  from  A.  to 
B.,  thence  to  C.  Stipulated:  "If  the  ship 
shall  be  lost  at  B.,  settlement  shall  be  made  as 
if  she  had  on  board  an  entire  freight  to  C. 
She  earned  ,l'3,o00  freight  to  B.,  and  was  lost. 
Held,  the  insurer  was  entitled  to  have  credit 
for  the  £3,500  freight  earned.  Robertson  ®. 
Majorihanks,  2  Stark.,  573. 

9.  "On freight  valued."  She  was  lost  while 
taking  in  her  cargo,  but  there  was  not  then  a 
full  cargo  provided,  nor  was  there  any  agree- 
ment to  supply  one.  Held,  the  loss  must  be 
limited  to  the  freight  lost  on  the  goods  laden. 
Patrick  v.  Eames,  3  Camp.,  441. 

789 


1479 


VENUE  — VERDICT. 


14S0 


Miscellaneous. 


10.  On  goods  valued  at  and  from  the  coast 
of  Africa.  At  the  time  of  the  loss  a  portion 
only  of  them  were  on  board,  whicli  were 
totally  lost.  Held,  the  valuation  must  opened. 
Hickman  v.  Garstairs,  5  B.  &  Ad.,  631 ;  3  L.  J. 
(N.  S.),  K.  B.,  28;  2  N.  &  M.,  5U3. 

1 1 .  Freight  valued  at  £6,500,  from  any  ports 
in  Hayti  to  Liverpool.  She  sailed  from 
Liverpool  to  Hayti  on  a  voyage  of  barter; 
exchanged  a  part  of  her  outward  cargo  at 
Jaquemel  for  fifty-five  bales  of  cotton,  and 
was  proceeding  to  make  similar  barter  at 
Aux  Cayes,  when  she  was  lost.  The  balance  of 
tlie  outward  cargo  was  saved  in  a  damaged 
condition,  exchanged  for  d50  tons  of  coffee 
and  100  tons  logwood,  the  freight  of  which 
would  have  been  larger  than  the  sum  insured. 
Held,  as  there  was  no  contract  for  freight, 
insured  was  limited  to  the  actual  freight  of 
fifty -five  bales  of  cotton;  that  the  policy  being 
valued  as  to  all  the  goods  intended  to  be 
loaded,  if  a  part  only  intended  to  be  loaded 
was  lost,  the  valuation  must  be  opened.  Forbes 
V.  Aspinall,  13  East,  323. 

1 2.  The  goods  insured  were  valued  in  the 
policy  at  £000,  "  without  proof  of  interest." 
But  the  court  ordered  the  insured  to  discover 
what  goods  he  had  put  on  board,  and  referred 
the  case  to  a  master  to  examine  the  value  of 
the  goods  saved,  and  to  deduct  that  from  the 
sum  mentioned  in  the  policy.  Le  Pypre  v. 
Farr,  3  Vern.,  716. 

IH.  Time  policy  on  ship  valued  at  £2,000, 
and  on  goods  valued  at  £8,000,  on  a  barter 
vo5'age  from  Liverpool  to  the  coast  of  Africa. 
Stipulated:  "Outward  cargo  shall  be  consid- 
ered homeward  interest,  twenty-four  hours  after 
her  arrival,  at  the  first  port  or  place  of  ti'ade, 
with  liberty  to  extend  the  valuation  of  the 
homeward  cargo."  By  subsequent  memoran- 
dum, it  was  agreed  to  continue  the  risk  at  the 
same  rate  of  premium,  until  her  arrival  back, 
on  the  same  conditions.  She  arrived  at  Kin- 
sembo,  lauded  a  portion  of  her  cargo,  and 
sailed  thence,  and  was  totally  lost  with  the  re- 
mainder, not  having  taken  any  other  goods  for 
those  delivered.  Held,  insurers  were  liable 
only  for  that  portion  of  the  cargo  which  was 
on  board  at  the  time  of  the  loss.  Tobin  v. 
Harford,  17  C.  B.  (N.  S.),  528;  s.  c,  34  L.  J.  C. 
P.,  87;  10  Jur.  (N.  S.),  850;  12  W.  K.,  1062;  10 
L.  T.  (N.  S.),  817 ;  affirming  s.  c,  13  C.  B.  (N.  S.) 
791 ;  9  Jur.  (N.  S.),  992;  32  L.  J.  C.  P.,  134;  11 
W.  R.,  436;  8  L.  T.  (N.  S.),  21. 
740 


14.  "£1,000  on  freight  valued  at  £2,000." 
She  took  360  coolies  and  1,200  bags  of  rice 
for  the  Mauritius.  Nothing  was  said  about 
an  intention  to  insure  the  freight  of  the  rice 
only.  According  to  the  course  of  business,  it 
was  usual,  when  insuring  the  transportation 
of  coolies,  to  describe  it  as  passage  mone}',  or 
by  some  term  distinguishing  it  from  freight 
of  merchandise.  She  was  wrecked;  all  of 
the  rice  was  lost;  but  all  of  the  coolies,  ex- 
cept six,  were  saved,  carried  to  the  Mauritius, 
and  the  passage  money  paid.  Held,  the  ».erm 
freight  did  not  include  passage  money;  hence 
the  freight  of  the  rice  onl3'  was  covered  by  the 
policy;  that  the  sum  valued  on  freight  reters 
to  the  whole  cargo,  unless  the  parties  under, 
stood  the  contraiy,  of  which  there  was  no 
evidence  in  the  case;  and  as  there  was  not  a 
full  cargo  of  freight,  the  valuation  must  be 
opened,  the  policy  treated  as  an  open  policy 
on  freight  proper;  hence  insurer  was  liable 
for  only  one-half  of  the  actual  loss  on  it. 
JDe.noon  v.  Home  and  Colonial  Ass.  Co.,  7  L.  R. 
C.  P.,  341 ;  41  L.  J.  C.  P.,  162 ;  26  L.  T.  (N.  S.}, 
628. 

V.    CONSTEUCTION. 

On  one-fourth  of  the  ship,  valued  at  the 
sum  insured,  $5,500.  Held,  this  valuation 
applied  to  the  interest  of  the  insured,  and  not 
the  whole  value  of  the  ship.  Post  b.  Phoenix 
Ins.  Co.,  10  Johns.,  80. 


VENUE. 

(See  Change  op  Venub.) 


VERDICT. 

I.  What  is  a  sufficient  findino. 
II.  When    the    appellate   court   wrui 

TREAT  IT  AS  AMENDED. 

III.  What  is  ah  invalid  verdict. 

IV.  Affidavits  of  jurors  will  not  be  be. 

CEIVED  TO  IMPE.\^CH. 
V.   W^HAT  is  CURED  BY  THE  VERDICT. 

I.  "What  is  a  sufficient  finding. 
The  verdict  found  by  the  jury  was  aa  fol- 


1481 


VERDICT. 


1482 


Miscellaneous. 


lows:  "We  the  jury  find  for  the  pUiintifT  and 
assess  the  damages  at  |(i,000,  with  interest 
from  the  commencement  of  this  suit  at  legal 
rate."  Held,  a  good  verdict.  Schultz  v.  Pacific 
Int.  Co.,  U  Fla.,  73. 

II.  When  the  appellate  court  will 

TKEAT  IT  AS  AMENDED. 

The  verdict  of  the  jury  was  informal.  Held, 
the  court  below  ought  to  liave  reduced  it  to 
form,  and  that  under  the  statute  of  amendments, 
this  court  would  treat  it  as  amended  and  re- 
duced to  foi-m.  Hartford  Fire  Ins.  Co.  v.  Van- 
duzor,  49  111.,  489. 

III.  What  is  an  intalid  verdict. 

By  itgreement  of  counsel  the  jurors  were  to 
seal  their  verdict  and  deliver  it  »o  tlie  officer. 
All  signed  a  paper,  professedly  a  verdict  for  de- 
fendant ;  but  two  of  them,  on  the  coming  in  of 
the  court  next  morning,  said  they  had  signed 
it  under  protest;  one  of  them  consented  to  the 
verdict,  but  the  other  persisted  in  his  refusal 
to  affirm  it.  Held,  the  court  would  not  give 
its  consent  to  sustain  a  judgment  rendered 
upon  the  verdict.  JEtna  Ins.  Co.  «.  Orube,  6 
Minn.,  82. 

IV.  Affidavits   of  jurors  will  not 

BE  RECEIVED   TO    IMPEACH. 

A  deputy  sheriff  was  sworn  to  take  charge 
of  the  jury,  but  the  sherifl'liimself  took  charge 
of  them.  Several  jurors  made  affidiivit  that 
tlie  sheriff  told  them  that  the  judge  said  if 
the  jury  did  not  agree  in  five  minutes,  they 
would  have  to  remain  in  the  jury  room  .all 
night,  and  if  the  sherift'had  not  so  stated,  they 
would  not  have  consented  to  find  the  defend- 
ant guilty.  ffcM,  the  affidavits  of  the  jurors 
were  not  admissible  (citing  Turner  v.  Tuo- 
lumne County   Water  Co.,  25  Cal.,  397 ;  Boyce 

V.  California  Stage  Co.,  23  id.,  460).  The  People 
c.  Hughes,  29  id.,  257 

V.  What  is  cured  by  verdict. 

1.  The  declaration  alleged  that  tlie  plaint. 
ifl''s  store  was  consumed ;  but  there  was  no 
averment  of  ownersliip.  Held,  good  after  ver- 
dict. Lane  v.  Maine  Mutual  Fire  Ins.  Co.,  12 
Me.,  44. 


2.  Any  defects  in  a  declaration  which 
would  have  required  a  special  demurrer  to 
reacli  them  are  cured  by  the  verdict.  Insur- 
ance Co.  V.  Seitz,  4  W.  &  S.,  273. 

3.  Omissions  in  the  declaration  wliicli  do 
not  amount  to  substantial  defects  are  cured  by 
the  verdict.  American  Ins.  Co.  v.  Francia,  9 
Penn.  St.,  390. 

4.  The  policy  provided  that  the  boat  must 
be  completely  provided  with  master  and 
crew.  There  was  no  averment  in  the  declara- 
tion  that  she  was  so  provided.  Held,  cured 
by  the  verdict.  Lexington  Ins.  Co.  v.  Paver, 
16  Oliio,  324. 

5.  Tlie  petition  alleged,  defendant  insured 
plaiutilf  to  tlie  amount  of  $1,200  on  certain 
property  described;  that  it  was  totally  de- 
stroyed by  fire.  Held,  good  after  verdict,  al- 
though it  did  not  allege  the  v.aluo  of  the 
property  insured,  or  that  its  destruction  was 
any  damage  to  the  plainlifiF.  Jones  v.  St. 
Joseph  Fire  and  Marine  Ins.  Co.,  55  Mo.,  342. 

6.  The  interest  was  averred  in  A.  B.  and  C. 
D.  (stating  their  names),  and  certain  persons 
trading  under  the  firm  of  Messrs.  W.  and  J. 
Bell  &  Co.,  and  that  the  policy  was  effected 
for  tlieir  use.  Held,  after  verdict,  the  declara- 
tion was  good,  for  it  wiis  sufficient  to  prove 
there  was  sueh  a  firm  without  showing  the 
names  of  the  persons  who  composed  it. 
Wright  v.  Welbie,  1  Chitly,  49. 

7.  The  declaration  averred  that  the  plaint- 
iffs, M.  and  another,  caused  the  policy  to  be 
effected,  containing  therein  that  J.  &  Co.  did 
make  insurance.  The  interest  was  averred  in 
F.,  and  the  promise  to  the  plaintiffs.  Held,  it 
was  good  after  verdict.  Mellish  v.  Bell,  15 
East,  4. 

8.  Warranted  free  from  seizure  in  ship's 
port  of  discharge.  Insured  declared  for  a  loss 
by  hostile  seizure,  but  did  not  negative  that 
it  was  in  sliip's  port  of  discharge.  Held,  no 
cause  to  arrest  judgment.  Ruekerv.  Oreen,  15 
East,  288. 

9.  The  declaration  stated  that  in  conse- 
quence  of  the  perils  insured  against,  she  was 
obliged  to  abandon  the  immediate  prosecution 
of  the  voyage,  and  for  her  preservation,  obliged 
to  go  to  Gambia;  that  she  was  wholly  unfit  to 
prosecute  her  voyage  thence  without  expensive 
repairs,  which  could  not  be  made  at  Gambia; 
it  became  expedient  to  sell  her,  and  tlr.it  she 
was  thereby  wholly  lost.  Held,  it  was  im- 
proper  to  introduce  a  long  statement  of  facts, 

Ml 


1483 


VIOLATION  OF  LAW -VOID  IN  PART,  VALID  IN  PART. 


14S4 


Miscellaneous. 


yet  the  declaration  was  good  after  verdict. 
Parfitt  V.  Thompson,  13  Mee.  &  W.,  393 ;  14  L. 
J.  Ex.,  73. 


V^OLATION  OF  LAW. 

(See  Death.) 


VOID  IN  PAET,  VALID  IN  PART. 


1.  $900  on  building  and  $500  on  furniture, 
liquors  and  fruit.  A  condition  annexed  to  the 
policy  required  the  insured  to  uientiim  all 
buildings  within  ten  rods  of  the  building  in- 
sured, which  was  not  done,  and  the  court  non- 
suited the  plaintiff.  Seld,  error,  for  the  con- 
dition did  not  apply  to  the  insurance  on  furni- 
ture, liquors  and  fruit  (citing  Trench  v.  Che- 
nango Mut.  Ins.  Co.,  7  Hill,  122.)  Burrill  v. 
Chenango  Mut.  Ins.  Co.,  Edm.  S.  C.  (N.  T.l,  233. 

2.  Several  properties  were  separately  in- 
sured in  one  policy,  which  prohibited  aliena- 
tion. Held,  the  policy  was  void  only  as  to  the 
property  alienated,  but  valid  as  to  that  which 
was  not  sold ;  and  that  a  levy  of  execution  on 
realty  was  not  an  alienation,  so  long  as  the 
right  of  redemption  remained  in  the  insured. 
Clark  V.  New  England  Fire  Ins.  Co.,  6  Cush., 
342. 

3.  Policy  on  goods.  Stipulated:  "  The  ap- 
plication shall  contain  a  full  and  true  exposi- 
tion of  the  circumstances  in  regard  to  the 
condition,  situation  and  value  of  the  property 
insured."  In  it  insured  was  asked  to  state  the 
purposes  for  which  the  building  was  used,  and 
how  many  tenants.  He  replied,  "  Wholesale 
and  retail  —  one  tenant."  Held,  the  represen- 
tations of  the  insured  with  reference  to  the 
building,  though  untrue,  did  not  aflcct  the  in- 
surance on  the  goods.  Howard  fire  and  Ma- 
rine Ins.  Co.  V.  Comtek,  24  111.,  455. 

4.  Policy  upon  two  houses;  separate  sums 
on  each.  One  of  the  houses  became  vacant, 
coutrarj'  to  a  condition  of  the  contract.  Held, 
the  policy  was  good  as  to  the  other  house. 
Hartford  Fire  Ins.  Co.  v.  Walsh,  54  111.,  164. 

5.  Buildings  and  furniture  insured  for  sep- 
arate sums  in  the  same  policj'.  Held,  a  ma- 
terial concealment  which  avoided  the  insur- 

742 


ance  as  to  the  bnildings  did  not  avoid  it 
upon  furniture.  Loehner  v.  Home  Mut.  Int. 
Co.,  17  Mo.,  247 ;  19  id.,  628. 

6.  On  a  livery  stable  and  certain  personil 
property  described.  Insured  warranted 
against  incumbrances.  The  realty  was  in- 
cumbered.  Held,  the  general  rule,  "void  in 
part,  void  in  toto,"  did  not  apply ;  for  that  rule 
was  to  be  invoked  only  where  there  is  some 
all  pervading  vice,  such  as  fraud  or  some  un- 
lawful  act  which  is  condemned  by  public  pol- 
icy or  by  the  common  law;  the  policy  was 
void  only  as  to  the  real  pi'operty  and  valid 
as  to  the  personal  property.  Koontz  v.  Hanni- 
bal Savings  and  Ins.  Co.,  43  Mo.,  126. 

7.  Policy  to  A.  &  B.,  on  store  and  goods. 
The  store  was  the  propert)'  of  A.  only.  Held, 
A.  &  B.  could  recover  for  the  loss  of  the 
goods.  Phcenix  In.^.  Co.  v.  Lawrence,  4  Met. 
(Ky.),9. 

8.  Warranted  free  from  any  charge,  damage 
or  loss,  which  may  arise  in  consequence  of 
engaging  or  having  been  engaged  in  illicit 
trade.  Part  of  the  ship's  cargo  was  illegaUi', 
and  part  rightfully  seized.  Held,  as  to  the 
property  which  was  illegally  seized,  the  in- 
surer was  liable.  Cucullu  v.  Orleans  Ins.  Co., 
18  Martin  (La.),  11. 

9.  On  buildings  and  stock  in  trade,  separate 
sums  on  each.  Stipulated:  "If  the  title  of  the 
insured  to  the  realty  is  not  absolute,  the  policy 
shall  be  void."  He  did  not  have  an  absolute 
title  to  the  realty.  Held,  in  the  absence  of 
fraudulent  representations  or  concealment,  he 
was  entitled  to  recover  for  the  stock  in  trade, 
because  the  policy  was  divisible.  Hate  v. 
Gore  District  Mutual  Fire  Ins.  Co.,  14  U.  C.  C. 
P.,  549. 

10.  $1,200  on  a  building  in  W.  street,  $800 
on  dwelling  in  H.  street,  and  $800  on  house- 
hold furniture  contained  therein.  Stipulated: 
"  If  the  property  insured  shall  be  incumbered 
without  notice  to  insurers,  the  polic3'  shall  be 
void."  The  defendant  pleaded,  "That  the- 
dwelling  house  on  H.  street  was  under  mort- 
gage to  W.,  of  which  defendants  never  had 
notice,  whereby  said  policy  is  void."  Held, 
when  a  policy  covers  two  or  more  distinct 
properties,  each  being  insured  for  a  fixed  sum 
and  at  a  fixed  rate,  it  is  a  policy  upon  each, 
separately,  and  not  on  all  jointly;  hence  an  in- 
cumbrance on  the  dwelling  did  not  atFect  the 
right  of  insured  to  recover  for  a  loss  of  the 
other  propertj'  on  which  there  wjis  no  incum- 


i4S5 


VOID  IN  PART,  VOID  IN  TOTO —VOUCHERS. 


1486 


Miscellaneous. 


brance.      Date  v.  Oore  District  Mutual  Fire 
Ins.  Co.,  14  U.  C.  C.  P.,  502. 


VOID  IN  PART,  VOID  IN  TOTO. 

1.  On  buildings  and  household  furniture 
■warranted  against  incumbrances.  The  lands 
were  incumbered.  Held,  void  in  part,  void  in 
toto  (citing  Wilson  v.  Herkimer  County  lus. 
Co.,  6  N.  Y.,  53;  Browns  v.  People's  Mut.  Ins. 
Co.,  11  Cush.,  380).  Smith  v.  Empire  Ins.  Co., 
25  Barb.,  497. 

a.  Policy  upon  three  adjoining  stone  dwell- 
ings, .$G0G.6G;3  upon  each.  Stipulated:  "The 
occupation  of  a  grocer,  and  the  keeping  of 
gunpowder  is  prohibited."  At  the  time  the 
policy  was  made,  the  lower  story  of  one, of  the 
dwellings  was  occupied  as  a  shoe  store,  one 
as  a  grocery  and  the  other  as  a  millinery  store. 
Subsequently  the  shoe  store  was  changed  to 
a  dry  goods,  hardware  and  grocery  store,  and 
among  the  articles  was  part  of  a  keg  of  pow- 
der, kept,  without  the  knowledge  of  insured,  in 
the  cellar  under  the  kitchen,  nearly  under  the 
etove.  A  fire  took  place  in  the  kitchen,  which 
•communicated  with  the  powder,  aad  destroyed 
the  kitchens  of  the  three  houses.  Held,  the 
■contract  was  entire;  that  the  knowledge  of 
insured  as  to  the  fact  that  his  tenant  kept  gun- 
powder was  not  material ;  hence,  insurers 
were  released.  Fire  Association  o.  William- 
son, 26  Penn.  St.,  196. 

3.  $500  on  barn  and  stable;  $1,500  on  per- 
sonal  property:  Stipulated:  "A  failure  to 
disclose  incumbrances  shall  render  the  policy 
void."  In  answer  to  an  interrogatory  pro- 
pounded in  the  application,  he  said  that  the 
property  was  incumbered  |3,000 ;  but  they  were 
in  fact  verj'  much  larger  against  the  realty-. 
Held,  the  contract  was  entire  and  not  separa- 
ble, that  the  .stipulation  applied  to  the  entire 
policy;  hence,  the  whole  contract  must  fall. 
Oottsman  v.  Insurance  Co.,  56  Penn.  St.,  210. 

4.  Insured  requested  insurance  on  his  store 
and  goods.  He  stated  that  the  store  was  occu- 
pied by  the  owner,  and  that  there  was  no  in- 
■cumbrance  on  it.  The  store  did  not  belong  to 
the  insured.  Held,  the  contract  was  entire 
•and  void  in  toto.  Lovejoy  v.  Augusta  Mutual 
Fire  Ins.  Co.,  45  Me.,  472;  Oould  v.  York 
County  Mutual  Fire  Ins.  Co.,  47  id.,  403. 


6.  Insured  procured  a  policy  on  property, 
part  of  which  was  liis  own  absolutely,  and  the 
other  part  he  held  in  trust  to  secure  the  pay- 
ment of  a  debt.  The  policy  provided  that 
property  held  in  trust  must  be  insured  as  such, 
otherwise  the  jwlicy  will  not  cover  it;  also, 
that  by  property  "Held  in  trust  is  intended 
property  held  as  collateral  securitj-,  in  which 
case  this  company  shall  be  liable  only  to  the 
extent  of  the  interest  of  the  insured  in  such 
property."  Also  provided :  "  The  true  title  of 
the  iusured,  and  the  extent  of  his  interest, 
shall  be  represented  to  the  company  and  ex- 
pressed in  the  policy  in  writing;  otherwise 
the  policy  shall  be  void."  Held,  a  failure  to 
inform  the  company  that  a  portion  of  the 
property  was  held  as  collateral  security, 
avoided  the  contract  in  toto.  Hay  v.  Charter 
Oak  Fire  and  Marine  Ins.  Co.,  51  Me.,  91. 

6.  Iusured  olitained  a  policy  on  an  undi- 
vided  half  of  a  dwelling  house,  but  after- 
wards, on  the  petition  of  his  cotenant,  a  judg- 
ment of  partition  was  rendered.  The  policy 
prohibited  any  alienation  or  change  in  the  title. 
Held,  this  was  alienation  which  avoided  the 
policy,  not  only  as  to  the  realty,  but  as  to  per- 
sonal property  included  in  it.  Barnes  v.  Union 
Mutual  Fire  Ins.  Co.,  51  3Ie.,  110. 

7.  $700  on  stock  of  books  and  stationery, 
and  $300  ou  music,  musical  instruments,  fancy 
goods,  bronze  powder  and  medicines.  Other 
insurance  prohibited ;  but  a  policy  was  made 
upon  the  music  and  musical  instruments  only. 
Held,  the  whole  contract  was  void.  Associated 
Firemen's  Ins.  Co.  v.  Assam,  5  Md.,  1G5. 

8.  Ou  building  for  a  sum  certain,  and  on 
machinery  for  another  sum.  Held,  the  con- 
tract was  entire ;  if  it  was  Void  in  part,  no  re- 
covery could  be  had.  Bowman  v.  Franklin 
Fire  Ins.  Co.,  40  Md.,  620. 

9.  Ou  buildings  and  personal  property-. 
The  title  to  the  realty  was  warranted  absolute 
which  warranty  was  broken.  Held,  the  con- 
tract  was  entire,  being  void  in  part  it  waa 
void  ill  toto.  Hinman  ».  Hartford  Fire  In*. 
Co.,  36  Wis.,  159. 


VOUCHERS. 

(See  Pboos's  of  Loss.) 


743 


14S7 


VOYAGES  mSURED. 


14«b 


What  is  a  sailing  on  —  What  is  not  a  sailing  on. 


VOYAGES  INSURED. 

I.  What  is  a  sailinq  on. 

II.  NOT  A  BAILINO   ON. 

III.  Onus  moB.VNDt. 

I.  "What  is  a  sailing  on. 

1.  At  and  from  Barcelona  to  Baltimore. 
She  was  arrested  and  detained  at  Barcelona. 
The  voyage  contemplated  was  from  Barcelona 
to  Baltimore,  thence  to  Havana.  Heldy  the 
voyage  contemplated  was  within  the  policy. 
Steinback  v.  Columbian  Ins.  Oo.,  2  Caines,  129. 

2.  From  Newry  to  New  York.  Master, 
with  assent  of  the  agent  of  insured,  contracted 
to  land  passsengers  at  Halifax.  Before 
reaching  the  dividing  point  to  turn  off  to 
Halifax,  she  strucli  a  roclc,  in  consequence  of 
which  she  bore  away  to  Dublin  to  refit.  Held, 
sailing  under  a  declared  intention  to  touch  at 
Halifax  did  not  make  the  voyage  commenced 
different  from  that  described  in  the  policy. 
Eenshaic  v.  Marine  Ins.  Co.,  2  Caines,  271 

3.  The  intention  of  the  master  at  the  com- 
mencement of  the  voyage  to  put  into  an  inter- 
mediate port  out  of  the  course  of  the  voyage, 
the  termini  being  the  same,  is  not  the  substitu- 
tion of  a  different  voyage,  but  is  only  an  in- 
tention  to  deviate.  Hobart  v.  Norton,  8  Pick., 
159. 

4.  On  freight  from  Odessa  to  England.  She 
was  chartered  from  Odessa  to  Rotterdam,  but 
because  war  had  broken  out  between  England 
and  Holland,  the  master  was  instructed  by  the 
freighter's  agent  at  Odessa,  to  proceed  to  Ham- 
burg or  Bremen,  in  case  he  could  not  get  to 
Rotterdam,  but  before  doing  so,  to  put  into 
London  or  Newcastle,  where  he  might  receive 
other  orders  from  the  freighters,  the  difference 
in  the  freight  to  be  settled  by  arbitration.  She 
•was  captured  at  the  Grecian  Islands.  Held, 
the  instructions  given  by  the  freighter's  agents 
constituted  a  new  contract,  under  which  the 
vessel  was  sailing  at  the  time  of  the  capture; 
that  on  her  arrival  in  England,  freight  would 
have  been  earned,  therefore  she  was  on  the 
voyage  insured.    Hall  v.  Brown,  2  Dow,  367. 

.5.  On  freight  from  St.  Ubes  to  Portsmouth, 
with  liberty  to  seek,  join,  and  exchange  con- 
voy.   Slie  loaded  salt  at  St.  Ubes  for  Gotten- 
burg.     Portsmouth    was   one   of   the    places 
744 


whence  convoys  were  appointed  for  Gotten- 
bnrg.  Slie  sailed  for  Gottenburg,  intending  to 
call  at  Portsmouth,  and  was  lost  before  she 
arrived  at  Portsmouth.  Held,  a  freight  voy- 
age  might  be  insured  part  of  the  way,  hence 
insurers  were  liable.  Taylor  v.  Wilson,  15 
East,  324. 

II.  "What  is  not  a  sailing  on. 

1.  Policy  upon  the  cargo  of  a  Prussian  ship 
from  New  York  to  St.  Andero,  Spain.  An 
abandonment  was  made  after  the  owner  re- 
ceived intelligence  of  capture.  The  order  for 
Insurance  stated  that  she  would  have  a  clear- 
ance for  Hamburg.  By  the  bill  of  lading 
signed  by  the  shippers  and  the  master,  it  ap- 
peared the  cargo  was  shipped  to  Hamburg  on 
account  of  persons  in  Stettin.  Master's  pro. 
test,  on  oath,  stated  that  she  was  bound  from 
New  York  for  Hamburg ;  that  she  encountered 
heavy  weather ;  that  master  considered  it  ad- 
visable  to  put  into  St.  Andero  and  lay  at  quar- 
antine, rather  than  proceed  to  Hamburg, 
because  at  that  season  it  was  probable  the  ice 
would  damage  her;  that  on  his  way  to  that 
place,  he  was  captured.  To  this  evidence  the 
insurer  demurred.  Held,  the  vessel  sailed  for 
Hamburg  and  not  for  St.  Andero,  and  that  the 
policy  never  attached.  Forbes  v.  Church,  3 
Johns.  C,  158. 

2.  •12,000  on  freight  from  Newport  to 
Point  de  Galle,  at  and  from  thence  to  Akyab, 
also  $4,000  on  freight  from  Akyab  to  a  port  of 
discharge  in  the  U.  K.  She  arrived  at  Akyab, 
and  while  there,  the  master  contracted  her  to 
take  a  cargo  of  rice  for  Queenstown  or  Fal- 
mouth, at  captain's  option,  or  on  the  continent 
between  Havre  and  Hamburg.  She  arrived  at 
Falmouth,  where  the  master  received  orders  t>> 
go  to.  Antwerp.  She  sailed,  but  went  ashore  ou 
the  south  side  of  the  Isle  of  Wight,  and  was  to- 
tally lost  before  turning  off  for  Antwerp.  Held, 
if  the  original  place  of  destination  be  abandon- 
ed in  order  to  go  to  another  port  of  discharge, 
the  vo3-age  becomes  changed,  because  one  of 
the  termini  of  the  original  voyage  is  changed. 
When  she  sailed  from  Falmouth  for  Antwerp, 
she  commenced  a  voyage  not  insured  in  thi» 
policy.  Merrill  v.  Boyleston  Fire  and  Marin* 
Ins.  Co.,  3  Allen,  247. 

3.  From  her  ports  of  loading  in  Virginia  to 
Rotterdam,  with  leave  to  call  at  a  port  in  Eng- 
land.    She  cleared  for  Hull,  and  was  lost  Ott 


1489 


WAGER  POLICY  — WAIVER, 


1490 


Of  the  conditions  —  Of  failure  to  deliver  a  written  application,  etc. 


•  tbe  voyage.  Held,  she  did  not  sail  on  llie  voy- 
age  insured,  hence  insurers  were  discliarged. 
Archihidd  v.  Laird,  Faculty  Dec,  1787  to  1792, 
p.  295;  s.  c,  1792  to  179(;,  p.  142. 

4.  At  iind  I'roui  Rothsay  to  tlie  Isle  ofMau, 
and  from  tlicnce  to  Broomielaw  of  Glasgow. 
Ueld,  if  she  sailed  on  a  voyage  other  than  that 
insured,  and  was  lost,  insurers  were  not  liable, 
though  at  the  time  of  the  loss,  she  had  not 
turned  oft' the  line  of  the  voyage  insured;  but 
the  insured  was  permitted  to  carry  the  case 
back  to  get  proof  tliat  she  sailed  on  the  voy- 
age insured.  Bain  v.  Kippen,  Faculty  Dec. 
1781  to  1787,  p.  19G. 

5.  "  From  the  Bay  of  Honduras  until  she 
shall  arrive  at  Bristol."  She  cleared  for  Lon- 
don and  was  lost  about  eighteen  miles  off  St. 
George's  Key.  Held,  insurers  were  discharged, 
for  she  never  sailed  on  the  voyage  insured. 
Buchanan  o.  Hunter-Blair,  Faculty  Dec,  1778 
to  1781,  p.  16G. 

III.  Onus  peobaxdi. 

The  defense  was  that  she  did  not  sail  on  the 
voyage  insured.  Held,  the  onus  was  on  the 
insurers  to  prove  that  she  deviated.  Kerr  v. 
Farlie,  1  S.  &  D.,  384. 


WAGER  POLICY. 

(See  Yalid  and  Void  Policies.) 


WAIVER. 

I.  Op  the  conditions  in  the  policy. 

II.  FAILUKE   TO  DELFVEB  A  WTIITTEN  AP- 

PLICATION  OR   ANSWER    QUESTIONS 
IN  IT. 

III.  AUTHORITY  TO  WAIVE. 

IV.  What  is  not  sufficient  evidence  of. 

I.  Of  the  conditions  in  the  policy. 

1.  A  promise  by  the  company  to  pay,  with 
full  knowledge  that  tlie  insured  has  not  com- 
plied with  the  conditions  of  the  policy,  waives 
the  noncompliance.  Oreenfield  v.  Massachu- 
setts Mutual  Life  Ins.  Co.,  47  N.  T.,  430. 

2.  Stipulated:    "None   of   the   conditions 


shall  be  waived,  e.xcept  by  a  written  agree- 
ment sig^ied  by  an  officer  of  the  company." 
Held,  a  parol  waiver  of  any  of  them  was  good, 
notwith-staniling  tlie  provisiim  (citing  Parker 
V.  Arctic  Ins.  Co.,  1  N.  Y.  S.  C,  397.  Van  Allen 
V.  Farmers  Joint  Stock  Ins.  Co.,  4  Ilun.  (N.  Y.), 
413. 

3.  Company's  bylaw,  part  of  the  contract, 
provided:  "Unless  the  true  title  of  the  in- 
sured shall  be  expressed  in  the  proposal,  the 
policy  shall  be  void."  The  policy  w.is  written: 
"  On  his  factory,  water  wlieel,  machinery, 
stock  in  trade  and  fi.xlures."  Insured  stated, 
incumbered  $22,000  on  buildings  and  other 
property  worth  over  $30,000.  Held,  sufficient 
to  satisfy  the  by-law.  Buffum  v.  Bowditch 
Mutual  Fire  Ins.  Co,  10  Cusli.,  540. 

4.  The  policy,  signed  by  the  president  and 
secretary  in  compliance  with  the  by-laws,  was 
upon  property  used  for  distilling  purposes. 
Fire  heat  and  steam  power  were  used  in 
operating  the  establishment,  all  of  which  was 
known  to  insurer.  One  of  the  company's 
rules  provided,  that  such  risks  should  be 
approved  by  an  e.xeeutive  committee  of  three 
directors,  before  any  jjolicy  should  issue. 
Held,  the  action  of  the  committee  might  he 
waived,  and  the  execution  and  delivery  of  the 
policy,  without  an  approval  by  the  committee, 
established  such  waiver;  tlie  policy  was  valid 
and  a  good  consideraticm  to  support  an  action 
upon  the  premium  note.  Merchants  and  Manu- 
facturers Ins.  Co.  V.  Curran,  45  Mo.,  142. 

II.  Of  failure  to  deliver  a  written 
application,  or  answer  questions 

IN    it. 

1.  The  applicant  filled  up  an  application  of 
the  Empire  State  Life  Ins.  Co.,  and  was  exam- 
ined by  two  physicians.  About  iliat  time  llio 
agent  who  received  the  application  became 
the  agent  of  the  Empire  Mutual  Life  Ins.  Co.; 
thereupon  he  copied  the  former  application 
into  a  blank  of  the  latter  company,  and  the 
physician  copied  his  certificate  from  the  otlier 
application,  and  this  latter  paper  was  pre- 
sented to  the  defendant,  who  issued  a  policy 
on  it;  but  it  was  never  signed  by  tlie  appli- 
cant. Held,  the  defendant  could  not  object  to 
the  payment  of  the  claim  on  the  ground  that 
no  application  had  been  made.  Bohringer  o. 
Empire  Mutual  Life  Ins.  Co.,  3  N.  Y.  S.  C, 
610. 

745 


liOl 


WAIVER. 


1492 


Of  authority  to  waive  —  What  is  not  sufficient  evidence  of. 


2.  One  question  in  the  application  was  not 
answered.  Held,  insurers  should  not  have  is- 
sued thepolicy,  if  they  intended  to  insist  upon 
the  answer.  Hall  v.  People's  Mutual  Fire  Ins. 
Co.,  6  Gray,  185. 

3.  The  application  asked:  "How  many 
tenants.'  How  are  the  buildings  occupied?" 
These  were  not  answered.  Held,  issuing  the 
policy  withoHt  insisting  upon  the  answer 
waived  the  right  to  the  information  called  for. 
Liberty  Hall  Asts'n  v.  Housatonic  Mutual  Ins. 
Co.,  7  Gray,  2«1. 

4.  The  policy  was  made  subject  to  an  appli- 
cation ;  and  upon  notice,  insurer  produced  at 
the  trial  a  memorandum  made  by  insurer's 
agent  to  whom  plaintilT  had  applied  for  insur- 
ance; but  plaintiff  testified  he  never  signed  or 
authorized  any  one  to  sign  this  memorandum, 
and  declined  to  put  it  in  evidence.  Held,  issu- 
ing a  policy  without  an  application  or  upon  a 

xlefective  application,  true  so  far  as  it  went, 
was  a  waiver  of  any  objection  on  that  ground. 
Blake  ».  Exchange  Mut.  Ins.  Co.,  12  Gray,  265. 

5.  The  insured  failed  to  answer  the  question, 
"Who  occupies  the  building?"  Held,  if  the 
fact  not  disclosed  did  not  affect  the  hazard,  it 
■was  immaterial,  but  of  this  the  jury  were  the 
judges.  Haley  v.  Dorchester  Mutual  Fire  Ins. 
Co.,  12  Gray,  545. 

6.  The  application  contained  this  question: 
"Is  it  incumbered?"  Answer.  "Applicants 
are  mortgagees  in  possession.  Other  incum- 
brance exists."  Held,  issuing  the  policy 
waived  any  further  information  on  the  ques- 
tion of  incumbrance  (citing  Hall  v.  People's 
Ins.  Co.,  6  Gray,  185;  Allen  v.  Charlestown 
Ins.  Co.,  5  Gray,  384;  Liberty  Hall  Ass'n  v. 
Housatonic  Ins.  Co.,  7  Gray,  261).  Nichols  v. 
Fayette  Mutual  Fire  Ins.  Co.,  1  Allen,  63. 

7.  Stipulated:  "  Insured  covenants  that  the 
representations  given  in  the  application  for 
this  insurance  contains  a  just,  full  and  true 
exposition  of  all  facts  and  circumstances  in 
respect  to  the  condition,  situation,  value  and 
risk  of  the  property  insured."  This  policy 
was  issued  upon  a  parol  request,  no  represent- 
ations being  made.  Held,  insured  waived  the 
riglit  to  raise  any  defense  founded  upon  the 
fact  that  there  was  no  application  or  repre-' 
sentation.  Commonwealth  v.  Hide  and  Leather 
Ins.  Co.,  112  Mass.,  13G. 

8.  A  written  application  made  by  the  in- 
sured. He  was  asked,  "  What  amount  is  now 
insured  on  the  property  ? "    "  In  what  office  ?  " 

746 


"  State  particularly  on  whose  account."  To 
which  he  made  no  answer.  Insurers  received 
the  application,  and  made  the  policy.  Held, 
a  waiver  of  notice  of  any  matter,  which  a 
truthful  answer  would  have  diijclosed.  Day- 
ton Ins.  Co.  V.  Kelly,  24  Ohio  St.,  345. 

9.  In  the  application,  insured  was  asked 
how  the  barn  was  occupied,  to  which  no  an- 
swer was  given.  Held,  making  and  delivering 
the  policy  waived  all  right  to  object  to  the 
want  of  the  answer.  Dodge  County  Mut.  Ins. 
Co.  ».  Sogers,  12  Wis.,  337. 

III.   Of  authoeitt  to  waive. 

The  officers  of  a  mutual  insurance  company 
are  special  agents,  acting  within  limited  pow- 
ers,  and  have  no  authority  to  dispense  with 
the  by-laws.  The  doctrine  of  waiver  applied 
to  contracts  of  insurance,  made  by  companies 
organized  with  a  capital  stock,  represented  by 
a  general  agent,  does  not  apply  to  companies 
established  on  the  mutual  plan.  Brewer  t. 
Chelsea  Mutual  Fire  Ins.  Co.,  14  Gray,  203. 

lY.  "What  is  not  sufficient  evidence 

OF. 

1.  A  mutual  insurance  company  received 
an  installment  of  premium  upon  a  risk  about 
which  there  had  been  a  material  concealment. 
Held,  the  acceptance  of  the  premium  was  not 
a  waiver  of  the  concealment,  unless  the  per- 
son who  accepted  it  had  knowledge,  at  the 
time,  of  the  fact  suppressed.  Oilbert  v.  North 
American  Ins.  Co.,  23  Wend.,  43. 

2.  "  Policy  to  be  void  if  the  property  be 
alienated."  An  alienation  was  made,  and 
subsequently,  with  knowledge  of  the  aliena- 
tion, insurer  exacted  payment  of  the  deposit 
premium  note.  Held,  not  a  waiver  of  the 
alienation.  Neely  v.  Onondaga  Covnty  Mutual 
Ins.  Co.,  7  Hill,  49. 

3.  The  use  of  spirit  gas  was  prohibited,  and 
the  only  evidence  tending  to  show  a  waiver 
of  this  cimdition  was  that  insurer  knew  that 
the  former  tenant  used  it.  Held,  insufficient. 
Mimesheimer  v.  Continental  Ins.  Co.,  5  J.  &  Sp. 
(N.  Y.),  332. 

4.  Assessment  made  against  the  policy  after 
the  company  had  refused  to  pay  the  claim ;  but 
it  was  not  collected,  and  there  was  some  evi- 
dence tending  to  sliow  it  had  been  made  by 
mistake.    Held,  not  sufficient  to  warrant  a  sub- 


1493 


WAR -WARRANTED  FREE  FROM  AVERAGE. 


1494r 


Of  memorandum  articles. 


mission  of  the  question  of  waiver  to  the  jury. 
Elliott  v.  Lycoming  County  Ins.  Co.,  66  Penii. 
St.,  23. 

5.  The  polic)'  required  insured  to  procure 
from  a  notary  public,  most  contiguous  to  the 
place  of  the  fire,  a  certificate  of  the  loss  and 
of  the  amount  of  it.  Ueld,  a  condition  pre- 
cedent, which  insurer  might  waive;  but  a 
failure  on  the  part  of  the  insurer  to  object,  at 
the  beginning,  that  the  certificate  delivered 
was  not  made  by  the  nearest  notary,  coupled 
with  an  ofl'er  to  pay  a  part  of  the  claim,  was 
not  sufficient  evidence  of  waiver.  Noonan 
V.  Hartford  Fire  Ins.  Co.,  21  Mo.,  81. 


WAR. 

(See  OoimiACT ;    Payuent  of  Fbesiilm.) 


WARRANTED  FREE  FROM  AVERAGE. 

I.  Op  memorandum  articles. 

(a)  Articles  perishable  in  their  own  na- 

ture. 

(b)  Fruit. 

(c)  Malt,  corn  and  rice. 
(dj   Vegetables  and  roots. 
(e)  Furs  and  hides. 

II.  Of  dampness  and  change  op  flavor. 

(a)  When  insurer  ii  liable  for. 

(b)  7iot  liablefor. 

III.  Of  the  snip. 

(a)  When  several  distinct  losses  may  be 

added  to  reach  the  limitation. 

(b)  When  several  distinct  losses  may  not 

be  added  to  reach  the  limitation. 

(c)  Of  the  clause,  ^' liable  for  total  loss 

only." 

(d)  When  insurer  of  shij)  is  protected 

by  the  warranty. 

IV.  Of  freight. 

When  insurer  of,  is  liable. 
V.  Op  cargo. 

(a)  When  several  distinct  losses  may  be 

added  to  reach  the  limitation. 

(b)  When  charges  in  general  average 

may  not  be  added  to  partial  loss 
to  reach  the  limitation.  ' 

(c)  When  saving  part  of  cargo  releases 

insurer. 

(d)  When  saving  part  of  the  cargo  does 

not  release  insurer. 


VI.  Of  the  effect  op  separ.yte  valua- 
tions. 
VII.  Ok  construction. 

I.  Of  memorandum  articles. 

(a)  Articles  perishable  in  their  own 
nature. 

1.  Proof  may  be  given  to  show  that  furs  are 
not  articles  perishable  in  their  own  nature 
within  the  meaning  of  the  words  of  the  pol- 
icy.   Aslor  V.  Union  Ins.  Co.,  7  Cow.,  202. 

2.  Warranted  salt  and  all  articles  perishable 
in  their  own  nature  are  free  from  average  un- 
less general ;  also,  sugar,  skins,  hides  and  to- 
bacco warranted  free  from  average  under 
seven  per  cent.,  unless  general.  Held,  deer 
skins  were  not  "  articles  perishable  in  their 
own  nature,"  but  they  were  included  in  the 
clause  that  related  to  skins  and  hides.  Bake- 
well  V.  United  Ins.  Co.,  2  Johns.  C,  246. 

3.  All  articles  perishable  in  their  own  na- 
ture were  warranted  free  from  average.  Held, 
insurer  might  prove  by  legal  testimony 
whether  or  not  flour  be  an  article  perisha- 
ble in  its  own  nature.  Nelson  v.  Louisiana 
Ins.  Co.,  17  Martin  (La.),  289. 

(b)  Fruit. 

.4  "  Fruit,  etc.,  warranted  free  from  average 
unless  general."  Held,  dried  prunes  were 
fruit,  and  within  the  exception.  De  Pau  v. 
Jones,  1  Brev.,  437. 

(c)  Malt,  corn  and  rice. 

5.  "  On  malt,  warranted  corn,  fish,  etc.,  free 
from  average  unless  general."  Held,  mall  was 
corn,  and  within  the  exception.  Moody  v.  Sur- 
ridge,  2  Esp.,  633. 

6.  Rice  is  not  corn  within  the  meaning  of 
the  memorandum.    Scott  v.  Bourdillion,  5  B. 

6  P.,  213. 

(d)  Vegetable^  and  roots. 

7.  It  is  competent  to  show  that  the  word 
"roots,"  inserted  in  policies  of  insurance,  is 
confined  to  such  as  are  perishable  in  their 
own  nature;  that  sarsaparilla  is  not  perisha- 
ble in  its  own  nature,  and  not  included  in  the 
memorandum.    Coit  v.   Commercial  Ins.  Co. 

7  Julius.,  385. 

747 


1495 


WARRANTED  FREE  FROM  AVERAGE. 


Ii96 


Of  dajnpness  and  change  of  flavor  —  Of  the  ship. 


8.  Stipulated :  "  Vegetables  and  roots,  pre- 
pared or  otherwise,  rags,  hempen  yarn,  etc., 
and  all  articles  perishable  in  their  own  nature, 
are  warranted  free  from  average  except  gen- 
eral." Held,  pink  root  was  within  the  excep- 
tion. Klett  V.  Ddaware  Ins.  Co.,  23  Peun.  St., 
262. 

(e)  Furs  and  hides. 

9.  On  a  cargo  of  furs:  "Warranted  skins 
and  hides  and  all  other  articles  perishable  in 
their  nature,  free  from  average  unless  general." 
Held,  it  was  competent  for  the  insured  to  prove 
that  the  term  "  skias  and  hides,"  in  mercan- 
tile usage,  did  not  include  furs.  Astor  v.  Union. 
Ins.  Co.,  7  Cow.,  202. 

II.  Of  dampness  aito  change  of 

FLAVOR. 

(a)  When  insurer  is  liable  for. 

1.  On  grain  in  bulk.  "Warranted  free 
from  damage  or  injury  from  dampness,  change 
of  flavor,  except  from  actual  contact  with  sea 
water,  of  the  articles  d.amaged,  occasioned  by 
perils  of  the  sea."  A  portion  of  it  was  damaged 
by  contact  with  sea  water,  another  portion  was 
damaged  by  dampness.  Held,  the  defendant  was 
liable  for  any  damage  communicated  indirect- 
ly by  absorption;  that  if  a  portion  of  the  prop- 
erty insured  was  damaged  by  actual  contact 
with  sea  water,  and  other  portions  were  affect- 
ed by  that  cause,  tlie  insurers  must  answer  for 
the  damage  to  all.  But  as  to  damage  caused 
by  effluvia  emitted  from  hides  damaged  by 
sea  water,  the  insurers  were  not  liable.  TToorf- 
Tuf  -0.  Commercial  MiU.  Ins.  Co.,  2  Hilt.,  122. 

(b)  When  insurer  is  not  liable  for. 

2.  On  wine.  Stipulated:  "  Not  to  be  liable 
for  leakage  of  molasses,  oil,  or  other  articles, 
unless  it  be  occasioned  by  stranding  or  col- 
lision, nor  for  damage  or  injur}^  to  goods  by 
dampness,  rust,  change  of  flavor,  or  being 
spotted,  discolored,  nlusty  or  mouldy,  unless 
the  same  be  caused  by  actual  contact  of  sea 
■water  with  the  articles  damaged,  occasioned  by 
sea  perils."  She  encountered  heavy  weather, 
shipped  a  good  deal  of  sea  water,  and  the 
voyage  was  greatly  prolonged.  All  the  cases 
of  wine  were  wet,  either  by  sea  water  or  steam 
generated  in  the  hold  by  the  presence  of  sea 

748 


water  and  the  changes  of  climate  through 
which  she  had  passed.  Some  of  the  bottles 
were  partly  empty,  though  they  retained  their 
corks.  Tlie  cases  and  their  contents  were 
heated,  and  the  wine  depreciated  in  conse- 
quence. Held,  insurers  were  not  liable  for  the 
loss  of  the  wine  which  had  escaped  from  the 
bottles,  nor  for  any  depreciation  caused  by 
dampness,  nor  for  any  damage  to  cases  which 
had  not  actually  come  in  contact  with  sea 
water.  Cory  v.  BoyUton  Fire  and  Marine  Ins. 
Co.,  107  Mass.,  140. 

3.  On  1,711  packages  of  teas.  "Warranted 
free  from  damage  or  injury  Irom  dampness, 
change  of  flavor,  or  being  spotted,  discolored 
musty  or  moldy,  except  caused  by  actual 
contact  of  sea  water  with  the  articles  damaged, 
occasioned  by  sea  perils."  She  met  with  bad 
weather  and  449  packages  were  greatl}-  dam- 
aged by  ccmtact  with  sea  water.  The  remain- 
ing 1,262  were  sold  at  a  depreciated  price, 
because  they  could  not  be  sold  in  consec 
utive  numbers,  the  fact  being  that  in  such 
cases  the  packages  not  in  contact  with  sea 
water  are  frequently  injured  by  dampness,  etc. 
Held,  insurers  were  liable  for  damage  caused 
by  actual  contact  with  sea  water,  and  nothing 
more.  Cator  v.  Great  Western  Ins.  Co.,  8  L.  R. 
C.  P.,  552;  42  L.  J.  C.  P.,  266;  29  L.  T.  (N.  S.), 
136. 

III.  Of  the  ship. 

(a)  When  several  distinct  losses  may 
be  added  to  reach  the  Utnitation. 

1.  "Warranted  free  from  average  unless  it 
amounts  to  ten  per  cent."  Held,  loss  by  jetti- 
son and  salvage  expenses  must  be  added  to- 
gether  for  the  purpose  of  determining  whether 
the  losses  reached  the  limitation.  Gazzam  v. 
Cincinnati  Ins.  Co.,  6  Ohio,  71. 

2.  "  Free  from  average  under  three  per  cent, 
except  general."  There  were  distinct  lossea 
arising  at  different  times.  Held,  all  must  be 
added  together  and  if  they  amounted  to  the 
limitation,  the  insurer  was  liable.  Blackett  v. 
Moyal  Exchange  Ass.  Co.,  3  Tyrw.;  266 ;  1  L.  J. 
(N.  S.)  Ex.,  101*;  2  C.  &  J.,  244. 

(b)  When  several  distinct  losses  inay 
not  be  added  to  reach  the  limitation. 

3.  Valued    policy    on     ship  —  stipulated: 


1497 


WARRANTED  FREE  FROM  AVERAGE. 


149S 


Of  freight. 


"Insurer  shall  not  be  liable  for  a  particular 
average  unless  it  amounts  to  five  per  cent." 
Held,  the  percentage  must  be  reckoned  upon 
the  valuation  less  the  premium.  Brooks  v. 
Onentid  Tna.  Co.,  7  Pick.,  259.  And  two  dis- 
tinct damages  happening  several  months 
apart  cannot  be  blended  to  carry  an  average 
loss  up  to  five  per  cent.     Ibid. 

4.  Stipulated:  "Insurers  shall  not  bo  li- 
able for  any  partial  loss,  unless  it  amount  to 
live  per  cent.,  exclusive  in  each  case  of  all 
charges  and  expenses  incurred  for  the  purpose 
of  ascertaining  and  proving  the  loss."  Held, 
if  there  were  two  several  disasters,  the  burden 
■was  upon  plaintiff  to  show  that  each  disaster 
caused  a  loss  amounting  to  five  per  cent. 
Paddock  v.  Commercial  Ins.  Co.,  104.  Mass., 
531. 

5.  Not  liable  for  any  partial  loss  unless  it 
amounts  to  five  per  cent.,  exclusive  of  all 
cliargc'S  incurred  for  ascertaining  and  proving 
it.  Ileld,  two  or  more  distinct  losses,  less  than 
five  per  cent,  each,  could  not  be  added  together 
to  carry  the  whole  to  five  per  cent,  (citing 
Paddock  v.  Ins.  Co.,  104  Mass.,  531 ;  Brooks 
V.  Ins.  Co.,  7  Pick.,  358.)  Hagarv.  New  Eng- 
land Mutual  Marine  Ins.  Co.,  59  Me.,  460. 

(c)  Of  the  clause  "  lialle  for  total 
loss  only." 

6.  On  ship  against  total  loss  only.  She  ar- 
rived at  the  port  of  destination  in  a  damaged 
condition,  and,  upon  survey  was  sold,  for  ac- 
count of  whom  it  might  concern,  bringing  only 
$3,300.  Ueld,  there  could  be  no  recovery  so 
long  as  she  existed  as  a  ship.  Buchanan  t. 
Ocean  Ins.  Co.,  6  Cow.,  318. 

7.  "  On  ship  liable  for  a  total  loss  only." 
Ueld,  a  constructive  total  loss  was  within  the 
policy.  Ileebner  v.  Eagle  Ins.  Co.,  10  Gray, 
131.  " 

8.  The  respondentia  bond  provided  that 
the  borrower  should  be  discharged  in  case 
the  ship  should  be  utterly  lost.  Held,  that 
nothing  but  an  actual  total  loss  would  dis- 
charge the  borrower;  and  it  was  immaterial 
whether  it  would  cost  more  than  she  was 
worth  to  repair  her;  that  nothing  short  of  a 
total  destruction  would  constitute  an  utter 
loss.  Insurance  Co.  of  PennsyUania  v.  Dunal, 
8  S.  &  15.,  138. 

9.  On  ship  against  total  loss  only.  The 
jury  found  a  constructive  total  loss.    Held, 


insurers  were  liable.  Adams  v.  Mackenzie,  13 
C.  B.  (N.  S.),  443;  9  Jur.  (N.  S.),  849;  33  L.  J. 
C.  P.,  93;  11  W.  R.,  343;  7  L,  T.  (N.  S.),  711. 

(d)  When  insurer  of  ship  ispi'otected 
hy  the  warranty. 

10.  Time  policy  on  steamer,  her  body,  en- 
gine, tackle,  apparel,  and  other  furniture, 
valued  at  $30,000,  insured  for  $4,000,  warrant- 
ed free  from  average  under  fifteen  per  cent, 
unless  general.  She  was  damaged  by  fire. 
Held,  insured  could  not  recover  unless  the 
damages  amounted  to  fifteen  per  cent,  of  the 
sum  valued  in  the  policy.  Riley  v.  Ocean  Ins. 
Co.,  11  Rob.  (La),  3.55. 

1 1.  Stipulated:  "Not  liable  unless  loss 
amounts  to  ten  per  cent,  on  the  sura  insured, 
$8,000."  •  She  was  damaged  by  collision ; 
$589  was  expended  to  replace  kitchen  and 
table  furniture,  $647  repairs  to  the  hull  =  lf  1,136. 
Held,  one-third  new  for  old  must  be  deducted, 
hence  the  net  loss  did  not  reach  the  limitation. 
Therefore,  the  insurers  were  not  liable.  Wal- 
lace V.  Ohio  Ins.  Co.,  4  Ohio,  334. 

12.  Stipulated:  "  Insurer  shall  not  be  liable 
for  the  expense  of  dockage  or  hauling  out  for 
repairs,  nor  for  any  loss,  except  in  cases  of 
general  average,  unless  the  necessary  repairs, 
required  solely  by  the  disaster,  shall  amount 
to  ten  per  cent,  of  the  agreed  value  of  the 
policy."  Held,  insurers  were  not  to  be  liable 
for  any  docking  or  hauling  out  for  repairs, 
unless  the  repairs,  required  solely  by  the  dis- 
a.ster,  shall  amount  to  ten  per  cent,  of  the 
agreed  value  in  the  policy  named.  Snajjp  v. 
Fireman's  Ins.  Co.,  2  Handy,  252. 

13.  Stipulated:  "No  loss  or  average  shall 
in  any  case  be  paid  under  ten  per  cent,  on  the 
agreed  value  in  this  policy.  Valued,  $15,000  " 
She  sustained  damage  and  was  repaired  at  an 
expense  exceeding  $1,500;  but  after  deducting 
one-third  new  for  old,  the  net  loss  was  less 
than  ten  per  cent.  Held,  not  a  claim  within 
the  policy.  Kerr  v.  Quaker  City  Ins.  Co.,  33 
Mo.,  158. 

IV.  Of  feeigut. 

W7ien  insurer  of  is  liahle. 

I.  On  freight,  valued.  "Not  liable  for  any 
parti;»l  loss  on  salt,  grain,  fish,  fruits,  hiies, 
skins  or  other  goods  esteemed  perishable  in 
;'.:eir  nature,  unless  it  amount  to  seven  per 

749 


1499 


WARRANTED  FREE  FROM  AVERAGE. 


1500 


Of  cargo. 


cent.,  and  happen  by  stranding;  nor  for  par- 
tial loss  on  other  goods,  or  on  the  vessel  or 
freight,  unless  it  amount  to  five  per  cent, 
exclusive  in  each  case  of  all  charges  and 
expenses  of  ascertaining  and  proving  the  loss." 
Held,  insurers  were  liable  for  partial  loss  of 
freight  if  it  exceeded  five  per  cent.,  although 
the  cargo  consisted  of  perishable  articles,  and 
although  the  loss  was  not  occasioned  by 
stranding.  Lord  v.  Neptune  Ins.  Co.,  10  Gray, 
109. 

2.  "  On  freight  against  total  loss  onl}-." 
The  vo3'age  was  broken  up  by  a  peril  insured 
against.  The  agent  of  the  underwriters  re- 
ceived a  portion  of  the  damaged  goods,  sold 
them  at  auction  and  handed  over  to  the  mas- 
ter $487.35,  on  account  of  freight.  Held,  the 
money  so  paid  was  not  freight  pro  rata,  for 
the  vessel  was  not  in  a  condition  to  insist  on 
retaining  the  goods  with  an  intention  to  carry 
them  forward;  the  act  of  insurer's  agent 
could  not  convert  a  total  into  a  partial  loss 
of  freight,  and  so  take  away  the  legal  rights 
of  insured ;  the  payment  of  the  money,  or  the 
refusal  to  accept  it  when  tendered,  could  not 
affect  the  question  whether  the  loss  was 
total  or  partial.  Willard  v.  Millers  and  Man- 
ufacturers Ins.  Co ,  30  Mo.,  35. 

V.  Of  cargo. 

(a)  When  several  distinct  losses  may 
he  added  to  reach  the  limitation. 

1.  Warranted  insurer  shall  not  be  liable  for 
any  partial  loss  of  goods  or  vessel  and  freight 
unless  it  amounts  to  five  per  cent.,  exclusive, 
in  each  case,  of  all  charges  and  expenses  in- 
curred for  the  purpose  of  ascertaining  and 
proving  the  loss.  Held,  "  in  each  case  "  did 
not  mean  at  each  time  of  loss ;  it  referred  to 
the  three  several  subjects  insured,  goods, 
freight  and  vessel ;  hence  successive  losses  on 
the  cargo  in  the  course  of  the  vo3'age,  each  less 
than  five  per  cent,  were  a  charge  against  the 
insurer,  if  they  amounted  to  five  per  cent,  in 
the  aggregate.  Donnell  v.  Columbian  Ins.  Co., 
2  Sumn.,  366. 

(b)  WheJi  charges  vn  general  may  not 
he  added  to  jMrtial  loss  to  reach  the 
li/mitation. 

2.  On  apples  from  New  York  to  Liverpool. 
750 


"  Warranted  free  from  average,  unless  general." 
476  barrels  were  jettisoned,  and  the  balance 
wetted  and  greatly  damaged.  Held,  insurer 
was  liable  only  in  respect  of  the  general  aver- 
age contribution,  and  only  in  proportion  as 
the  value  insured  bore  to  the  value  estimated 
for  the  purposes  of  contribution;  in  other 
words,  the  percentage  on  the  sum  insured. 
Hotchkins  D.  Commercial  Mut.  Ins.  Co.,  1  Rob. 
(N.  T.),  489. 

3.  Stipulated:  "Insurers  shall  not  be  liable 
for  any  loss  or  damage  (except  in  cases  of  gen- 
eral  average)  unless  it  amounts  to  20  per  cent., 
exclusive  of  all  charges  and  expenses  incurred 
for  the  purpose  of  ascertaining  and  proving 
the  loss.  And  in  case  of  any  loss  or  misfor- 
tune, it  shall  be  the  duty  of  the  insured  to  use 
all  reasonable  and  proper  means  for  the  secur- 
ity, preservation  and  relief  of  the  property  to 
the  charges  whereof  the  insurer  will  contrib- 
ute, in  proportion  as  the  sum  insured  bears  to 
the  whole  sum  at  risk."  The  vessel  was  dis- 
abled and  the  goods  were  damaged  less  than 
20  per  cent. ;  but,  adding  to  it  the  proportion 
of  the  expense  incurred  in  securing  and  for- 
warding them,  the  damages  exceeded  20  per 
cent.  Held,  the  insurers  were  liable  for  the 
proportion  of  expenses  incurred  in  saving,  but 
not  for  the  damage  to  the  property.  Indiin- 
apolis  Ins.  Co.  v.  Mason,  11  Ind.,  171. 

4.  Warranted  free  from  average  under  fifteen 
per  cent.,  unless  general.  There  was  a  gross 
loss  of  .§5,015.24,  of  which  there  were  $3,253.47 
general  average  items,  and  §1,761.77  particular 
average  on  tlie  boat.  There  was  no  evidence 
in  the  case  to  show  the  value  of  the  cargo. 
Held,  the  plaintiff  could  not  recover  for  the 
particular  average,  because  it  was  less  thaa 
fifteen  per  cent. ;  nor  could  an}-  recoveiy  be 
had  for  general  average  in  the  absence  of 
proof  showing  the  value  of  the  cargo.  Billow 
V.  Western  Marine  and  Fire  Ins.  Co.,  1  La. 
An.,  57. 

(c)     When  saving  part  of  cargo  re- 
insurer. 


5.  The  cargo,  corn,  was  greatly  damaged 
by  perils  of  the  sea,  and  was  sold  at  fifty  cents 
per  bushel ;  the  price  of  it  sound  was  two 
dollars  and  a  quarter  a  bushel.  Held,  if  tlie 
property  insured  was  a  memorandum  article, 
the  insured  could  not,  under  any  circumstance, 
call    upon    the    insurer    for   a   partial    loss;. 


1501 


"WARRANTED  FREE  FROM  AVERAGE. 


1503 


Of  cargo. 


and  consequently  ho  cannot  by  abandonment 
elect  to  turn  that  which  was  only  partial  into  a 
total  loss  (affirming  s.  c,  3  Wash.,  C.  C,  256). 
Morean  v.  United  States  Ins.  Co.,  1  Wheat.,  219. 

6.  "On  hides,  warranted  free  from  average, 
unless  general ;  and  in  case  of  loss  or  damage, 
the  assured  shall  labor,  etc.,  for  the  preserva- 
tion of  the  property,  to  the  expenses  of  which 
the  insurer  will  contribute."  She  arrived  at 
Kew  Diep,  where,  according  to  the  usage  of 
trade,  the  hides  were  put  into  several  lighters, 
to  be  carried  to  Amsterdam,  one  of  which 
siink,  and  some  of  the  hides  were  saved  at  an 
expense  of  $G,000;  but  the  rest  tliat  were  in 
that  lighter  were  totally  lost,  to  the  amount 
of  $4,000.  Held,  the  insurers  were  free  from 
all  partial  losses  of  every  kind  which  did  not 
arise  from  a  contribution  in  general  average; 
and  the  hides  sunk  and  not  reclaimed  were  a 
partial  loss.  Biays  «.  Chesapeake  Ins.  Co.,  7 
Cranch,  415. 

7.  On  cargo,  composed  principally  of  lem- 
ons and  oranges ;  warranted  free  from  average, 
unless  general.  All  the  oranges  were  lost  by 
perils  of  the  seas,  but  the  lemons  arrived 
safely.  Held,  the  insurers  were  not  liable. 
Humphrey  v.  Union  Ins.  Co.,  3  Mason,  429. 

8.  "Warranted  free  of  particular  average; 
liable  for  any  portion  thrown  overboard." 
Held,  it  was  the  same  as  "  liable  for  loss  of  part 
by  jettison,"  and  insurer  was  liable  only  for  a 
total  loss  of  the  whole,  or  for  such  part  as  was 
thrown  overboard.  Hernandez  v.  New  York 
Mut.  Ins.  Co.,  6  Blatcli.,  326. 

9.  On  corn.  "  Free  from  average  unless  gen- 
eral." Held,  so  long  as  the  corn  physically 
existed,  though  good  for  nothing,  there  could 
not  be  a  total  loss  of  it;  but  it  should  have 
been  left  to  the  jury  to  say  whether  the  vessel 
could  have  been  repaired  at  the  port  of  dis- 
tress so  as  to  have  performed  her  voyage. 
Neilson  v.  Columbian  Ins.  Co.,  3  Caines,  108. 

10.  On  goods.  "Free  from  average  under 
seven  per  cent.,  unless  general."  She  was 
compelled  to  seek  a  port,  and  she  put  into  New- 
castle,  on  the  Delaware,  but  could  get  neither 
repairs  nor  a  place  to  put  her  cargo.  Yel- 
low, fever  raged  violently  at  Philadelphia  at 
that  time;  she  remained  at  Newcastle  till  it 
abated,  and  then  proceeded  to  Philadelphia. 
All  the  corn  was  found  damaged,  unmerchant- 
able, and  unfit  to  be  reshipped.  Held,  not  a 
technical  total  loss  of  the  cargo.  Le  Roy  u. 
Oouverneur,  1  Johns.  C,  226. 


11.  Stipulated:  "Insurers  take  no  other 
risk  than  general  average,  and  such  total  loss 
only  as  may  arise  by  the  absolute  destruction 
of  the  property,"  which  consisted  of  provis- 
ions, soap,  candles,  fruit  and  potatoes,  irou 
and  hardware.  She  was  stranded,  part  of  tho 
goods  unladen  and  stored,  and  the  remainder 
put  on  board  a  lighter,  to  be  carried  forward. 
Before  the  lighter  departed,  and  while  the 
goods  stored  on  shore  remained  unsold,  part 
of  the  cargo  was  stolen  or  lost.  Held,  the  in- 
sured could  not  recover  for  each  article  totally 
lost,  there  being  no  total  destruction  of  the 
thing  insured.  Oucrlain  v.  Uulumbian  Ins.  Co., 
7  Johns.,  527. 

12.  Goods  included  in  the  memorandum, 
though  greatly  damaged,  remained  in  specie 
at  the  port  of  distress,  where  they  were  sold  as 
being  unfit  for  reshipmcnt.  Held,  the  insurer 
was  not  liable  for  them,  but  he  was  liable  in 
general  average  for  his  proportion  of  goods 
jettisoned,  part  of  the  same  cargo  and  kind 
of  goods.  Saltus  v.  Ocean  Ins.  Co.,  14  Johns., 
138. 

13.  The  articles  insured  in  this  case  were 
what  are  called  memorandum  articles;  a  part 
were  totally  lost,  and  insured  brought  his 
action  to  recover  as  for  a  total  loss  of  such 
part.     Held,  he  was  not  entitled   to  recover. 

Wadsicorth  v.  Pacific  Ins.  Co.,  4  Wend.,  34. 

14.  On  cargo  warranted  free  from  average. 
Held,  an  insurance  against  total  loss  only. 
Bargett  v.  Orient  Mut.  Ins.  Co.,  3  Bos.,  385. 

15.  On  cargo  against  general  average  and 
absolute  total  loss  only.  The  vessel  was 
wrecked.  Held,  nothing  but  an  absolute  total 
loss  of  the  goods  conld  entitle  the  insured  to 
recover.  Gould  v.  Louisiana  Mut.  Ins.  Co., 
20  La.  An.,  259. 

16.  On  tobacco,  free  from  average  unless 
general;  twenty-three  hogsheads  were  greatly 
damaged,  and  produced  net  $355.84;  twenty- 
seven  hogsheads  landed  at  the  port  of  des- 
tination, produced  net  $151.  Held,  the  defend- 
ant was  entitled  to  judgment.  Aramamendi 
V.  Louisiana  Ins.  Co.,  2  La.  (O.  S.),  432. 

17.  "Free  from  average  unless  general." 
For  the  safely  of  .ship  and  cargo,  she  was 
obliged  to  slip  cables  and  run  to  the  first  port 
to  refit.  The  hatches  w-ere  not  opened  till 
she  reached  the  port  of  destination,  when  it 
appeared  the  cargo  had  received  damage. 
Held,  insurer  on  cargo  w.as  not  liable.  Wil- 
son V.  Smith,  3  Burr.,  1550;  1  W.  BI.,  507. 

751 


1503 


WARRANTED  FREE  FROM  AVERAGE. 


1504 


Of  cargo. 


18.  On  hogsheads  of  sugar.  "Warranted 
free  from  particular  average."  She  was 
standed  and  bilged,  but  in  every  hogshead 
there  were  some  loaves  of  sugar,  the  greater 
part  having  been  washed  out  of  each  hogs- 
head. Held,  as  it  could  not  be  said,  that 
uone  of  the  sugar  was  saved,  the  loss  was  not 
within  the  policj'.  Hedburg  v.  Pearson,  7 
Taunt.,  154;  s.  c,  Holt  N.  P.,  349;  2  Marsh., 
432. 

19.  Warranted  free  from  average,  unless 
general  or  the  ship  b^  stranded.  She  put 
into  Lisbon.  A  part  of  the  cargo  (flsh)  had 
been  jettisoned,  and  the  balance  upon  survey 
was  found  to  be  of  no  value.  She  did  not 
proceed  on  her  desttned  voyage.  Held,  it  was 
damage  to  the  value  and  not  a  total  loss. 
-Cocking  v.  Fraser,  4  Doug.,  295. 

20.  "  On  wheat  warranted  free  from  av- 
erage." While  weighing  anchor  to  proceed 
with  convoy,  a  vessel  ran  foul  of  her,  in 
consequence,  she  was  compelled  to  go  into 
Dover,  but  she  struck  on  the  bar.  Survey 
being  made,  she  was  found  unfit  to  con- 
tinue the  voyage,  nor  could  she  be  repaired 
except  at  an  expense  much  greater  than  her 
value.  The  wheat  was  injured  by  water; 
400  quarters  were  dry,  700  wet,  and  60  en- 
tirely spoiled;  another  vessel  could  have  been 
procured  to  carry  the  cargo  forward.  Held, 
the  action  could  not  be  maintained.  Wilson 
c.  Moyal  Exchange  Ins.  Co.,  2  Camp.,  623. 

21.  "On  goods,  until  the  same  shall  be 
safely  discharged  and  landed.  Rice  free  from 
particular  average."  Within  the  limits  of  the 
port  of  destination  she  was  wrecked,  the 
whole  cargo,  greatly  damaged,  was  put  into 
craft  and  delivered  to  the  consignees,  produc- 
ing only  enough  to  pay  freight  and  salvage. 
The  rice  did  not  make  good  the  freight  on  it. 
Held,  the  insurer  was  not  liable  for  any  loss  on 
the  rice,  and  as  to  the  other  goods,  it  was  a 
case  of  particular  average.  Glennie  v.  London 
Ass.  Co.,  2  Mau.  &  Sel.,  371. 

22.  On  goods  "  warranted  free  from  partic- 
ular average."  They  were  saved,  in  a  very 
damaged  and  unprofitable  state.  The  ship 
was  broken  up  in  the  port  of  lading.  An 
abandonment  was  offered  and  refused.  Held, 
no  claim  against  the  insurers.  Thompson  v. 
Royal  Exchange  Ass.  Co.,  16  East,  214. 

23.  "On  silk  waste  in  bales  from  Leghorn 
to  Liverpool,  warranted  free  from  average  un- 
less general,  or  the  ship  be  stranded."     She 

752 


encountered  sea  peril,  put  into  Gibraltar,  and 
discharged  cargo  to  make  repairs.  Some 
being  found  badly  damaged,  was  sold;  bul 
at  a  reasonable  expense  it  might  have  been 
put  in  a  condition  to  be  carried  to  destination 
in  another  vessel.  It  was  carried  there  in  a 
very  deteriorated  condition,  and  sold  as  silk. 
Held,  the  insurer  was  not  liable.  Navone  v. 
Haddon,  9  0.  B.,  30;  19  L.  J.  (N.  S.)  C.  P., 
161. 

24.  "Warranted  free  from  average,  unless 
general  or  the  ship  be  stranded.  On  2,668 
bags  of  linseed."  She  encountered  sea  perils 
and  505  bags  were  jettisoned;  1,023  bags  were 
found  to  be  in  a  very  damaged  condition  at 
the  port  of  distress;  a  large  portion  of  it  was 
thrown  Into  the  sea,  being  rotten  and  worth- 
less; the  balance  was  sold  and  realized  only 
a  few  shillings.  Had  it  been  sent  to  the  port 
of  destination,  it  would  have  lost  its  character 
as  linseed.  The  remaining  1,160  bags  were 
brought  to  England  and  delivered  in  a  sound 
condition.  Held,  insurers  were  not  liable. 
RalU  V.  Janson,  6  El.  &  BI.,  422 ;  s.  C,  2  J  ur. 
(N.  S.;,  566;  25  L.J.  Q.  B,,  300. 

25.  "On  bacon,  warranted  free  from  average, 
unless  general,  or  the  ship  be  stranded,  sunk, 
or  burned."  She  put  into  Bermuda  in  dis- 
tress, and  was  there  sold,  because  the  espouse 
of  repairing  would  have  exceeded  her  value 
when  repaired.  Part  of  the  bacon,  being 
found  too  much  damaged  for  reshipraeni,  w.as 
sold.  The  balance  was  reshipped  and  arrived 
at  the  port  of  destination  in  a  damaged  con- 
dition. Held,  insurers  were  not  liable.  Booth 
v.  Oair,  15  C.  B.  (N.  S.),  291 ;  s.  c,  33  L.  .1.  C. 
P.,  99;  9  Jur.  (If.  S.),  1326;  12  W.  R.,  105. 

2G.  "  On  cargo,  warranted  free  frum  partic- 
ular average,  unless  the  ship  be  stranded,  sunk, 
or  burnt."  There  was  a  constructive  total  loss 
of  the  ship,  but  the  cargo  was  forwarded  at  a 
freight  of  £825  lis.  7d.  Held,  the  policy  was 
against  total  loss  and  general  average  only, 
hence  insurers  were  not  liable  for  the  loss. 
Great  Indian  Peninsula  Railway  Co.  v. 
Saunders,  1  B.  &  S.,  41;  s.  c,  7  Jur.  (N.  S.), 
823;  30  L.  J.  Q.  B.,  218;  4  L.  T.  (N.  S.),  240; 
afBrmed,  2  B.  &  S.,  266;  s.  c,  31  L.  J.  Q.  B., 
206;  9  Jur.  (N.  S.),  108;  10  W.  R.,  520;  6  L.  T. 
(N.  S.),  297. 

27.  On  a  cargo  of  corn,  warranted  free  froni 
average.  She  sustained  sea  damage  on  the 
voyage,  and  was  obliged  to  put  into  a  port  in 
Norway,  where  the  corn  was  taken  out  to  dry. 


]  505 


WARRAXTKD  FREE  FROM  AVERAGE. 


150G 


Of  cargo. 


the  niHsler  intending  to  repair,  and  proceed 
witli  tlic  cargo.  After  it  was  out,  llie  damage 
seemed  so  extensive  that  lie  sought  advice,  and 
resolved  to  sell  it,  and  it  was  sold  as  damaged 
corn.  Held,  if  the  expense  of  drying  and  car- 
rying to  port  of  destination  would  have  ex- 
ceeded the  sum  for  which  it  would  have  sold 
in  Norway,  the  loss  was  total;  but  this  point 
was  not  made  in  tlie  case,  because  tlie  expense 
of  drying  aud  taking  the  cargo  home  would 
liave  fallen  very  far  short  of  what  it  sold  for  in 
Norway,  aud  therefore  insurer  was  not  liable 
for  the  loss.  lieimer  v.  lliitgrose,  G  Esehr.,  2G3 ; 
30  L.  J.  Ex.,  175. 

28.  On  ship  and  stores,  warranted  free  of 
average.  The  stores  cojisisted  of  fishing  lines, 
boats,  and  casks.  The  Hues  were  partially  in- 
jured, aud  the  greater  number  of  the  casks 
had  their  heads  knocked  in,  tlie  staves  broken, 
aud  were  so  much  injured  as  to  be  useless  ex- 
cept for  the  purpose  of  being  converted  into 
smaller  casks.  Held,  it  was  an  insurance 
against  total  loss  only,  and  there  was  not  a  total 
loss  so  long  as  there  was  uot  a  total  destruc- 
tion of  tlie  subject  insured.  Allan  v.  Smith, 
2C.  C.  S.,  300;  s.  c,  1  id.,  3-1. 

(d)    When  saving  part  of  cargo  does 
not  release  insurer. 

29.  "  On  machinery,  free  from  average  un- 
less general."  She  was  driven  on  rocks  by 
tlie  violence  of  gale,  filled  with  water,  became 
a  total  wreck  and  abandoned  to  insurers 
whose  agent  look  possession  of  her,  and  was 
engaged  about  a  month  in  raising  the  cargo. 
A  large  numbei'  of  diflerent  pieces  of  the  ma- 
chinery, in  a  greatly  damaged  state,  were  ten- 
dered to  insured,  and  he  refused  to  receive 
them.  About  half  of  it  in  weight  was  saved, 
the  remainder  being  left  at  the  bottom  of 
the  sea;  and  all  saved  was  worth  about  $50 
as  old  iron.  As  machinery  in  good  order, 
it  would  have  been  worth  $2,250;  but  it  would 
have  cost  more  to  repair  it  than  the  price  of 
new  machinery.  Held,  if  every  piece  of  the 
machinery  was  so  damaged  by  the  perils  in- 
sured against  as  to  be  entirely  unfit  for  use, 
had  it  been  supplied  with  its  corresponding 
or  connecting  pieces,  then  there  was  a  total 
loss  of  the  machinery,  notwithstanding  the 
material  which  composed  it  still  existed;  for 
there  was  a  destruction  as  to  species  (citing 
Judah  V.  Randall,  2  Caines  C.  324 ;  Waller- 

48 


stein  V.  Columbian   Ins.  Co.,  44  N.  Y.,  204). 
Insumiice  Co.  v.  Fogar/t/,  19  Wall.,  640. 

30.  On  cargo,  composed  of  tish  and  pota- 
toes, from  Portsmouth  to  Baltimore,  "War- 
ranted free  from  average,  unless  it  be  general 
or  amounts  to  seven  per  cent."  She  was 
greatly  damaged,  and  "after  sixty-five  days 
battle  with  the  winds  and  waves,  put  into 
St.  Martins,  West  Indies,  with  six  feet  of 
water  in  the  hold.  The  fish  was  entirely  de- 
stroyed, and  the  potatoes  so  much  rotted  that 
they  were  sold  for  $30.  She  was  surveyed 
found  not  worth  repairs,  sold,  and  the  voy- 
age broken  up.  Held,  a  total  loss.  Robin, 
sonv.  Commonteealth  Ins.  Co.,  3  Sumn.,  220. 

31.  On  cargo,  from  the  Spanish  Main  to 
New  York.  "  Skins  and  hides,  warranted 
free  from  average  unless  general."  She  ship, 
ped  a  great  deal  of  water,  the  hides  were  satu- 
rated with  it,  became  putrid  aud  emitted  a 
stench  so  unbearable  that  all  hands  were 
obliged  to  eat  and  sleep  on  deck.  She  inade 
Havana  in  distress,  where  the  cargo  was  land- 
ed, and  complained  of  as  a  nuisance.  About 
two-thirds  of  it  was  thrown  into  the  sea,  and 
the  balance  sold  by  order  of  the  authorities, 
some  of  which  were  reshipped  to  Boston, 
where  they  arrived  in  a  damaged  condition, 
damp  and  worm  eaten.  Held,  the.jury  were  at 
liberty  to  find  a  total  loss  if  the  liides  were 
in  such  a  condition  that  no  prudent  man  would 
have  taken  them  to  New  York  in  their  dam- 
aged condition.  DePeyster  v.  Sun  Mut.  Ins. 
Co.,  10  N.  Y.,  272;  reversing  s.  c,  17  Barb., 306. 

32.  On  coffee  and  wood.  "Against  perils 
of  the  seas,  and  all  other  perils  that  shall  come 
to  the  damage  of  the  said  merchandise,  or  any 
part  thereof;  warranted  free  of  particular  av- 
erage." The  words  in  italics  were  written. 
About  seventy  miles  from  destination,  near 
Cape  May,  she  encountered  a  violent  gale, 
went  ashore,  aud  was  completely  submerged 
when  the  tide  was  in.  Insured  oflfered  to 
abandon,  but  insurers  refused  it.  B.  &  H., 
agents  for  the  ship's  owners,  assuming  to  act  for 
the  benefit  of  all  concerned,  agreed  with  a 
company  of  wreckers  to  save  and  deliver  at 
port  of  destination.  New  York,  as  much  of 
the  property  as  could  be  saved,  for  which  they 
were  to  receive  sixty  per  cent,  of  the  net  pro- 
ceeds, to  be  ascertained  by  sale  at  auction  or 
appraisement.  Some  of  the  goods  insured 
were  taken  by  the  wreckers  from  the  ship,  sent 
to  New  York  and  sold  for  $1,100,  over  auo- 

753 


1507 


WARRANTED  FREE  FROM  AVERAGE. 


1508 


Of  cargo. 


tioneer's  charges.  There  was  evidence  tend- 
ing to  show  that  insurers  procured  persons  to 
collect  the  grains  of  cofl'ee,  bag  and  send  them 
to  New  York;  but  the  jui-y  found  it  was  a  con- 
trivance of  insurers  to  change  a  total  into  a 
partial  loss.  Held,  the  conceded  facts  and 
the  abandonment  created  in  law  a  total  loss; 
that  the  rescue  of  a  portion  of  the  goods  in- 
sured, with  whatever  motive  it  was  done, 
could  not  undo  what  the  law  had  fixed  before 
any  goods  were  rescued.  Wallerstein  v.  Colum- 
bian Ins.  Co.,  44  N.  Y.,  204,  reversing  s.  c, 
3  Rob.,  528. 

33.  On  a  cargo  of  ice.  Stipulated:  "In- 
surers shall  not  be  liable  for  ice  melting  in 
consequence  of  putting  into  port.  She  com- 
menced leaking,  put  into  a  tropical  port  to  .ex- 
amine and  repair,  which  required  the  cargo  to 
be  unloaded.  Held,  the  insurer  was  liable  for 
the  loss  occasioned  by  the  melting.  Tiidor  v. 
New  England  Mutual  Marine  Ins.  Co.,  12 
Cush.,  554. 

34.  Stipulated:  "  Not  liable  for  any  partial 
loss  ou  certain  goods  enumerated,"  and  then 
followed  these  words:  "Partial  loss  on  sheet 
iron,  iron  wire,  brazier's  rods,  iron  hoops  and 
tin  plates  excepted."  The  ship  was  wrecked 
and  goods  above  mentioned  were  damaged  by 
sea  water.  'They  were  sent  to  Liverpool  and 
sold,  less  than  half  their  value  being  realized 
after  deducting  expenses.  Insured  had  made  a 
seasonable  abandonment.  Held,  the  expenses 
of  saving  the  property  and  transporting  it  to  a 
place  of  sale  were  a  necessary  diminution  of 
the  value;  if  tlie  goods  were,  by  one  of  the 
perils  insured  against,  placed  in  a  situation 
which  conferred  the  right  to  abandon,  and  an 
abandonment  was  made,  then  the  loss  was  not 
within  the  exception,  because  insurer  was  lia- 
ble for  a  constructive  total  loss.  Keitell  v.  Alli- 
ance Ins.  Co.,  10  Gra}',  144. 

35.  "  Not  liable  for  loss  on  salt,  grain,  fish, 
fruit,  hides,  skins,  or  other  goods  that  are 
esteemed  perishable,  unless  it  amount  to  seven 
per  cent,  of  the  value  of  such  articles,  and 
liappen  by  stran(,ling."  Held,  insurers  were 
liable  for  a  total  loss  of  any  one  kind  of  the  ar- 
ticles mentioned,  if  it  was  of  no  value  when  it  i 
arrived  at  the  port  of  destination,  provided  the 
injury  was  caused  by  a  peril  insured  against, 
for  where  the  articles  are  specifically  named, 
the  exception  must  be  applied  to  each  article 
separately,  Silloway  v.  Neptune  Ins.  Co.,  12 
Gray,  73. 

754 


36.  On  merchandise.  'Warranted  free  of 
particular  average.  She  was  condemned  and 
the  cargo  transhipped  into  two  vessels,  one  of 
which  was  wrecked  and  totally  lost  with  all 
the  cargo,  but  the  other  arrived  safely.  Held, 
insurers  were  liable  for  the  cargo  totally  lost, 
because  after  the  transhipment  the  cargoes  of 
the  two  ships  became  subject  to  the  difl^erent 
perils  on  separate  voyages.  Pierce  v.  Colum- 
bian Ins.  Co.,  14  Allen,  320. 

37.  "  On  hides,  free  from  partial  loss,"  froia 
Mobile  to  New  York.  She  was  wrecked  at 
the  Bahamas  February  27th.  They  were  sub- 
merged till  March  Gth.  About  one-third  were 
saved  by  wreckers  in  a  condition  of  incipient 
putrefaction.  They  were  sold  there  at  auctior» 
by  the  wreckers,  for  the  benefit  of  all  con- 
cerned, and  yielded,  net  proceeds,  $39.34. 
Ten  days  afterwards  the  m.aster  arrived  at 
Nassau  and  made  protest,  which,  with  notico 
of  abandonment,  were  forwarded  to  insurers 
July  12th.  Held,  a  total  loss.  Poole  v.  Protec- 
tion Ins.  Co.,  14  Conn.,  47. 

38.  She  encountered  severe  gales,  was  much 
damaged  in  them,  and  was  obliged  to  put  into 
Rio,  where  she  was  survej-ed  and  condemned 
as  not  worth  repairing,  and  recommended  to 
be  sold.  Tlie  cargo,  consisting  of  fruits,  fish, 
oysters,  and  many  other  perishable  articles, 
was  much  deteriorated,  and,  upon  survey, 
recommended  to  be  sold.  No  shipment,  either 
in  whole  or  in  part,  could  have  been  made  tc 
the  port  of  destination,  Portland,  Oregon. 
Held,  a  case  of  constructive  total  loss,  notwith- 
standing the  cargo  was  composed  of  memoran- 
dum articles,  warranted  free  from  average, 
except  general,  etc.,  for  there  was  a  loss  of  the 
voyage  by  sea  perils.  Delaware  Ins.  Co.  v. 
Winter,  38  Penn.  St.,  176. 

39.  "Warranted  not  liable  for  any  partial 
loss  of  goods  esteemed  to  be  perishable  in 
their  own  nature."  The  cargo  was  potatoes, 
perishable  in  their  own  nature,  and  she  was 
bound  from  Augusta  to  Baltimore;  but  she 
encountered  very  heavj'  weather,  leaked  badly, 
the  deck  load  was  swept  away,  and  she  was 
driven  to  Key  West,  where  she  arrived  after 
being  thirty-uine  days  out.  The  <\a.y  after  her 
arrival,  the  cargo  was  sold  at  auction  for  §192; 
about  twenty  bushels  of  the  potatoes  were 
picked  off  the  top  and  put  on  the  wharf,  and 
sold  by  the  purchasers;  but  most,  if  not  all, 
of  them  were  returned  and  thrown  into  the 
dock  being  unfit  for  use.    Those  that  remained. 


1509 


WARRANTED  FREE  FROM  AVERAGE. 


1510 


Of  cargo. 


in  tlic  lioltl  were  tlirown  overbourd.  Her 
planks  on  tlie  bows  were  split,  so  that  she  had 
to  remaiii  there  two  weeks  to  repair.  Held, 
tlie  plaintiff  was  entitled  to  recover  for  a 
total  loss  of  cargo  and  freight;  for  althougli 
the  rule  is  well  settled  that  so  long  as  the 
goods  have  not  lost  their  original  character, 
but  remain  in  specie,  and  are  in  that  condition 
capable  of  being  shipped  to  the  destined  port, 
there  cannot  be  a  total  loss,  whatever  the  ex- 
tent of  damage,  but  still  the  rule  contemplates 
the  arrival  of  the  goods,  or  some  part  of  them, 
in  specie  in  the  ship  at  the  port  of  destination, 
or  that  they  are  capable  of  being  forwarded 
to  that  port  in  specie;  the  cargo  in  question 
could  not  have  been  carried  in  specie  to  the 
port  of  destination  by  any  means,  therefore, 
there  was  a  total  loss  of  it.  Williams  v.  Ken- 
nebec Mut.  Ins.Co.,  31  Me.,  455. 

40.  On  cargo,  fi'ee  from  average  under  five 
per  cent.  She  commenced  discharging  into 
boats,  and  had  discharged  about  $40,000  value, 
lier  whole  cargo  being  aliout  $58,000,  leaving 
on  board  about  $18,000  of  cargo,  a  part  of 
■which  was  damtiged  to  the  amount  of  $1,300. 
Held,  the  limitation  did  not  apply  to  cargo 
lauded,  upon  which  the  risk  had  ceased.  Mary- 
land Ins.  Co.  i\  Boslcy,  9  G.  &  J.,  337. 

41.  On  cargo,  not  liable  (except  in  cases  of 
general  average)  for  any  loss  to  certain  prop- 
erty specified,  unless  it  amounts  to  twenty  per 
cent,  of  the  aggregate  value,  nor  for  loss  on 
flax,  unless  it  amounts  to  ten  per  cent,  of  the 
w-hole  value  at  risk,  exclusive  of  all  charges 
and  expenses  incurred  for  the  purpose  of  ascer- 
taining and  proving  the  loss.  Held,  the  cost 
of  rescuing  the  property  and  restoring  it  to  its 
former  condition,  loading  and  unloading, 
must  be  added  to  the  actual  damage,  and  if 
these  amount  to  ten  per  cent,  of  the  whole 
value  insured,  the  injurers  were  liable;  for 
the  words  "loss  or  damage  "  are  not  limited 
to  sea  damages,  but  embrace  all  charges  tixed 
upon  the  property  the  consequence  of  peril. 
Hall  V.  Rising  Sun  Ins.  Co.,  1  Disney,  308. 

42.  Certain  specific  articles  were  warranted 
free  from  average  unless  general ;  other  speci- 
fied articles  were  warranted  free  'from  average 
under  fifteen  per  cent.,  and  others,  also  speci- 
fied, were  warranted  free  of  average  under  ten 
per  cent.,  and  others  specified,  and  all  others 
were  warranted  free  of  average  under  seven 
and  a  half  per  cent.  Held,  if  the  loss  upon  the 
articles  of  the  particular  class  was  equal  to  ' 


tlie  standard  or  rate  fixed  for  that  class,  and 
was  in  any  degree  produced  by  one  of  the 
perils  insured  against,  it  must  be  considered 
as  if  it  arose  wholly  from  such  peril,  and  must 
be  the  subject  of  compensation ;  but  if  it  fell 
below  the  standard,  the  loss  must  be  attributed 
wholly  to  the  excepted  cause,  though  in  fact 
it  was  occasioned,  to  some  extent,  by  one  of 
the  perils  insured  against.  Louisville  Marine 
and  Fire  Ins.  Go.  v.  Bland,  9  Dana,  143. 

43.  "  On  fruit  warranted  free  from  average 
unless  general."  She  was  badly  damaged 
and  cargo  very  much  injured  by  sea  water.  She 
could  not  repair  in  time  to  continue  the  voyage, 
and  the  fruit  was  thrown  overboard  inarottea 
state.    Held,  a  total  loss.    Dyson  v.  Rowcroft, 

3  B.  &  P.,  474. 

44.  Hides  insured  "free  from  particular 
average  unless  the  ship  were  stranded;"  ar- 
rived at  Rio  on  their  way  to  Bordeaux  in  a 
state  of  incipient  putridity,  and  it  was  found 
impossible  to  carry  them  in  a  saleable  state  to 
the  end  of  the  voyage  for  which  the)-  were  in- 
sured.  If  it  had  been  attempted,  they  would 
have  lost  the  character  of  hides  before  they 
got  there.  Held,  the  insured  was  entitled  to 
recover  as  for  a  total  loss  without  abandon- 
ment. Roux  V.  Saliiador,  3  Bing.  (N.  C),  20C  ; 
33  E.  C.  L.,  130;  7  L.  J.  (N.  S.)  Ex.,  338;  4 
Scott,  1;  3  Hodges,  209;  overruling  s.  c,  1 
Bing.  (N.  C),  526 ;  1  Scott,  491 ;  1  Hodges,  49; 

4  L.  J.  (N.  S.)  C.  P.,  156. 

45.  Warranted  free  from  average.  She  was 
laden  with  sugar ;  was  badly  damaged  in  a  gale, 
and  was  ordered  by  the  commander  of  the 
convoy  to  return.  She  could  not  be  repaired, 
nor  could  a  ship  be  had  to  carry  the  whole  or 
the  greater  part  of  the  cargo.  Held,  if  the 
voyage  in  contemplation  was  lost  or  not 
worth  pursuing  there  was  a  total  loss  of  cargo. 
Manning  v.  Neicnluim,  2  Camp.,  624  n. ;  3 
Doug.,  130. 

46.  "  On  master's  effects  valued  at  £100,  free 
from  all  average."  Some  of  them  were  totally- 
lost,  and  others  saved.  Held,  the  articles 
which  constitute  the  master's  efiects  have  no 
natural  or  artificial  connection  with  each 
other,  but  must  of  necessity  be  essentially  dif- 
ferent  in  their  nature  and  kind,  in  their  value, 
in  the  use  to  be  made  of  them,  and  the  modo 
in  which  they  would  be  disposed  of  on  board  ; 
hence  insurers  were  liable  for  a  total  loss 
of  any  specific  thing.  Duff  n.  MacKemie,  3 
C.  B.  (N.  S.),  16;  s.  c,  3  Jur.  (N.  S.},  102.'5;  20 

'755 


1511 


WARRANTED  FREE  FROM  AVERAGE- WARRANTIES. 


1512 


Of  the  effect  of  separate  valuations  — Of  construction. 


L.  J.  C.  P.,  313;  Wilkinson  v.  Hyde,  3  C.  B. 
(K.  S.),  30;  s.  C,  4  Jur.  (N.  S.),  482;  37  L.  J. 
C.  P.,  116. 

47.  "  On  ship  and  cargo  warranted  free 
from  all  average  or  claim  arising  from  jet- 
tison or  leakage,  unless  consequent  upon 
stranding,  sinking  or  tire."  She  encountered 
severe  weather,  sprung  a  leak,  and  was  com- 
pelled to  put  into  port,  where  she  was  found 
unfit  to  be  repaired ;  and  ship  and  cargo  were 
sold.  Held,  the  warranty  did  not  apply,  for 
the  loss  was  not  caused  by  jettison  or  leakage. 
Carr  v.  Royal  Exchange  Ass.  Go.,  5  B.  &  S., 
433;  s.  C,  10  Jur.  (N.  S.),  316;  33  L.  J.  Q.  B., 
63;  10  L.  T.  (N.  S.),  365;  12  W.  B.,  137. 

VI.  Of  the  effect  of  sepaeate  valu- 
ations. 

1.  On  a  specified  quantity  of  sugars,  mace 
and  logwood,  each  article  separately  and  dis- 
tinctly valued.  The  sugars  alone  were  dam- 
aged beyond  a  moiety  of  their  value.  Meld,  in- 
sured was  entitled  to  recover  for  a  total  loss 
of  all  the  sugars.  Deidericks  v.  Commercial 
Ins.  Co.,  10  Johns.,  334. 

2.  $5,300  on  104  bales  cotton,  valued  at  $50 
a  bale.  Stipulated :  "  No  loss  or  average  shall 
in  any  case  be  paid  under  five  per  cent., 
unless  general."  HeW,  not  a  separate  insurance 
upon  each  bale;  that  no  particlar  average 
could  be  recovered  unless  the  loss  amounted 
to  five  per  cent,  on  the  whole  value.  Neidin 
V.  Insurance  Company  of  North  America,  20 
Penu.  St.,  313;  s.  c,  5  Peun.  L.  J.,  116. 

3.  "  On  rice,  on  ship  or  ships  to  be  de- 
clared warranted  free  from  average,  unless 
general  or  the  ship  be  stranded."  Insured  de- 
clared and  afiixed  a  valuation,  viz. :  8s.  3d.  per 
bag.  Held,  not  a  separate  insurance  on  each 
bag,  and  that  insurers  were  not  liable  for  a 
partial  loss.  Entwisle  v.  Ellis,  3  H,&  N.,  549; 
27  L.  J.  Ex.,  105. 

4.  On  steamer.  The  hull  and  machinery 
were  separately  valued.  Stipulated:  "  Average 
payable  on  the  whole,  or  on  each,  as  if  sepa- 
rately insured  ;  warranted  free  from  particular 
average  under  three  per  cent."  Held,  equiv- 
alent to  two  policies,  one  upon  the  liidl  and 
the  other  upon  the  machinery;  that  an  ex- 
pense of  £55  5s.  lOd.  incurred  for  siving  both 
from  total  loss  by  fire  should  be  apportioned 
against  each  subject  separately.  But  if  these 
added  together  did  nol  bring  the  claim  up  lo 

756 


the  amount  limited,  insurers  were  not  liable. 
Oppenluim  v.  Fry,  3  B.  &  S., 875 ;  11  W.  R., 725 ; 
8  L.  T.  (N.  S.),  385 ;  affirmed,  5  B.  &  S.,  348 ;  33 
L.  J.  Q.  B.,  267 ;  13  W.  R.,  831 ;  10  L.  T.  (N.  8.), 
539. 

VII.   Of  construction. 

1.  "On  a  cargo  of  wheat,  for  one  month. 
Permission  to  tow  her  from  place  to  place  in 
New  York  harbor;  loss  by  theft,  robbery,  ice 
or  barratry,  excepted."  She  was  towed  from 
Jersey  City  to  pier  36,  East  River,  and  while 
in  the  act  of  being  made  fast,  was  struck  by 
iceand  sunk.  Held,  &  loss  within  the  excep- 
tion. Bows  V.  Howard  Ins.  Co.,  5  Rob.  (N.  Y.), 
473. 

2.  On  cargo.  Stipulated:  " Not  liable  for 
leakage  of  molasses,  unless  occasioned  by 
stranding  or  collision."  Memoranda  in  the 
margin  as  follows:  "  On  molasses ;  if  by  shift- 
ing of  cargo,  owing  to  stress  of  weather,  any 
casks  become  stove  or  broken,  and  the  staves 
started  by  each  other  so  as  to  lose  their  entire 
contents,  or  the  same  amount  to  fifteen  pei 
cent,  on  the  quantity  laden,  being  five  per 
cent,  over  ordinary  leakage,  the  said  excess  ot 
five  per  cent,  or  over  on  the  quantity  shipped 
to  be  paid  for  by  the  company;  but  this  com- 
pany not  liable  for  leakage  arising  from  causes 
other  than  as  above  mentioned."  Held,  not 
liable  for  any  loss  by  leakage,  unless  it  was 
caused  by  stranding;  nor  for  any  loss  by  shift- 
ing of  the  cargo,  unless  it  amounted  to  fifteen 
per  cent,  of  the  whole  quantity  laden.  Mc- 
Laughlin v.  Atlantic  Ins.  Co.,  57  Me.,  170. 

3.  At  the  foot  of  the  policy  insurer  wrote: 
"  Mules  on  or  under  deck,  against  stranding 
or  a  total  loss."  Held,  insurers  were  responsi- 
ble for  the  mules  that  perished  before  the  port 
of  destination  was  reached.  Brooke  v.  Louisi- 
ana State  Ins.  Co.,  16  Martin  (La.),  640;  s.  c, 
id.,  681.  s.  c.  overruled,  and  it  was  held,  there 
must  be  a  total  loss  of  all  the  mules  before  the 
plaintiff  could  recover.     17  id.,  530. 


WARRANTIES. 

(Sec  SEAWOBTeraEsB ;  Sickness  asd  Disease  ;  Tm.B.') 

I.  Wh.vt  are. 

(a)  Of  the  armament  of  ship. 

(b)  master  and  crew. 


1513 


"WARRANTIES. 


1614 


What  are. 


II. 


What 

ARE  —  {eon.). 

(c)  Of  the  tnule  and  cmpUiymetd  of 

ship. 

(d) 

nationnl  character 

of  ship. 

(e) 

use  and  occiipatioi 
2)remises. 

of  the 

(0 

supply    of    water, 

force 

pumps  and  watchmen. 

(g) 

construction  of  bu 

'Idings. 

What 

ARE  NOT. 

(a)  Of  the  ship. 

(b) 

name  of  the  ship. 

(<^; 

trade  and  employment  of 

the  ship. 

(d) 

cargo. 

i^) 

use  and  occupatior 

I  of  the 

III. 

IV. 


pretniscs. 

(f )  Of  keeping  books  of  accounts. 

(g)  Of  the  vocation,  calling  or  profes- 

sion. 
(h)  Of  volunteer  matter  in  the  appli- 
cation. 
(i )  Of  the  construction  of  the  build- 
ing. 
What  satisfies  tue  warranty. 

DOES  NOT  satisfy. 


v.  Generally. 


I.  What  ake. 

(a)  Of  the  armament  of  the  ship. 

1.  "Sailed  from  London  with  fourteen  si.x- 
poundcrs,  swivels,  small  arms,  aud  tifty  hands 
or  upwards,"  were  written  in  the  margin  of 
the  policy.  Held,  a  warranty.  De  Hahn  v. 
Ilartlcy,  1  Term,  343 ;  affirmed,  3  id.,  186. 

(b)  Of  the  master  and  crew. 

2.  Stipulated :  "  The  vessel  shall  be  com- 
mandcd  by  a  captain  holding  a  certificate  from 
the  American  Shipmasters  Association."  The 
master  in  command  at  the  time  of  the  loss  had 
a  ceriificate  from  the  associ.ition,  dated  about 
two  jears  prior  to  the  loss,  subject  to  revoca- 
tion by  notice  or  otherwise;  it  required  the 
holder  to  present  it  at  the  association's  office 
for  indorsement  at  or  before  the  expiration  of 
one  year  from  its  date,  or  if  on  a  voyage,  then 
on  return  to  New  York.  It  had  never  been 
presented  for  indoi-sement.  Held,  it  was  a 
valid,  subsisting  certificate.  MeLoon  v.  Com' 
mercial  Mat.  Ins.  Co.,  100  Mass.,  472. 


3.  Stipulated :  "  She  shall  be  completely 
provided  with  master,  ofilcers  and  crew."  She 
was  placed  temporarily  in  the  charge  of  work, 
men  for  the  purpose  of  repairs.  Udd,  no 
breach  of  the  stipulation.  St.  Louis  Ins.  Co. 
V.  Glasgow,  8  Mo.,  713. 

(c)  Of  the  trade  and  employment  of 
ship. 

4.  Time  policy  on  vessel ;  stipulated :  "  Said 
vessel  not  allowed  to  carry  grain  in  bulk 
across  the  Atlantic."  She  was  bound  from 
New  York  to  Ballisdore  with  a  cargo  of  graia 
in  bulk,  and,  while  entering  the  harbor^ 
grounded  on  the  bar  and  received  injuries. 
Held,  the  insurers  were  not  liable.  Sawyer  v. 
Coasters  Mnt.  Ins.  Co.,  6  Gray,  231. 

5.  Time  policy.  "On  steamboat  to  navi- 
gate  the  usual  watersof  the  Mississippi,  Ohio, 
Illinois,  Tennessee  and  Cumberland  rivers, 
not  to  be  employed  in  the  cotton  trade,  unless 
consent  of  the  company  be  obtained  and  in- 
dorsed hereon."  She  commenced  running  as 
a  regular  packet  between  Memphis  and  New 
Orleans.  On  each  trip  she  was  chiefly  loaded 
with  cotton.  The  last  trip  she  made  from 
Memphis  to  New  Orleans.  She  arrived  at 
Memphis,  December  Isf,  having  taken  3,700 
bales  of  cotton  on  the  prior  trip.  She  con- 
tracted to  carry  1.5,000  sacks  of  corn  to  New 
Orleans,  from  3,000  to  6,000  sacks  a  trip,  and 
took  on  4,600  sacks  of  corn  December  1st;  and 
whilst  waiting  at  Memphis,  with  no  other 
freight  on  board,  was  burned  by  fire  commun- 
icated  from  another  steamboat.  Held,  she 
was  engaged  in  the  cotton  trade,  and  insurers 
were  released.  Oaty  v.  Pheenix  Ins.  Co.,  30 
Mo.,  56. 

6.  "At  and  from  Charleston  to  the  west- 
ward coast  of  Africa,  during  her  st.ay  and 
trade  there,  and  at  and  from  thence  back  to 
Charleston.  Warranted  not  to  remain  on  the 
coast  longer  than  four  months."  She  arrived 
off  the  coast  in  the  latitude  of  Senegal,  August 
1st,  came  to  anchor,  parted  the  chain,  and  was 
obliged  to  stand  out  to  sea.  On  the  ninth,  the 
master  weut  ashore  at  Senegal  to  procure  an- 
other  anchor,  but  failed,  and  did  not  reach 
Gambia  until  September  17th.  Held,  the  four 
months  commenced  to  run  from  the  date  when 
she  first  reached  the  coast.  Murien  t.  South 
Carolina  Ins.  Co.,  1  Mills'  Cimst.,  96. 

757 


1515 


WARRATIES. 


1516 


What  are. 


(d)  Of  the  national  character  of^hij). 

7.  "  WaiTaated  an  American  vessel."  She 
was  American  built  and  owned  by  American 
citizens.  There  was  some  evidence  that  her 
register  was  on  board.  HelA,  the  evidence  was 
sufflcieut.  Catlett  v.  Pacific  Im.  Co.,  1  Paine, 
594. 

8.  Where  the  vessel  is  described  as  an 
American  ship,  it  is  a  warrantj-  that  she  is 
American;  and  if  she  is  transferred  by  the 
American  owner  to  another  person  to  secure 
a  debt  due  to  a  British  subject,  the  cestui  que 
tittit  being  a  subject  of  one  of  the  belligerents, 
the  -warrant)'  is  broken.  ■  Murray  v.  United 
Ills.  Co.,  2  Johns.  C,  168. 

9.  On  cargo  on  board  the  Spanish  brig 
New  Constitution.  She  was  captured  and 
condemned  as  American  property.  Held,  she 
was  warranted  Spanish  property ;  that  it  was 
not  competent  to  prove  that  insurers  knew 
or  were  informed  at  the  time  they  subscribed 
the  policy,  that  she  w-as  in  fact  an  American 
vessel.    Aiherion  v.  Broicn.  14  Jlass.,  152. 

10.  On  thecargoof  the  Swedish  brig  Sophia. 
Held,  she  was  warranted  Swedish,  or  at  least 
documented  in  that  character.  Higgins  v.  Liv- 
ermore,  14  Mass.,  106;  Lewi-i  v.  Thatcher,  15  id., 
431. 

11.  "Warranted  a  Danish  ship."  Held, 
she  must  not  only  be  Danish  built,  but  must 
be  circumstanced  during  the  voyage  as  a 
Danish  ship  ought  to  be.  Pollard  v.  Bell,  8 
Term,  434. 

(e)  Of  the  use  and  occupation  of  the 

premises. 

1 2.  "  On  stock  as  rope  manufacturers,  their 
own,  or  held  by  them  in  trust  or  on  commis- 
.siou,  contained  in  the  brick  building  wiih  tin 
roof,  occupied  as  a  store  house."  Held,  the 
words  "  Occupied  as  a  store  house "  were  a 
warranty  that  the  buildings  were  occupied  as 
a  store  hbuse,  that  they  necessarily  import 
not  occupied  for  any  other  purpose.  Wall  v. 
Bast  Mivcr  Mut.  Ins.  Co.,  7  N.  Y.,  370;  3  Duel-, 
264. 

13.  On  a  factory  and  blacksmith  shop. 
Stipulated:  "So  long  as  the  premises  shall  be 
used  for  certain  trades,  without  consent  of  in- 
surer, it  shall  be  of  no  efiect."  Held,  no  re- 
covery could  be  had  for  a  loss  of  either  factory 
or  shop,  caused  by  fire  originating  in  the  fac- 

7.iS 


tory,  while  a  room  in  the  factory  was  used  for 
one  of  the  trades  prohibited,  notwithstanding 
the  use  of  the  room  and  the  factory  were  in 
the  same  class  of  hazards.  Lee  v.  Howard 
Fire  Ins.  Co.,  3  Gray,  583. 

14.  "  On  one  undivided  half  of  paper  mill, 
together  with  half  of  the  machinery,  wheels, 
gearing,  etc.,  the  other  half  being  owned  by 
D."  A  pair  of  mill  stones  were  put  in  for 
grinding  grain,  the  rag  cutter  and  duster  being 
taken  out  to  make  place  for  them.  They  were 
driven  by  the  same  gearing  and  power — a 
water  wheel — as  the  other  machinery.  Held, 
the  mill  was  warranted  a  paper  mill,  but  it 
was  a  paper  mill  notwithstanding  the  intro- 
duction of  the  stones.  Wood  v.  Hartford  Fire 
Ins.  Co!,  13  Conn.,  533. 

1 5.  The  words  "  not  to  be  used  as  a  coffee 
house  "  are  a  warranty  that  the  premises  in- 
sured shall  not  be  used  for  such  purpose,  and 
a  breach  of  it,  whether  insured  knew  of  it  or 
not,  avoids  the  policy.  Lawless  v.  Tennessee 
Marine  and  Fire  Ins.  Co.,  Hunt's  Mer.  Mag., 
Feb.,  1853,  p.  205. 

1 6.  "  Warranted  of  the  first  class,  with  not 
more  than  two  feet  of  pipe  leading  into  the 
chimney."  It  was  in  fact  of  the  second  clas.s, 
and  had  more  than  two  feet  of  pipe  —  for 
which  class  the  rate  of  premium  was  higher. 
Held,  the  policy  was  void.  New  Castle  Fire 
Ins  Go.  v.  Maemorran,  8  Dow,  355. 

17.  Stipulated:  "  Heat,  other  than  common 
fireplace,  shall  not  be  introduced,  and  if  any 
alteration  shall  be  made,  or  other  fire  heat 
introduced,  notice  must  be  given  and  con- 
sented to  by  indorsement  upon  the  policy." 
Insured  erected  a  brick  furnace  or  boiler,  to 
which  he  attached  a  small  steam  engine,  to 
ascertain  whether  it  would  be  worth  purchas- 
ing. On  one  occasion  a  fire  was  lighted  and 
the  engine  set  to  work,  but  it  was  ascertained 
that  it  was  wholly  useless  for  the  purpose  re- 
quired.  Some  days  thereafter  the  stock  in- 
sured  was  consumed  by  fire.  Held,  the  insurer 
was  discharged.  Olenv.  Leii)is,8  Eschr.,607; 
23  L.  J.  Ex.,  238;  17  Jur.,  843. 

(f)    Of  the  supply  of  water,  force 
pumps  and  watchman. 

18.  "  Warranted  a  good  force  pump  in  the 
factory,  designed  expressly  for  protection  of 
the  building  in  the  case  of  fires,  and  at  all 
times  in  condition  for  use."    During  the  fire 


1517 


WARRANTIES. 


1518 


What  are. 


tlie  pump  became  disabletl.  Held,  the  war. 
lanty  could  not  be  construed  to  mcau  that  tlie 
j)ump  should  continue  in  a  condition  for  use 
jiflcr  the  fire  broke  out  in  the  premi.ses,  for  to 
so  hold  would-  render  the  policy  little  better 
thaa  a  nullity,  because  at  some  period  during 
the  progress  of  the  fire,  a  pump  in  the  prem- 
ises must  necessarily  become  unfit  for  use;  the 
warranty  was  preserved  if  the  pump  was  in  a 
condition  for  use  when  not  rendered  useless 
by  lire.  Sayles  v.  Northwcaleni  Ins.  Co.,  2  Cur- 
tis, GIO. 

19.  On  a  paper  mill,  founded  upon  an  ap- 
plication in  which  this  question  was  pro- 
pounded. Watchman:  "Is  one  kept  in  the 
mill  or  on  the  premises  during  the  uight,  and 
at  all  times  when  the  mill  is  not  in  operation, 
or  when  the  workmen  are  not  present?"  An- 
swer: "Yes."  An  execution  was  levied  upon 
the  personal  property;  sherifl' excluded  the  em- 
ployes, took  the  keys,  and  locked  up  the  build- 
ing. The  deputy  sherifTand  one  of  the  trustees 
remained  in  the  mill  office,  about  two  rods 
from  the  mill,  during  the  night,  and  up  to 
•the  time  it  was  discovered  on  fire.  Held, 
insured  warranted  to  keep  a  watchman  during 
the  night,  and  at  all  times  when  the  mill  was 
not  in  operation,  or  when  the  workmen  were 
•not  present.  The  warranty  was  broken,  for 
neither  tlie  deputy  sheriff  nor  the  trustee  was 
ix  watchman  within  the  meaning  of  the  policy. 
yirst  National  Bank  v.  Insurance  Co.  of  N.  A., 
50  N.  Y.,  45 ;  s.  c,  5  Lans.,  203. 

20.  "  On  a  two  story  factory  witli  attic  and 
basement,  water  on  each  floor  with  hose,  and 
a  watchman  is  to  be  kept  on  the  premises  at 
night."  Insured  gave  evidence  that  the  fiic- 
tory  was  provided  with  a  steam  pump  in  an 
adjoining  building,  and  a  force  pump  in  the 
basement,  connected  with  a  water  pipe  through 
the  two  stories  to  a  tank  in  the  attic,  so  con- 
structed that  its  overflow  would  flood  the  attic 
fioor;  that  the  hose  was  kept  attached  to  coup- 
lings connected  with  the  water  pipe  in  the  first 
and  second  stories,  by  which  water  could  be 
thrown  upon  those  floors,  and  that  by  use  of 
the  steam  pump  water  could  be  thrown  into 
the  basement.  Held,  the  court  erred  in  dis- 
luissingthe  plaintiff's  action.  Ifew  York  Belt- 
tnff  Co.  V.  Waahington  Fire  Ins.  Co.,  10  Bos., 
438. 

21.  "  On  a  machine  sho]i,  watchman  kept  on 
premises."  Held,  when  there  is  an  express 
fiUpulation  that  a  thing  shall  be  done,  but  the 


contract  is  silent  as  to  the  time  and  manner, 
the  law  holds  that  performance  must  be 
reasonable,  having  regard  to  the  object  ami 
purpose  of  the  stipulation.  If  it  was  done  in 
the  manner  in  which  men  of  ordinary  care 
and  skill  in  similar  departments  manage  their 
own  aflTairs  of  like  kind,  this  is  a  strong 
ground  to  hold  it  reasonale.  Crocker  v. 
People's  Mutual  Fire  Ins.  Co.,  8  Cush.,  79. 

22.  Stipulated:  "Water  tanks  to  be  well 
supplied  with  water  at  all  times."  By  in- 
dorsement the  policy  was  altered  to  insure 
buildings  "  in  course  of  erection."  Held,  the 
water  tanks  were  to  be  supplied  with  .ill 
reasonable  diligence,  reference  being  had  to 
the  manner  in  which  the  construction  pro- 
gressed; that  the  insured  were  not  required 
to  have  them  supplied  with  water  in  the  same 
manner  and  to  the  same  extent  they  would 
have  been  required  had  the  policy  been  upon 
a  finished  building.  Gloucester  Manvfactur. 
ing  Co.  v.  Hoioard  Fire  Ins.  Co.,  5  Gray,  497. 

23.  The  survey  and  description  of  the 
proi)erty  insured  was  made  a  part  of  the 
policy  and  a  warranty  by  the  insured.  The 
survey  consisted  of  interrogatories  and 
answers  in  which  this  question  was  asked: 
"Is  there  a  watchman  in  the  mill  during  the 
night?"  Answer:  "There  is  a  watchman 
nights."  The  property  was  destroyed  between 
Saturday  night  and  Sund:iy  morning,  but  not 
discovered  till  Sunday  morning,  while  it  was 
yet  dark,  during  which  period  no  watchman 
was  in  the  mill.  Held,  the  insurers  were  dis- 
charged. Olendale  Woolen  Co.  v.  Protection 
Ins.  Co.,  21  Conn.,  19. 

24.  The  application  was  made  part  of  the 
contract,  which,  in  describing  the  premises, 
staled  :  "  Plentj-  of  water  upon  the  premises, 
and  force  pumps,  and  well  ventilated."  The 
policy  warranted  all  the  statements  contained 
in  the  api)lication;  but  the  application  itself 
covenanted  that  all  matters  stated  in  it  were  a 
just,  full  and  true  exposition  in  regard  to  the 
condition,  situation,  value  and  risk  of  the 
property,  so  far  as  the  same  are  known  to  the 
party  and  material  to  the  risk.  Held,  the  ma- 
teriality of  the  statements  were  to  be  passed 
upon  by  the  jury;  and  if  the  statements  were 
not  material,  they  were  not  warranties.  Oar- 
cclon  V.  Hampden  Fire  Ins.  Co.,  50  Me.,  580. 

25.  Stipulated:  "Insured  is  to  keep  eight 
buckets  tilled  with  water  on  the  first  floor, 
where  the  machinery  is  run,  and  four  in  the 

7.51t 


l.-)19 


WARRANTIES. 


1520 


What  are  not. 


basement  by  the  reservoir,  ready  for  use  at  all 
times  in  case  of  fire."  Held,  while  unavoidable 
causes  might  have  prevented  a  literal  compli- 
ance with  the  stipulation,  still  it  was  the  duty 
of  insured  to  show  that  the  required  number 
of  buckets,  in  good  and  serviceable  condition, 
were  at  the  places  desiguated,  ready  for  in- 
stant use.  Aurora  Fire  Ins.  Co.  v.  Eddy,  49 
111.,  106. 

26.  Insured  agreed  to  keep  twelve  pails  of 
water  on  each  flat  of  the  building.  It  was 
not  done.  The  loss  was  not  caused  or  afl'ected 
by  that  neglect.  Held,  he  could  not  recover. 
Garrett  «.  Provincial  Ins.  Co.,  20  U.  C.  Q.  B., 
200. 

(g)  Of  the  construction  of  iuildings. 

27.  "  On  stock  in  trade,  contained  in  a  two 
story  frame  house  tilled  in  with  brick."  The 
bouse  was  not  tilled  in  with  brick.  Held,  the 
policy  was  void.  Fowler  v.  .j^tna  Fire  Ins. 
Co.,  6  Cow.,  07.3. 

II.  What  are  xot. 

(a)  Of  the  ship. 

1.  Policy  provided  insurer  shall  not  be  lia- 
ble "For  damage  to  or  from  her  sheathing." 
Held,  not  a  warranty  that  she  was  sheathed  — 
that  it  was  an  immaterial  representation. 
Martin  v.  Fishing  Ins.  Co.,  20  Pick.,  380. 

(b)  Of  the  name  of  the  ship. 

2.  On  board  the  ship  called  "  The  Ameri- 
can Ship  President."  Held,  not  a  warranty 
that  she  was  an  American  ship;  but  that  she 
was  named  "The  American  Ship  President." 
Le  Alesnrierv.  Vaut/han,  6  East,  382;  2  Smith, 
492. 

3.  The  policy  was  written  on  the  "  Three 
Sisters."  Held,  the  English  name  was  not  a 
warranty  that  she  was  English.  ClapJuim  v. 
Cologan,  3  Camp.,  382. 

(c)  Of  the  trade  and  employment  of 
the  ship. 

4.  "On  ice  in  four  boats  from  Freeport  to 
Nashville,  to  be  towed  from  Pittsburg  by 
.■steamboat  L.,  or  by  some  other  good  boat 
equal  to  her."    Held,  no   implied   warranty 

700 


that  the  tow  boat  should  be  of  suflScient  ca- 
pacity to  manage  and  tow  the  ice  boats.  Mer- 
chants Ins.  Co.  n.  Algeo,  31  Penn.  Sf ,  446. 

5.  Time  policy.  •'  On  steamboat  now  lying 
in  Tails'  dock,  Montreal,  iutendl'd  to  navigate 
tlie  St.  Lawrence  and  lakes  from  Hamilton  to 
Quebec,  principally  as  a  freight  boat,  and  to 
be  laid  up  in  the  winter  at  a  place  approved 
by  this  company."  She  never  left  the  dock, 
and  was  destroyed  by  fire  eleven  months  after 
the  making  of  the  policy.  Held,  insurers 
were  liable,  for  there  was  no  warranty  that 
she  should  navigate  the  waters  mentioned. 
Grant  v.  ^tna  Ins.  Co.,  15  Moore  P.  C.  C, 
516;  8  Jur.  (N.  S.),  705;  10  W.  R ,  772;  6  L.  T. 
(N.  S.),  735. 

6.  The  defendant  read  in  evidence  a  letter 
from  the  master  e.vhibited  at  the  time  the  pol- 
icy was  effected,  referring  to  the  anchorage 
ground.  A  part  of  tlie  letter  was  as  follows: 
"  It  is  considered  by  the  pilot  here  as  a  good 
and  safe  anchorage,  and  well  sheltered.  I 
have  been  out  and  seen  the  place,  and  consider 
it  quite  safe."  The  court  left  it  to  the  jury  to 
say  whether  the  writer  of  the  letter  considered 
the  place  a  safe  anchorage.  Held,  no  misdirec 
tion,  for  the  words  did  not  amount  to  an  abso 
lute  statement  of  a  fact.  Anderson  v.  Pacifit 
Fire  and  Marine  Ins.  Co.,  7  L.  R.  C.  P.,  65 ; 
20  W.  R.,  280;  26  L.  T.  (N.  S.),  130. 

(d)  Of  the  cargo. 

7.  "On  cargo,  being  1,031  hogsheads  of 
wine."  Held,  not  a  warrant}-  that  no  othei 
goods  would  be  taken  on  board.  Mailer  v 
Thompson,  2  Camp.,  010. 

(e)  Of  the  use  and  occupation  of  tht, 
premises. 

8.  Occupied  as  a  dwelling  house,  but  to  be 
occupied  hereafter  as  a  tavern,  and  to  be  priv- 
ileged as  such.  Held,  not  a  warranty  that  it 
should  be  occupied  as  a  tavern.  CatUn  v. 
Sprinyjkld  Fire  Ins.  Co.,  1  Sumn.,  434. 

9.  The  policy  described  the  house  as  occu- 
pied by  a  person  named.  Held,  a  warranty  of 
the  fact  that  the  person  named  was  the  occu- 
pant at  that  date,  but  it  was  not  a  promissory 
agreement  that  the  person  named  should  con- 
tinue to  occupy  it,  and  if  the  house  beci\me 
vacant,  it  was  no  breach  of  the  warranty. 
O'Nid  B.  Buffalo  Fire  Ins.  Co.,  3  N.  Y.,  122. 


1521 


WARRANTIES. 


1522 


'Wliat  are  not. 


10.  On  his  two  story  frame  builtliug  used 
f(ir  winding  and  coloring  yarn,  and  for  stor- 
ing spua  yarn.  Held,  no  warranty  that  llie 
building  should  continue  to  be  thus  used. 
Smith  V.  Mechanics  and  Traders  Ins.  Co.,  32 
N.  Y.,  399 ;  8.  c,  29  How.  Pr.,  384. 

11.  On  a  double  frame  building  occupied 
as  a  dwelling.  It  was  partly  occupied  as  a 
grocery  and  for  the  sale  of  ale  and  liquors, 
commonly  known  as  the"  Hibernian  House." 
There  was  no  written  application,  and  no  de- 
scriijlion  ot  the  property  olher  than  that  men- 
tioned in  the  policy.  Held,  not  a  warranty  on 
the  part  of  the  plaintiff  that  it  was  so  occu- 
pied.  Maher  v.  Hiberiiiaii  Ins.  Co.,  G  Hun. 
(N.  Y.),  3.53. 

12.  On  goods  insured  upon  an  application 
in  which  the  insured  stated:  "Clerk  sleeps 
in  (he  store."  The  clerk  was  not  in  the  store 
the  night  the  fire  occurred.  Held,  not  a  war- 
ranty ;  that  it  was  mere  matter  of  description 
as  to  how  the  building  was  occupied  at  that' 
time.  Frisbie  v.  Fayette  Mat.  Ins.  Co.,  27 
Penn.  St.,  325. 

13.  On  building  and  furniture  therein. 
Held,  residing  in  the  house  and  insuring  the 
furniture  in  it,  did  not  necessarily  imply  an 
agreement  that  the  premises  should  be  used 
as  a  dwelling  house  during  the  term,  nor  did 
a  removal  from  the  house,  and  leaving  it  va- 
cant for  eight  or  ten  days  constitute,  per  se,  an 
increase  of  hazard.  Cumberland  Valley  Mu- 
tual Protection  Co.  v.  Schell,  29  Penn.  St.  31. 

14.  The  application  propounded  this  in- 
quiry: "The  number  of  stoves  and  how 
used  ?  "  Answer,  "  None."  But  there  was  a 
stove  used  for  a  few  da}'s,  in  one  of  the  rooms, 
for  drying  paint.  Held,  no  violation  of  the 
contract;  the  interrogator}'  and  answer  had 
reference  to  the  habitual  use  of  stoves.  Wil- 
liams V.  New  England  Mut.  Ins.  Co.,  31  Me., 
219. 

15.  "On  a  four  story  warehouse.  First 
floor  occupied  by  machinery  used  for  making 
barrels,  with  privilege  of  storing  b.arrcls  on 
the  premises."  Held,  a  warranty  in  prcesenti 
only.  United  States  Fire  and  Marine  Ins.  Co. 
r.  Kimberly,  34  Md.,  224. 

1 6.  After  describing  the  property  insured, 
policy  proceeded:  "No  fire  in  or  about  said 
building,  except  one  under  kettle  securely  em- 
bedded in  masonry,  used  for  heating  water, 
and  made  perfectly  secure  against  accidents." . 
Held,  not  a  wairanly  that  no  other  fires  should 


be  in  the  building;  it  was  merely  a  statement 
of  the  then  condition  of  the  properly.  Schmidt 
V.  Peoria  Marine  and  Fire  Ins.  Co.,  41  111., 
295. 

17.  The  application  stated  that  no  stoves 
were  used ;  and  it  was  made  part  of  the  policy, 
and  the  truth  of  all  statements  made  in  it  were 
warranted.  A  stove  was  subsequently  used 
for  warming.  Held,  not  a  continuing  war- 
ranty; that  the  subsequent  use  of  the  stove 
was  no  breach  of  it;  the  questions  and  an- 
swers were  all  in  the  present  and  not  in  the 
future  tense  (citing  Schmidt  v.  Peoria  Marine 
and  Fire  Ins.  Co.,  41  111.,  295;.  Aurora  Fire 
Ins.  Co.  v.  Eddy,  55  HI.,  213. 

18.  In  the  description  of  the  premises  it 
was  stated :  "  Occupied  for  stores  below,  the 
upper  portion  to  remain  un<;ccupied  during 
the  continuance  of  this  policy."  Held,  a  war- 
ranty that  the  lower  story  was  then  occupied 
for  the  purpose  stated,  and  that  the  upper  por- 
tion should  remain  unoccupied ;  but  there  w.as 
no  warranty  that  the  lower  portion  should 
continue  to  be  occupied  as  stores.  Stout  v. 
City  Fire  Ins.  Co.,  12  Iowa,  371. 

19.  The  policy  described  the  building  as 
the  five  story  brick  building  and  three  story 
brick  addition,  occupied  as  stores  on  the  first 
floor,  the  upper  portion  intended  for  a  hotel, 
and  to  be  unoccupied  during  the  continuance 
of  this  policy.  Held,  it  was  not  a  warranty 
that  all  the  rooms  on  the  first  story  were  occu- 
pied; if  any  of  them  were  occupied  the  war- 
ranty was  satisfied.  Carter  v.  Humboldt  Fire 
Ins.  Co.,  17  Iowa,  456. 

20.  The  application  was  made  part  of  the 
policy.  It  described  the  properly  as  "  Prieg- 
er's  paper  mill,  one  and  a  half  stories,  one 
used  for  drying  paper.  Tlie  premises  are  con- 
stantly worked ;  no  watch  kept  except  the  peo- 
ple working  in  the  mill  during  the  night." 
The  application  then  provided  that  all  the 
statements  made  in  it  constituted  a  just,  full 
and  true  exposition  of  all  the  facts  and  cir- 
cumstances in  regard  to  the  condition,  situa- 
tion,  value,  and  risk  of  the  property  to  be  in- 
sured, so  far  as  the  same  are  material  to  the 
risk.  Held,  not  a  warranty  that  the  premises 
were  worked  at  all  times,  for  it  could  not  be 
presumed  that  they  would  be  worked  on  Sun- 
days,  because  that  would  have  been  an  unlaw- 
ful act ;  that  the  language  was  to  be  understood 
that  the  mill  would  be  constantly  worked  du- 
ring the  usual  customary  working  days  and 

761 


1523 


WARRANTIES. 


1524 


What  ai'e  not. 


hours.    Prieger  v.  Exchange  Mut.  Ins.  Co.,  6 
Wis.,  89. 

21.  lu  the  application,  the  following  ques- 
tions and  answers  were  set  fortli:  "During 
what  hours  are  the  premises  worked? "  Ans. 
"  From  6  A.  M.  to  7  P.  M.,  and  sometimes  from 
7  P.  M.  to  6  A.  M."  "  Have  you  a  night  watch- 
man always  on  duty?"  Ans.  "  We  have."  It 
was  also  stated:  "The  building  is  not  left 
alone  at  any  time  after  the  watchman  goes  off 
duty  in  the  morning  till  his  return  in  the 
evening;  that  there  is  a  good  force  pump 
on  the  premises  for  putting  out  fire;  that  it  is 
at  all  times  in  condition  for  immediate  use, 
and  tried  every  two  or  three  days  to  ascertain 
its  condition."  Held,  not  a  warranty  that  in- 
sured should  continue  to  use  the  premises 
during  the  life  of  the  policy  in  the  precise 
manner  indicated  ;  that  it  was  proper  to  prove 
«  custom  not  to  operate  mills  of  this  class  in 
the  winter  season;  and  that  such  custom  was 
■well  known  to  the  insurer's  agent  who  ac- 
cepted the  risk ;  hence  the  questions  and  an- 
swers related  only  to  the  lime  or  season  of  the 
3'ear  when  that  mill  or  those  of  a  similar 
■fharacter  were  operated.  May  v.  Buckeye 
Mut.  Ins.  Co.,  35  Wis.,  291. 

22.  Policy  recited :  "No  fire  is  kept,  and 
no  hazardous  goods  are  deposited."  The  loss 
was  caused  by  burning  a  tar  barrel  in  the 
premises  while  making  repairs.  Held,  insurer 
was  liable,  for  the  fact  recited  meant  habitual 
use  of  fire.  Dobson  v.  Sotheby,  1  Moo.  & 
M.,  90. 

23.  On  cotton  mills,  warr^mted  brick  built. 
Policy  stated,  warmed  and  worked  by  steam, 
lighted  by  gas,  and  worked  by  day  only.  Plea: 
the  steam  engine,  upright  and  horizontal 
shafts,  parts  of  said  mills  were,  without  leave 
of  insurers,  worked  by  niglit,  and  not  by  day 
only.  Replications:  that  tie  engine,  upright 
and  horizontal  shafts,  were  not  part  of  said 
mills,  and  were  not,  without  leave  of  insurers, 
worked  by  night,  and  not  by  day  onl3'.  The 
jury  found  the  issues  upon  that  plea  for  the 
defendants.  Motion  for  judgment  non  obstante 
veredicto.  Held,  plaintiff  was  entitled  to  judg- 
ment, notwithstanding  the  verdict,  for  the 
plea  was  bad,  because  working  a  part  of  the 
machinery  at  night  was  networking  the  mills 
at  night.  Mayall  v.  M itford,  S  A.  &  E.,  670; 
1  N.  &  P.,  732;  W.  W.  &  D.,  310. 

24.  "  On  cotton  mills,  millwrights'  work, 
including  standing  gear,  engine  house  adjoin- 

763 


ing,  and  the  steam  engine  therein ;"  reciting : 
Buildings  are  brick  built  and  slated,  warmed 
exclusively  by  steam,  lighted  by  gas,  worked 
by  the  steam  engine  above  mentioned,  in 
the  tenure  of  one  firm  only,  and  worked  by 
day  only.  Held,  worked  by  day  onlj',  referred 
to  the  mill,  and  not  to  any  par.  of  the  engine 
or  gear;  that  using  the  engine  by  night,  work- 
ing  some  parts  of  the  machinery  (the  mill 
itself  being  worked  by  day  only)  was  no  vio- 
lation  of  the  contract.  Whitehead  v.  Price,  3  C. 
M.  &  R.,  447;  5  Tyrw.,  825;  1  Gale,  151. 

23.  A  clause  in  a  policy  that  the  building 
insured  "  is  fitted  with  iron  shutters  and 
doors,"  is  not  violated  if  the  building  has  such 
shutters  and  doors,  although  the  fire  was 
carried  through  them  when  they  were  open. 
Scott  V.  Quebec  Fire  Ass.  Co.,  Stuart,  147. 

(f)  Of  keeping  books  of  accounts. 

26.  The  policy  provided:  "  The  claim  for 
loss  shall  be  sustained  if  required,  by  the 
books  of  accounts  and  other  vouchers  of  the 
insured."  Held,  not  a  warranty  to  keep 
books  of  accounts,  or  to  be  ready  to  exhibit 
them  when  called  for.  Wighiman  n.  Western 
Marine  Fire  Ins.  Co.,  8  Rob.  (La.),  442. 

(g)  Of  the  vocation,  calling  or  pro- 
fession. 

27.  Stipulated:  "In  the  event  of  change 
of  vocation,  occupation,  or  business,  the 
policy  shall  be  canceled,  and  the  unexpired 
premium  returned,  or  the  difference  for 
the  extra  hazard  paid  by  insured,  and  in- 
dorsed  on  the  policy."  He  was  an  earthen- 
w'are  manufacturer  at  the  time  the  policy  was 
issued,  and  while  on  a  visit  he  went  out  to  as- 
sist in  loading  hay;  the  hay  fork  slipped 
through  his  hand,  struck  him  on  the  belly, 
from  which  injury  he  died.  Held,  no  change 
of  occupation.  North  American  Life  and  Ac- 
cident Ins.  Co.  V.  Burroughs,  69  Penn.  St.,  43. 

28.  Change  of  occupation  or  emploj-ment 
to  one  more  hazardous  was  prohibited.  In- 
sured was  a  school  Jeacher,  and  while  super- 
intending the  erection  of  two  dwellings 
and  barns  for  his  own  use,  accidently  fell 
from  one  and  was  killed.  Held,  no  evi- 
dence that  insured  assumed  anj'  new  business. 
Stone  V.  United  States  Causulty  Ins.  Co.,  34  N. 
J.,  371. 


1523 


WARRANTIES. 


1526 


What  satisfies. 


29.  Policy  against  death  by  accidents.  In- 
sured was  liillcd  wliile  performing  duly  as  a 
bralicmaa.  Insurer  sought  to  prove  tliat 
■wlien  lie  was  insured  he  was  a  switchman, 
and  that  he  was  so  represented  in  the  ajiijlica- 
tion.  TTcM,  inadmissible,  for  the  representa- 
tion was  not  a  warranty  that  he  sliould  con- 
tinue a  switchman,  or  tliat  he  wouhl  not  engage 
in  any  difierentoccupation.  Providential  Life 
Ins.  Co.  V.  Fennell,  49  111.,  180. 

30.  Insurer's  usual  form  of  proposal  re- 
quired the  name,  residence,  profession  or 
occupation  of  the  person  insured  to  be  stated. 
Tlie  plaintifl",  wrote  "  I.  T.  P.,  Esquire,  Saltley 
Hall,  Warwickshire,"  and  tlie  policy  stipu- 
lated: "If  any  statement  or  allegation  con- 
tained in  the  proposal  be  untrue,  or  if  this 
policy  has  been  obtained,  or  shall  hereafter  be 
continued  through  auj-  misrepresentation,  con- 
ccalmeut  or  untrue  averment  whatsoever,  then 
this  policy  shall  be  void."  Insured  lived  at 
Saltley  Hall,  but  he  kept  an  ironmonger's 
shop  at  D.,  in  the  same  shire.  Held,  no  de- 
fense to  the  action.  Perrins  ®.  Marine  and 
General  Travelers  Ins.  Co.,  2  El.  &  El.,  317; 
s.  c,  G  Jur.  (N.  S.),  09 ;  29  L.  J.  Q.  B.,  17 ;  1  L. 
T.  (N.  S.),  27 ;  s.  C.  affirmed,  6  Jur.  (N.  S.),  027 ; 
2  El.  &  El.,  334;  29  L.  J.  Q.  B.,  342;  8  W.  R., 
503. 

,(h)  Of  volunteer  matter  in  the  appli- 
cation. 

31.  Contract  required  p.pplications  to  be 
made  in  writing,  to  describe  the  premises  and 
their  tises;  and  it  provided,  that  a  false  descrip- 
tion should  avoid  the  policy;  tliat  the  survey 
and  description  should  be  a  warranty  of  the 
insured.  Held,  facts  stated  in  tlie  application 
not  required  by  the  conditions  of  the  policy, 
Mor  descriptive  of  the  premises,  were  not  war- 
ranties, but  representations.  Hartford  Protec- 
tion Ins.  Co.  1).  Hormer,  2  Ohio  St.,  452;  see 
Buell  V.  Connecticut  Mutual  Life  Ins.  Co.,  N. 
D.  of  Oliio,  8  Chi.  Leg.  News,  202. 

32.  "Against  loss  occasioned  by  the  want 
of  integrity  of  W."  The  application  stated 
that  the  accounts  of  W.  would  be  examined 
by  the  finance  committee  every  fortnight. 
Held,  it  was  not  a  warranty  that  they  should 
be  so  examined;  it  was  a  mere  representation 
of  the  plaintift''s  intention;  hence  plaintiff 
was  entitled  to  recover,  although  the  loss  was 
occasioned    by    neglecting    to    examine    the 


accounts  in  the  manner  specified.  Benhtm  v. 
United  Guarantee  and  Life  Ass.  Co.,  7  Exchr., 
744;  16  Jur.,  691;  21  L.  J.  Ex.,  317. 

(i)  Of  the  consti'uction  of  the  luilding. 

33.  The  survey,  made  part  of  the  policy, 
contained  this  question:  "Are  the  outside 
walls  brick  or  stone?"  Answer.  "Brick."  To 
this  question  there  was  this  note:  If  the 
building  be  wood,  omit  replies  to  these  ques- 
tions. Insurer  alleged  as  a  breach  of  the  war- 
ranty that  the  outside  walls  were  not  all  brick. 
Held,  the  breach  was  not  well  alleged,  for 
there  was  no  breach,  though  the  walls  were 
not  all  brick.  Cox  o.  JEtna  Ins.  Co.,  29  Ind., 
580. 


III.   What  satisfies. 

1.  Application  stipulated:  "  Ashes  are  kept 
at  all  times  in  brick."  Held,  s.atisfied,  if  they 
were  kept  in  some  mode  equally  safe.  Under- 
hill  V.  Affawam  Mutual  Fire  Ins.  Co.,  B  Cusli., 
440. 

2.  The  applicant  stated  that  the  facilities 
for  extinguishing  fires  were  a  force  pump  and 
an  abundance  of  water.  Held,  not  a  promise 
that  the  pump  should  be  kept  at  all  times  fit 
for  use.  It  was  sufhcieut  if,  at  the  date  of  the 
application,  the  pump  was  in  good  order.  Gil- 
Hat  V.  Pawtucket  Mutual  Fire  Ins.  Co.,  8  R.  I., 
282. 

3.  Stipulated  that  a  force  pump  should  be 
kept  in  the  building.  There  was  one,  but 
there  was  no  hose  for  or  attached  to  it.  Held, 
the  stipularton  was  not  to  be  extended  by  im- 
plication, hence  the  stipulation  was  satisfied. 
Peoria  Marine  and  Fire  Ins.  Co.  ■».  Lewis,  18 
111.,  553. 

4.  The  policy  prohibited  smoking  in  the 
mill.  Held,  the  insured  only  undertook  that 
he  would  not  smoke,  himself,  or  allow  others 
to  do  so  if,  by  reasonable  caution,  lie  could 
prevent  it  (citing  Daniel  v.  Hudson  Fire  Ins. 
Co.,  12  Cush.,  426).  Insurance  Co.  of  North 
America  v.  McDonell,  50  111.,  120. 

n.  Warranted  that  she  had  twenty  guns. 
Sixty  men  were  required  to  man  them,  but  she 
had  only  twenty-five.  Held,  the  warranty  was 
satisfied.     Hide  v.  Bruce,  3  Doug.,  21.3. 

6.  "  Warranted  Danish."  Proof  tliat  she 
carried  the  Danish  colors,  and  that  the  master 
addressed  himself  to  the  Danish  consul  and 

763 


1527 


WARRANTIES. 


1528 


What  does  not  satisfy  —  Generally. 


conducted  himself  as  the  master  of  a  Danish 
ship  would  have  done,  was  held  suliicieut  to 
satisfy  the  warranty.  Arcutigel  v.  Thunqisoii, 
2  Camp,,  020. 

IV.    "\YuAT  DOES  NOT  SATISFY. 

1.  Policy  Stated  :  "The  vessel  sails  under  a 
sea  letter,  without  register,  warranted  Amer- 
ican." Held,  parol  evidence  to  exphiin  the 
term  "sea  letter"  was  inadmissible;  held,  also, 
tliat  sailing  with  a  certificate  of  ownership 
did  not  satisfy  the  warranty.  Sleght  v.  lihine- 
lander,  1  Johns.,  193;  overruled,  s.  c,  3  id., 
533. 

2.  A  boy  hired  to  make  the  fires  threw 
ashes  into  a  pile  a  rod  or  more  from  the  build- 
ing, subsequently  a  barrel  was  placed  in  the 
wood  house  adjoining,  and  ashes  were  put 
into  it;  there  were  no  vaults  of  brick  or 
stone  provided  for  depositing  ashes,  contrary 
to  the  stipulations  of  the  policy  and  applica- 
tion. The  fire  took  place  in  the  wood  house. 
Held,  a  direct  violation  of  the  terms  of  the 
contract,  which  released  the  insurers.  City 
of  Worcester  v.  Worcester  Mutual  Fire  las. 
Co.,  9  Gray,  37.      ■ 

3.  "  Warranted  to  have  four  passes  from  the 
kings  of  France,  England,  Poland,  and  the 
states  of  Holland;  and  the  goods  to  be  of  a 
Polish  subject  on  board  the  ship  called  the 
City  of  Warsaw.  She  had  passes,  but  they 
were  not  for  any  ship  of  her  name ;  and  were 
for  goods  of  a  subject  of  the  king  of  Poland ; 
but  the  goods  on  board  were  the  property  of 
the  subjects  of  Holland.  ITeld,  tlje  warranty 
was  not  satisfied.     Anon.,  Skin.,  404. 

4.  Warranted  to  carry  fifty  hands  or  up. 
wards.  She  sailed  from  Liverpool  on  the 
IStli  with  forty-six  hands,  reached  Beaumarais 
in  six  hours  with  a  Liverpool  pilot,  took 
on  six  hands  more,  and  sailed  for  destination. 
Held,  the  warranty  was  not  satisfied.  De- 
Hahn  v.  Hartley,  1  Term,  343;    aflirmed,  2  id., 

•  186. 

V.  Generally. 

1.  No  departure  in  the  smallest  p.irticular 
can  be  allowed  on  any  matter  warranted,  and 
whether  the  thing  warranted  be  material  or 
immaterial  is  of  no  consequence.  NicoU  v. 
American  Ins.  Co.,  3  W.  &  M.,  329. 

2.  A  warranty  must  clearly  appear,  either 
764 


by  express  terms,  or  it  must  necessarily  result 
from  the  nature  of  the  contract.  It  will  never 
be  created  by  construction.  Jifersoti  Ins.  Co. 
V.  Cotheal,  7  Wend.,  72. 

3.  The  person  insured  referred  as  usual  to 
another.  Insurer's  agent  called  upon  the 
latter,  and  wrote  certain  answers,  as  lie 
gave  them,  to  certain  questions  propounded. 
Held,  the  answers  were  not  warranties.  Rawl 
V.  American  Mutual  Life  Ins.  Co.,  37  N.  Y.,  282 ; 
s.  c,  36  Barb.,  357. 

4.  A  fact,  quality  or  circumstance  specified, 
sometimes  relates  to  the  risk,  or  is  sometimes 
for  another  purpose;  as,  to  identify  the  thing 
insured.  Tliis  must  be  settled  before  the  rule 
tluU  governs  in  cases  of  warranty  can  be  ap- 
plied. But  if  it  relates  to  the  risk,  it  is  a  war- 
rauty,  and  nothing  can  he  substituted  for  it, 
however  advantageous  to  the  insurer;  for  a 
man  cannot  be  compelled  to  adopt  a  better 
bargain  than  his  own.  Wood  o.  Hartford  Fire 
Ins.  Co.,  13  Conn.,  533. 

5.  The  distinction  between  a  representation 
and  a  warranty  is  this :  The  former  is  a  part  of 
the  proceedings  preliminary  to  the  contract; 
the  latter  is  a  part  of  the  completed  contract. 
Dewees  v.  ManJiattan  Ins.  Co.,  34  N.  J.,  244. 

6.  The  distinction  between  warranties  and 
representations  is  that  the  latter  must  be  true, 
so  far  as  they  are  material  to  the  risk;  they 
are  material  when  the  truth  would  have  in- 
duced insurer  to  have  refused  the  risk,  or  to 
have  charged  a  higher  premium.  A  warranty 
must  be  true  in  every  respect,  and  no  question 
can  arise  as  to  its  materiality.  Mutual  Benefit 
Life  Ins.  Co.  v.  Miller,  39  Ind.,  475. 

7.  Statements  not  on  the  face  of  the  policj' 
are  not  warranties  unless  they  are  referred  to 
by  the  policy,  and  it  clearly  appears  that  the 
parties  intended  them  to  form  part  of  it;  a 
warranty  cannot  be  created  or  extended  by 
construction.  Mutual  Benefit  Life  Ins.  Co.  d. 
Robertson,  59  111.,  123. 

8.  The  general  rule  is  well  settled,  that  an 
express  warranty  must  appear  on  the  face  of  a 
policy.  Instructions  for  insurance,  unless  in- 
serted  in  tlie  policy,  do  not  amount  to  a  war- 
ranty.  So  a  memorandum  upon  paper  attached 
to  the  policy  by  a  wafer,  or  rolled  up  in  it, 
when  the  policy  was  shown  to  the  underwriter 
and  executed  by  him,  has  been  lield  not  to  be 
a  warranty,  but  a  representation  merely,  and 
in  the  absence  of  a  stipulation,  giving  the 
effect  of  a  warranty  to  a  statement  of  facts  con 


lo2'J 


WATCHMAN  —  WIFE'S  POLICY. 


1530 


Of  the  effect  ot  her  husband's  surviving  —  Of  the  effect  of  her  husband's  insolvency. 


tainod  in  a  separate  paper,  the  principle 
wliich  converts  everything  in  the  policy  to  a 
warranty  does  not  apply.  Kentucky  and  Loti- 
iseille  Ins.  Go.  s.  Southard,  8  B.  Mon.,  634. 

9.  If  facts  are  stated  merely  by  waj'  of  re- 
cital or  description,  not  material  to  the  risk, 
the  matter  recited  is  not  a  warranty.  Schultz 
1.  Merchant)  Ins.  Co.,  57  Mo.,  331. 


WATCHMAX. 

(See  CONSTBUCTION ;   WARBANTrSS.) 


WIFE'S   POLICY. 

I.  Op  the  effect  op  her  hijsband's  sdu- 

VIVINO. 

II.  Of  the  effect  op  hek  husband's  in- 
solvency. 

III.  When  husband's  peksonai,  represen- 

tatives HAVE  NO  RIGHTS  TO. 

IV.  Op  the  rights  op  the  wipe's  children. 

PROOF  the   wipe   must  GIVE   TO 

sustain  her  action. 

WIFE'S  assignment. 

(a)  When  valid. 

(b)  invalid. 


V. 
VI. 


I.    Of  the  effect  of  her  husbajshd's 

SUKVIVING. 

1.  A  policy  was  issued  upon  the  life  of  H., 
the  husband  of  A.,  payable  to  her  or  her  legal 
representatives.  Three  years  thereafter,  A. 
died,  and  H.  continued  to  pay  the  premiums. 
He  remarried  four  years  after,  and  then  in- 
surer made  a  memorandum  on  the  policy  that 
it  should  stand  for  the  benefit  of  his  then  wife, 
and  others  named  in  the  memorandum.  H. 
continued  to  pay  tlie  premiums  until  his  de.ath, 
which  occurred  fifteen  years  after  the  policy 
was  first  issued.  Held,  the  husband  was  not 
bound  to  continue  the  policy  for  the  benefit  of 
the  representatives  of  the  deceased  wife;  that 
with  the  consent  of  insurer,  he  could  change 
the  beneficiaries,  and  after  the  change  was 
made,  every  payment  was  in  the  interest  of 
the  widow.  Oambs  v.  Covenant  Mutual  Life 
Ins.  Co.,  50  Mo.,  44. 


2.  The  husband  procured  a  policy  on  his 
life  for  the  benefit  of  his  wife,  and  paid  tho 
premiums.  He  survived  her  about  twelve 
hours,  leaving  two  children  by  a  former  wife, 
but  no  issue  by  his  last.  Before  he  knew 
of  Ihe  death  of  his  wife  he  made  a  nuncvpatice 
will,  directing  the  avails  of  the  policy  to  bo 
divided  between  his  children  and  his  step- 
daughter in  equal  parts,  provided  "my  wife 
does  not  live."  Held,  he  had  the  right  to  dis- 
pose of  it.    Kcrman  v.  Howard,  23  Wis.,  108. 

3.  Policy  on  the  life  of  A.  in  favor  of  his 
then  wife,  who  died  two  years  after  marriage, 
leaving  a  child  who  died  an  infant.  A.  paid 
the  premium  for  thirteen  years.  Held,  a  con- 
tract with  A.,  and  the  legal  right  to  enforce  it 
devolved  upon  his  personal  representatives. 
Mutual  Benefit  Life  Ins.  Co.  v.  Atwood,24: 6rat., 
4«7. 

II.  Of  the  effect  of  hee  husbamd's 

INSOLVENCY. 

1.  On  the  life  of  the  husband,  upon  the  ap- 
plication  of  the  wife,  payable  to  her  for  her 
sole  use,  and  in  case  of  her  death  before  her 
husband,  to  be  paid  to  her  children.  She 
died,  leaving  children  and  husband.  After 
her  death  he  surrendered  the  policy,  and  took 
anotlier  for  the  same  amount  in  his  own 
name,  bearing  the  same  date  and  for  the 
same  premium  as  that  surrendered.  He 
paid  one  premium,  and  died  insolvent.  Held, 
the  substituted  policy  was  the  property  of 
the  children,  and  that  the  creditors  of  tho  bus. 
band  had  no  right  to  the  avails  of  it.  Chapin 
t.  Fellowes,  30  Conn.,  132. 

2.  An  insolvent  debtor,  with  his  own  means, 
procured  insurance  on  his  life  for  the  benefit 
of  his  wife.  The  evidence  satisfied  the  court 
that  the  insolvent  husband  had  determined  to 
provide  for  his  wife  and  to  wholly  disregard 
the  claims  of  his  creditors.  Held,  the  money 
received  by  the  wife  upon  the  policy  must  be 
accounted  for  as  assets  of  the  estate.  Stokes  v. 
Coffey,  8  Bush.,  533. 

3.  Policy  upon  the  life  of  the  husband  in 
favor  of  his  wife  and  children.  Held,  the 
death  of  Ihe  husband  fixed  the  liability  of 
insurers,  and  the  widow  and  children  were 
entitled  to  the  avails  of  the  policy,  absolutely, 
in  their  own  right.  Succession  of  Kugler,  23 
La.  An.,  4.55. 

4.  Policy  was  effected  on  a  life  iu  the  name 

765 


1531 


WIFE'S  POLICY. 


1532- 


Miscellaneous. 


of  certain  trustees,  who  were  to  hold  it  for  tlie 
benefit  of  the  insured  until  his  marriage,  and 
upoa  the  solemnization  thereof,  they  were  to 
liold  it  for  the  benefit  of  the  wife  and  the 
rhildiea  of  the  marriage.  The  husband  be- 
came bankrupt  and  died,  when  a  large  bonus 
had  accrued  upon  the  policy.  Held,  the  hus- 
band's assignees  in  bankruptcy  were  not  enti- 
tled to  any  of  the  benefits  of  the  policy;  that 
they  all  belonged  to  the  beneficiaries  men- 
tioned in  the  deed  of  trust.  Parkes  v.  Bott,  9 
Sim.,  388;  8  L.  J.  (N.  S.)  Ch.,  14. 

3.  The  husband  procured  a  policy  on  his 
life  in  favor  of  his  wife,  payable  to  her,  her 
heirs,  executors  or  assigns.  He  paid  the 
premiums  from  his  own  funds.  A  few  weeks 
before  his  death  he  became  bankrupt,  and  his 
estate  was  sequestrated.  Held,  the  polic}-  was 
a  provision  for  the  wife,  and  not  a  donation, 
hence  the  creditors  of  the  husband  had  no 
right  against  it.  Reversing  s.  c,  22  C.  C.  S., 
1211.     Galloway  v.  Craig,  23  id.,  12. 

III.     "W"hEN  HUSBAiro's   PERSONAL  EEP- 
EESENTATIVES  HAVE  NO  EIGHTS. 

1.  Policy  upon  the  life  of  A.,  payable  to 
himself,  his  heirs,  executors,  etc.  It  was  as- 
signed by  A.  to  D.,  and  became  forfeited  for 
nonpayment  of  premium.  D.  afterwards  as- 
signed it  to  S.,  who  assigned  it  to  the  defend- 
ant, to  which  Insurers  assented.  While 
it  ceased  to  be  in  force,  A.  consented  that  it 
might  be  revived  by  his  wife's  brother,  for  her 
benefit.  Held,  A.'s  administrator  was  not  en- 
titled to  the  avails  of  the  policy.  Winchester 
V.  Stehbins,  16  Gray,  52. 

2.  Certain  policies,  issued  in  favor  of  the 
wife  and  child  of  the  deceased,  and  certain 
others  upon  the  same  life,  had  been  transferred 
for  the  benefit  of  the  wife  and  child,  and  it  was 
Jieid,  they  should  not  be  inventoried  as  part  of 
the  estate  of  the  deceased,  for  if  the  policy 
issues  to  the  wife,  or  is  properly  transferred  to 
her,  the  amount  stipulated  therein  belongs  to 
her,  when  the  event  insured  against  happens. 
Succession  of  Hearing,  26  La.  An.,  326. 

3.  The  husband  eflFected  a  policy  on  the 
life  of  his  wife,  payable,  three  months  after 
her  death,  to  her  heirs,  executors,  successors 
and  assigns.  Held,  the  money  which  fell  due 
under  it  was  not  eovimunio  bonorum.  It  was 
the  property  of  her  heirs.  Smith  v.  Kerr,  7 
C.  C.  S.  (3d  ser.),  863  ;  41  Scot.  Jur.  400. 

766 


IV.  Of  the  rights  of  wife's  ohildeen. 

1.  Policy  on  the  life  of  the  husband  for  the 
benefit  of  the  wife,  payable  to  her,  her  execu- 
tors, administrators  or  assigns,  and  in  case  of 
her  death  before  the  death  of  her  husband, 
payable  lo  her  children  or  to  their  guardian,  if 
under  a-ge.  It  was  assigned  by  her  with  the 
husband's  consent  and  with  consent  of  insurers, 
to  W.  She  died  February  27,  1867,  leaving 
one  child,  and  the  insured  died  sixteen  days 
thereafter.  Held,  the  assignment  could  not 
defeat  the  rights  of  the  child,  for  at  most,  it 
carried  nothing  but  the  rights  of  the  wife, 
which  died  with  her;  and  then  by  the  express 
terms  of  the  polic}',  it  became  paj-able  to  the 
guardian  of  the  child.  Knickerbocker  Life 
Ins.  Co.  1).  Weitz,  99  Mass.,  157. 

2.  Policy  to  the  wife  upon  the  life  of  her 
husband,  payable  to  herself,  if  living,  if  not 
to  their  children.  She  died  before  her  hus- 
band, and  one  of  her  children  died  during  his 
father's  lifetime,  leaving  lawful  issue.  Held, 
the  child  at  the  time  of  his  decease  had  an  in- 
terest in  the  policy,  transmissible  by  descent  to 
his  child,  who  was  entitled  to  that  portion  of 
the  fund  which  his  father  would  have  taken 
if  living.  Conn.  S.  C.  Continental  Life  Ins. 
Co.  V.  Palmer,  5  Ins.  L.  J.,  305. 

V.  Of   the    peoof  wife    must   give 

TO    SUSTAIN    HEE    ACTION. 

Policy  to  a  woman,  the  alleged  wife  of  the 
person  whose  life  was  insured.  Held,  the 
plaintiff  must  prove  that  she  was  the  lawful 
wife  of  the  deceased  at  the  time  the  policy 
was  made ;  if  she  was  not  his  lawful  wife,  the 
policy  was  void.  Holnbird  v.  Ins.  Co.,  2  Dil. 
Cir.  Ct.,  166  n. 

VI.  Of  wife's  assignment. 

(a)    WTien  valid. 

1.  A.  insured  the  life  of  her  husband.  They 
joined  in  an  assignment  to  B.  in  trust  for  her 
husband's  children.  Held,  she  could  not 
challenge  the  right  of  the  trustee  to  the  fund. 
Bond  i>.  Insurance  Co.,  9  Phila.,  149. 

2.  Policy  to  a  wife  for  her  benefit,  payable 
to  her,  was  assigned  by  her  husband  and  her- 
self to  secure  an  indebtedness  due  by  the  bus- 


1533 


WIFE'S  POLICY. 


153* 


Of  wife's  assignment. 


blind  to  the  assignee.  Held,  the  assignment 
was  valid,  notwithstanding  that  the  policy 
was  not  payable  to  her  assigns.  De  Range  v. 
Sllictt,  33  N.  J.  Eq.,  48G;  Archibald  v.  Mutual 
Life  Ins.  Co.,  38  Wis.,  543. 

3.  On  the  life  of  the  husband  for  the  sole 
and  separate  use  of  the  wife,  who  joined  with 
her  husband  in  an  assignment  to  secure  pay- 
ment of  a  debt  due  by  a  firm  of  which  he 

,  was  a  member.  Held,  she  had  the  right  to  as- 
sign it  (citing  Pomeroy  v.  Manhattan  Life  Ins. 
Co.,  40  111.,  398).  Emeriek  v.  Coakley,  35  Md., 
188. 

4.  Policy  upcm  the  life  of  her  husband  to 
the  wife,  who  assigned  |G00  therein  to  H. 
Held,  it  was  not  assignable  at  law  or  under  the 
statute  so  as  to  pass  a  right  at  law  to  the  as- 
signee; but  that  as  it  was  the  sole  and  sepa- 
rate property  of  the  wife,  she  had  power  to 
pledge  it  as  security  for  the  debt  of  her  bus-' 
band,  and  she  was  bound  in  equity  by  her  as- 
signment. Pomeroy  v.  Manhattan  Life  Ins. 
Co.,  40  111.,  398 ;  Norwood  i:  Guerdon,  60  id.,353 

5.  Policy  for  the  sole  and  separate-  use  of 
Ihe  wife.  The  annual  premium,  $343.10,  was 
paid  by  the  husband,  who,  in  his  life  time, 
borrowed  money  of  S.,  and  assigned  the  policy 
as  collateral  securilj',  llie  wife  joining  in  the 
assignment.  Held,  the  jwlicj'  was  not  within 
the  protection  of  the  statutes,  because  the  pre- 
mium exceeded  $300.  It  was  therefore  assign- 
able by  the  wife,  and  the  assignee  was  entitled 
to  be  protected.  Charter  Oak  Life  Ins.  Co.  v. 
Brant,  47  3Io.,  419;  Baker  j^.  Toung,  id.,  453. 

6.  The  wife,  entitled  to  separate  income, 
agreed  to  aid  her  husband  in  obtaining  a  loan 
from  an  insurance  compauj-.  A  policy  was 
issued  upon  their  joint  lives,  payable  to  the 
survivor  of  either,  the  premiums  to  be  paid 
by  the  husband.  The  wife  assigned  her  sep- 
arate income,  and  the  husband  assigned  the 
policy  to  secure  money  advanced.  The 
wife  covenanted  that  the  husband  should  pay 
the  premiums,  and  the  hu.sband  declared  that 
if  he  failed  to  do  so,  the  mortgagees  might 
pay  them  out  of  the  income.  Husband  and 
wife  agreed  that  if  the  insurance  moneys  be- 
came payable  before  the  mortgage  debt,  the 
compan)-  might  pay  it  out  of  them.  IleUl,  al- 
though  the  i)olicy,  if  taken  separately,  created 
an  interest  in  the  wife  not  assignable  by  her, 
so  as  to  bar  her  right  of  survivorship,  yet  as 
it  had  been  created  for  tlie  purpose  of  sup- 
porting the  mortgage,  and  a^  a  part  of  the 


same  transaction  and  in  pursuance  of  a  con- 
tract that  it  should  secure  the  loan,  the  wife's 
interest  under  the  policy  was  capable  of  as- 
signment by  her.  Winter  v.  Easum,  2  DeG., 
J.  &  S.,  272. 

(b)  When  invalid. 

7.  Policy  to  the  wife  for  her  benefit,  and  in 
case  of  her  death  to  her  children.  Held,  the 
policy  was  issued  and  taken  under  the  act  oif 
1840,  entitled,  "  An  act  in  respect  to  insurances 
of  lives,  for  the  benefit  of  married  women;" 
that  the  wife's  assignment  of  it  was  invalid. 
Eadie  v.  Slimmon,  26  N.  Y.,  9. 

8.  Policy  upon  the  life  of  the  husband,  pay- 
able to  the  wife.  She  made  a  blank  assign- 
ment, and  her  husband,  the  assignee,  allowed 
the  policy  to  lapse  for  nonpayment  of  pre. 
mium,  because  the  company  refused  to  recog- 
nize her  assignment,  which  was  in  fact  illegal 
and  void.  New  policies  were  thereupon  is- 
sued upon  the  same  life,  on  the  original  appli- 
cation  at  the  same  rate  of  premium,  without 
any  new  medical  examination,  the  old  policies, 
and  all  claims  thereunder,  being  then  surren- 
dered. Held,  a  scheme  contrived  liy  the  de- 
fendant with  the  assent  of  the  plaintifl''s  hus- 
band to  exclude  the  wife  from  the  benefits  of 
the  policies  made  in  her  favor;  that  the  change 
was  nominal  only,  and  such  a  device  gave  no 
new  rights  to  its  projectors  against  the  wife; 
that  if  the  assignee  could  not  enforce  his 
rights  against  her  under  the  old  policy,  he 
could  not  be  permitted  to  do  so  under  the  new ; 
hence  the  plaintiff  was  entitled  to  recover. 
Barry  v.  Mutual  Life  Ins.  Co.,  49  How.  Pr.,  504. 

9.  Policy  on  the  life  of  the  husband,  paya- 
ble to  the  wife,  or  to  her  children,  in  case  she 
should  die  before  him.  She  made  a  blank 
assignment,  and  her  husband  filled  it  up  in 
favor  of  B.  &  Co.,  who,  upon  the  faith  of  it, 
gave  credit  to  the  husband.  The  wife  sur- 
vived, and  brought  this  action  to  set  aside  the 
assignment,  and  to  recover  upon  the  policj'. 
Held,  it  was,  in  effect,  a  provision  made  by  the 
husband  for  the  wife  and  children,  through 
the  intervention  of  a  trustee;  that  the  courts 
have  uniformly  held  such  a  trust  irrevocable 
(citing  Bell  ».  Cureton,  2  Myl.&  K.,503;  Wat- 
son V.  Bonney,  2  Sandf.,  405;  Peterson  v.  Mur- 
phy, 17  Jur.,  298;  Gilchrist  v.  Stevenson,  9 
Barb.,  9);  hence,  the  plaintiff  was  entitled  to 
lecover  tlie  sum  insured.  Barry  v.  Equitablt 
Life  Ass.  Soc,  14  Abb.  Pr.  (N^^  S.),  385  n. 

767 


INDEX  TO  CONTENTS. 


[Small  Capitals  Indicate  sepamte  titles ;  Uiejlguret  refer  to  colamnaj 


A. 


Abandonment  — 

acceptance,  28,  29,  33,  34,  003,  604. 

acquiescence,  29. 

absolute,  leaves  nothing  to  cede  to  another, 

9,33. 
agent,  master  or  mortgagor  may  make,  1, 

2,3. 
blockaded  port  of  destination,  1407. 
capture,  detention,  seizure,  cause   for,  5, 

34,  1410,  1411,  1412,1414. 
capture  and  condemnation,  contra  the  law 

of  nations,  13. 
capture,  not  cause  for,  1420. 
capture,  recapture  and  purchase  by  mas- 
ter, cause  for,  5,  0,  7,  27,  34,  1899,  1407, 

1409,  1410,  1411,  1412,  1417,  1437,  1438, 

1444. 
causes  assigned,  3,  4. 
conclusive,  28,  29,  34,  1435. 
condition  of  cargo,  1399. 
confiscation,  13. 
divests,  right  to  make,  5,  8,  9,  10,  18,  19, 

20,  21,  34,  1420,  1431,  1420,  1428,  1429, 

1430. 
demand  for  total  loss,  is  an,  1. 
delay  in  offering,  15,  10,  17,  18,  19,  20,  21, 

33,  33. 
embargo,  5. 

freight,  loss  of,  13,  27,  30,  31,  003. 
master's  protest,  is  an,  3. 
master's  sale,  9,  14, 23,  1397,  1398,  1399. 
missing  ship,  14. 

offer  by  insurer  to  make  repairs,  26. 
offer  to  abandon,  is  an,  3. 
offer,  made  after  vessel  is  safe,  5,  8,  10,  18, 

19,  20,  21,  34, 1420, 1421, 1430, 1438, 1429, 

1430. 
"  one-tliird  new  for  old,"  1409,  1435,  1430, 

1437,  1439,  1441. 
49 


Abandonment  —  con. 

possession,  to  make  repairs,  15,  28,  29,  83, 

33. 
public  enemies,  15. 
purchase  by  insured,  24,  25,  26. 
refused  entrance  into  port  of  destiDation, 

4,  1427,  1439. 
reinsurance,  1186. 
repairs,  cost  of,  or  failure  to  procure,  5, 6, 

9,  l.'i,  23,  1409,  1417,  1437,  1438,  1444. 
restoration,  after  offer  to  make,  25,  26,  37, 

1404,  1408,  1417,  1418. 
restoration,  before  offer  made,  5,  8,  10,  18, 

19,  30,  31, 34, 1430, 1431, 1436, 1438, 1439, 

1430. 
retardation  of  voyage,  1429,  1430. 
sale,  by  insurer,  1404. 
sale,  by  order  of  court,  10. 
sale  of  cargo,  14,  35. 
sale  of  ship,  by  master,  14,  38. 
sent  on  another  voyage,  24. 
seized  but  not  condemned,  10. 
ship  broken  up  and  sold  as  old  timber,  13. 
spes  recuperandi,  11,  13,  13. 
.stranding,  5. 
submerged,  14,  1433. 
superintending  repairs  by  insurer,  33. 
transhipment  and  forwarding,  1437. 
unnecessary,  591,  590,  597,  608. 
voyage,  loss  of,  7. 
voyage,  not  worth  pursuing,  7. 
waiver  of,  24,  35,  26,  a7,  28. 
what  the  abandonment    carries,  30,   81, 

1404. 
wrecked  ship,  14. 

Abatement  — 

alien  enemy,  36. 

denying  cause  of  action  waives  abatement, 

36. 
failure  to  submit  to  examination  under 
oath,  30. 

769 


1539 


INDEX  TO  CONTENTS 


1540 


Abatement  —  con. 
misnomer,  36. 
resisting  action  upon  merits,  37. 

Absolute  Owner  — 

actual  possession  accompanied  by  claim 
to  fee,  39. 

agreement  to  convey,  38. 

cliattel  mortgage,  40. 

deed  of  conveyance  prima  facie,  39. 

equitable  owner,  38,  40. 

foreclosure  sale,  89,  40. 

married  woman,  39. 

one  of  two  partners,  39. 

partners  or  tenants  in  common,  38. 

sheriff's  sale,  40. 
Accident  — 

disability,  46,  47. 

erysipelas  produced  by  cut,  45. 

falling  from  building,  43. 

found  drowned,  41, 42,  43. 

getting  upon  cars  or  omnibus  in  motion, 
40,  41,  43,  43. 

jumping,  45. 

lifting,  44. 

locomotive  engineer,  46. 

peritonitis,  43. 

projecting  arm  from  car  window,  1147. 
•  proof  of,  46. 

rupture  and  hernia,  43. 

slipping  from  step,  44. 

sunstroke,  45. 

unnecessary  danger,  43. 

walking,  44. 

Accord  and  Satisfaction  — 
payment  of  part,  47. 

Account  Stated  — 

adjustment  of  claim  and  promise  to  pay, 

47. 

Action  — 

administratrix  may  sue,  69. 

adoption  of  policy,  64,  67. 

all  interested  may  join,  73. 

assignee  of  claim  may  sue,  59. 

assignee  of  policy  may  sue,  60, 61, 63, 63, 64, 

assignee  shall  not  sue,  74,  76,  77,  79. 

assignor  may  sue,  69. 

assignor  and  assignee  may  join,  73. 

assignor  shall  not  sue,  75. 

assured  sliall  not  sue,  75. 

bankrupt  may  sue,  71. 

bearer  maj'  sue,  63. 

before  contingency  happens,  57,  80. 

before  contributions  are  made,  58. 

before  general  average  is  stated,  48. 

770 


Action  —  con. 

beneficiary  may  sue,  67,  73. 

certificate,  holder  of,  may  sue,  65. 

committee  of  finance,  73. 

consignee  way  sue,  60. 

consignor  may  sue,  68. 

covenantee,  68,  73. 

executors  may  sue,  71. 

"  for  account  of  whom  it  may  concern,'* 

59,  65,  66,  69,  70,  75. 
form  of,  48,  49. 
heir  of  deceased  partner,  75. 
in  the  name  of  insured,  66,  67, 68,  70, 72. 
insurers  cannot  sue  wrongdoer,  78,  79. 

"  loss,  if  any,  payable  to ,"  59,  76,  77, 

79. 
manager,  80. 
misjoinder,  50. 

mortgagee,  60,  61,  64.  • 

mortgagor,  64,  66,  G9,  77. 
necessary  parties,  51. 
nominal  parties,  72. 
party  not  named  in  policy,  78. 
payee  named  by  indorsement,  61,  63. 
payee  named  in  policy,  59. 
pledgee,  71. 

policy  to  two  —  one  cannot  sue,  79. 
premature,  80,  81,  83. 
principal,  undisclosed,  03,  69,  71. 
promissory  notes,  61,  69. 
purchaser  of  claim,  63. 
receiver  of  insolvent,  78. 
religious  corporation,  69. 
renewal  of  policy,  77. 
separate  causes  of,  82. 
sold  but  not  removed,  65. 
the  people,  66. 
trustees,  61,  63,  65,  66,  72. 
unknown  persons,  74. 
widow,  59,  60,  63. 
wife,  59,  65. 

Ad  damnum  — 
omitted,  83. 

Adjacent  Buildings  — 

buildings  subsequently  erected,  85. 
failure  to  disclose  does  not  affect  policy, 

85,  86,  87. 
not  required  to  disclose,  85. 
purposes  employed,  86. 
what  are  not  buildings,  85. 
when  failure  to  disclose  vitiates  policy,  83, 

84,  85. 
whether  those  not  disclosed  were  material, 

not  a  question  to  be  considered,  83,  84, 

85. 


1541 


INDEX  TO  CONTENTS. 


1512 


Adjustment  — 
actual  value,  93. 
conchisivo,  87,  88. 
construction,  93. 
mixed  policy,  91. 
nonconclusive,  88,  89. 
old  materials,  90. 

"  on  stock,"  and  others  "  on  stock  manu- 
factured and  unmanufactured,"  90. 
representation,  91. 
"three-fourths  the  value,"  91. 
usage,  90. 
valued  policies,  91. 

valued  and  open  policies  on  the  same 
loss,  90. 

Administration  — 
conflict  of,  93. 

Admissions  — 

attempt  to  cancel,  93. 
corporate  existence,  94. 
debtor  and  creditor,  93. 
of  interest,  93. 

Agreed  Case  — 

doubtful  facts,  04. 
presumption,  94. 
set  aside,  94. 

Agreememts  of  Counsel  — 
binding  upon  parties,  9.5. 
supplying  defects  in  record,  94. 

Alienation  — 

agreement  to  convey,  10?,  105,  106,  108, 
109. 

bankruptcy,  96,  97,  98,  99. 

chattel  mortgage,  103. 

contingent  interest,  101. 

conveyance  and  defeasance,  107. 

conveyance  absolute  intended  as  security, 
103,  111. 

conveyance  and  mortgage  back,  96,  98. 

conveyance  and  reconveyance,  105,  100, 
110. 

conveyance  without  consideration,  to  de- 
fraud creditors,  97. 

conveyance  without  payment  of  purchase 
money,  98. 

custom,  99. 

defeasance,  98. 

equity  of  redemption  conveyed,  95,  97,  99, 
108. 

foreclosure,  108. 

levy  and  sale  by  sheriff,  101. 

levy  of  execution,  101,  103. 


Alienation  —  con. 

mechanic's  lien,  judgment  and  execution, 
101. 

mortgage,  104,  108,  109. 

nonratitication,  100,  107. 

partition,  104. 

recorded  deed,  103. 

refusal  to  ratify  sale  and  confirm  policjt 
107. 

sale  by  agent,  104. 

sale  by  master,  90,  99. 

sold  but  not  delivered,  110. 

sale  of  part,  103,  104,  105,  110. 

sale  made  after  claim  accrued,  103. 

wife's  property  sold  by  husband,  110. 

withdrawal  of  copartner,  103. 
Allegata  et  Probata — 

no  variance,  110,  117,  118,  119,  120. 

variance  between   allegation  and  proof^ 
111,  112,  113,  114,  115. 
Alteration  op  Instruments  — 

after  execution,  quantity  and  value  itt- 
serted,  130. 

alternative  port  of  destination,  130. 

changing  port  of  destination,  121. 

date  of  sailing,  130. 

"leave  to  call,"  interpolated,  131. 

"sell,  barter  and  exchange  "  interpolated, 
133. 

"to  trade,"  interpolated,  121. 

"Trea».  Hermans,"  interpolated,  121. 

Alterations  and  Repairs  — 
estoppel,  123,  134. 
necessary  or  incidental  repairs,  123,  123, 

124. 
oil  and  turpentine,  123. 
supply  of  water  interrupted  while  repairs 
were  being  made,  123. 

Amendments  — 

after  judgment,  130. 
at  and  after  trial,  134,  135. 
making  new  parties,  126. 
refusing,  127. 

Annuitant  and  Annuitee  — 
rights  of,  128. 

Appeals  — 

none  will  lie,  128,  129. 
Appearance  — 

what  is  waived  by,  129. 

Application  — 

matter  not  warranted,  131,  132,  lc3, 134. 
matter  warranted,  129,  I'M. 
unanswered  questions  in,  1491,  1492. 

77: 


1513 


INDEX  TO  CONTENTS. 


1544 


Arbitration  and  Award — 

agreement  to  arbitrate  not  binding,  134, 

135,  136,  137. 
arbitration  must  be  allowed,  137,  138,  139. 
award  conclusive,  139,  140.  • 

award  not  conclusive,  141,  142. 
waiving  the  agreement,  139. 

Argdments  of  Counsel  — 
facts  not  proven,  142. 

Arrests,  Restraints  and  Detainments  — 
armed  force  put  and  kept  on  board,  143. 
blockading  port  of  departure,  143. 
boarded  and  ordered  away  from  port  of 

destination,  144. 
cargo  forfeit,  but  vessel  free,  144. 
certainty  of  capture  making  voyage  not 

worth  pursuing,  144. 
condemned  for  violating  embargo,  147. 
domestic  embargo,  145. 
embargo  at  port  of  departure,  143. 
embargo  by  government  of  insured,  145. 
embargo  in  port  f>f  distress,  145. 
expense  of  crew  during  embargo,  147. 
fear  of  seizure,  146. 
lawful  blockade,  145,  146,  147. 
seizure  at  port  of  destination,  143. 
seized  in  port  of  distress,  145. 
warned  back  to  port  of  departure,  147. 

Arson  and  Incendiarism  — 
circumstantial  evidence,  149. 
cpnduct  of  accused,  151. 
corporation  de  facto,  150. 
conversations  among  accused,  151. 
employment  of  counsel  by  the  insurers, 

151. 
evidence  must  preponderate,  148. 
extorted  confessions  disregarded,  148. 
proof  of  agent's  power  to  make  contract, 

151. 
proof  of  body  corporate  unnecessary,  150. 
reasonable  doubt,  148,  149,  150. 

ASSESS.MENTS  — 

valid,  153,  153. 
void,  153,  154,  155. 

A.ssignee  oy  Policy  — 

affected  by  acts  of  insured,  100,  131,  103, 

163. 
assignee  of  bond,  167. 
assignment  made  in  extremis,  167. 
assignment  not  defeated  without  assent  of 

assignee,  166,  177. 
conflicting  claims,  167. 
772 


Assignee  op  PoLicy  —  con. 

equitable  assignment,  164,  166. 

equitable  .assignee  preferred,  165. 

garnishee,  166. 

incumbrance  upon  policy,  167. 

insurer  estopped  to  claim  setofl,  164,  105. 

limitation  of  claim,  164. 

not  affected  by  acts  of  insured,  156,  157, 

158,  150. 
rebuilding,  164. 
reinsurance,  165. 
setoff  of  money  due  by  insured  to  insurer, 

164,  160. 
wife's  assignment  vititated  by  her  death, 

165. 

Assignment  op  Policy  — 

arrestment  under  law  of  Scotland,  175. 
assignable,  what  is,  181,  182. 
assignment,   no    defense,    179,    180,    181, 

183. 
assignment,  vitiates,  178,  179. 
bankruptcy  of  insured,  173,  175,  176,  177. 
consent  to,  169. 
creditor's,  rights  of,  169,  177. 
gift,  168. 

inchoate  right,  174. 
indorsement,  169,  174. 
lien,  177,  178. 
liability  of  trustee,  178. 

"  loss,  if  any,  payable  to ,"  169.  173, 

174. 
lunatics,  168. 
merger,  178. 
partnership,  175. 
pledged  as  collateral,  173,  177. 
possession,  174. 
suicide,  173. 
trustees,  173,  173. 
valid,  169,  170,  171,  172,  173. 
wife's,  171,  1533,  1533,  1584. 
■  writing  unnecessary,  177,  178. 

Assured  or  Instired  — 
who  is  neither,  183. 

At  and  From  — 

at  and  from,  183,  184. 

at  and  from  an  island,  183. 

at  and  from  a  port,  183. 

"from  the  loading,"  184,  185,  604,  605. 

"on  freight  at  and  from,"  184. 

time  policy,  at  and  from,  184,  185. 

when  vessel  has  been  a  long  lime  at  port, 

183. 
when  vessel  is  at,  183. 
when  vessel  not  at,  1&3. 


1545 


INDEX  TO  CONTENTS. 


1546 


Atlantic  Cable  — 

insurance  on,  ISo,  18C. 
risks  assumetl,  186. 

Attachment  and  Garnishment  — 
answer  taken  as  true,  187,  188. 
assignee  and  garnisliee,  188. 
bona  fide  payments  after  service  of  pro- 
cess, 187,  188. 
funcliia  officio,  188. 
liable  to  attachment,  187. 
money  due  for  exempt  goods,  187. 
notliing  due  when  process  served,  189. 
process  served  on  agent,  187. 
replacing  or  rebuilding,  188,  189. 
what  defeats  process,  187,  188,  189. 

Attorney  at  Law  — 

authority  presumed,  189. 

At  Sea  — 

time  policy,  189,  190,  191,  193. 
not  at  sea,  191,  193. 


B. 


Barratry — 

assignment  of  policy,  203. 

attempt  to  rescue  from  captors,  201. 

charterers  acts  are  the  acts  of  owner,  203. 

charterers  are  not  owners  pro  hac  vice,  195. 

desertion  by  crew,  203. 

deviation  in  obedience  to  owners  instruc- 
tions, 203. 

embezzlement  or  stealing  is,  195,  196. 

fire  intentional  and  fraudulent  is,  194. 

fraud  of  master,  destroying  neutral  char- 
acter  is,  196. 

fraudulent  sale  and  purchase  by  master 
does  not  make  him  owner,  195. 

general  owner  cannot  commit,  200. 

included,  192, 196. 

master  being  charterer  is  owner  pro  hac 
vice,  201. 

master  as  consignee,  195. 

master's  acts  procuring  condemnation,  303. 

master's  fraudulent  act  is,  104. 

master's  fraudulent  sale,  though  he  is  part 
owner,  199,  200. 

master's  neglect  to  repair,  203. 

mutiny,  197,  198. 

negligence,  or  accident,  the  result  of  neg- 
ligence is  not,  190,  303. 

not  included,  193,  194. 


Barratry  —  con. 

not  prima  fticie  evidence  of,  203,  303.   ' 

onus  is  upon  insurer  to  sliow  master  is 
owner,  194,  195. 

petty  theft  is  not,  190. 

presence  of  owner,  197,  198. 

prima  fucie  evidence  of,  199. 

prosecuting  business  against  owner's  or- 
ders, 199. 

prosecuting  business  not  against  owner's 
orders,  201,  203. 

second  mate  is  a  mariner,  though  acting 
master,  196,  197. 

seizure  caused  by  master's  fraud,  197, 198. 

self  interest  not  a  necessary  ingredient, 
190. 

smuggling  by  master,  199. 

taking  goods  contraband  is,  194, 195,  197. 

Bequests  — 

"and  any  money  I  may  die  possessed  of, 
or  which  may  be  due  and  owing  to  me 
at  the  time  of  my  decease,"  includes 
policy,  204. 

"all  outstanding  debts  owing,"  includes 
policy,  204,  205. 

"bonds,  consuls  or  anything  else,"  in- 
cludes policy,  204. 

"£500  now  secured  on,  etc.,  and  by  a  pol- 
icy,"  does  not  include  the  policy,  205. 

"  Madame  F.'s  annuity  and  £1,000,"  does 
not  include  the  policy  upon  life  of 
grantor,  205. 

nuncupative  will,  204. 

proceeds  of  policy  go  with  the  realty,  204. 

"residue,  real  and  personal,"  includes 
policy,  203,  204. 

Bills  of  Exceptions  — 

imperfect  and  defective,  205,  206,  207. 

Bills  op  Lading  — 
not  conclusive,  307. 
not  evidence  against  insurer,  307. 
not  evidence  of  property,  207. 

Bill  of  Particulars  — 

particulars  of  symptoms  of  disease,  207. 

Blockade  — 
dc facto,  309. 
dispersion  of  fleet,  308. 
driven  into,  by  storm,  208. 
goods  in  lighters  or  laden  at  port  of  io- 

parture.  308. 
may  sail  for  till  warned,  309,  310. 
notice  of,  208,  309,  210. 

.773 


1547 


INDEX  TO  CONTENTS. 


1548 


BOTTOSTRT  AND  ReSPOKDENTIA  — 

bond  to  two  persons  jointly,  211. 

eo  nomine,  210. 

insurer  of  ship  not  bound  to  pay,  210,  211. 

"on  bottomry"  is  sufficient,  211. 

requisites  of  bond,  211. 

the  mate  may  make,  211. 

total  destruction  must  occur,  311,  312. 

Bonus  — 

new  policy  given  in  lieu  of,  lapsed,  212. 

Brokers  — 

brokerage,  216. 
discount  on  premium,  216. 
failure  to  disclose  material  matters,  315. 
failure  to  have  policy  modified,  215. 
failure  to  procure  delivery  of  policy,  215. 
li^n  for  general  balance,  213,  214. 
lien  for  premium,  214. 
parting  with  policy,  213. 
possession  of  broker  is  possession  of  the 
factor,  314. 


c. 

CAPTtlRE  AND  SEIZURE  — 

"all  risk  of  blockaded  port  excepted,"  ex- 
empts capture,  legal  or  illegal,  222,  233. 

boarded  in  the  roads  off  Pillau,  221. 

capture  by  pirates,  231. 

capture  unlawful,  333. 

compromise  with  captors,  320. 

confederate  states  steamer,  317,  219,  330. 

confederate  privateer,  318. 

detention  b3'  embargo,  232. 

driven  upon  enemy's  coast  and  captured, 
230. 

forcible  possession  by  emigrants  is  seiz- 
ure,  223. 

four  leagues  from  destination  and  seques- 
tered at  destination,  218. 

law  of  nations,  331. 

mistake  of  commander  of  fort,  333. 

moored  by  captors  and  there  damaged  by 
collision,  318. 

neglect  of  supercargo,  218. 

ordinance  not  assented  to  by  neutral,  321. 

seizure  and  capture  are  synonymous,  233. 

seizure  of  cargc)  causing  loss  of  voyage, 
318. 

seizure  by  confederate  forces,  221,  222. 

taken  for  government  use,  219. 

the  act  of  a  mob,  219. 

774 


Change  op  Venue  — 

affidavit  for,  tested  by  plaintiflfs  declara 

tion,  224. 
corporation,  224. 
prejudice  of  judge,  224. 
view  of  premises,  234 

Citizens — 

bodies  corporate  arc  not,  236. 

domicile,  225. 

record  of  citizenship,  225. 

residents  carrying  on  trade  are,  225,  230. 

subject  of  Great  Britain,  235. 

Collision  — 

"  all  other  perils,"  etc.,  328. 

detention  for  repairs,  230. 

fault  or  mistake  of  officer  in  command  ot, 

337,  339,  330. 
fees  of  counsel,  237. 
injuries  to  the  person,  230. 
injury  to  "the  other  vessel,"  239,  230. 
loss  without  fault  on  either  side,  236,  827. 
measure  of  damage,  228. 
negligence  of  officer,  237. 

Common  Carriers  — 

acceptance  at  point  of  distress,  231. 
carrier  not  liable  to  insurer,  331. 
conclusive  presumptions,  231. 

Compromise  or  Settlement  — 
authority,  334. 

consideration  for  promise,  333. 
discharge  of  claim  without  actutR  pay^ 

ment,  333,  334. 
false  representation,  232,  233. 
mistake  of  fact,  233. 
not  set  aside,  234,  235. 
payment  of  part,  232. 
questions  of  fact,  333. 
retaining  money  paid  for,  234. 

Concealment  — 

attempts  or  rumored  attempts  to  destroy 

the  property,  236,  237. 
express  or  implied  warranties,  259. 
information  as  to  anterior  loss  or  injuir, 

240,  341,  242,  243,  344,  24.5,  246,  347,  246, 

350,  351,  352,  353,  354,  355,  256,  364. 
interest  of  insured,  335,  336,  348,  349. 
materiality,  test  of,  265. 
mistake,  264. 

mode  of  loading  or  stowing,  259,  260. 
occupation,  vocation,  348. 
questions  exclusively  for  the  jury,  2(11, 

363,  363,  364. 


lo49 


IKDEX  TO  CONTKNTS. 


1550 


Concealment  —  con. 

refusal  of  other  underwriters  to  take  the 

risk,  260,  361. 
Bailing  of  ship,  237,  238,  239,  250. 
tenants,  subtenants,  265. 
test  of,  265. 

things  immaterial,  201. 
things  insurers  are  presumed  to  know,  256, 

257,  258,  359. 

COSDEMNED    FOR    BeINO    UnSOUND    OR    ROT- 

TEN  — 

non-conclusive,  207,  268,  209. 
survey  conclusive,  306,367. 

Condition  Pkecedent  — 

assignment  of  mortgage  to  insurer,  370. 
certificate  of,  "altered  but  not  endangered," 

271. 
certificate  of  magistrate  or  clergyman,  270, 

271,  372. 
condemnation,  270. 
lien,  209. 

license  to  land  cargo,  270. 
making  protest,  271. 
notice  and  proof  of  loss,  270. 
preliminary  proof  of  other  insurance,  271. 
testing  chain  cable,  309. 

Consideration  — 

alienation  of  subject  insured,  272, 273. 
compromise  of  doubtful  claim,  272. 
condition  not  fulfilled,  273. 
failure  of,  274. 

firm  note  for  policy  to  one  partner,  272. 
immaterial,  274. 
misfeasance,  274. 
payment  of  part  of  claim,  273. 
premium  note  for  policy  stipulating  re- 
scission at  any  time,  373. 
promissory  note  for  premium,  272. 

Consignor  and  Consignee  — 

Consignor  bound  to  insure,  274,  276. 

failure  to  insure  gives  no  right  to  premi- 
um, 270. 

failure  of  consignee  to  procure  proof  of 
damage,  270. 

pledgee  bound  to  insure,  370. 

Consolidation  op  Actions  — 
allowed,  377. 
denied,  377,  278. 

Construction  — 

barque  on  the  stocks,  399. 
boilerelause,  379,  380. 
by  steamers,  290. 
cargo,  385,  286. 


Construction  —  con. 

cargo  of  whaling  ship,  286. 
contra  the  insurer,  298,  301. 
damages,  280,  281,  282,  283,  284. 
distinction   between   untrue  replies    and 

failure  to  answer,  278. 
"  expressio  unius  est  exclusio  alteriua,"  288, 

297,  298. 
final  judgment,  300. 
fire  heat,  289. 
freight,  285. 
gunpowder,  389. 
labor  on  Sabbath,  387. 
lightning,  285. 
live  stock,  280. 
merchandise,  285,  286. 
naturalization,  398,  299. 
night  watchman,  280,  287. 
night  work,  286,  287. 
not  liable  for  damage  by  ice,  299. 
on  goods,  286. 
person  or  persons,  298. 
premises,  388. 
prior  in  date,  300. 
property,  385,  386. 
respondentia,  386. 
survey,  301. 

"  there  is  watchman  nights,"  387. 
time  policy  excluding  certain  ports,  290. 
traveling  by  private  or  public  conveyance, 

1445. 
understanding  of  one  party,  300. 
use  and  occupation,  388. 
voyage  or  voyages,  290,  291,  292,  293,  294, 

295. 
warranty  deed  not  title  in  fee,  279. 
war  risks,  295,  396,  397. 
watchman  for  steamer,  287. 

Continuance  — 
aflldavit  for,  302. 
amendment,  303. 
surprise,  303. 

Contract  — 

application,  304,  305,  307,  308,  810,  811. 

certificate  of  health,  306. 

certificate  of  insurance,  308. 

charter  and  by-laws,  307. 

completed,  311,  312, 313, 314,  315,  316,  317, 
318,  319,  320,  321,  322,  323,  324,  325,  326, 
327,  328,  329,  330,  331,  333,  333,  334 

conditions  annexed,  303,  309. 

continuing,  301. 

dealings  between  parties,  304,  305. 

execution  and  delivery,  358,  359. 

775 


1551 


INDEX  TO  CONTENTS. 


1552 


Contract  —  con. 
joint,  367,  368. 
lawful,  364. 
letters,  303. 
modification  or  substitution,  355,  356,  357, 

358. 
new  promise,  360,  361. 
not  complete,  334,  335,  336,  337,  338,  339, 

340,  341,  343,  343,  344,  345,  346,  347,  348, 

349,  350,  351,  353,  353,  354. 
order  for  iusurance,  308. 
other  policies,  309. 
part  of,  303. 
promissory  note,  304. 
ratification  and  adoption,  363,  363. 
several,  367. 

survey,  304,  306,  307,  308,  310. 
unlawful,  364,  365, 366. 
usage  or  custom,  309. 
war,  effect  of,  366,  367. 

Contribution  — 
coi'nsurers,  368. 

Convoy — 
calm,  371. 

captured  while  sailing  for  rendezvous,  3G9. 
presumptions,  369. 
register,  370. 
sailing  orders,  370,  371. 
sailing  with,  369,  370. 
separated  from  by  stress  of  weather,  369, 

371. 
to  sail  with,  371. 

Countersigning  Policy — 
compelled  to  execute,  373. 
not  countersigned,  373,  373. 
payment  of  premium,  373. 
presumption,  373. 

Court  and  Jury  — 
act  of  congress,  374. 
conclusive,  375. 
definite  meaning,  373. 
facts  not  disputed,  373. 
force  of  testimony,  373. 
incident  of  business,  374. 
judicial  notice,  373. 
law,  373,  374. 
nonsuit,  373. 
public  history,  373. 
questions  for  the  jury,  375,  376,  377,  378, 

379,  380. 
submitting  question  to  jury,  374. 
writing,  374. 
776 


Covenantor  and  Covenantee  - 
assignee  of  lease,  380. 
suicide,  380. 

Creditors  — 

preference,  381. 


D. 

Damages — 

actual  damage,  383. 

charge  for  purchasing,  381, 

cost  of  restoring,  383. 

cost  price,  384. 

cost  to  manufacture,  383. 

currency  of  place  of  loss,  383. 

exceeding  sum  insured,  388. 

exchange,  rate  of,  383. 

expense  of  selling  and  wharfage,  383. 

failure  to  issue  policy,  391. 

freight,  384. 

interruption  of  business,  383. 

jettison,  383. 

lease  of  land,  383. 

life  policy,  384. 

marketable  value,  384. 

new  and  old,  384,  385. 

nonoccupancy,  383. 

not  to  be  heard  in  reduction  of,  S85,  886. 

open  policy,  383. 

port  of  destination,  value  at,  383. 

prime  cost,  383. 

prime  cost  and  usual  charges,  383. 

prior  partial  losses,  385. 

preliminary  proof,  391. 

premium,  384. 

pro  rata,  385. 

rebuilding,  385. 

sound  and  damaged  value,  384. 

sum  insured,  measure  of,  386,  387,  388. 

unpaid  purchase  money,  385. 

value  of  property  is  the  measure,  389,  39(X 

valued  policy  is  the  measure,  388. 

wages  and  provisions  of  crew,  390. 

Death  — 

adultery,  393. 

assault,  393. 

capital  punishment,  391. 

conflict  abandoned,  393.  , 

felonious  intent,  393. 

known  violation  of  law,  393,  398. 

racing,  393. 

se  d»fendendo,  894 


1553 


INDEX  TO  CONTENTS. 


1554 


Duck  Loads  — 

insurer  liable  for,  395,  396. 
insurer  not.  liable  for,  300,  397. 
not  contributed  for,  394. 

Demand — 

by  assignee,  398. 
evidence  of,  398. 

DEHrCTBRER  — 

lulniission,  398. 
judgment,  398. 
pletidiiig  over,  398. 
refusal  to  answer  over,  398. 
waived,  398. 

Deposited  with  Insurance  Department — 
securities,  399. 

Depositions  — 

after  trial  and  appeal,  399. 

amendments,  400. 

commission  to  two,  400. 

computing  distance  and  time,  400,  401. 

directed  to  one  executed  by  another,  400. 

failure   to  examine  all  witnesses  named, 

400. 
no  issue  joined,  399. 
reference  to  papers  not  produced,  400. 
unanswered  interrogatories,  399. 
who  may  read,  400. 

Descent — 

payable  to  widow  or  her  children  if  they 
survive,  401. 

Description  — 

bottomry  bond,  401. 
brick  building,  403. 
capital  stock,  403. 
dwelling  house,  403,  453. 
freight  .advanced,  403. 
immaterial,  402. 
material,  402. 
mortgagees,  402. 
place,  402. 
rejected,  403,  403. 
Socrate  —  Socrates,  403. 

Deviation  — 

attempts  to  save  life,  434,  425. 

capture,  404. 

change  of  master,  405. 

construction,  439,  440,  441,  443,  443,  444, 

445, 446, 447, 448. 
custom  and  usage,  436,  437,  438. 
delay,  415, 416, 417, 418,  419, 438, 439. 


Devi.\tion  —  con. 

departure  from  voyage,  405, 406,  407, 408, 

409,  410, 41 1, 412, 413, 414, 410. 
intention  to  deviate,  434,  435. 
involuntary  deviation,  432,  433,  434. 
making  and  securing  prize,  419,  420. 
mismanagement  or  negligence,  420,  431. 
necessary  deviation,  435,  420,  437,  438,  429, 

430,  431,  332. 
obeying  orders,  ship  of  war,  421. 
rescue,  432. 

to  avoid  perils  not  insured,  422. 
to  procure  medicines,  433. 
towing,  423. 
trading,  423,  423. 
transhipment,  433,  424. 

Discovery  — 

allegations  for,  448,  449. 

Divorce  — 

effect  of,  on  wife's  policy,  449. 

Dodble  or  Prior  Insurance  — 
adjustment  or  apportionment,  450. 
cancellation,  451. 
construction,  450. 
contribution,  450,  4.52. 
creditor,  453,  453. 
double  insurance,  451. 
electing,  451. 
fixtures,  450. 
stock,  450. 
time  policy,  450. 
two  policies  on  same  property,  453. 

Due  and  Payable — 
claim,  453. 
due,  453. 
payable,  453. 

Dwelling  House  — 
one  room,  403,  458. 
sleeping  in  store,  454. 


E. 

Estoppel — 

acceptance  of  premium  or  assessments, 

455,  458,  461,  473,  474,  475. 
agent  for  several  companies,  476. 
agent's  authority  limited,  477. 
agent's  declarations,  455. 
agent's  knowledge  or  mistiike,  461,  463, 

463,  404,  405,  400,  407,  408,  409,  470,  471, 

473,  473,  474,  475,  470,  477. 

777 


1555 


INDEX  TO  CONTENTS. 


1556 


Estoppel — con. 
alienation,  4o6. 

application,  459,  460,  401,  463,  475. 
application  signed  in  blank,  476. 
buildings  within  ten  rods,  454,  459. 
certificate  of  health,  454. 
clearance  papers,  450. 
description,  457. 
gunpowder,  468,  471. 
illegal  voyage,  457. 
incumbrances,  468. 
inspection  bj'  agent,  468,  469,  473 
intemperance,  471. 
lights,  470. 
lost  policy,  457. 
mechanics'  lien,  470,  471. 
mortgage,  458,  459,  460,  473. 
open  to  view,  403. 
other  insurance,  455,  460,  476. 
ownership,  455. 
particeps  criininis,  476. 
prohibited  goods,  457. 
sale  by  one  partner  to  copartner,  469. 
solicitor  of  risks,  473. 
title,  471,  473. 

unoccupied  premises,  460,  476. 
watch  clock,  468. 

Evidence  — 

absence  of  evidence  as  to  quantity,  484. 

absence  of  witness  from  state,  484. 

accompanying  papers,  480. 

admission  by  Lloyd's  agent,  485. 

admission  of  master  of  ship,  484. 

affidavit,  484. 

agent's  dechiration,  479,  510,  511,  513,  513. 

application,  479. 

bill  of  particulars,  481. 

books,  530,  531,  533,  536,  537,  538,  539. 

character,  519,  520. 

character  of  goods,  480. 

clerk's  certificate,  483. 

condemnation,  486. 

confidential  communications,  518,  519. 

consul's  certificate,  483,  483,  485. 

custom-house  entries,  483,  535,  536. 

<leclarations  of  deceased  persons,  513,  514. 

declarations  of  principals,  509,  510. 

deposition,  486. 

duplicates,  484. 

estop,  503,  504,  505,  506,  507;  508. 

foreign  judgment,  483,  484,  485. 

foreign  laws,  539. 

hearsay,  519. 

immaterial   and   irrelevant,  530,  531,  533,| 

533. 
778 


Evidence  —  con. 

impeaching,  539,  540,  541. 

intention,  497,  498,  499. 

inventory,  481. 

invoices,  481. 

latent  ambiguity,  500,  .501,  503,  503. 

leading  questions,  541. 

letters,  536,  537,  538,  539 

Lloyd's  .agent,  485. 

Lloyd's  book,  482. 

lost  recollection,  480. 

mistake,  504,  505,  500,  507,  508. 

newspapers,  480. 

objections,  534,  535. 

offers  to  sell,  481. 

opinions,  523,  523,  524,  525,  526,  537,  528, 

529,  530. 
other  losses  b}'  insured,  480. 
papers,  5'30,  .521,  523. 
pecuniary  condition,  479. 
pedigree,  520. 
policy,  original,  481. 
prospectus,  507,  508. 
reasons,  543. 

refreshing  memory,  541,  543. 
reputation,  478,  520. 
res  gestce,  514,  515,  516. 
res  inter  alios  uctm,  516,  517,  518,  519. 
sailing  orders,  479,  430. 
searcher's  report,  481. 
sentence  of  condemnation,  478. 
ship's  register,  485. 
stocks  of  goods  held  by  others  in  same 

trade,  478. 
striking  out,  533,  534. 
subscribing  witnesses,  485. 
survey,  481. 
surve3'or's  report,  483. 
usage,  535.  530. 
withdrawing,  533,  534 
weight  of,  533. 

Examination  Under  Oath  — 
adjournment,  543. 
attaching  creditor,  542. 
demand  for,  after  claim  due,  543,  544. 
excuse,  544. 

further  examination,  543. 
preliminary  proof,  542. 
refusal,  543. 
settlement  with  other  insurers,  543. 

Explosion  — 

boilers  exploded,  545,  546,  547,  548,  549. 
ensuing  fire,  545. 
gas,  545,  547,  548,  549. 


1557 


INDEX  TO  CONTENTS. 


iJ.iS 


Explosion  —  con. 

gunpowder,  548,  549. 
muuicipal  authority,  544, 545. 
new  cause,  546. 


F. 

Falling  Building  — 

blown  off  foundation,  550. 

fire  after  fall,  550. 

fire  and  water,  549,  550. 

False  Swearing  or  Attempt  at  Fracd  — 
claiming  for  goods  saved,  551,  552. 
correcting  claim,  555,  556. 
difference  between  claim  and  verdict,  551, 

553,  554,  555,  556,  557,  553. 
failure  to  comply  with  conditions,  551. 
false  entries  in  books,  550. 
false  statements  as  to  title,  552,  553,  559. 
fictitious  invoices,  553. 
finding  of  jury,  effect  of,  551, 553,  554,  555, 

556,  557. 
onus  probandi,  554,  555. 
over  valuation,  551,  557,  558. 
pleadings,  559. 
teienter,  553,  554,  556,  557. 
terras  upon  which   insured  settled  with 

other  insurers,  551. 

Floating  Policies  — 
adjustment,  560. 
specific  policies,  559. 

For  AccotmT  of  Whom  it  mat  Concern  — 

excluding,  564,  565,  566,  567. 

including,  560,  661,  563,  563,  564. 
Foreign  Judgments  — 

defense  same  as  against  action  on  policy, 
567. 

Fraud — 

craasa  neglegentia,  568. 
falsely  representing    condition  of   com- 
pany, 568, 569. 
officers  of  insurance  company,  568. 
over  valuation,  568,  569. 
suppression,  569. 

Freight  — 

acceptance  involuntary,  574. 
acceptance  voluntary,  573,  574. 
advances,  573,  583. 
assignee  of  charter  party,  570,  571. 
bottomry,  581. 


Freight  —  con. 

cargo  owner,  the  charterer,  576. 

charterer,  571,  589. 

cost  of  forwarding,  573. 

cost  of  repairs,  583,  587,  588,  589,  595,  596, 
597. 

credit  for  freight  earned,  585, 586, 589,  590, 
593,  603,  603. 

detention  to  make  repairs,  576,  577,  578, 
583,  583,  597. 

"earned  or  not  earned,"  570. 

embargo,  571,  572,  590. 

eo  nomine,  571. 

loss  of  season  or  market,  578,  580, 581,  583. 

master's  sale,  590,  504. 

measure  of  damage,  604. 

memorandum  articles,  584,  585. 

missing  ship,  587. 

partial  loss  of,  598,  599,  600,  601. 

passage  money,  583. 

prepaid,  571,  589. 

procuring  other  vessel,  586. 

pro  rata  itineris,  573,  573,  574,  575. 

refusal  to  permit  landing,575,576, 580, 593. 

sale  of  cargo,  571,  584. 

ship  and  cargo,  the  property  of  one  per- 
son, 576. 

specie,  580. 

stranding,  586. 

subrogation,  573. 

surrender  to  insurers,  574,  575. 

technical  total  loss,  586. 

vendor  of  ship,  570. 

vessel  lost  before  cargo  taken,  573,  577, 
585,  586,  588,  589,  590,  591,  593,  593,  594, 
596. 

voyage  not  worth  pursuing,  589,  595. 

wages  of  crew,  570,  573. 

warranted  free  from  average,  595. 


General  Average  — 

adjustment,  619,  620,  631. 
average  bond,  615. 
certain  destruction,  614. 
charges  in,  606,  607,  608,  609,  610. 
contributes,  614,  615,  616. 
contributing  value,  618,  619. 
defending  vessel,  613. 
escape  from  pursuers,  613. 
freight,  614,  617,618. 
jettison,  607,  019. 


779 


1559 


INDEX  TO  CONTENTS. 


1500 


General  Average  —  con. 
lex  loci,  621,  023. 
lighters,  608. 
■  not  charges  in,  611,  612,  613. 
not  to  be  contributed  for,  614,  615. 
outfits,  615. 
sinlving  ships,  611. 
slaves,  616,  617. 
wages  and  provisions,  608,  609,  612,  623. 

Gift  — 

donatio  causa  mortis,  623. 

Gold  Coin  — 

dividends,  623. 
payable  in,  623. 


I. 


Ililcit  Trade  — 
contraband,  649. 
distance  from  shore,  649. 
evidence,  639,  640,  641,  643,  643,  644,  645, 

646,  647,  648. 
law  of  nations,  649. 
no  breach  of  the  warranty,  624,  C25,  626, 

627,  028,  629,  630,  631,  633,  638,  634,  635, 

636. 
not  evidence  of,  636,  637,  638,  639. 
risk  not  included,  634. 

Increase  or  Change  of  Risk  — 
acts  of  lessee,  650. 
additional  stoves,  65G. 
adjacent  buildings  subsequently  erected, 

651,  652,  654,  656,  660. 
alteration,  653. 
blacksmith's  shops,  657,  658. 
boarding  house,  650,  653. 
description,  659. 
diverting  water,  649,  650. 
drying  bark,  653. 
dummy  engine,  650. 
evidence,  662. 

failure  to  elect  to  cancel,  653,  665. 
fireworks,  660,  661. 
foreclosure,  654. 
gamblers,  661,  663. 
gunpowder,  660. 

increase  of  before  contract  completed,  654. 
interpretation,  653,  659,  663,  663,  664,  665. 
levy  and  sale,  650. 
livery  stable,  655. 
notice,  657. 
780 


Increase  or  Change  of  Risk  —  con. 
open  fire,  651. 
pleading,  653. 
printing,  059. 
questions  for  the  jury,  661. 
rag  cutter  and  duster  replaced  by  mill 

stones,  650. 
repairs,  658. 
strangers,  656. 
tenant,  656. 

Incumbrances  — 

acceptance  and  retention  of  policy,  671. 

agent's  knowledge,  673,  674. 

amount  of,  not  stated  in  application,  673, 

674. 
application,  670,  673. 
execution  and  levy,  669. 
foreclosure,  073. 
ignorant  person,  671. 
interpretation,  675,  676. 
judgment  liens,  665,  666,  669,  673. 
material,  666. 
mortgages,  666,  667,  668,  669, 670,  671,  673, 

G73. 
no  incumbrance,  674, 675. 
part  owner,  666. 
taxes  sold  for,  666. 
trust  deed,  671. 
verbal  notice  of,  673. 
void  in  part,  void  in  toto,  667. 

Indemnity  — 

contribution  among  co-insurers,  676,  677. 

Insanity  — 

evidence  of,  677. 
no  evidence  of,  678. 

In  Port  — 

in  port,  679. 

not  in  port,  679,  680. 

Inspection  of  Books  and  Papers  — 
books,  681. 
letters,  683. 

medical  examiner,  report  of,  681. 
papers,  681. 
subpj'na  duces  tecum,  680. 

Instructions  — 
to  jury,  681,  683. 

Insurable  Interest  — 
chiirterer  of  ship,  718. 
divesting  the,  705,  706,  707, 708, 709,  710. 
evidence  of,  718. 
"  interest  or  no  interest,"  718. 


1561 


INDEX  TO  CONTENTS. 


15G2 


Insuiiabi-e  Interest — con, 

Invasion,  Riot.  Insurrection,  Cfvil  Com- 

lifo, 683,  684,  685,  687,  699,700. 

motion,  Military  or  Usurped  Power  — 

must  be  cliscloscd,  710. 

blown  up  by  order  of  civil  authorities,  728. 

need  not  be  disclosed,  716,  717. 

camp  fires,  730. 

not!  divesting,  711,  713,  713,  714,  715. 

civil  commotion,  731. 

part  owner  ciinnot  insure  interests  of  other 

confederate  soldiers,  730,  731. 

owners,  718. 

fired   by  order  of  confederate  officer  in 

proof  of,  718. 

command,  731. 

property,  688,  689,  690,  691,  092,  693,  695, 

fired  by  order  of  United  States  officer  in 

696,  697,  698,  699,  701,  703,  703,  704,  705. 

command,  729. 

invasion,  730. 

Interest  Money  and  Usury  — 

killed  by  armed  patrol,  729. 

after  loss  due,  719. 

military  or  usurped  power,  729,  730. 

average  loss,  730. 

mobs  or  riot,'728,  729,  731. 

corporation  cannot  plead  usury,  720. 

indefinite  preliminary  proof,  719. 

Invoices  — 

jury  may  allow  interest,  719. 

Destroyed  by  the  fire,  733. 

life  policy,  720. 

evidence,  731, 

lost  policy,  730. 

interpretation,  731,  732. 

missing  ship,  719. 

ship's  husband,  718. 

Issues  — 

trustee  process,  719,  730. 

fact,  732. 

vexatious  delay,  730. 

made  by  the  parties,  733. 

Interpleader — 

assignment,  721. 

bankruptcy,  731. 

conflicting  claims,  723,  723. 

J. 

necessary  parties,  721. 

partition,  731. 

Judgment— 

requisites  of,  721,  723. 

arrest  of,  732. 

reversion,  731. 

final,  733. 

tenant  for  life,  721. 

remand,  783. 

trustee,  733. 

Jurat  — 

Intoxicating  Drinks'  and  Intemperance  — 

Insufficient,  733. 

concealment,  725. 

evidence  to  support  issue,  735. 

Jurisdiction  — 

incurring  danger  under  influence  of,  723. 

admiralty,  745. 

interpretation,  723,  724. 

law,  743,  744,  745. 

onus  probandi,  724. 

equity,  734, 735, 736, 737,  738,  739, 740, 741, 

.temperate  at  date  of  policy,  724,  725. 

743,  743. 

verdict  against  evidence,  724. 

JUKORS  — 

"  In  Trust,  on  Consignment  or  on  Commis- 

bystanders, 745. 

sion  "  — 

incompetent,  746. 

awaiting  repairs,  728. 

opinions  of,  746. 

cloth  to  be  made  into  clothes,  726. 

•'  for  which  they  are  responsible,"  727. 

lien  for  advances,  726. 

limitations  upon,  726. 

names  of  owners  not  disclosed,  726. 

K. 

not  in  trust,  727. 

security  for  debt,  737. 

storage,  736. 

Keeping  and  Storing  — 

tenant,  726. 

not  prohibited,  751,  752. 

warehousemen,  727. 

prohibited,  746,  747,  748,  749,  750. 

781 


1DC3 


INDEX  TO  CONTENTS. 


\r,c,4 


L. 


Laches — 
753,  753. 


Law  of  Nations  — 

seizure  beyond  territory,  753. 
seizure  upon  high  seas,  753. 

Levy  of  Execotion — 
interpretation,  753,  754. 
wrongful  levy,  754. 

Lex  Fori  — 
Canada,  754. 
State  and  United  States  courts,  754. 

Lex  Loci  Contractus  — 
754,  755, 756,  757. 

Lien  — 

bankrupt,  759. 

continuing,  759. 

corporate  funds,  759. 

feme  covert,  760. 

maritime,  759. 

mortgage,  759. 

policy,  758,759. 

proceeds  of  policy,  758, 759,  760. 

premises  insured,  757,  758. 

reinsurance,  758. 

ship,  758. 

Limitation  of  Actions  — 
accrue,  760,  762. 
"after  the  happening  of  loss  or  damage," 

764. 
attachment,  762. 
bar  to  action,  770,  771,  772,  773,  774,  775, 

776. 
commencing  action,  763. 
condition  inoperative,  765,  766,  767,  768. 
delay  in  bringing,  763,  764. 
dismissed,  763. 

dissolution  of  corporation,  763. 
in  time,  761. 
nonsuit,  831. 
place,  663. 
pleading,  760,  761. 
prosecuted,  763,  765. 
process  issued,  763. 
receiver  appointed,  763. 
scire  facias,  763. 
waiver,  708,  769,  770. 
war,  701. 
783 


Lost  or  Not  Lost  - 
770,  777,  778. 

Lost  Policy  — 

778, 779. 


M. 

Master  of  Ship  — 

agent  for  insurers,  783,  783. 
duty  of,  784,  785. 
negligence  of,  784,  785. 

Master's  Protest  — 

786,  787. 

Medical  Attendant — 

787,  788. 

Merger  — 

crime,  788,  789. 
equity  of  redemption,  789. 
mortgage,  789. 
preexisting  debt,  789. 

Military  or  Naval  Service  — 

superintending  military  laborers,  789. 

Misrepresentations  — 

additions  to  buildings,  790. 

adjoining  buildings,  796,  797. 

age,  795. 

arrived  safely,  792. 

bilious  fever,  791. 

boimfide,  795. 

conclusion,  797. 

conflicting  answers,  800. 

convoy,  794. 

disease  of  kidneys,  791. 

declined  by  other  iusurers,  793,  794. 

false,  793. 

fraud  and  fraudulent,  792,  798,  801. 

ignorance,  793. 

indisputable  policy,  794. 

instructions  to  jury,  796,  801. 

intent,  801. 

interpretation,  798,  799. 

license,  794. 

married  or  single,  790. 

materiality.  790. 

medical  attendant,  793. 

onus  prohandi,  798. 

other  insurance,  791,  793. 

ownership,  793. 

pecuniary  condition,  791. 


1565 


INDEX  TO  CONTENTS. 


15C6 


Misrepresentations  —  con. 
rate  of  premium,  795. 
leinsurance,  793. 
retaining  part  of  risk,  793,  795. 
sailing  of  sliip,  793,  795,  790,797. 
sickness,  791. 
storms,  791. 
suppression,  801, 
temperate  habits,  795. 
termini,  797. 
test,  801. 
time  policy,  797. 
title,  800,  801. 

untrue  statements,  792,  797,  801. 
value,  793,  795,  707,  798. 
valuation  named  iu  policy,  796. 
warranty,  797. 

Monet  Had  AND  Received  — 

action  for,  803. 

premiums  not  collected,  803. 

MORTOAOOS  AND  MORTGAGEE  — 

assignment  of  policy,  803. 
creditors,  802. 
estoppel,  803. 
extent  of  interest,  803. 
mortgage  illegal,  803. 
premium,  803,  803,  804. 
proceeds  of  policy,  803,  803. 
Mutual  Insurers  — 

accepting  cash  in  lieu  of  premium  note 

805. 
assessments,  804. 
by-law,  804. 

contracting  with  one  of  the  body,  804. 
creating  member  of  corporation,  805. 
declariug  note  due,  805. 
deposit  note,  804. 
increasing  premium,  804. 

Neutral  Property — 
american,  814. 
documented,  814. 
domicile.  814. 
register,  814. 

warranty  unsatisfied,  811,  812,  813,  814. 
warranty  satisfied,  800, 807,  808, 809,  810. 


N. 


New  Trials  — 

cause  for,  815,  816, 817. 

limited  to  questions  of  damage  only,  824. 

no  cause  for,  818, 819, 820, 821,  822. 


NONOCCDPANCY  — 

bar  to  claim,  824, 825, 826. 
no  defense,  827, 828, 829, 830. 

Nonsuit  — 

admits  or  concedes,  830. 
demurrer  to  evidence,  830. 
limitation  of  action,  831. 
no  right  to,  830,  831. 
reasons  for,  not  stated,  830. 

Notice  op  Loss  — 

delay  defeats  action,  835, 836, 837. 

diligence,  839. 

forthwith,  840. 

jury  judges  of  time,  840. 

no  waiver,  8.39. 
_     onus  probandi,  840. 

precedent  condition,  840. 

sufficient  notice,  832,  833. 
■  '\\jfae\y  notice,  833, 834, 835. 
•  to  whoVn  notice  may  be  given,  831, 832L 

Novation  — 
840,  841. 


o. 


"One-third  New  for  Old" — 
deducted  from  repairs,  8'42, 843. 
not  deducted,  843,  844. 

Onus  Probandi  — 

194, 195,  454,  555,  724, 798, 1206, 1246, 124T, 

1304, 13G0, 1361. 
insured,  847, 848, 849, 850, 851. 
insurer,  844, 845, 846, 847. 

Other  Insurance  — 

contract  vitiated  by,  851, 853, 853, 854, 855, 

856, 857, 858,  859^  860,  861, 862. 
jury,  878,  879. 
no  efl'ect  upon  contract,  862,  863, 864,  865, 

860,  867,  868,  809,  870,  871,  872,  873,  874 

875, 876, 877,  878. 

Overloading  — 
879,  880. 


Paid  up  Policy  - 

880,  881. 


15(37 


INDEX  TO  CONTENTS. 


15G8 


Parol  Contracts  to  Insure  — 

Pleading  —  con. 

invalid,  881,  882, 883,  884, 885,  886, 887. 

charter  of  body  corporate,  951. 

valid,  888,  889. 890. 

commissioners,  953. 

conditions  of  policy,  950. 

Particclar  Average  and  Partial  Loss  — 

copy  of  instrument,  957,  961. 

defiuition  of,  889. 

damage  by  water  or  stolen,  961. 

nonpartial  on  cargo,  891. 

dates,  953,  978. 

nonpartial  on  ship.  891. 

declaration,  complaint,  bill   or  petition, 

partial  on  cargo,  891. 

insufficient,  956,  957,  958,  959,  960,  9C1. 

partial  on  ship,  889,  890. 

declaration,   complaint,  bill   or  petition. 

rules  for  adjusting,  891,  893,  893. 

sufficient,  949,  950,  951,  952,  953,  954. 

Partnership  — 

declaration  of  beneficiary,  basis  of   the 

continuing  firm  name,  894. 

contract,  951. 

participation  in  profits,  894. 

delirium  tremens,  964. 

depai'ture,  963,  966. 

Payment  — 

discovery,  955. 

what  is  not  payment,  895, 896, 897, 898. 

double  pleas,  955,  968. 

■what  is  payment,  894,  895. 

'duly  fulfilled  all  conditions,"  951,952,958. 

Payment  of  Money  into  Cotirt  — 

exhibits  annexed  to  bill,  953. 

effect  of,  888, 889. 

evidence,  963,  979. 

failure  to  deny  execution  under  oath,  976. 

Pay.ment  of  Premium. — 

failure  to  repair,  970,  971. 

acknowledgment  of  in  polic.y.gOO,  901,903. 

fallingof  building,  953. 

bankruptcy  of  insurer,  945. 

fraud,  962,  969. 

nonpayment  determines  contract,  929,  930, 

fraudulently,  964. 

931,  933,  933,  934.  935,  936,  937,  938,  939, 

inconsistent  counts,  979. 

940,  941,  942, 943,  944,  945. 

increase  of  risk,  971. 

nonpayment  does  not  a.ffect  contract,  909, 

indorsement,  957, 961. 

910,  911,  912,  913,  914,  915,  916,  917,  918, 

insurable  interest,  953,  956,  957,  960. 

919,  920,  921,  932,  923,  924,  925,  926,  927, 

interest  at  lime  policy  made,  949. 

928,  929. 

invasion,  950. 

to  whom  pajnnent  may  be  made,  909. 

jurisdiction,  978. 

war,  effect  of,  903,  904,"  905,  906,  907,  908. 

master,  officers  and  crew,  958. 

Pilotage  — 

misrepresentation,  963. 

failure  to  take,  defeats  policy,  945, 946,  947. 

motion,  969. 

failure  to  take,  no  defense,  947,  948. 

multifarious,  950.  955. 

pilot's  negligence  no  defense,  948. 

nearest  magistrate,  949. 

negligence,  961,  963. 

Pleading  — 

Till  debit,  964. 

admission  by,  976. 

notice  and  proof  of  loss,  950. 

admissible  under  general  issue,  965. 

"  on  1,000  bushels  of  oats,"  951. 

alienation,  965. 

ere  temis,  978. 

amounting  to  plea  of  general  issue,  976. 

other  insurance,  951,  054,  970,  971. 

answer,  plea,  replication  or  rejoinder,  in. 

overvaluation,  964. 

sufficient,  962,  963,  964,  965,  966,  967, 

oyer,  951. 

968,  969,  970,  971,  973. 

poor  rates,  960. 

answer,    plea,   replication    or    rejoinder, 

premium  note,  971. 

sufficient,  954,  955,  956. 

presumptions,  977. 

application,  657,  659. 

professing  to  answer  whole,  966,  969. 

appointment  of  agent,  953,  958,  959,  963. 

prohibitory  conditions,  949,  950. 

arrest  of  judgment,  961. 

rebuilding,  954. 

assessments,  954,  957,  958. 

reply  unnecessary,  978. 

assignment,  964. 

seaworthiness,  969. 

capital  stock,  950. 

service  of  process,  958. 

christian  name,  960. 

setoff,  954. 

784 


1569 


INDEX  TO  CONTENTS. 


1570 


Pleading  —  con. 

"  sixty  days  after  proof,"  959. 

specially  pleaded,  973,  973,  974, 975. 

surplusage,  977. 

title,  965. 

total  loss  includes  partial,  979. 

traverse,  955,  966,  967,  968,  970,  972,  978. 

uncertaiuty,  961. 

unwritten  agreement,  978. 

videlicet,  978. 

voyage,  961. 

waiver,  951,  963. 

warranties,  960. 

worked  by  day  only,  967. 

written  contract,  978. 

Policy  — 

attaching  of,  980,  981,  983,  983,  984,  985, 

986,  987,  988,  989,  990,  991,  993. 
autliority  to  procure,  980. 
cause  of  loss,  1013,  1013,1014,  1015,1016, 

1017,  1018.  1019,  1030,  1021,  1023,  1033, 

1024,  1025, 1036,  1027,  1028,  1029,  1030, 

1031,1033,1033. 
damages,  1034,  1035,  1036,  1037,  1038. 
interests,  covered  or  not  covered,  991, 993, 

993,  994,  995,  996,  997,  998. 
places,  999,  1000,  1001,  1003,  1003,  1004, 

1005, 1006. 
property,  1006,  1007,  1008, 1009, 1010, 1011. 
revival  of,  1047,  1048. 
termination  of,  1038, 1039, 1040, 1041, 1043, 

1043,  1044,  1045,  1046. 

Port  op  Discharge  — 

1048,  1049,  1050,  10.51. 

Premium  Notes  — 

1051, 1053, 1053, 1054, 1055, 1056, 1057, 1058. 

Preservation  op  Property^ 
1058,  1059,  1060. 

Presumptions  — 
cnrpor.ation,  1060. 
decrees,  1060. 
depositions,  1061. 
intention,  1061. 
Lloyd's  printed  lists,  1061. 
loss  pf  ship,  1063. 
missing  ship,  1000,  1063. 
particular  meanings,  lOGl. 
rejecting  claim,  1061. 
seaworthiness,  1063. 
voyage,  1060. 

Prima  Facie  Case  — 
1063,  1063,  1064,  1065. 

50 


Principal  and  Agent  — 

accejjtance  of  order  to  pay  claim,  1075. 
acting  in  two  capacities,  1077. 
adjustment  of  claim,  1073,  1073,  1077. 
agent  can  not  contract  in  his  own  favor, 

1084. 
agent  for  both  parties,  1088,  1095,  1096. 
agent  of  agent,  or  subageut,  1078,  1079, 

1083,  1083. 
agent  of  insured,  1097. 
agent's  assurances,  1065. 
agent's  clerk,  1079,  1080,  1081. 
agent's  draft  on  principal,  1074. 
agent's  letters,  1074. 
agent's  promise,  1068,  1073. 
agent's  promise  to  renew,  1066,  1067. 
agent's  survey,  1067. 
agreement  to  insure,  1065, 1060, 1067, 1069, 

1077. 
apparent  or  assumed  authority,  1070,  1071, 

1073,  1073,  1074,  1076,  1077,  1078,  1087, 

1089,  1096. 
application  written  by  agent,  1065,  1008, 

1085,  1087. 
appointment  of  appraisers,  1069. 
arbitration,  1077,  1078,  1085. 
assent  to  assignment,  1067,  1083,  1084. 
delivering  policy  after  loss,  1077. 
departing  from  instructions,  1068,,  1070, 

1071. 
dispensing  with  or  striking  out  printed 

conditions,  1069,  1073,  1073,  1074,  1081. 
evidence  of  authority,  1084,  1096. 
extent  of  authority,  1070. 
false  matter   in  application,   1065,   1068, 

1085,  1080,  1087. 
forfeiture,  1075. 
general  agent,  1096. 
guarantee,  1083. 
increase  of  risk,  1075. 
irregular  acts  of  directors,  1070. 
knowledge  of  agent,  1087,  1089. 
lapsed  policy,  1007. 
liability  of  agent,  1092,  1093,  1094. 
limitation  of  authority,  1065,  1085. 
master's  authority,  1095. 
mistake  of  agent,  1071,  1088. 
notice  to  agent,  1074. 
order  to  cancel,  1071. 
other  insurance,  1070,  1077,  1079,  1081. 
payment  of   jiremium,   1068,   1069,  1072, 

1079,  10a5,  1089. 
permission  is  authority,  1067. 
principal  bound  to  afBrm,  1072. 
promissory  note,  1086. 

7S5 


1571 


INDEX  TO  CONTENTS. 


1572 


Principal  and  Agent — con. 
ratificalioii,  1000,  1001. 
removal  of  builtling,  1072. 
■revocation,  1091,  1002. 
secretary's  autliority,  1083. 
ship's  agent,  1094,  1095. 
simple  or  sealed  instruments,  1075,  1076. 
solicitor   of   applications    and    surveyor, 

1078,  1070,  1080,  1085,  1088,  1089,  1090. 
supplied  witli  blank  policies,  1068,  1069. 
to  receive  applications  only,  1078,  1079, 

1086,  1087,  1089. 
transferring  corporate  property,  1070. 
waiver,  1065,  1076. 

Propcts  — 

insured  as  such,  1097. 
insurers  liable  for,  1099,  1100. 
insurers  not  liable  for.  1097,  1008. 

P^ROHtBiTED  Waters  — 

1100,  1101,  1103. 

Proofs  of  Loss  — 

appraisement,  1144. 

authority  to  waive,  1126,  1127,  1146. 

copies  of  other  policies,  1142. 

defects  or  insufficiencies,  1112, 1113,  1114, 

1115,  1116,  1117,  1118,  1119,  1130. 
estoppel,  1138,  1139,  1140. 
evidence,  1141,  1142. 
insurers   not  precluded    from  requiring, 

1110,  1111,  1112. 
insurers  precluded  from  requiring,  1105, 

HOC,  1107,1108,  1109. 
invoices,  booka  and  vouchers,  1142,  1143, 

1144,  1145. 
magistrate's  certificate,  1132,  1133,    1134, 

1135,  1136,  1137,  1138,  1145. 
particular  account,  1137,1128,1120,1130, 

1131,  1145. 
■       sufficient,  1119,  1120,  1131. 

time,1121, 1122, 1123, 1124, 1125, 1126, 1145. 
who  may  make,  1103,  1104,  1105. 

Proximate  Cause  op  I^oss  — 

bad  stowage,  1153. 

careless  use  of  lamp,  1153. 

collision  caused  by  officers'  negligence, 
1154. 

condemned  for  want  of  ship's  register, 
1150. 

c^ocuments  found  on  board,  1117. 

failure  to  repair,  1148,  1149. 

fire  might  have  been  extinguished,  1151. 

fire  produced  by  carrying  aqua  fortis  pro- 
hibited by  congress,  1154. 

786 


Proximate  Cause  of  Loss  —  con. 
gross  carelessness,  1149. 
gross  negligence,  115i. 
imperfect  manifest,  1155. 
inflammable  matter  on  stove,  1148. 
intoxication,  1151. 

jumping  on  omnibus  in  motion,  1148. 
master's  ignorance,  1150. 
master's  imprudence,  1152. 
negligence  and  design,  1157. 
negligence  of   agent  or    servants,    1147, 

1148,  1140,  1150,  1152,  11.53,  1155. 
negligence  of  crew,  1150,  1151,  1153,  1153, 

1154,  11.55. 
negligence  of  insured,  1148,  1149. 
negligence  of  wife,  11.54. 
negligent  loading,  1156. 
projecting  arm  from  car  window,  1147. 
proximate  cause  of  loss,  1156,  1157. 
turpentine  used  to  produce  steam,  1146. 
want  of  ordinarj^  care,  skill,  attention  and 

seamanship,  1151. 
willful  act  of  master  and  crew,  1155,  1156. 


R. 


Rebuiiding  — 

11.58,11.59,1160,1161,1163. 

Referees  — 
1163,  1164. 

Reformation  of  Writing — 
admiralt}',  1179. 
allowed,  1165,  1166,  1167,  1168,  1169,  1170 

1171,  1172,  1173,  1174 
denied,  1175,  1176,  1177,  1178,  1179. 
jurisdiction,  1179. 
onus  probanda,  1180. 

Reinsubance  — 

assignment  of  policy,  1181. 

costs  and  expenses  of  defending,  1183. 

defenses,  1181,  118.>,  1183. 

insurable  interest,  1181. 

interpretation,  1182. 

judgment  against  original  insurer,  1183. 

original  poliC3vll83. 

parol  agreement,  1181. 

payable  pro  rata,  1184,  1185,  1186. 

payment  of  loss,  1184. 

proofs  of  loss,  1183,  1184. 

surrounding  facts,  1182. 

time  policy,  1131. 


1573' 


INDEX  TO  CONTENTS. 


1574 


Removal  op  Cause  — 

completing  removal  of,  1193. 
permiltcii,  1187,  1188,  1189. 
recused,  118U,  1190,  1101,  1192. 

Removal  of  Goods  — 
1193,1193,  1194,  1195. 

Representations  — 

adjoining  lands,  1198. 

armament,  1197. 

immaterial,  1198,  1199,  1200. 

interpretation,  1196,  1198,  1303,  1204. 

irresponsive  answers,  1198,  1199. 

material,  119G,  1197,  1198. 

occupancy,  1196. 

onus  prohandi,  1206. 

rate  of  premium,  1198. 

running  ship,  1197. 

safe  on  a  day  named,  1197. 

sailing,  1197,  1205. 

satisfied,  1300,  1301,  1203,  1303,  1206. 

test  of,  1206. 

title,  1206. 

unsatisfied,  1203. 

watchman,  1196,  1205. 

Repugnant  Stipulations  — 

commencement  and  termination,  1307. 

free  from  average,  1208,  1309. 

gunpowder,  1315,  1216. 

maturity  of  claim,  1308. 

other  insurance,  1310. 

property  insured,  1311,  1312,  1313,  1314, 

1315. 
reinsurance,  1310. 
territorial  limits,  1210. 
warranties,  1207,  1206. 

Rescission  — 

agent  order  to  cancel,  1218,  1319,  1230. 
bankrupt  insurer,  1216. 
credit  given  for  return  premium,  1217. 
fraudulent  contract,  1234. 
.  good  faith,  1334. 
Increasing  premium,  1316. 
notice  by  mail,  1317. 
offer  to  return  premium,  1334,  1235. 
overdue  assessments,  1216,  1217. 
proposal  made  by  Insured,  1318. 
reasons  for,  assigned,  1224. 
refunding  unearned   psemium  after  loss, 

1219.  1223,  1323, 
resolutions  of  directors,  1217, 1233. 
right  to,  1225. 
threatened  danger,  1222,  1233. 


Rescission  —  con- 
unexecuted  agreement,  1321,  1222. 
verbal  notice,  1217. 
waiving  payment  of  return  premium,  1220. 

Res  Judicata  — 

discontinuance,  1335. 

in  name  of  one  who  had  no  right  to  sue, 

1326. 
merits,  1326. 
set  oft;  1225,  1330. 
total  loss,  1335. 
want  of  prosecution,  1826. 

Return  Premiu.m  — 

allowed,  1336,  1227,  1228,  1229,  12.30,  1231. 
denied,  1231,  1332,  1233,  1234,  1235. 


s. 


SAiLrNO  of  Vessel  — 
no  sailing,  1238,  1239. 
representation,  1240. 
sailing,  1236,  1207,  1238. 

Sealed  Instruments  — 
1241. 

Seamen  — 
1341,  1243. 

Seaworthiness  — 

admitted,  12-14,  1346. 

attaching  of  policy,  1246. 

decree  of  court  of  admiralty,  1349. 

floating  dock,  1243. 

implied,  1243,  1243. 

in  port,  1343. 

jury's  finding,  1270. 

missing  ship,  1346. 

not  implied,  1244. 

onus  probaiidi,  1346,  1347. 

pleading,  1270,  1271. 

presumptions,  1346,  1347,  1348,  1349. 

prima  facie,  1348. 

repaying  passage  money,  1249. 

salvage,  1343. 

seaworthy,    1349,  1250,   1251,  1252,   1253, 

1854,  13.55,  1356. 
subsequent   unseaworthiness,  1363,   1264, 

1205,  1266,  1367,  1268,  1209. 
time  policy,  1243,  1344,  1345. 
unseaworthy,  1356,  1357,  1358,  1259,  1200^ 

1261, 13«2,  1363. 

787 


1575 


INDEX  TO  CONTENTS. 


1576 


Sentence  op  Condemnation  — 
conclusive,  1271,  1373,  1373. 
.     Bonconcliisivf,  1373, 1374, 1375, 1276, 1277, 
1278,  1379,  1380,  1381. 

Service  of  Process  ^- 
invalid,  1283. 
substituted,  1281. 
valid  service,  1282. 

Setopp — 

allowed,  1288,  1284,  1285,  1286,  1287. 
denied,  1387,  1388,  1389,  1290,  1291. 
pleading,  1391,  1292. 

"Ship  OR  Ships"  — 
1292,  1393. 

Ship  Owner's  Liability  — 
1293. 

SicivNESs,  Disease,  or  Employment  of  a 
Physician  — 
anthrax,  1308. 
billions,  1305,  1306. 
l)leeding  of  lungs,  1396. 
blood  letting,  1310. 
bronchitis,  1395. 
conjunctitis,  1302. 
consumption,  1295,  1306. 
determination  of  blood,  1310,  1311. 
dyspepsia,  1305. 

employment  of  physician,  1304. 
epilepsy,  1305. 
expectoration,  1306. 
fall,  1304. 
good  health,  1301. 
imbecile,  1307. 
insanity,  1302. 
interpretation,  1303,  1804 
intoxication,  1307. 
irritative  fever,  1308. 
jury's  finding,  1300,  1310. 
leeches,  1306. 
local  disease,  1297. 
Joss  of  speech,  1307. 
materiality,  1294,  1295,  1296,  1297,  1302, 

1303. 
medical  attendance,  1395,  1398, 1299, 1306, 

1307. 
onus  probandi,  1304. 
opium  eater,  1309. 

ordinary  indisposition,  1301,  1302,  1305. 
paralysis,  1394. 
pharjngitis,  1303. 

post  mortem  examination,  1304,  1307. 
preponderance  of  evidence,  1396. 
788 


Sickness,  etc.  —  ccn. 

pulmonary,  1310,  1311. 

pyoemia,  1304. 

relation's  health,  1397. 

refused  by  other  insurers,  1297. 

retention  of  urine  or  faeces,  1305. 

rupture,  1294. 

spitting  of  blood,  1295,  1306,  1308. 

subacute  rheumatism,  1297,  1304,  1305. 

temporary  indisposition,  1300,  1304, 1S05. 

tending  to  shorten  life,  1298. 

tubercles,  1297. 

tumor,  1307,  1308,  1309. 

volunteer  information,  1300. 

Special  Findings  — 
1311,  1312,  1313, 

Stamps  (Revenue)  — 
1313, 1314. 

Statutes  — 

apppointment  ot  agent,  1315,  1816,  1817, 

1318,  1319. 
conflicting,  1320. 
construction,  1320. 
frauds,  1321,  1323. 
limitations,  1320,  1321. 
repealing,  1319. 
void  statutes,  1322. 

Strandinq  — 

no  stranding,  1326,  1327. 
stranding,  1323,  1324,  1325. 

Subrogation  — 

allowed,  1328,  1329,  1330, 1331,  1832,  1333, 

1334. 
denied,  1334,  1335,  1336,  1337,  1338,  1389, 

1340,  1341,  1343,  1343,  1344,  1345,  1346, 

1347,  1348,  1349,  1350,  1351,  1352,  1353, 

1354,  1355. 

Suicide,  or  Death  by  His  Ovtn  Hand  — 
construction,  1361,  1362. 
death  by  his  own  hand,  1359,  1360. 
impelled  by  insanity,  1355, 1356, 1357, 1358 

1350. 
onus  probandi,  1360,  1361. 
presumptions,  1360. 


T. 


Taxation — 

1363,  1363,  1364. 

Tender  — 
1364. 


1577 


INDEX  TO  CONTENTS. 


157S 


Territorial  Limits  — 
1365, 1366, 1367,  1868. 

Theft  aiid  Robbert  — 
1368,  1369,  1370,  1371. 

Time  — 

compulmg,  1371,  1372,  1373. 

Title  — 

bequest,  1379. 

change  of  title  or  interest,  1384, 1385, 1386, 

1387,  1388,  1389,  1390. 
chattel  mortgage,  1384. 
contract   to   purchase,   1376,   1377,    1379, 

1382,  1384. 
dissolution  of  firm,  1388,  1389. 
equitable  merely,  1380. 
equity  of  redemption  outstanding,  1374. 
evidence,  1380. 
fee  simple,  1374. 
his  buildings,  1378. 
his  own,  1374. 
husband,  1379. 
judgment  record,  1380. 
knowledge  of  agent,  1375. 
leasehold  interest,  1374. 
lien  for  purchase  money,  1381. 
mortgage,  1382. 
mortgage  in  fee,  1384. 
must  be  disclosed,  1373, 1374. 
mutual  insurers,  1383. 
not  warranted,  1377, 1378. 
oral  agreement  to  purchase,  1381. 
"  owner,"    or    "  owned    and    occupied," 

1378. 
pleading,  1390. 
possession,  1380. 
revival  of  policy,  1378. 
sale  by  one  to  another  co-partner,  1390. 
tax  sale,  1.383. 

tenant  by  the  courtesy,  1383. 
unneccwsary  to  disclose,  1.374. 
voidable  conveyance,  1380. 
•warranted,  1375,  1376. 
warranty  satisfied,  1378,  1379,  1380,  1381. 
warranty    unsatisfied,    1381,    1382,    1383, 

1384. 

To  Recover  Monet  Back  — 

insufficient  to  maintain  the  action,  1393, 

1394,  1395. 
pleading,  1391. 

sufficient  to  maintain   the  action,    1.391, 
1392,  1393. 


Total  Loss  (Absolute  or  Constructive)  — 
capture,  seizure,  arrest,  detention  or  retar- 
dation, 1402, 1403,  1404.  1405,  1406, 1407, 
1408,  1409,  1410,  1411,  1412,  1413,  1414, 
1434,  1435,  1426,  1437,  1428,  1429,  1430, 

1431,  1433. 

damage,  difliculty  or  inability  to  procuie 

repairs,  1434, 1435, 1436, 1437, 1438, 1430, 

1440,  1441,  1443,  1443,  1444. 
Master's  sale,  1396,  1397,  1398,  1399,  1400, 

1402,  1418,  1419,  1420,  1421,  1422,  1423, 

1434. 
missing  ship,  1417,  1418, 1433,  1434. 
perils  of  the  sea,  1414,  1415,  1416,  1417, 

1432,  1433. 

Tkavelino  by  Private  or  Public  Convey- 
ance— 
1445. 

XJ. 

Ultra  Vires  — 
1446,  1447. 

■Until  Safely  Moored — 
1448, 1449. 

Usage  asd  Custom  — 

1448,  1449,  1450,  1451,  1452,  1453,  1454. 

Use  and  Occupation  (Prohibited)  — 
altering  building,  1457. 
barns,  1468. 
carpenter  shop,  145C. 
currying,  1457. 

changeof  occupants,  or  tenants,  1457, 1459. 
change  of  use,  1458. 
employment  of  carpenter,  1458. 
erecting  adjacent  buildings,  1469. 
failure  to  procure  license,  1455. 
grocery,  1456. 
hat  bleaching,  1457. 
hay  and  straw,  1459. 
hazardous,  1455. 

incidental  to  business,  1459,  1460. 
joiner's  shop,  1456. 
liquor  store,  1455. 
manufactory,  1455. 
putting    together   and  finishing   chairs, 

1454.  1455. 
repairs,  1458. 
stable,  1455  1456. 
temporary  use,  1458. 


A 


789 


K 


1579 


INDEX  TO  CONTENTS. 


15S 


V. 


■Vaijd  and  Void  Policies  — 
valid,  1460,  1461. 
void,  1461,  1462, 1463. 

Valued  Policy — 

conclusive  valuation,  1467, 1468, 1469, 1470, 

1471,  1473,  1473,  1474,  1475,  1476,  1477. 
not  valued,  1465, 1466. 
valuation  opened,  1477,  1478,  1479,  1480. 
valued,  1463,  1464,  1465.  ' 

Verdict — 

affidavits  of  jurors,  1481. 
amendments,  1481. 
cured  by,  1481,  1483. 
invalid,  1481. 
sufficient  finding,  1480. 1481. 

Void  in  Part,  Valid  m  Part — 
1483, 1484. 

Void  in  Part,  Void  in  Toto — 
667,  1485,  1486. 

Voyage  Insured — 

not  the  voyage  insured,  1488, 1489. 
onus  probandi,  1489. 
sailing  on  the,  1487, 1488. 


w. 


Waiver  — 

acceptance  of  premium,  1492. 

authority,  1493. 

by-law,  1490. 

evidence  of,  1493. 

failure  of  directors  to  approve  risk,  1490. 

incumbrance,  1491. 

magistrate's  certificate,  1493. 

parol  waiver  prohibited  by  printed  con- 
ditions, 1489,  1490. 

promise  to  pay  claim,  1489. 

unanswered  questions  set  out  in  applica- 
tion, 1491,  1493. 

use  of  premises  by  former  brought  home 
to  insured,  1493. 

Warranted  Free  From  Average — 
charges  in  general  average,  1500. 
change  of  flavor,  1405,  1496. 
790 


Warranted  Free  From  Average  —  con. 
corn,  1494. 
dampness,  1495. 
dockage,  1498. 
evidence,  1500. 
fruit,  1494. 
furs,  1495. 
freight,  1498. 
liides,  1495. 

interpretation,  1499,  1500,  1504,  1512. 
leakage,  1495. 
malt,  1494. 

one-third  new  for  old,  1498. 
part  saved,  1500,  1501,  1503,  1503,  1504, 

1505,  1506,  1507,  1508,  1509,  1510. 
perishable  in  their  own  nature,  1494. 
pink  root,  1495. 
respondentia,  1497. 
rice,  1494. 
sacrifice,  1503. 

several  losses  on  one  voyage,  1496. 
ship,  1496. 
teas,  1496. 

"  total  loss  only,"  1497, 1499. 
valuation,  1498. 

Warranties  — 

ashes,  1536,  1527. 

books  of  account,  1534. 

buckets  of  water,  1519. 

cargo,  1519. 

construction  of  buildings,  1519,  1536. 

distinction   between    representations  and 

warranties,  1528. 
master  and  crew.,, 1513. 
national  character,  1515,  1536,  1537. 
pump,  1516,  1517,  1536. 
recitals,  1539. 

ship's  armament,  1513,  1536, 1527. 
ship's  name,  1519. 
smoking,  1536. 
tests,  1538. 

trade  and  employment,  1514,  1519. 
utisatisfied  warranties,  1537. 
use  and  occupation,  1515,  1516,  1530 
vocation,  1534. 
volunteer  statements,  153.5. 
warranties  satisfied,  1536. 
watchman,  1517,  1518. 
working  of  mill,  1532,  153.3,  1.524. 
water  sapplj',  1516,  1517,  1518. 

Wife's  Policy — 

assignment  of,  171,  1.5.^?,  1533,  1534. 
bankruptcy  of  liusband,  153]. 


1581 


INDEX  TO  CONTENTS. 


1582 


Wipe's  Policy  — core. 

Wipe's  Policy  — con. 

creditors  of  Inisband,  1530. 

insolvent  debtor,  1530. 

descent,  401,  1533. 

marriage  must  be  proved,  1583. 

divorce,  449. 

nuncupative  will,  1530. 

liusbaiui  survives,  1539,  1530. 

payable  to  her  husband  or  his  licirs,  1531. 

io  case  of  her  death,  payable 

to  her  chil- 

payable  to  wife's  heirs,  1531. 

dren,  1532. 

surrender  by  husband,  1530. 

71(1 


uc 


SOUTHtW.W,' 


D    000  971522    8 


^  ^ 


^ 


